TO THE 

TEXAS COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS

* * *

PAUL ANTHONY GARCIA, §

APPELLANT §

V. § Cause Number 04-14-00389-CR

THE STATE OF TEXAS, § Cause Number 04-14-00390-CR

APPELLEE §

* * *

PETITION FOR DISCRETIONARY REVIEW 

THE STATE OF TEXAS 

* * *

Appeal from

Decision Rendered in the 216 Judicial District Court of th

Kendall County, Texas

Trial Court Cause Number 5397 & 5398

Court of Appeals Number 04-14-00389 & 390-CR

* * *

E. BRUCE CURRY

State Bar Card Number 05268500

District Attorney

By Steven A. Wadsworth

State Bar Card Number 00788596

Assistant District Attorney

200 Earl Garrett Street, Suite 202

Kerrville, Texas 78028

830.896.4744 (telephone)

830.869.2620 (facsimile)

steve216@bizstx.rr.com

ORAL ARGUMENT NOT REQUESTED

PD-1118&1119-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 8/26/2015 4:35:09 PM

Accepted 8/28/2015 11:15:54 AM

ABEL ACOSTA

CLERK
IDENTITY OF JUDGE, PARTIES AND COUNSEL

C The parties in this case are The State of Texas, who is the Appellant / Petitioner,

and Paul Anthony Garcia is the Defendant / Appellee.

C The trial court judge was the Honorable N. Keith Williams.

C Counsel for the State at trial and on appeal is Steven A. Wadsworth, 200 Earl

Garrett Street, Suite 202, Kerrville, Texas 78028.

C Trial Counsel for Appellee was Paul J. Goeke, 115 East Travis, Suite 1145, San

Antonio, Texas 78205.

C Appellate Counsel for Appellee is M. Patrick Maguire, 945 Barnett Street,

Kerrville, Texas 78028.

State’s Petition for Discretionary Review,

Paul Anthony Garcia v. State,

Cause Number 04-14-00389 and 390-CR, In the Court of Appeals

For the Fourth Supreme Judicial District of Texas Page Number i
TABLE OF CONTENTS

PAGE

INDEX OF AUTHORITIES iv

STATEMENT REGARDING ORAL ARGUMENT 1

STATEMENT OF THE CASE 1-2

STATEMENT OF PROCEDURAL HISTORY 3

GROUNDS FOR REVIEW: 3-4

Number One:

Is a warrantless, but mandatory, blood-draw conducted in accordance

with the requirements of the Texas Transportation Code

§724.012(b)(1)(A) & ( C) reasonable under the U.S. CONST., amend.

IV?

Number Two:

Did the court of appeals err in holding that Texas Transportation Code

§724.012(b)(1)(A) & ( C) did not dispense with a warrant requirement?

Number Three:

Does the federal or state (Tex. Code Crim. Proc., ann. §38.23)

exclusionary rules mandate suppression of the warrantless blood-draw

evidence when at the time that the blood-draw occurred, it was mandated

by the provision of Texas Transportation Code §724.012(b)(1)(A) & ( C)

and was approved by applicable case law?

Number Four:

Was the warrantless blood-draw conducted in accordance with the

requirements of the §Texas Transportation Code 724.012(b)(1)(A) & ( C)

justified on the basis of exigency and did the lower court err in failing to

consider exigency as a basis to uphold the trial court’s ruling?

State’s Petition for Discretionary Review,

Paul Anthony Garcia v. State,

Cause Number 04-14-00389 and 390-CR, In the Court of Appeals

For the Fourth Supreme Judicial District of Texas Page Number ii
ARGUMENT 4-11

PRAYER 12

CERTIFICATE OF SERVICE 12

CERTIFICATE OF WORD COUNT 12

APPENDIX

1. Opinion of Court of Appeals

State’s Petition for Discretionary Review,

Paul Anthony Garcia v. State,

Cause Number 04-14-00389 and 390-CR, In the Court of Appeals

For the Fourth Supreme Judicial District of Texas Page Number iii
INDEX OF AUTHORITIES

PAGE

Federal Statute

U.S. Const. IV amendment 3, 8

Federal Case

Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) 10

Maryland v. King, ___U.S.___, 133 S.Ct. 1958, 1969-1970,

186 L.E.d2 1 (2013) 8

Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552,

185 L.Ed.2d 696 (2013) 10

State Cases

Beeman v. State, 86 S.W.3d 813 (Tex. Crim. App. 2002) 10

Ex Parte Ruthhart, 980 S.W.2d 469 (Tex. Crim. App. 1998) 9

Garcia v. State, 04-14-00389 & 390-C, 25 Tex. App. Lexis 7797

(Tex. App.—San Antonio July 29, 2015, mem. op., do not publish) 2-3, 9

Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002) 10

In re Cole, PD-0077-15, 2015 Tex. Crim. App. 508

(Tex. Crim. App. - pet. granted April 22, 2015) 8-9

Weems v. State, 434 S.W.3d 655 (Tex. App.-San Antonio 2014, pet. granted) 8

Texas Statutes

Tex. Code Crim. Proc., ann. §38.23 (Lexis 2015) 3, 9

Texas Gov’t. Code §311.016 (Lexis 2015) 9

Texas Transportation Code §724.012 (Westlaw 2014) 3, 7-11

State’s Petition for Discretionary Review,

Paul Anthony Garcia v. State,

Cause Number 04-14-00389 and 390-CR, In the Court of Appeals

For the Fourth Supreme Judicial District of Texas Page Number iv
TO THE

TEXAS COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS

* * *

PAUL ANTHONY GARCIA, §

APPELLANT §

V. § Cause Number 04-14-00389-CR

THE STATE OF TEXAS, § Cause Number 04-14-00390-CR

APPELLEE §

* * *

PETITION FOR DISCRETIONARY REVIEW,

THE STATE OF TEXAS

TO THE HONORABLE JUDGES OF SAID COURT:

STATEMENT REGARDING ORAL ARGUMENT

The State does not request oral argument.

