No. 03-14-00588-CR

In the

Court of Appeals

Third District

Austin, Texas

The State of Texas,

Appellant

v.

Hector Martinez,

Appellee

Appeal from the 42th Judicial District Court

Travis County, Texas

Cause Number D-1-DC-13-900228

STATE’S REPLY BRIEF

Rosemary Lehmberg

District Attorney

Travis County

Angie Creasy

Assistant District Attorney

State Bar No. 24043613

P.O. Box 1748

Austin, Texas 78767

(512) 854-9400

Fax (512) 854-4810

Angie.Creasy@traviscountytx.gov

AppellateTCDA@traviscountytx.gov

ACCEPTED

03-14-00588-CR

4756281

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/3/2015 9:13:28 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/3/2015 9:13:28 AM JEFFREY D. KYLE Clerk
1

To the Honorable Third Court of Appeals:

Now comes the State of Texas and files this reply brief.

Reply for Point One

The defendant argues that, hypothetically, the officer could have

begun the process of getting a warrant as early as 1:45 a.m., when he

arrived at the BAT bus.1

The record does not support this assertion because there is no

evidence that the officer had the ability to draft a search warrant

affidavit (usually done on a computer), or to send the affidavit to a

magistrate (email or fax), at the BAT bus. Thus, the officer still had to

make his way to the jail, or the police department, or some other

office, where he would have the ability to draw up an affidavit and

send it to the magistrate.2

1 Arrestees can give breath samples, which are tested for blood alcohol

content, at the BAT bus. 2RR 62.

2 The defendant also assumes that the officer could have obtained a warrant

by phone, after sending the affidavit to the magistrate. But the legality of

obtaining warrants by phone is not exactly on firm ground. To the contrary,

telephonic warrants are subject to attack on a case-by-case basis. See Clay v.

State, 391 S.W.3d 94, 104 (Tex. Crim. App. 2013).
2

Reply for Points Two and Three

In its original brief, the State acknowledged an adverse opinion

from the Court of Criminal Appeals that contradicted the arguments

made by the State in Points Two and Three. See State v. Villarreal,

No. PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim. App.

Nov. 26, 2014) (finding mandatory blood draw unconstitutional).

The State wishes to inform the court that the Court of Criminal

Appeals granted the State’s motion for rehearing in Villarreal on

February 25, 2015. See id., 2015 Tex. Crim. App. LEXIS 201.

The State continues to press the arguments made in Points Two

and Three since the court could issue a different decision upon

rehearing, especially since the court was split 5-4 and three of the

judges who joined the majority opinion have recently left the court.

Reply for Point Four

In Point Four, the State argued that the Texas exclusionary rule

does not apply because the police did not obtain the evidence in

violation of the Fourth Amendment because, at the time of the blood

draw, Texas case law clearly held that alcohol dissipation alone

constituted exigent circumstances in DWI cases.
3

The defendant counters that the holding in McNeely is retroactive.

The State agrees that the holding in McNeely is retroactive and

applies to the defendant’s case. But this does not mean that the

exclusionary rules apply as well. Indeed, the Supreme Court has held

that the federal exclusionary rule often does not apply even though a

new holding is retroactive.

It is now up to Texas courts to decide whether the Texas

exclusionary rule applies when the law changes after evidence is

obtained. This will turn on how the courts interpret the language in

the Texas exclusionary rule, codified in Tex. Code Crim. Proc. art.

38.23.

Again, the State’s argument is that the Texas exclusionary rule

does not apply when the law changes after evidence has been

obtained because, in such a situation, the evidence was not actually

obtained in violation of the law.

Prayer

The State asks this Court to sustain its points of error, reverse the

trial court’s order suppressing the results of the blood analysis, and

remand this case to the trial court for further proceedings.
4

Respectfully submitted,

Rosemary Lehmberg

District Attorney

Travis County

Angie Creasy

Assistant District Attorney

State Bar No. 24043613

P.O. Box 1748

Austin, Texas 78767

(512) 854-9400

Fax (512) 854-4810

Angie.Creasy@traviscountytx.gov

AppellateTCDA@traviscountytx.gov

Certificate of Compliance and Service

I hereby certify that this brief contains 676 words. I further certify

that, on the 3rd day of April, 2015, a true and correct copy of this brief

was served, by U.S. mail, electronic mail, facsimile, or electronically

through the electronic filing manager, to the Appellee’s attorney,

John De la Vina, 702 Rio Grande, Austin, Texas 78701.

Angie Creasy