IN THE 

TWELFTH COURT OF APPEALS 

OF TYLER, TEXAS 

Case No. 12-15-00040-CR

Case No. 12-15-00041-CR

MARCUS DONEL POLLEY, 

 Appellant, 

VS. 

THE STATE OF TEXAS, 

 Appellee 

BRIEF FOR APPELLANT 

 _Georgia B. Kimmey___ 

Georgia B. Kimmey 

Attorney for Appellant 

TX Bar No. 24049703 

1 Columbia Ct. 

Lufkin, TX 75901 

936 676-3750

 APPELLANT DOES NOT REQUEST ORAL ARGUMENTS 

ACCEPTED

12-15-00041-CR

TWELFTH COURT OF APPEALS

TYLER, TEXAS

4/20/2015 8:43:29 PM

CATHY LUSK

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 4/20/2015 8:43:29 PM CATHY S. LUSK Clerk
2

ATTORNEY FOR THE STATE AT JURY TRIAL AND APPEAL

PAIGE PATILLO-BROWN, Nacogdoches Asst. County Attorney

TX State Bar No. 24048716

Nacogdoches County Attorney’s Office

101 W. Main St., rm. 230

Nacogdoches, Texas 75961

936 560-7789

ATTORNEY FOR DEFENDANT AT JURY TRIAL 

LEE WESTMORELAND

TX State Bar No. 24001113

416 Sunset Ave.

Nacogdoches, Texas 75961

936 250-0776

ATTORNEY FOR DEFENDANT ON APPEAL

GEORGIA BROWN KIMMEY

TX State Bar No. 24049703

1 Columbia Ct.

Lufkin, Texas 75901

936 676-3750

CERTIFICATE OF SERVICE

The undersigned attorney certifies that a true and correct copy of the foregoing Appellant

Brief for Marcus Donel Polley was delivered via email to Paige Patillo-Brown, Nacogdoches 

Asst. County Attorney at ppatillo@nacogdoches.county.tx.us on April 20 2015.

__Georgia B. Kimmey______

Georgia B. Kimmey
3

TABLE OF CONTENTS

 Page No.

Authorities Cited . . . . . . . . . . . . . . . 5

Statement of the Case. . . . . . . . . . . . 6

Issues Presented . . . . . . . . . . . . . . . . 8

Statement of Facts . . . . . . . . . . . . . . 8

Summary of the Argument . . . . . . . 9

Argument:

I. APPELLANT SUFFERED FROM INEFFECTIVE

ASSISTANCE OF COUNSEL 

a. Standard of Review – Strickland Two Prong Test 12

b. No Objection to Blood Search Warrant 13

1. Blood Search Warrant Necessary for Blood Draw

but Not Produced at Trial

2. Faxed Blood Search Warrant Does Not Comply with 16

CCP Art. 18.01

c. No Objection to State’s Claim Appellant had “Care, Custody 17

and Control” of Marijuana

1. Appellant’s Accident Left Him Confused and Unresponsive

2. No Explanation Offered by Defense as to Origin of 

Marijuana 19
4

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Certificate of Word Count . . . . . . . . . . 20

Appendices . . . . . . . . . . . . . . . . . . . . . .

A-1 TEX. CRIM. CODE PROC. Art. 18.01 21 

A-2 TEX. TRANSP. CODE Chap. 724 26

A-3 TEX. HEALTH & SAFETY CODE § 481.121 31
5

INDEX OF AUTHORITIES

Cases: Page No.

Aliff v. State, 627 S.W.2d 166 (Tex. Crim. App. 1982) . . . . . . . . . . . . . . . . . . . 13

Cooper v. State, 928 S.W.2d 482 (Tex. App. – Tyler, 2003, no pet.) . . . . . . . . .13

Douds v. State, No. 14012-00642, 14th Court of Appeals, 10/15/2013 . . . . . . . .14

Fienen v. State, 390 S.W.3d 328 (Tex. Crim. App. 2012) . . . . . . . . . . . . . . . . . 13

Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . 12

Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . .20

McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . 12

Meekins v. State, 340 S.W.3d 454 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . 13

Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed. 2d 696 (2013) . . . . . . . . . . . . . 14

Schmerber v. California, 384 U.S. 757 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) 10, 13

State v. Baker, No. 12-12-00092, 12th Court of Appeals, 10/16/2013 . . . . . . . . . 14

State v. Mosely 348 S.W.3d 435 (Tex. App. – Austin, 2011, pet. ref’d) . . . . . . . .14

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984) 12, 20

STATUTES

TEX. CRIM. CODE PROC. Art. 18.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,11,17

TEX. TRANSP. CODE Chap. 724 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

TEX. HEALTH & SAFETY CODE § 481.121(a) . . . . . . . . . . . . . . . . . . . . . . . . 19
6

STATEMENT OF THE CASE

This appeal is brought by Appellant, Marcus Donel Polley, for the decision 

rendered at his jury trial. October 10, 2013 the Nacogdoches Police Dept. received 

a 911 call from a friend of Appellant, Mr. Charles Curl, who described Appellant

as driving into his front yard while he was mowing the grass, getting out of his car 

and pointing a gun at Mr. Curl. At the time Mr. Curl called 911, he actually 

believed Appellant was holding a pistol, later changing his testimony at trial after 

he realized no weapon was involved. Appellant then backed out, damaging a tree 

upon exit. 