STATEMENT OF THE CASE

Appellee, Paul Anthony Garcia (hereinafter referred to as Appellee), was

indicted on or about November 5, 2012 for the offense of injury to a child, alleged to

have been committed on or about September 1, 2012 in Kendall County, Texas. CR,

V. 1, p. 6. Appelle was also indicted on or about November 5, 2012 for the offense

1

As used herein, the abbreviation CR willrefer to the Clerk’s Record, and the abbreviation RR

1

will refer to the reporter’s record. With respect to references to the reporter’s record, a volume

reference and a page reference, which will be abbreviated as a p or pp, as appropriate, will be

followed immediately by a line reference, which will be abbreviated by an l followed by the reference

(continued...)

State’s Petition for Discretionary Review,

Paul Anthony Garcia v. State,

Cause Number 04-14-00389 and 390-CR, In the Court of Appeals

For the Fourth Supreme Judicial District of Texas Page Number 1
of intoxication manslaughter with a deadly weapon, alleged to have been committed on

or about September 1, 2012 in Kendall County, Texas. CR, V. 1, p. 6. The Appellee

2

filed a pre-trial motion to suppress with respect to the blood-draw taken by a Texas

Department of Public Safety (hereinafter referred as DPS) Trooper. CR, Vol. 1, pp.

39-42 & 61-70 & 80-83 (record in 5397) and CR, Vol. 1, pp. 36-39 & 58-67 & 80-83.

(record in 5398). Following a pretrial hearing on May 9, 2013, RR, Vol. 2, p. 2, the

court denied Appellee’s motion to suppress the blood-draw evidence. CR, Vol. 1, pp.

85-86. A jury trial was held and the Appellee was convicted of injury to a child. CR,

Vol. 1, pp. 148-155; and RR, Vol. 5, p. 59, l. 7-10 and p. 59, l. 24-25 to p. 60, l. 1-6.

The Fourth Court of Appeals reversed the trial court’s ruling on the pre-trial

motion to suppress evidence of the blood-draw, found the admission of the blood-draw

evidence at trial was erroneous and harmful error, reversed the conviction and

3

remanded the case for a new trial. Garcia v. State, 04-14-00389 & 390-C, 25 Tex.

App. Lexis 7797 (Tex. App.—San Antonio July 29, 2015, mem. op., do not publish).

(...continued) 1

to the particular lines by number.

This citation is the to the appellate record the trial in cause 5398. 2

The blood-draw test results were admitted with the Appellee renewing all of his previous 3

objections, but without the trial court actually ruling on those objections at trial. RR, Vol. 4, p. 181,

l. 4-20.

State’s Petition for Discretionary Review,

Paul Anthony Garcia v. State,

Cause Number 04-14-00389 and 390-CR, In the Court of Appeals

For the Fourth Supreme Judicial District of Texas Page Number 2
STATEMENT OF PROCEDURAL HISTORY

The Fourth Court of Appeals reversed the trial court’s ruling on the pre-trial

motion to suppress evidence of the blood-draw, found the admission of the blood-draw

evidence at trial was erroneous and harmful error, reversed the conviction and

remanded the case for a new trial. Garcia v. State, 04-14-00389 & 390-CR, 25 Tex.

App. Lexis 7797 (Tex. App.—San Antonio July 29, 2015, mem. op., do not publish).

A motion for rehearing was not filed.

GROUNDS FOR REVIEW

Number One:

Is a warrantless, but mandatory, blood-draw conducted in accordance with the

requirements of the Texas Transportation Code §724.012(b)(1)(A) & ( C) reasonable

under the U.S. CONST., amend. IV?

Number Two:

Did the court of appeals err in holding that Texas Transportation Code

§724.012(b)(1)(A) & ( C) did not dispense with a warrant requirement?

Number Three:

Does the federal or state (Tex. Code Crim. Proc., ann. §38.23) exclusionary rules

mandate suppression of the warrantless blood-draw evidence when at the time that the

blood-draw occurred, it was mandated by the provision of Texas Transportation Code

§724.012(b)(1)(A) & ( C) and was approved by applicable case law?

Number Four:

Was the warrantless blood-draw conducted in accordance with the requirements of the

§Texas Transportation Code 724.012(b)(1)(A) & ( C) justified on the basis of exigency

and did the lower court err in failing to consider exigency as a basis to uphold the trial

State’s Petition for Discretionary Review,

Paul Anthony Garcia v. State,

Cause Number 04-14-00389 and 390-CR, In the Court of Appeals

For the Fourth Supreme Judicial District of Texas Page Number 3
court’s ruling?

STATEMENT OF FACTS

The State incorporates by reference all facts contained in its Statement of Facts

of the State’s Reply Brief. For purposes of this petition, the more relevant facts are that

in late evening of September 1, 2012, Ricardo Carrillo (hereinafter referred to as

Carrillo) testified that he was riding motorcycles with his friends on State Highway 46

outside of Boerne the evening of September 1, 2012 when he started to see debris in

the road and dust settling from an obvious car accident. RR, Vol. 3, p. 1-23. Carillo

stopped to help, and saw that one female, who later would be identified as Destiny Ann

Bruce (hereinafter referred to as Destiny), was still in the van in the driver’s seat and

gasping for breath. RR, Vol. 3, p. 9-22. Carrillo assisted in removing the female

passenger of the van, who would later be identified as Grace Ann Bruce (hereinafter

identified as Grace) through a window. RR, Vol. 3, p. 272, l. 3-8.

