June 13, 2016 

Mr. Abel Acosta 

Clerk, Court of Criminal Appeals 

Supreme Court Building 

201 West 14th Street, Room 106 

Austin, Texas 78701 

 Re: The State of Texas v. Jose Ruiz

 PD-1362-15

 COA Cause No. 13-13-00507-CR

 Trial Court Case No. 34-13-B 

 Set for submission on Oral Argument June 15, 2016 

 Additional Citations 

Dear Mr. Acosta, 

Prior to oral argument the State submits the following additional citations for 

the Court’s consideration in this cause: 

Issue One: 

Breithaupt v. Abraham, 352 U.S. 432 (1957)(holding “the driver here was 

unconscious when the blood was taken, but the absence of conscious consent, 

without more, does not necessarily render the taking a violation of a constitutional 

right.” Reasoning in footnote number 2: “it might be a fair assumption that a 

driver on the highways, in obedience to a policy of the State, would consent to 

Keri L. Miller

First Assistant County Attorney

Eric L. Weborg Jr.

Assistant County Attorney

John Brumme

Investigator

Misty Miller 

Victim/Witness Coordinator

PAUL S. WATKINS 

Gonzales County Attorney

415 St. Louis Street

Gonzales, Texas 78629-4029

Phone (830) 672-6527 : Fax (830) 672-5868

Email: countyattorney@co.gonzales.tx.us

PD-1362-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 6/13/2016 8:26:41 AM

Accepted 6/13/2016 8:30:32 AM

ABEL ACOSTA

CLERK
have a blood test made as part of a sensible and civilized system protecting himself 

as well as other citizens... from the hazards of the road due to drunken driving”).

People v. Arredondo, No. S233582, 2016 Cal. LEXIS 3778 (Cal. June 8, 

2016)(granting review on People v. Arredondo, 245 Cal. App. 4

th 186 (Cal. Ct. 

App. 2016), reviewing (along with other issues), whether law enforcement violated 

the Fourth Amendment by taking a warrantless sample from a defendant while he 

was unconscious or was the search and seizure valid because defendant was 

“deemed to have given his consent” under California’s implied consent law).

People v. Ascencio, No. D066806, 2015 Cal. App. Unpub LEXIS 6270 (Cal. 

Ct. App. August 31, 2015, no pet.)(not designated for publication)(the California 

Rules of Appellate Procedure prohibit courts and parties from citing or relying on 

opinions not certified for publication or ordered published, however, this case from 

the Fourth Appellate District of California holds that because the defendant did not 

withdraw his statutory implied consent at the scene and subsequently, due to his 

unresponsiveness, was incapable of withdrawing his consent, his blood was drawn 

pursuant to his consent. This holding is in direct conflict with the Sixth Appellate 

District California Appellate Court in People v. Arredondo, 245 Cal. App. 4th 186 

(Cal. Ct. App. 2016, rev. granted)). 

Martini v. Commonwealth, No. 0392-15-4, 2016 Va. App. LEXIS 67 (Va.

Ct. App. March 8, 2016, no pet.)(not designated for publication)(holding that a 
defendant who drives their vehicle on a highway in Virginia has given their 

consent to a blood draw, and a driver’s incoherence or unconsciousness does not 

constitute a refusal, because consent is continuing. (citing Goodman v. 

Commonwealth, 37 Va. App. 374, 383 (Va. 2002))). 

Texas Transportation Code § 724.061 (a person’s refusal of a request by an 

officer to submit to the taking of a specimen of breath or blood, whether the refusal 

was express or the result of an intentional failure to give a specimen, may be 

introduced into evidence at the person’s trial). 

Hardie v. State, 807 S.W.2d 319 (Tex. Crim. App. 1991)(holding that 

“evidence of an accused invoking his or her right to counsel may indeed be 

construed adversely to a defendant and may improperly be considered as inference 

of guilt.” “Such an adverse use of evidence that a defendant invoked a right or 

privilege which has been granted him, is constitutionally impermissible”).

Powell v. State, 660 S.W.2d 842 (Tex. App.—El Paso 1983, no pet.)(holding 

that it was error to admit evidence that defendant would not voluntarily permit the 

officers to inspect a package containing narcotics. “The invocation of 

constitutional rights such as assistance of counsel, silence, or freedom from 

unreasonable searches may not be relied upon as evidence of guilt. To permit the 

use of such evidence for purposes of incrimination would erode the protections 

guaranteed by both state and federal constitutions”). 
Winn v. State, 871 S.W.2d 756 (Tex. App. Corpus Christi 1993, no 

pet.)(finding that defendant’s trial counsel was ineffective for failing to object to

the officer’s testimony that defendant refused to consent to a search of his 

residence because the use of such evidence would erode the protections guaranteed 

by the federal and state constitutions to be free of unreasonable searches and 

seizures).

Reeves v. State, 969 S.W.2d 471 (Tex. App.—Waco 1998, pet. 

ref’d)(allowing evidence of the defendant’s refusal to consent to a warrantless 

search of his home was error because it would impose a penalty for exercising a 

constitutional right).

Issue Two:

Cole v. State, No. PD-0077-15, 2016 Tex. Crim. App. LEXIS 84 (Tex.

Crim. App. May 25, 2016) (in addition to the natural dissipation of alcohol,

circumstances relevant to an exigency analysis include: (1) the procedures in place 

for obtaining a warrant; (2) the availability of a magistrate judge; and (3) the 

practical problems of obtaining a warrant within a timeframe that still preserves the 

opportunity to obtain reliable evidence).

Weems v. State, No. PD-0635-14, 2016 Tex. Crim. App. LEXIS 85 (Tex. 

Crim. App. May 25, 2016) (in addition to the natural dissipation of alcohol,

circumstances relevant to an exigency analysis include: (1) the procedures in place 
for obtaining a warrant; (2) the availability of a magistrate judge; and (3) the 

practical problems of obtaining a warrant within a timeframe that still preserves the 

opportunity to obtain reliable evidence). 

The State requests that the foregoing authorities be brought to the attention 

of the Court. Thank you for your immediate assistance with this matter.

Respectfully submitted, 

/s/ Keri L. Miller______________

Keri L. Miller 

First Assistant County Attorney

Gonzales County, Texas

kmiller@co.gonzales.tx.us

State Bar No. 24051960

CC: Mark Symms

Attorney for Appellant