Responding to the 911 distress call, police discovered Appellant sitting in 

his vehicle, several streets away, again, in a yard, having run over a chain link 

fence bordering the side of the property. Mr. Polley exited the vehicle after local 

law enforcement arrived on the scene, but according to State’s video exhibit #2, 

did not appear excited or upset. Instead, he could not explain details of the 

accident. He confirmed and then denied driving the vehicle, asked the police what 

happened, refused to take the sobriety field tests, and refused medical treatment 

offered by EMS personnel who arrived via ambulance within a few minutes.

Officers at the scene decided his behavior warranted an arrest but before 

impounding his vehicle, conducted a thorough search. Although a pistol was never 

found, they uncovered a baggie of marijuana on the floor of the back seat. 
7

Appellant denied knowing it was there. He was read his Miranda rights in the 

police car. The Officers drove Mr. Polley to the Nacogdoches police station where 

they testified they obtained a Blood Search Warrant, and subsequently drove 

Appellant to the hospital for a blood draw which resulted in a positive finding for 

PCP when tested at the Texas DPS Crime laboratory in Austin, Texas. 

Appellant was charged with DWI and Possession of Marijuana, both 

Misdemeanor Bs, in Judge Sinz’ County Court-at-Law in Nacogdoches, Texas. At 

his first docket call, Appellant entered a plea of Not Guilty, requested a jury trial, 

and an attorney. Judge Sinz found him indigent. Lee Westmoreland was 

appointed as counsel June 11, 2014. The jury found Appellant guilty of both 

charges November 13, 2014. Punishment Phase II was set for December 15, 2014 

before Judge Sinz. Punishment consisted of $297 court costs for each conviction, 

plus 90 days in jail for each, to run concurrent. The following day, December 16, a 

bond hearing was held at which both Appellant’s Counsel and the State agreed on 

$7,000. for each conviction. Judge Sinz approved the amount.

After Punishment Phase, Appellant voiced desire to appeal the jury trial 

verdict. Counsel submitted his Motion to Withdraw December 15, 2014. Notice 

of appeal was perfected the same day, December 15, 2014. Judge Sinz appointed 

attorney for appeal on December 22, 2014. 
8

ISSUES PRESENTED

1. Did Appellant suffer from ineffective assistance of counsel when his 

attorney failed to require the State to produce the Blood Search Warrant, or 

object to the manner by which officers testified it was obtained?

2. Did Appellant suffer from ineffective assistance of counsel when his 

attorney failed to argue that Appellant did not know marijuana was in his 

back seat, or that he purposefully tossed there?

STATEMENT OF FACTS

Officer Seymor was dispatched to the rental property of Charles Curl and 

Vanessa Ross that sits on an acre of land. In their statements, unnoticed by them, 

Appellant drove into the yard where Mr. Curl was mowing, then surprised him by 

pointing what looked to be a black pistol, making a motion that simulated shooting 

him, and hopping back into his Nissan Altima, bumping a tree as he backed out 

onto the street. (R.R. V.1., Pgs. 32-35) Mr. Curl called 911 in a panic because he 

thought Appellant was carrying a weapon, and threatening people. (R.R. V.1, Pg. 

28, Ls. 22-25)

Meanwhile, Appellant drove to Ritchie St. where he drove into a private 

residence’s yard, plowing over a chain link fence with his vehicle. When Sgt. 

Keith Hawkins was dispatched to the accident scene, he discovered Mr. Polley 
9

sitting in his car, dumbfounded. (R.R. V.1, Pgs. 46-47, Ls. 24-25, 1-5) Upon

questioning as to the cause of the accident, the Officer found Mr. Polley to be 

disoriented, conflicting in his statements and generally confused. Suspecting 

Appellant under the influence, he not only called for backup, but an EMS 

ambulance, which was dispatched to the scene. Appellant refused medical 

treatment as well as to participate in field sobriety tests, or a breath test. At that 

point, he was placed into custody. As the officers searched his vehicle prior to 

impoundment, a baggie of marijuana was discovered in the back seat. Mr. Polley 

denied any knowledge of the marijuana. (State’s exhibit #2 video)

SUMMARY OF THE ARGUMENT

Appellant’s lack of effective assistance of counsel left him without a defense 

and as such, ensured a guilty verdict for both charges. Because he appeared 

disoriented when local police questioned him about the car accident, refused the 

officer’s request to take the field sobriety tests, refused medical treatment, and 

refused to take a breath test at the scene, law enforcement assumed Appellant was 

under the influence of either alcohol or an illegal substance. One officer testified 

that Appellant’s eyes were not focusing correctly and his breath had a chemical 

smell. Based on that hunch, Appellant was placed in handcuffs and taken to a local 

hospital where blood was drawn. The Blood Draw Search Warrant is the single 

piece of evidence that is crucial for the State’s argument, because it’s a legal 
10

requirement for someone who refuses to submit to a blood draw voluntarily absent 

exigent, emergency circumstances. Schmerber v. California, 384 U.S. 757, 770-

771, 86 S. Ct. 1826, 1836, 16 L.Ed. 2d 908 (1966). (R.R. V.1, Pg. 55, Ls. 2-3) 