Boerne Police Officer Lance DeLeon (hereafter referred to as Officer DeLeon)

arrived on the accident scene at 11:55 p.m. RR, Vol. 3, p. 289, l. 4-10, and p. 290, l.

20-22. At the accident, Officer DeLeon saw a brown Chevy truck in the westbound

lane of Highway 46 with a Hispanic male driver in it. RR, Vol. 3, p. 291, l. 1-4.

Officer DeLeon identified that person as the Appellee, and he was alone in the truck

State’s Petition for Discretionary Review,

Paul Anthony Garcia v. State,

Cause Number 04-14-00389 and 390-CR, In the Court of Appeals

For the Fourth Supreme Judicial District of Texas Page Number 4
and behind the driver’s wheel in the driver’s seat. RR, Vol. 3, p. 293, l. 1-7. The

Appellee was pinned in the truck and had to be extracted by emergency personnel from

the truck. RR, Vol. 3, p. 297, l. 1-5 & 12-15; and RR, Vol. 4, p. 93, l. 1-19. Officer

DeLeon also saw a white 4-door car a little further away and on its side. RR, Vol. 3,

p. 292, l. 11-15. When Officer DeLeon looked into the car, he saw Destiny still

strapped into the driver’s seat and deceased. RR, Vol. 3, p. 294, l. 9 to p. 295, l. 1.

Other emergency personnel arrived at the accident within a few minutes of Officer

DeLeon, and Grace was taken by air ambulance from the scene to the hospital. RR,

Vol. 3, p. 295, l. 12-24.

DPS Trooper Ross Rigby (hereinafter referred to as Trooper Rigby) assisted in

the accident investigation. RR, Vol. 4, p. 96, l. 13-16. Trooper Rigby searched the

Appellee’s truck that night and located a marijuana bong and a pipe, and bottle of Jack

Daniel’s green label whiskey. RR, Vol. 4, p. 97, l. 18-21. When found in the

Appellee’s truck that evening, the bottle of whiskey, which was a one liter bottle, was

over half-empty, but unbroken or cracked, i.e. none would have leaked out in the

wreck. RR, Vol. 4, p. 39, l. 10-25; and, Exhibit 27.

DPS Trooper Eric Kendrick (hereinafter referred to as Trooper Kendrick)

arrived at the accident just a few moments after Officer Deleon. RR, Vol. 4, p. 15, l.

State’s Petition for Discretionary Review,

Paul Anthony Garcia v. State,

Cause Number 04-14-00389 and 390-CR, In the Court of Appeals

For the Fourth Supreme Judicial District of Texas Page Number 5
1-18. When Trooper Kendrick arrived at the accident scene, he saw the two vehicles

involved in the crash with the white vehicle driven by Destiny on it’s side in the

northbound lane of Highway 46, and the truck driven by the Appellee just off to the

north side of the same highway. RR, Vol. 4, p. 16, l. 2-9, and p. 41, l. 24 to p. 42, l.

8. Once at the scene, Trooper Kendrick was told by Officer DeLeon that Destiny was

dead inside of her car. RR, Vol. 4, p. 42, l. 3-7. Trooper Kendrick went over to

Destiny’s vehicle to confirm her condition, and then saw Grace on the ground near the

vehicle. RR, Vol. 4, p. 43, l. 23 to p. 44, l. 2. Grace appeared to have a head injury

or something wrong with her eyes at that time and was airlifted from the accident scene

to the hospital. RR, Vol. 4, p. 45, l. 1-15.

After checking on Grace, Trooper Kendrick went to the Appellee’s truck. RR,

Vol. 4, p. 45, l. 18-22. The Appellee was still behind the wheel of this truck when

Trooper Kendrick came to him. RR, Vol. 4, p. 45, l. 20-22. Since the doors of the

Appellee’s truck were jammed shut, Trooper Kendrick talked to the Appellee through

the passenger side window of Appellee’s truck. RR, Vol. 4, p. 46, l. 1-5, and l. 7-14.

At this time, the Appellee had no visible injuries, but he did appear to be in pain or

discomfort to Trooper Kendrick. RR, Vol. 4, p. 46, l. 5-6. Trooper Kendrick testified

both at the suppression hearing and trial that the Appellee did have a broken leg or foot,

State’s Petition for Discretionary Review,

Paul Anthony Garcia v. State,

Cause Number 04-14-00389 and 390-CR, In the Court of Appeals

For the Fourth Supreme Judicial District of Texas Page Number 6
and had to be cut out of his truck that evening. RR, Vol. 2, p. 14, l. 6-9; and RR, Vol.

4, p. 36, l. 22-25.

When Trooper Kendrick talked to the Appellee that evening, the recording of

which was admitted into evidence as Exhibit 4, Trooper Kendrick thought that based

upon the answers given by the Appellee that the Appellee, “[A]ppeared disoriented,

confused, not in a normal state of mind.” RR, Vol. 4, p. 56, l. 25 to p. 47, l. 2; and, p.

85, l. 19-20. Kendrick saw that the Appellee had really red or bloodshot eyes. RR,

Vol. 4, p. 82, l. 8-14 & p. 83, l. 8-19.

Once the Appellee arrived at the hospital that evening, DPS Trooper Rodney

Zarate (hereinafter referred to as Trooper Zarate) went to the hospital to met the

Appellee to continue the investigation. RR, Vol. 4, p. 52, l. 16-22; and, p. 127, l. 5-19.

