June 13, 2016

Mr. Abel Acosta Clerk, Court of Criminal Appeals Supreme Court Building 201 West 14 th 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 CLERKhave 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. A pp . 4 th 186 (Cal. Ct. App. 2016), reviewing ( along with other issues ) , whether law enforcement viol ated the Fourth Amendment by taking a warrantless sample from a defe n dant while he was unconscious or was the search and seizure valid because defendant was

“ deemed to have give n his consent ” under California ’ s implied consent law )

. Pe ople 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 pro hibit courts and parties from citing or rely ing 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 t o his consent. T his holding is in direct conflict with the Sixth Appellate District California Appellate C ourt in People v. Arredondo , 245 Cal. App. 4 th 186 (Cal. Ct. App. 2016 , rev. granted ))

. Martini v. Commonwealth, No. 0392

- 15

- 4, 2016 Va

. App. LEXIS 67 ( Va

. Ct. App. M arch 8, 2016, no pet.)(not designated for publication)( holding t hat adefendant who drives their vehicle on a highway in Virginia has given their

conse nt to a blood draw, and a driver ’ s incoherence or unconscious ness does n ot constitute a refusal , because consent is continuing. ( citing Goodman v. Commonwealth, 37 Va. App. 374 , 383 ( Va

. 2002)) )

. Texas Transportat ion Code § 724.061 (a person ’ s refusal of a request by an officer to submit to the taking of a specimen of breat h 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 (T e x. Crim. App. 1991)(holding that

“ eviden c e of an accused invoking his or her right to counsel may indeed be construed adversely to a defendant an d may improperly be c onsidered as inference of guilt

. ” “ Such an adverse use of evid ence 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

. “ T he invocation of constitutional rights such as assistance of counsel, silence, or freedom from unreasonable searches may not be relied upon as evidence of guilt. T o permit the
use of such evidence for purposes of incrimination would erode the protections guaranteed by both st a t e and federal constitutio ns ” ).W

inn 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 becaus e the use of such evidence would erode the protection s guaranteed by the federal and state constitution s to be free of unr easonable 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 con sent 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 problem s 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 placefor obtaining a warrant; (2) the availability of a magistrate judge; and (3) the

practical problem s of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence)

. The State reque sts that the foregoing authorities be brought to the attention of the C ourt

. 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