No Blood Search Warrant was admitted into evidence by the State at trial, nor was 

any objection made to the State’s failure to produce one. The blood test results 

were the definitive proof that Appellant had traces of PCP in his system. Had there 

been no blood test, the State’s very foundation would have failed; with a high 

likelihood of different outcome by the jury. Without the Blood Search Warrant in 

evidence, probable cause stated in the officer’s affidavit is unknown. In the event 

a Blood Search Warrant was obtained, the method by which both officers testified 

it was obtained fails to satisfy statutory criteria in the TEX. CODE CRIM. PROC.

Art. 18.01 (b)(f) and (g) because they both described “going to the police station, 

typing it up, and faxing it to the Judge,” clearly in violation of the affidavit 

requirement.

Argument for Appellant with regard to the Possession of Marijuana charge is 

directed to the highly speculative nature of the State’s case in light of Appellant’s 

documented behavior at the scene immediately after the automobile accident. The 

State’s theory asserts that Appellant possessed the marijuana, but threw it in the 

back of the vehicle in order to hide it from the police. Once more, Appellant’s 

counsel fatally fails to confront or protest their speculation. “Care, Custody and 
11

Control” are argued by the State. What is absent from Appellant’s defense is any 

argument preceding the State’s position with regard to “knowingly or 

intentionally.” First the State’s witnesses claim that Appellant is not able to think 

clearly because he is under the influence of PCP; “lethargic and unresponsive” are 

used to describe Mr. Polley numerous times throughout the trial. In fact, the 

officers were so concerned over Appellant’s disoriented demeanor; EMS was 

called to the scene. (R.R. V.1, Pg. 46, Ls. 11-17) (R.R. V.1, Pg. 106, Ls. 6-17)

Conversely, the State also argues that Appellant was making a calculated move,

sneakily tossing the marijuana in the back seat. (R.R. V1, Pg. 200, Ls. 9-12)

Cutting through the fog, one can see that these arguments directly contradict each 

other, and as such, only one can be true. (R.R. V.1, Pg. 73, Ls. 10-16)

Appellant found himself in front of a jury with no defense from his 

appointed counsel, and as such, was denied the very thing he requested in June, 

2014, the assistance of an attorney. At the minimum, if a Blood Search Warrant 

was obtained, no objection was made by defense counsel over testimony that the 

document was faxed to Judge Sinz from the police station and he sent it back. 

TEX. CODE CRIM.. PROC Art. 18.01 clearly states that the officer requesting the 

warrant must make an affidavit before the Judge who then signs an oath that he has 

been presented with qualifying probable cause evidence from the presenting 

officer. Further, the State argues that Mr. Polley was so lethargic that he was 
12

surely under the influence of some illegal substance, yet maintained the presence 

of mind to try to hide a baggie of marijuana in the back of his vehicle. The 

contradictory nature of this argument clearly means that only one position can be 

the truth. It is for these reasons Appellant prays that the 12th Court of Appeals 

remand these cases back to the lower court for a new trial.

ARGUMENT

APPELLANT SUFFERED FROM INEFFECTIVE ASSISTANCE OF 

COUNSEL

A. Standard of Review

Claims of ineffective assistance of counsel are evaluated under

the two-step analysis articulated in Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984). The first

step requires the appellant to demonstrate that trial’s counsel’s

representation fell below an objective standard of 

reasonableness under prevailing norms. See Strickland, 466 

U.S. at 688, 104 S.Ct. at 2065. To satisfy this step, the 

appellant must identify the acts or omissions of counsel alleged 

to be ineffective assistance and affirmatively prove that they 

fell below the professional norm of reasonableness. See 

McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 

1996). The reviewing court will not find ineffectiveness by 

isolating any portion of trial counsel’s representation, but will 

judge the claim based on the totality of the representation. See 

Strickland, 466 U.S. at 695, 104 S.Ct. at 2069.

To satisfy the Strickland standard, the appellant is also required 

to show prejudice from the deficient performance of his 

attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. 

Crim. App. 1999). To establish prejudice, an appellant must 

prove but for counsel’s deficient performance, the result of the 

proceeding would have been different. See Strickland, 466 
13

U.S. at 694, 104 S.Ct. at 2068. (Quoting from Cooper v. State, 

928 S.W.2d 482, (Tex. App. – Tyler, 2003, no pet.))

B. NO OBJECTION TO BLOOD SEARCH WARRANT

1. Blood Search Warrant Necessary for Blood Draw But 

Not Produced at Trial

Initially, in order to determine whether a valid Blood Search Warrant was 

even necessary, the totality of the circumstances must be examined because the 

taking of a blood sample is a search and seizure under both the federal and Texas

constitutions. Aliff v. State, 627 S.W.2d 166, 169 (Tex. Crim. App. 1982). 