Trooper Zarate then read the DIC-24 form to the Appellee. RR, Vol. 4, p. 131, l. 23

to p. 132, l. 7; and, Exhibit 8. The nurse, Amy Smith, then drew blood from the

4

Appellee. RR, Vol. 4, p. 135, l. 1 to p. 137, l. 22; and Exhibit 9 & 10. The blood

5

In accordance with the stipulation (RR, Vol. 4, p. 243, l. 11-19), the State is not arguing that 4

the Appellee consented to the blood draw. The precise stipulation is, “But just to make it clear, yes,

in both cases the State is waiving any appellate argument that there was consent to the blood draw

in both ofthese cases. Yes, the State is waiving. And in exchange Mr. Goeke is giving up any request

with respect to voluntariness or consent in the charge.” RR, Vol. 4, p. 243, l. 11-19.

Exhibit 10 isthe DPS form THP-51 used in conjunction with blood-draws pursuant to Texas 5

(continued...)

State’s Petition for Discretionary Review,

Paul Anthony Garcia v. State,

Cause Number 04-14-00389 and 390-CR, In the Court of Appeals

For the Fourth Supreme Judicial District of Texas Page Number 7
sample was then tested. RR, Vol. 4, p. 181, l. 1-25, & Exhibit 11.

ARGUMENT

Point of Error Number One:

Is a warrantless, but mandatory, blood-draw conducted in accordance with the

requirements of the Texas Transportation Code §724.012(b)(1)(A) & ( C) reasonable

under the U.S. CONST., amend. IV?

The pretrial evidentiary hearing on the Appellee’s Motion to Suppress was

limited, in relevant aspect, to the constitutionality of the Texas Transportation Code

§724.012 (Westlaw 2014), RR, Vol. 2, p. 7, l. 6-17 & 24. The accident and

subsequent blood draw at issue in this case took place on September 1-2, 2012. CR,

p. 6, and Exhibit 11. Under the circumstances, the warrantless blood-draw was

reasonable for constitutional purposes. The court should grant review because this is

the same issue pending in In re Cole, PD-0077-15, 2015 Tex. Crim. App. 508 (Tex.

Crim. App. - pet. granted April 22, 2015), and this important question of state and

federal law that should be settled by this court, and the lower court appears to

misconstrued applicable law.

In addition, as set forth in the State’s Brief in Weems v. State, 434 S.W.3d 655

(Tex. App.-San Antonio 2014, pet. granted PD-0635-14 (Tex. Crim. App. - pet.

(...continued) 5

Transportation Code §724.012(b)(1)(A) & ( C).

State’s Petition for Discretionary Review,

Paul Anthony Garcia v. State,

Cause Number 04-14-00389 and 390-CR, In the Court of Appeals

For the Fourth Supreme Judicial District of Texas Page Number 8
granted August 20, 2014)), a balancing test approach to the Fourth Amendment is

preferable in situation involving searches authorized and mandated by statute. See,

Maryland v. King, ___U.S.___, 133 S.Ct. 1958, 1969-1970 186 L.E.d2 1 (2013).

Number Two:

Did the court of appeals err in holding that Texas Transportation Code

§724.012(b)(1)(A) & ( C) did not dispense with a warrant requirement?

The court of appeals based a great deal of its opinion on the argument that Texas

Transportation Code §724.012(b)(1)(A) & ( C) did not dispense with a warrant

requirement. Garcia v. State, 04-14-00389-CR and 390-CR, 2015Tex. App. LEXIS

7797, *6 (Tex. App.- San Antonio July 29, 2015). This position is in error.

Since the language of the statute at issue use shall, courts have consistently held

that this language imposes a duty. Texas Gov’t. Code §311.016(2). Courts have

interpreted this language as creating a duty or a mandate. See, Ex Parte Ruthhart, 980

S.W.2d 469, 472 (Tex. Crim. App. 1998). The court should grant review because this

issue is also pending in Weems v. State, PD-0635-14 (Tex. Crim. App. - pet. granted

August 20, 2014). This important question of state law that should be settled by this

court.

Number Three:

Does the federal or state (Tex. Code Crim. Proc., ann. §38.23) exclusionary rules

mandate suppression of the warrantless blood-draw evidence when at the time that the

State’s Petition for Discretionary Review,

Paul Anthony Garcia v. State,

Cause Number 04-14-00389 and 390-CR, In the Court of Appeals

For the Fourth Supreme Judicial District of Texas Page Number 9
blood-draw occurred, it was mandated by the provision of Texas Transportation Code

§724.012(b)(1)(A) & ( C) and was approved by applicable case law?

The court should grant review because this is the same issue pending in In re

Cole, PD-0077-15, 2015 Tex. Crim. App. 508 (Tex. Crim. App. - pet. granted April

22, 2015), and this important question of state and federal law that should be settled

by this court, and the lower court appears to misconstrued applicable law.

The primary focus of the federal exclusionary rule has to deter unlawful conduct

by law enforcement. See, Illinois v. Krull, 480 U.S. 340, 347, 107 S. Ct. 1160, 94 L.

Ed. 2d 364 (1987). At the time of the blood-draw in this case, the statutory scheme had

been upheld and interpreted to dispense with a search warrant. Beeman v. State, 86

S.W.3d 813, 816 (Tex. Crim. App. 2002). Thus, neither the federal nor the state

exclusionary rule would be advanced by excluding the blood-draw evidence, and the

court should grant review to examine this important issue of state and federal law.

Number Four:

Was the warrantless blood-draw conducted in accordance with the requirements of the

§Texas Transportation Code 724.012(b)(1)(A) & ( C) justified on the basis of exigency

and did the lower court err in failing to consider exigency as a basis to uphold the trial

court’s ruling?