Naturally the first step is to try to get the driver’s consent to a blood test. This 

must be attempted without psychological pressures brought to bear by law 

enforcement. It must be free and voluntary. Fienen v. State, 390 S.W.3d 328, 332 

(Tex. Crim. App. 2012) (citing Meekins v. State, 340 S.W.3d 454, 458-59 (Tex. 

Crim. App. 2011)). When this is not possible, there are certain circumstances 

where a blood sample taken without a warrant is not unreasonable search and 

seizure and therefore, does not violate any constitutional guarantees. Schmerber v. 

California, 384 U.S. 757, 770-771, 86 S.Ct. 1826, 1836, 16 L.Ed. 2d 908 (1966). 

The Texas Transportation Code also contains statutory requirements that can 

apply when a person is arrested for an intoxication related offense while operating 

a motor vehicle. See TEX. TRANSP. CODE Chap. 724.011-013. Those statutes 
14

apply when a person, other than the operator, is killed, or seriously injured and/or 

taken to the hospital, as result of a motor vehicle accident and has refused to take a 

breath or blood test. Under those limited conditions, a warrantless blood draw is 

legal. Although Appellant refused to take the field sobriety tests, breath test, and 

voluntarily submit to a blood draw, no one else was killed or seriously injured. 

However, even a warrantless blood draw under Chap. 724 is legal only if the arrest 

is supported by probable cause. State v. Baker, No. 12-12-00092, 12th Court of 

Appeals, 10/13/2013 (citing State v. Mosely, 348 S.W.3d 435, 442 (Tex. App. –

Austin 2011, pet. ref’d)).

Exigent, emergency situations may also spark the exceptions where the 

Blood Search Warrant is not required. For the most part, Texas courts have upheld 

this approach when alcohol is present at the scene, officers unmistakably smelled it 

on the driver, and the delay involved securing the warrant itself would result in the 

alcohol level diminishing significantly, rendering the test useless. Douds v. State,

No. 14-12-00642-CR, 14th Court of Appeals, 10/15/2013. However, the U.S. 

Supreme Court held that a blood draw was so personal, so evasive, that exceptions 

to a valid Search Warrant should be rare. Even the fact that alcohol rapidly 

dissipates from the bloodstream does not create a per se exigent circumstance. 

Instead, the court must examine the totality of the circumstances. Missouri v. 

McNeely, 133 S.Ct. 1552, 1562, L.Ed. 2d 696 (2013).
15

In the situation at bar, probable cause was required in order for officers to 

secure a Blood Search Warrant. At trial, testimony was offered that despite 

Appellant’s refusal to participate in the field sobriety tests, Sgt. Keith Hawkins 

believed Appellant’s eyes exhibited the resting nystagmus sign of intoxication, 

although he admitted he was observing Appellant’s eyes from a position standing 

behind Corporal Patterson and never administered the actual test for it. (R.R. V.1, 

Pg. 51, Ls. 15-19). However, the actual probable cause cited in the Blood Search 

Warrant affidavit was never admitted into evidence. Sgt. Hawkins testified as to 

what he remembered from the accident scene thirteen months later at trial. 

Further, there was no alcohol found in the vehicle, nor was alcohol detected 

on Appellant’s breath from any of the officers. What they did find was marijuana 

in the back of the vehicle. Appellant was the only person in the car. Testimony 

from various law enforcement on the scene cooberated the finding that Appellant 

did not smell like marijuana, and there were no signs that any had been smoked in 

the vehicle. But what was apparent to Corporal Patterson was a chemical odor that

emitted from Appellant’s breath. Patterson believed he smelled PCP. 

PCP is an illegal substance that can manifest itself through a large spectrum 

of various behaviors; different with each person, making it extremely difficult to 

pinpoint definitively without a blood test.
16

When people are under the influence of PCP, several

different things can happen. They can have 

hallucinations. They can become very violent. They 

don’t feel pain. Their strength is abnormally heightened. 

They can become violent and hurt people and hurt 

officers.

Do they always act the same?

No they don’t. All different. I’ve seen similar things 

happen with people on PCP but you can never tell one 

from another. Sometimes they may be calm. Sometimes 

they may just be lethargic and sluggish. . .

It affects people different ways. I’ve seen people 

dancing naked in the street and I’ve seen some who are 

just sluggish, slow, kind of confused.

(R.R. V.1, Pg. 85, Ls. 4-23)

Because Appellant’s counsel did not challenge the Blood Search Warrant 

absence it is speculative to determine whether probable cause cited in the request 

was sufficient. However, because Sgt. Hawkins and Corp. Patterson suspected 

PCP, which is not able to be confirmed with absolute certainty, a Blood Search 

Warrant was the proper legal route to take. Counsel for Appellant should have 

insisted on its presentation for examination at trial.

2. Faxed Blood Search Warrant Does Not Comply with CCP Art. 18.01

 What is not speculative was the manner in which the Blood Search Warrant 

was secured from Judge Sinz. Testimony abounds and State’s exhibit #2 confirms 

that law enforcement drove to the police station to type up the warrant, and then 
17

subsequently to the hospital for the blood draw. They did not physically present 

the warrant to the Judge in person. Testimony from Corporal Patterson indicated 

that it was faxed and returned by the same method. The record is also silent as to 

any telephone conversation taking place between the officers and the Judge for him 

to confirm the information stated or identity of the person making the affidavit.

A blood search warrant is something we type up and send 

to the Judge to actually get a warrant to take blood even 

without consent. (R.R. V.1, Pg. 89, Ls. 1-3)

From here (explaining video) Mr. Polley is transported to 

the police dept. where I fill out the search warrant, get 

that filled out, fax it to the Judge. The Judge faxes it. 

Back we go to the hospital. We draw the blood and then 

we go to the jail. (R.R. V.1, Pg. 110, Ls. 15-19)

There is nothing in the record to support an objection to this procedure despite the 

fact that it is in violation of the TEX. CODE CRIM. PROC. Art. 18.01 (c)(f) and 

(g) because there is no “sworn affidavit” before a Judge. Without a valid Blood 

Search Warrant confirming PCP in Appellant’s system, a jury could have come to 

a very different verdict. Hence, Appellant’s counsel failed to provide an effective 

defense. But for his counsel’s deficiencies, Appellant may have been acquitted.

C. NO OJECTION TO STATE’S CLAIM THAT APPELLANT HAD 

“CARE, CUSTODY AND CONTROL” OF MARIJUANA

1. Appellant’s Accident Left Him Confused and Unresponsive
18

The State’s theory of the marijuana discovered in Mr. Polley’s vehicle is that he 

purposefully threw it behind the passenger’s seat to hide it from the police after he 

crashed into the fence. (R.R. V.1, Pg. 105, Ls. 20-25) The problem with this 

theory is evident from the video itself, State’s exhibit #2. Mr. Polley wasn’t in 

panic mode when the police approached him sitting in his Nissan Altima. He was 

confused and lethargic by testimonies offered by State’s witnesses.

State: In any event, Mr. Polley remained lethargic for hours?

Sgt. Hawkins: Yes.

(R.R. V.1, Pg. 73, Ls. 10-11)

Corp. Patterson: . . . And I asked him what happened and he seemed 

confused and he looked at the car like he was curious

about what happened. Then at one point he changes 

his answer and said he was not driving.

His demeanor was kind of sluggish, kind of confused.

That’s how I would describe him.

This is not normal behavior. Most people can answer

simple questions. Most people aren’t confused about

how they crashed into a fence.

(R.R. V.1, Pgs. 81, 90, 100, Ls. 14-17, 4-5, 9-11)

Despite repeated testimony from each officer that Mr. Polley was confused 

about the circumstances surrounding his accident, contradicted his recollection of 

the events, slow and sluggish in responding, the solitary defense presented had 

nothing to do with countering the State’s arguments for possession, or theory of 
19

Appellant’s attempt at deception. Counsel for the defense failed to refute the 

knowledge and intent components of his charge after the State’s own witnesses 

testified repeatedly to Mr. Polley’s dubious mental state. TEX. HEALTH & 

SAFETY CODE § 481.121 (a) Instead, his argument clearly missed the mark. 

During cross-examination, he asserted that it was Mr. Polley’s protected 

constitutional right not to respond.

2. No Explanation Offered by Defense as to Origin of Marijuana

Not only was Appellant unresponsive and sluggish, but there was no 

indication he had recently smoked marijuana nor were any ashes from burnt 

marijuana found in Appellant’s vehicle. It was the smell of PCP law enforcement 

testified to on Mr. Polley, not marijuana. (R.R. V.1, Pg. 86, Ls. 18-22) Although 

the State concocted a theory consisting of Appellant using the marijuana combined 

with PCP, to create “Wet.” (R.R. V.1, Pg. 74, 94 Ls. 20-25, 11-15) No PCP was 

found in the car or on Appellant’s person. Appellant’s counsel fell below the 

reasonable professional standard by not offering any alternate explanation of who 

the marijuana belonged to, why or when it was left in the vehicle, possible back 

seat riders who had ridden recently, or other drivers, etc. No questions as to 

whether the bag of marijuana was tested for fingerprints. Nothing. 
20

PRAYER FOR RELIEF

Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) states that 

the starting point is to presume counsel was effective. In this trial multiple 

defenses were left at the table. Arguments of such a material nature that the entire 

course of the trial may have reversed, ending with an acquittal for Appellant. 

While it is the Defendant’s constitutional right not to testify at his own trial, it is 

also his constitutional right to be appointed effective assistance of counsel. If 

counsel fails to provide any assistance, Appellant is clearly harmed. The record 

confirms that the two prong Strickland test has been satisfied. “No defense” falls 

below a reasonable standard for assistance of counsel. Failing to object to 

statutory violations in obtaining the Blood Search Warrant from the officer that 

secured it, is ineffective at the very least. It is for these reasons, that Appellant 

prays the Court remand his cases back to the trial court for further proceedings.