Exigency was not procedurally defaulted since the State was the prevailing party.

See, Hailey v. State, 87 S.W.3d 118, 121-122 (Tex. Crim. App. 2002). Given the

State’s Petition for Discretionary Review,

Paul Anthony Garcia v. State,

Cause Number 04-14-00389 and 390-CR, In the Court of Appeals

For the Fourth Supreme Judicial District of Texas Page Number 10
factors of a fatal accident involving alcohol with two parties transported to the hospital

via helicopter, and the natural dissipation of alcohol, exigency was a factor or grounds

that should have been considered the court of appeals in its review of the decision of

the trial court. See generally, Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696

(2013). The court should grant review to consider whether to reverse the decision o

the court of appeals or to remand and require consideration of exigency.

PRAYER

WHEREFORE, PREMISES CONSIDERED, the State of Texas, respectfully

prays that the court grant review and reverse the decision of the court of appeals, or

alternatively grant review and reverse because the warrantless blood-draw was a

reasonable search, or alternatively grant review and reverse because Texas

Transportation Code §724.012(b)(1)(A) & ( C) did dispense with a warrant

requirement, or alternatively grant review and reverse because neither the federal nor

state exclusionary rules require suppression of the blood-draw evidence, or

alternatively grant review and reverse because exigent circumstances to justify the

blood-draw or remand to the court appeals to consider whether exigent circumstances

existed, and grant the State all other relief to which it may be justly entitled.

State’s Petition for Discretionary Review,

Paul Anthony Garcia v. State,

Cause Number 04-14-00389 and 390-CR, In the Court of Appeals

For the Fourth Supreme Judicial District of Texas Page Number 11
Respectfully submitted,

E. Bruce Curry,

District Attorney for the 216 Judicial District

th

/s/ Steven A. Wadsworth

_________________________________________

By Steven A. Wadsworth

Texas State Bar Card Number 00788596

Assistant District Attorney

216 Judicial District of Texas

th

200 Earl Garrett Street, Suite 202

Kerrville, Texas 78028

830.896.4744 (telephone)

830.896.2620 (facsimile)

steve216@bizstx.rr.com

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing document

was served on the following parties by the method stated below each on August 26,

2015: 

Honorable M. Patrick Maguire

Via email

/s/ Steven A. Wadsworth

________________________________

Steven A. Wadsworth,

Assistant District Attorney,

Attorney for the State of Texas

CERTIFICATE OF WORD LENGTH

I hereby certify that the word count of the applicable portions of this document

is show by the word processing program to be 1,991.

/s/ Steven A. Wadsworth

_____________________________________

Steven A. Wadsworth,

Assistant District Attorney

State’s Petition for Discretionary Review,

Paul Anthony Garcia v. State,

Cause Number 04-14-00389 and 390-CR, In the Court of Appeals

For the Fourth Supreme Judicial District of Texas Page Number 12
APPENDIX
No Shepard's SignalTM

As of: August 25, 2015 5:09 PM EDT

Garcia v. State

Court of Appeals of Texas, Fourth District, San Antonio

July 29, 2015, Delivered; July 29, 2015, Filed

Nos. 04-14-00389-CR & 04-14-00390-CR

Reporter

2015 Tex. App. LEXIS 7797

Paul Anthony GARCIA, Appellant v. The STATE of Texas,

Appellee

Notice: PLEASE CONSULT THE TEXAS RULES OF

APPELLATE PROCEDURE FOR CITATION OF

UNPUBLISHED OPINIONS.

Prior History: [*1]From the 216th Judicial District Court, Kendall

County, Texas.Trial Court Nos. 5397 & 5398. Honorable N.Keith

Williams, Judge Presiding.

Disposition: REVERSED AND REMANDED.

Core Terms

blood, intoxicated, alcohol concentration, warrantless,

suppression motion, trial court's error, bodily injury, legal limit, trial

court, alcohol, grams, beyond a reasonable doubt, blood alcohol

content, good faith, Transportation, driver, scene

Case Summary

Overview

HOLDINGS: [1]-Where defendant was convicted of reckless

bodily injury to a child and intoxication manslaughter, the trial

court erred by denying his motion to suppress because the

warrantless blood draw could not be justified pursuant Tex.

Transp. Code Ann. § 724.012(b) (2011); [2]-The good faith

exception to the exclusionary rule did not apply; [3]-A police

officer does not act in good faith when he fails to obtain a warrant

based on Tex. Transp. Code Ann. § 724.012(b), which does not

dispense with the warrant requirement; [4]-The erroneous

admission of evidence from the blood draw was not harmless

under Tex. R. App. P. 44.2(a), given the State's references to

defendant's blood alcohol content, the evidence from the

toxicologist, and the definition of "intoxicated" in the jury charge.

Outcome

Reversed and remanded.

LexisNexis® Headnotes

Criminal Law & Procedure > ... > Driving Under the Influence > Blood

Alcohol & Field Sobriety Testing > Procedures

HN1 Tex. Transp. Code Ann. § 724.012(b)(1)(A)-(C) ( 2011)

provides that a peace officer shall require a blood or breath

specimen if a driver is arrested for driving while intoxicated after

having been involved in an accident and as a result of the

accident, another individual has died or will die, has suffered

serious bodily injury, or has suffered bodily injury and been

transported to a hospital or other medical facility for treatment.

Constitutional Law > ... > Fundamental Rights > Search & Seizure >

Warrants

Criminal Law & Procedure > ... > Driving Under the Influence > Blood

Alcohol & Field Sobriety Testing > General Overview

HN2 A blood draw pursuant to Tex. Transp. Code Ann. §

724.012(b) is not a valid exception to the Fourth Amendment's

warrant requirement.