CERTIFICATE OF COMPLIANCE – WORD COUNT

Tex. R. App. P. 9.4(1)(3)

I hereby certify that this original brief by Appellant was created using Microsoft Word, 

and according to their Word Count feature the brief, including Cover page, List of the 

Parties, Table of Contents, and Index of Authorities, is 4,456 words.

_____Georgia B. Kimmey_____
21

APPENDIX A-1

TEXAS CODE OF CRIMINAL PROCEDURE Art. 18.01
22

CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

CHAPTER 18. SEARCH WARRANTS

Art. 18.01. SEARCH WARRANT. (a) A "search warrant" is a 

written order, issued by a magistrate and directed to a peace 

officer, commanding him to search for any property or thing and 

to seize the same and bring it before such magistrate or 

commanding him to search for and photograph a child and to 

deliver to the magistrate any of the film exposed pursuant to 

the order.

(b) No search warrant shall issue for any purpose in this 

state unless sufficient facts are first presented to satisfy the 

issuing magistrate that probable cause does in fact exist for 

its issuance. A sworn affidavit setting forth substantial facts 

establishing probable cause shall be filed in every instance in 

which a search warrant is requested. Except as provided by 

Article 18.011, the affidavit is public information if executed, 

and the magistrate's clerk shall make a copy of the affidavit 

available for public inspection in the clerk's office during 

normal business hours.

(c) A search warrant may not be issued under Article 

18.02(10) unless the sworn affidavit required by Subsection (b) 

sets forth sufficient facts to establish probable cause: (1) 

that a specific offense has been committed, (2) that the 

specifically described property or items that are to be searched 

for or seized constitute evidence of that offense or evidence 

that a particular person committed that offense, and (3) that 

the property or items constituting evidence to be searched for 

or seized are located at or on the particular person, place, or 

thing to be searched. Except as provided by Subsections (d), 

(i), and (j), only a judge of a municipal court of record or a 

county court who is an attorney licensed by the State of Texas, 

a statutory county court judge, a district court judge, a judge 

of the Court of Criminal Appeals, including the presiding judge, 
23

a justice of the Supreme Court of Texas, including the chief 

justice, or a magistrate with jurisdiction over criminal cases 

serving a district court may issue warrants under Article 

18.02(10).

(d) Only the specifically described property or items set 

forth in a search warrant issued under Subdivision (10) of 

Article 18.02 of this code or property, items or contraband 

enumerated in Subdivisions (1) through (9) or in Subdivision 

(12) of Article 18.02 of this code may be seized. A subsequent 

search warrant may be issued pursuant to Subdivision (10) of 

Article 18.02 of this code to search the same person, place, or 

thing subjected to a prior search under Subdivision (10) of 

Article 18.02 of this code only if the subsequent search warrant 

is issued by a judge of a district court, a court of appeals, 

the court of criminal appeals, or the supreme court.

(e) A search warrant may not be issued under Subdivision 

(10) of Article 18.02 of this code to search for and seize 

property or items that are not described in Subdivisions (1) 

through (9) of that article and that are located in an office of 

a newspaper, news magazine, television station, or radio 

station, and in no event may property or items not described in 

Subdivisions (1) through (9) of that article be legally seized 

in any search pursuant to a search warrant of an office of a 

newspaper, news magazine, television station, or radio station.

(f) A search warrant may not be issued pursuant to Article 

18.021 of this code unless the sworn affidavit required by 

Subsection (b) of this article sets forth sufficient facts to 

establish probable cause:

(1) that a specific offense has been committed;

(2) that a specifically described person has been a victim 

of the offense;

(3) that evidence of the offense or evidence that a 

particular person committed the offense can be detected by 

photographic means; and

(4) that the person to be searched for and photographed is 

located at the particular place to be searched.
24

(g) A search warrant may not be issued under Subdivision 

(12), Article 18.02, of this code unless the sworn affidavit 

required by Subsection (b) of this article sets forth sufficient 

facts to establish probable cause that a specific felony offense 

has been committed and that the specifically described property 

or items that are to be searched for or seized constitute 

contraband as defined in Article 59.01 of this code and are 

located at or on the particular person, place, or thing to be 

searched.

(h) Except as provided by Subsection (i) of this article, a 

warrant under Subdivision (12), Article 18.02 of this code may 

only be issued by:

(1) a judge of a municipal court of record who is an 

attorney licensed by the state;

(2) a judge of a county court who is an attorney licensed 

by the state; or

(3) a judge of a statutory county court, district court, 

the court of criminal appeals, or the supreme court.

(i) In a county that does not have a judge of a municipal 

court of record who is an attorney licensed by the state, a 

county court judge who is an attorney licensed by the state, or 

a statutory county court judge, any magistrate may issue a 

search warrant under Subdivision (10) or Subdivision (12) of 

Article 18.02 of this code. This subsection is not applicable 

to a subsequent search warrant under Subdivision (10) of Article 

18.02 of this code.

(j) Any magistrate who is an attorney licensed by this 

state may issue a search warrant under Article 18.02(10) to 

collect a blood specimen from a person who:

(1) is arrested for an offense under Section 49.04, 

49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, Penal Code; and

(2) refuses to submit to a breath or blood alcohol 

test.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 

1973, 63rd Leg., p. 982, ch. 399, Sec. 2(E), eff. Jan. 1, 1974; 
25

Acts 1977, 65th Leg., p. 640, ch. 237, Sec. 1, eff. May 25, 

1977.

Sec. (c) amended by Acts 1979, 66th Leg., p. 1124, ch. 536, Sec. 

1, eff. June 11, 1979; Sec. (e) added by Acts 1979, 66th Leg., 

p. 1076, ch. 505, Sec. 1, eff. Sept. 1, 1979; Sec. (a) amended 

by Acts 1981, 67th Leg., p. 759, ch. 289, Sec. 3, eff. Sept. 1, 

1981; Sec. (b) amended by Acts 1981, 67th Leg., p. 2789, ch. 

755, Sec. 1, eff. Sept. 1, 1981; Sec. (f) added by Acts 1981, 

67th Leg., p. 759, ch. 289, Sec. 4, eff. Sept. 1, 1981; Sec. 

(c) amended by Acts 1987, 70th Leg., ch. 686, Sec. 1, eff. Sept. 

1, 1987; Secs. (g) and (h) added by Acts 1989, 71st Leg., 1st 

C.S., ch. 12, Sec. 2, eff. Oct. 18, 1989; Secs. (c), (h) 

amended by and Sec. (i) added by Acts 1991, 72nd Leg., ch. 73, 

Sec. 1, eff. May 9, 1991; Secs. (c), (d), (i) amended by Acts 

1995, 74th Leg., ch. 670, Sec. 1, eff. Sept. 1, 1995; Subsecs. 

(c), (h) amended by Acts 1997, 75th Leg., ch. 604, Sec. 1, eff. 

Sept. 1, 1997; Subsec. (b) amended by Acts 1999, 76th Leg., ch. 

167, Sec. 1, eff. Aug. 30, 1999; Subsec. (d) amended by Acts 

1999, 76th Leg., ch. 1469, Sec. 1, eff. June 19, 1999; Subsec. 

(i) amended by Acts 2001, 77th Leg., ch. 1395, Sec. 1, eff. June 

16, 2001.

Amended by: 

Acts 2007, 80th Leg., R.S., Ch. 355 (S.B. 244), Sec. 1, 

eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch. 748 (H.B. 3131), Sec. 1, 

eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch. 1348 (S.B. 328), Sec. 5, 

eff. September 1, 2009.

Acts 2011, 82nd Leg., R.S., Ch. 66 (S.B. 483), Sec. 3, eff. 

September 1, 2011.
26

APPENDIX A-2

TEXAS TRANSPORTATION CODE Chap. 724
27

TRANSPORTATION CODE

TITLE 7. VEHICLES AND TRAFFIC

SUBTITLE J. MISCELLANEOUS PROVISIONS

CHAPTER 724. IMPLIED CONSENT

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 724.001. DEFINITIONS. In this chapter:

(1) "Alcohol concentration" has the meaning assigned 

by Section 49.01, Penal Code.

(2) "Arrest" includes the taking into custody of a 

child, as defined by Section 51.02, Family Code.

(3) "Controlled substance" has the meaning assigned 

by Section 481.002, Health and Safety Code.

(4) "Criminal charge" includes a charge that may 

result in a proceeding under Title 3, Family Code.

(5) "Criminal proceeding" includes a proceeding under 

Title 3, Family Code.

(6) "Dangerous drug" has the meaning assigned by 

Section 483.001, Health and Safety Code.

(7) "Department" means the Department of Public 

Safety.

(8) "Drug" has the meaning assigned by Section 

481.002, Health and Safety Code.

(9) "Intoxicated" has the meaning assigned by Section 

49.01, Penal Code.

(10) "License" has the meaning assigned by Section 

521.001.

(11) "Operate" means to drive or be in actual control 

of a motor vehicle or watercraft.

(12) "Public place" has the meaning assigned by 

Section 1.07, Penal Code.
28

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. 

Amended by Acts 1997, 75th Leg., ch. 1013, Sec. 31, eff. Sept. 

1, 1997.

Sec. 724.002. APPLICABILITY. The provisions of this 

chapter that apply to suspension of a license for refusal to 

submit to the taking of a specimen (Sections 724.013, 724.015, 

and 724.048 and Subchapters C and D) apply only to a person 

arrested for an offense involving the operation of a motor 

vehicle or watercraft powered with an engine having a 

manufacturer's rating of 50 horsepower or above.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. 

Amended by Acts 2001, 77th Leg., ch. 444, Sec. 7, eff. Sept. 1, 

2001.