Criminal Law & Procedure > ... > Driving Under the Influence > Blood

Alcohol & Field Sobriety Testing > General Overview

Constitutional Law > ... > Fundamental Rights > Search & Seizure >

Exclusionary Rule

Constitutional Law > ... > Fundamental Rights > Search & Seizure >

Warrants

Criminal Law & Procedure > ... > Exclusionary Rule > Exceptions to

Exclusionary Rule > Good Faith
HN3Although the federal exclusionary rule usually precludes the

use of evidence obtained in violation of the Fourth Amendment,

if law enforcement personnel rely in good faith on a statute

authorizing a warrantless search, and the statute in question is

laterfoundtobeunconstitutional,theevidenceseizedneed not be

excluded. However, Tex. Transp. Code Ann. § 724.012(b) - the

mandatory blood drawstatute- does not provide for awarrantless

search. Although § 724.012(b)states an officer shall take a blood

drawif an individual sufferedseriousbodily injury asa result of the

DWI, it does not mandate that he do so without a warrant.

Accordingly, a police officer does not act in good faith when he

fails to obtain a warrant based on § 724.012(b), which does not

dispense with the warrant requirement.

Criminal Law & Procedure > ... > Standards of Review > Harmless &

Invited Error > Evidence

Criminal Law & Procedure > ... > Standards of Review > Harmless &

Invited Error > Harmless Error

Evidence > Admissibility > Procedural Matters > Rulings on Evidence

HN4 Where the trial court's error is one of constitutional

magnitude, the appellate court must reverse the judgment unless

it determines beyond a reasonable doubt the trial court's error did

not contribute tothe conviction. Tex. R.App.P.44.2(a).The harm

analysis for erroneousadmissionof evidenceobtainedin violation

of Fourth Amendment is Rule 44.2(a)'s constitutional standard.

Thus, the appellate court must reverse a conviction unless it

concludesbeyond a reasonabledoubt the trial court'serror did not

contribute to his conviction. In doing so, the appellate court

considers: (1) the nature of the error; (2) the extent it was

emphasized by the State; (3) the probable implications of the

error; and (4) the weight the jury likely assigned to it during

deliberations. These factors are not exclusive and other factors

may be relevant to the analysis. An analysis for whether a

particular constitutional error is harmless should take into account

any and every circumstance apparent in the record that logically

informsanappellate determination, whetherbeyondareasonable

doubt that particular error did not contribute to the conviction or

punishment. Tex. R. App. P. 44.2(a).

Counsel: For APPELLANT: M. Patrick Maguire, M. Patrick

Maguire, P.C., Kerrville, TX.

For APPELLEE: Steven A. Wadsworth, Assistant District

Attorney, Kerrville, TX.

Judges: Opinion by: Marialyn Barnard, Justice. Sitting: Marialyn

Barnard, Justice, Patricia O. Alvarez, Justice, Jason Pulliam,

Justice.

Opinion by: Marialyn Barnard

Opinion

MEMORANDUM OPINION

A jury convicted appellant Paul Anthony Garcia of reckless bodily

injury to a child and intoxication manslaughter. As to both

offenses, the jury made affirmative findings that Garcia used a

deadly weapon - a vehicle. Based on the jury's

recommendations as to punishment, the trial court imposed a

sentence of ten years' confinement, probated, for the reckless

bodily injury to a child offense, and a sentence of fifteen years'

confinement for the intoxication manslaughter offense. On

appeal, Garcia contends the trial court erred in: (1) denying his

motion to suppress; (2) admitting certain medical records into

evidence; and (3) denying his motion for mistrial based on the

State's alleged improper jury argument. We agree [*2] the trial

court erred in denying Garcia's motion to suppress, and we

reverse and remand for a new trial.

Background

The record shows that a head-on collision occurred in Kendall

County. Shortly thereafter, Boerne police officer Lance DeLeon

arrived at the scene of the accident. Two cars were involved in

the accident, a brown pickup truck and white four-door car.

Officer DeLeon testified a Hispanic male, later identified as

Garcia, was in the driver's seat of the pickup truck. According to

the officer, Garcia was conscious, but confused and incoherent.

After asking a bystander to keep an eye on Garcia, Officer

DeLeon went to check on a child, subsequently identified asG.B.,

lying in a ditch near the white car. According to one of the first

bystanders on the scene, Ricardo Carrillo, he and his friends had

removed G.B. from the vehicle. The officer then approached the

whitecar, whichwason its side.WhenOfficerDeLeon lookedinto

the car, he saw the driver, D.B., strapped into the driver's seat.

The officer testified she was deceased.

Thereafter, other emergency personnel arrived at the scene,

including Texas Department of Public Safety
Trooper Eric Kendrick. G.B. was airlifted to the [*3] hospital.

Garcia, who was pinned in his truck, was removed and also

airlifted to the hospital. Trooper Kendrick stated he spoke to

Garcia before he was taken to the hospital and Garcia appeared

disoriented, lacking "normal use of his mental faculties." Trooper

Kendrick testified that initially, he did not suspect Garcia was

intoxicated. The trooper stated he was questioning Garcia as part

of the "crash investigation." Trooper Kendrick testified that during

the course of the investigation, he discovered evidence that led

him to believe Garcia was intoxicated at the time of the accident,

including: (1) 911 calls advising of a wrong way driver in the area;

(2) the open container of liquor found in Garcia's vehicle; (3) the

marijuana pipe found in Garcia's vehicle; (4) Garcia's red,

bloodshot eyes; (5) Garcia's apparent loss of his normal faculties;

and (6) Garcia's inability to answer questions at the scene.