Sec. 724.003. RULEMAKING. The department and the State 

Office of Administrative Hearings shall adopt rules to

administer this chapter.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.

SUBCHAPTER B. TAKING AND ANALYSIS OF SPECIMEN

Sec. 724.011. CONSENT TO TAKING OF SPECIMEN. (a) If a 

person is arrested for an offense arising out of acts alleged to 

have been committed while the person was operating a motor 

vehicle in a public place, or a watercraft, while intoxicated, 

or an offense under Section 106.041, Alcoholic Beverage Code, 

the person is deemed to have consented, subject to this chapter, 

to submit to the taking of one or more specimens of the person's 

breath or blood for analysis to determine the alcohol 

concentration or the presence in the person's body of a 

controlled substance, drug, dangerous drug, or other substance.

(b) A person arrested for an offense described by 

Subsection (a) may consent to submit to the taking of any other 
29

type of specimen to determine the person's alcohol 

concentration.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. 

Amended by Acts 1997, 75th Leg., ch. 1013, Sec. 32, eff. Sept. 

1, 1997.

Sec. 724.012. TAKING OF SPECIMEN. (a) One or more 

specimens of a person's breath or blood may be taken if the 

person is arrested and at the request of a peace officer having 

reasonable grounds to believe the person:

(1) while intoxicated was operating a motor vehicle 

in a public place, or a watercraft; or

(2) was in violation of Section 106.041, Alcoholic 

Beverage Code.

(b) A peace officer shall require the taking of a specimen 

of the person's breath or blood under any of the following 

circumstances if the officer arrests the person for an offense 

under Chapter 49, Penal Code, involving the operation of a motor 

vehicle or a watercraft and the person refuses the officer's 

request to submit to the taking of a specimen voluntarily:

(1) the person was the operator of a motor vehicle or 

a watercraft involved in an accident that the officer reasonably 

believes occurred as a result of the offense and, at the time of 

the arrest, the officer reasonably believes that as a direct 

result of the accident:

(A) any individual has died or will die;

(B) an individual other than the person has 

suffered serious bodily injury; or

(C) an individual other than the person has 

suffered bodily injury and been transported to a hospital or 

other medical facility for medical treatment;

(2) the offense for which the officer arrests the 

person is an offense under Section 49.045, Penal Code; or
30

(3) at the time of the arrest, the officer possesses 

or receives reliable information from a credible source that the 

person:

(A) has been previously convicted of or placed 

on community supervision for an offense under Section 49.045, 

49.07, or 49.08, Penal Code, or an offense under the laws of 

another state containing elements substantially similar to the 

elements of an offense under those sections; or

(B) on two or more occasions, has been 

previously convicted of or placed on community supervision for 

an offense under Section 49.04, 49.05, 49.06, or 49.065, Penal 

Code, or an offense under the laws of another state containing 

elements substantially similar to the elements of an offense 

under those sections.

(c) The peace officer shall designate the type of specimen 

to be taken.

(d) In this section, "bodily injury" and "serious bodily 

injury" have the meanings assigned by Section 1.07, Penal Code.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995. 

Amended by Acts 1997, 75th Leg., ch. 1013, Sec. 33, eff. Sept. 

1, 1997; Acts 2003, 78th Leg., ch. 422, Sec. 1, eff. Sept. 1, 

2003.

Amended by: 

Acts 2009, 81st Leg., R.S., Ch. 1348 (S.B. 328), Sec. 18, 

eff. September 1, 2009.
31

APPENDIX A-3

TEXAS HEALTH & SAFETY CODE §481.121
32

HEALTH AND SAFETY CODE

TITLE 6. FOOD, DRUGS, ALCOHOL, AND HAZARDOUS SUBSTANCES

SUBTITLE C. SUBSTANCE ABUSE REGULATION AND CRIMES

CHAPTER 481. TEXAS CONTROLLED SUBSTANCES ACT

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 481.121. OFFENSE: POSSESSION OF MARIHUANA. (a) 

Except as authorized by this chapter, a person commits an 

offense if the person knowingly or intentionally possesses a 

usable quantity of marihuana.

(b) An offense under Subsection (a) is:

(1) a Class B misdemeanor if the amount of marihuana 

possessed is two ounces or less;

(2) a Class A misdemeanor if the amount of marihuana 

possessed is four ounces or less but more than two ounces;

(3) a state jail felony if the amount of marihuana 

possessed is five pounds or less but more than four ounces;

(4) a felony of the third degree if the amount of 

marihuana possessed is 50 pounds or less but more than 5 pounds;

(5) a felony of the second degree if the amount of 

marihuana possessed is 2,000 pounds or less but more than 50 

pounds; and

(6) punishable by imprisonment in the Texas 

Department of Criminal Justice for life or for a term of not 

more than 99 years or less than 5 years, and a fine not to 

exceed $50,000, if the amount of marihuana possessed is more 

than 2,000 pounds.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. 

Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 2.02, eff. Sept. 

1, 1994.

Amended by: 
33

Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 

25.105, eff. September 1, 2009.