As a result of his investigation, Trooper Kendrick, who was still at

the scene, contacted DPS San Antonio Communications and

asked that a trooper be sent to the hospital to perform a

mandatory blood draw on Garcia pursuant to section 724.012 of

the Texas Transportation Code. The blood draw was taken

1

under the supervision of Trooper [*4] Rodney P. Zarate.

Admittedly, neither Trooper Kendrick, Trooper Zarate, nor any

other law enforcement officer obtained a warrant prior to

mandating the blood draw. Trooper Kendrick admitted there was

nothing that would have prevented him from obtaining a search

warrant. Rather, at the time, a warrantless blood draw was part of

DPS protocol.

The result of the blood draw showed Garcia's blood alcohol level

tobe0.187gramsper hundred millilitersof whole blood.Thelegal

limit in Texas is 0.08 grams per hundred milliliters of whole blood,

so [*5] Garcia's sample was more than twice the legal limit.

Garcia was ultimately arrested and charged with reckless bodily

injury to a child and intoxication manslaughter.

Garcia filed a pretrial motion to suppress the results of the blood

draw. At the suppression hearing, Garcia argued, among other

things, that the warrantless blood draw was improper under the

Supreme Court's recent

decision in Missouri v. McNeely, U.S. , 133 S.Ct. 1552, 1560-

63, 185 L. Ed. 2d 696 (2013) in which the Court held a

categorical or per se rule permitting warrantless blood draws

violates the Fourth Amendment. The trial court denied Garcia's

motion to suppress and the case proceeded to trial. At trial, the

resultsof the blood drawwereadmitted into evidence. Garciawas

ultimately convicted and thereafter perfected this appeal.

Analysis

As set forth above, Garcia raises several issues challenging his

conviction. However, because we find Garcia's first issue - the

one challenging the trial court's denial of his motion to suppress -

dispositive, we need not address any of the remaining issues.

Accordingly, we proceed with our analysis of Garcia's first issue.

As noted in our recent decision in Huff v. State, this court has

analyzed McNeely on several occasions and held HN2 section

724.012(b) is not a valid exception to the Fourth Amendment's

warrant [*6] requirement. No. 04-13-00891-CV, 2015 Tex. App.

LEXIS 3401, 2015 WL 1731236, at *14 (Tex. App.-San Antonio

Apr. 8, 2015, pet. filed) (citing Aviles v. State, 443 S.W.3d 291,

294 (Tex. App.-San Antonio 2014, pet. filed); McNeil v. State, 443

S.W.3d295,300(Tex.App.-SanAntonio 2014,pet.filed);Weems

v. State, 434 S.W.3d 655, 665 (Tex. App.-San Antonio 2014, pet.

granted)).TheTexasCourtof CriminalAppealsrenderedasimilar

decision in Villarreal v. State, No. PD-0306-14, 2014 Tex. Crim.

App. LEXIS 1898, 2014 WL 6734178, at *9-*10 (Tex. Crim. App.

Nov. 26, 2014, reh'g granted).

Recognizing the precedent from the Court of Criminal appeals

and this court, the State apparently concedes the warrantless

blooddrawcannotbejustifiedpursuanttotheprovisionsof section

724.012(b) of the Texas Transportation Code. We agree.

However, the State argues that even if the blood draw was

impermissible under section 724.012(b), the blood evidence was

properly admitted under the good faith exception to the

exclusionary rule. We recently addressed this issue in

Based on the underlying facts, it appears Trooper Kendrick was relying upon

1

section 724.012(b)(1)(A)-(C). SeeHN1 Tex. Transp.

CodeAnn.§ 724.012(b)(1)(A)-(C)(West 2011). This provision provides that a peaceofficer shall requirea blood or breath specimen

if a driver is arrested for driving while intoxicated after having been involved in an accident and as a result of the accident, another

individual has diedorwill die, has sufferedserious bodily injury, or has sufferedbodily injury andbeentransportedtoahospital or other

medical facility for treatment. Id. It is undisputedthat D.B. diedas aresult of theaccident andG.B. suffered injury and was transported

to a hospital for treatment.
Huff, a case involving a fatality accident just as in this case, and

held the good faith exception was inapplicable. 2015 Tex. App.

LEXIS 3401, 2015 WL 1731236, at *16.

As we recognized in Huff, HN3 although the federal exclusionary

rule usually precludes the use of evidence obtained in violation of

theFourthAmendment,"if lawenforcementpersonnelrely ingood

faith on a statute authorizing a warrantless search, and the statute

in question is later found to be unconstitutional, the evidence

seized need not be excluded." Id. (citing Illinois v. Krull, 480 U.S.

340, 347, 107S. Ct. 1160, 94 L. Ed. 2d 364 (1987)). However, we

observed that section 724.012(b) - the mandatory blood draw

statute - does not provide for a warrantless search. Id. (citing Tex.

Transp. Code [*7] Ann. § 724.012(b)). "Although the statute

states an officer shall take a blood draw if an individual suffered

serious bodily injury as a result of the DWI, it does not mandate

that he do so without a warrant." Id. Accordingly, in Huff, we held

we could not say the police officer acted in good faith when he

failedtoobtainawarrantbasedon section 724.012(b), which does

not dispense with the warrant requirement. Id.(citing Tex. Transp.

Code Ann. § 724.012(b)(1)(B); McNeil, 443 S.W.3d at 303).

The same is true in this case. Trooper Kendrick admittedly relied

uponsection724.012(b)(1)(A)-(C)when herequestedthatanother

trooper mandate a blood draw from Garcia without first obtaining

a warrant. Just as the officer in Huff could not in good faith rely on

Transportation Code when he obtained the blood draw from Huff

in the absence of a warrant, Trooper Kendrick could not rely upon

it when he mandated a warrantless blood draw from Garcia. See

id. Accordingly, we hold the good faith exception is inapplicable.

The State further contends that even if the trial court erred in

denying the motion to suppress and admitting the results of the

blood test, Garcia was not harmed. HN4 Because the trial court's

error is one of constitutional magnitude, we must reverse the

judgment unless we determine [*8] beyond a reasonable doubt

the trial court's error did not contribute to the conviction. Tex. R.

App. P. 44.2(a); see Hernandez v. State, 60 S.W.3d 106, 108

(Tex. Crim. App. 2001) (holding harm analysis for erroneous

admissionof evidenceobtainedinviolationof FourthAmendment

is Rule 44.2(a)'s constitutional standard). Thus, we must reverse

Garcia's conviction unless we conclude beyond a reasonable

doubt the trial court's error did not contribute to his

conviction, and in doing so, we consider: (1) the nature of the

error; (2) the extent it was emphasized by the State; (3) the

probable implications of the error; and (4)theweight the jury likely

assigned toit duringdeliberations. Snowden v.State, 353 S.W.3d

815, 822 (Tex. Crim. App. 2011). These factors are not exclusive

and other factors may be relevant to the analysis. Id. "At bottom,

an analysis for whether aparticular constitutional errorisharmless

should take into account any and every circumstance apparent in

the record that logically informs an appellate determination

whether 'beyond a reasonable doubt [that particular error] did not

contribute to the conviction or punishment.'" Id.(quoting Tex. R.

App. P.44.2(a)).

In Weems v. State, we held the trial court's error in denying

Weems's motion to suppress was harmful where the jury was

instructed regarding the definition of intoxication, [*9] which

included "having an alcohol concentration of 0.08 or more," and

there was testimony from a toxicologist that at the time of the

blood draw Weems's blood alcohol concentration was 0.18,

making it likely that his blood alcohol concentration was 0.24 at

the time of the accident. 434 S.W.3d at 667.

Thereafter, in Huff, we also held the trial court's erroneous

decision denying a motion to suppress was harmful where the

State, during voir dire, referenced the Texas blood alcohol limit of

0.08 grams per deciliter, a toxicologist testified Huff's blood

sample showed a blood alcohol concentration of 0.17 grams per

deciliter- more than twice the legal limit, the toxicology report was

admitted into evidence, the State referenced Huff's blood alcohol

content duringclosing argument- noting it was two times the legal

limit, and the jury was instructed about the definition of

"intoxicated," which included "having an alcohol concentration of

.08 or more." 2015 Tex. App. LEXIS 3401, 2015 WL 1731236, at

*17-*18.

Here, as in Huff, the prosecutor referenced the Texas blood

alcohol limit of 0.08, stating that if a person has a blood alcohol

concentration of 0.08 or more, he is intoxicated. See 2015 Tex.

App. LEXIS 3401, [WL] at *17. The prosecutor also discussed

with the venire "alcohol concentration," [*10] with regard to

breath, blood, and urine. After jury selection, during his opening

statement, the prosecutor again referenced the 0.08 limit,

advising the jury it was one way for the State to prove

intoxication. The State called James Burris, a forensic

toxicologist, as a witness. Mr. Burris described in detail the

procedure used for blood alcohol analysis
and specifically stated the standard against which a sample is

tested is 0.08. As to Garcia, Mr. Burris testified his testing showed

Garcia's blood alcohol content was 0.187 grams per hundred

milliliters of whole blood, and therefore, Garcia's blood alcohol

content was more than twice the legal limit of 0.08 grams per

hundred milliliters of whole blood. The State also introduced, and

thetrial courtadmittedintoevidenceoverobjection,State'sExhibit

11, a copy of Mr. Burris's report, showing the test results of

Garcia'salcohol level - 0.0187. And, just as inHuff, the prosecutor

noted Garcia's blood alcohol content during closing argument,

asking the jurors to "[k]eep in mind that the definition of

intoxication includes . . . the .08 - and you heard that [Garcia's]

blood alcohol level was .187, more than two times the legal limit."

[*11] See id. Finally, the jury was instructed as to the definition of

"intoxicated,"just as they were in Huff, which included "having an

alcohol concentration of 0.08 or more." See id.

Based on our prior decisions in Weems and Huff, as well as the

State'sreferences toGarcia'sblood alcohol content, the evidence

from the toxicologist presented by the State, as well as the

definition of "intoxicated" in the charge, we cannot say beyond a

reasonable doubt that the trial court's error in denying Garcia's

motion to

suppress did not contribute to his conviction. SeeTex. R. App. P.

44.2(a); Huff, 2015 Tex. App. LEXIS 3401, 2015 WL 1731236, at

*17-*18; Weems, 434 S.W.3d at 667. We therefore sustain

Garcia's first issue and hold the trial court's error entitlesGarcia to

a newtrial.Basedonour holdingwith regard toGarcia'sfirst issue,

we need not address Garcia's remaining issues.

Conclusion

Based on the foregoing, we sustain Garcia's challenge to the trial

court's denial of his motion to suppress and hold the trial court's

ruling constitutes reversible error, entitling Garcia to a new trial.

Accordingly,becausethewarrantlessblooddrawviolatedGarcia's

rights under the Fourth Amendment, and we cannot say beyond

a reasonable doubt that the erroneous admission of the blood

draw results did not [*12] contribute to his conviction, we reverse

the trial court's judgment and remand this matter to the trial court

for a new trial.

Marialyn Barnard, Justice

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