N OS. 04

- 15

- 00207

- CR, 04

- 15

- 00208

APPELLANT REQUESTS ORAL ARGUMENT IN THE COURT OF APPEALS

FOURTH SUPREME JUDICIAL DISTRICT

SAN ANTONIO, TEXAS

JESSICA G. CASTILLO

Appellant

V.

THE STATE OF TEXAS,

Appellee

TRIAL COURT CAUSE NOS. 458109, 458110

IN THE COUNTY CRIMINAL COURT AT LAW NO. 4

OF BEXAR COUNTY, TEXAS

BRIEF FOR APPELLANT

Daniel De La Garza

Texas Bar No. 24077965

The Law Office of Daniel De La Garza , PLLC

1800 McCullough Ave.

San Antonio, Texas 78212

(210) 263

- 1146 office

(210) 855

- 6274 fax

Daniel.DeLaGarza@me.com

Daniel Mehler

Texas Bar No. 24085752

Law Office of Daniel Mehler

115 E. Travis Street, Suite 1500

San Antonio, Texas 78205

(210) 816

- 0529

(210) 519

- 2856 ACCEPTED

04-15-00208-CR

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

8/17/2015 8:26:10 PM

KEITH HOTTLE

CLERKSTATEMENT REGARDING ORAL ARGUMENT

Pursuant to Tex. R. App. P. 39.7, Appellant requests oral argument in this

case as it would significantly aid the Court in the decisional process.

IDENTITY OF PARTIES AND COUNSEL

Appellant: Jessica Castillo

4000 Horizon Hill Blvd. #1803

San Antonio, Texas 78229

Presiding Judge: Hon. Jason Garrahan

Presiding Judge

Bexar County Criminal Court at Law No. 4

300 Dolorosa

San Antonio, Texas 78205

Trial Pro secutor: Joseph Hooker

Rebecca Gorham

Assistant District Attorneys

Bexar County District Attorney’s Office

300 Dolorosa

San Antonio, Texas 78205

Defense Counsel: Daniel Mehler

Blakely Mohr

Attorneys at Law

115 E. Tr avis Street, Suite 1500

San Antonio, Texas 78205

State’s Appellate Counsel: Hon. Nicholas LaHood

Bexar County District Attorney

101 W. Nueva, 4 th Floor

San Antonio, Texas 78205

Appellant’s Counsel: Daniel De La Garza

Attorney at Law

1800 McCullough Ave.

San Antonio, Texas 78212Daniel Mehler

Attorney at Law

115 E. Travis Street, Suite 1500

San Antonio, Texas 78205TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT

................ ...................... . . ... 2

IDENTITY OF PARTIES AND COUNSEL

................................................... . .... 2

TABLE OF CONTENTS...............................................

............................ ........... 4

INDEX OF AUTHORITIES..........

......................................... ............................ .. 5

PRELIMINARY STATEMENT.........................................

............................ ...... 8

STATEMENT OF FACTS....................................................

............. ......... .... .... 10

POINT OF ERROR ONE............................................

............................ ............ 23

APPELLANT WAS DENIED THE DUE PROCESS RIGHT TO PRESENT A

DEFENSE

POINT OF ERROR TWO

....................................... ....... ..................... ................23

THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

APPELLANT’S MOTION FOR CONTINUANCE

POINT OF ERROR THREE

............................... ............................ ....................23

THE TRIAL COURT’S ERRORS HA D A CUMULATIVE EFFECT

POINT OF ERROR FOUR

............................. ............................ ........................34

THE APOLOGY LETTER ORDERED AS A CONDITION OF

COMMUNITY SUPERVISION IN CAUSE NO. 458109 VIOLATES

APPELLANT’S CONSTITUTIONAL RIGHT AGAINST SELF

INCRIMINATION

PRAYER FOR RELIEF..............................

............................ ............................ 36

CERTIFICATE OF SERVICE................

............................ ................................ 37

CERTIFICATE OF COM PLIANCE...

............................ .................................... 38INDEX OF AUTHORITIES

CASES PAGE

Carroll v. State , 916 S.W.2d 494 (Tex. Crim. App. 1996).

...... ............. ..... ....... .. 24

Chamberlain v. State , 998 S.W.2d 23 0 (Tex. Crim. App. 1999)

. .......... ........ ..... . 33

Coleman v. State, 966 S.W.2d 525 (Tex. Crim. App. 1998)

..... ............. .... ..... ..... 24

Comm

. v. Melvin

, 2013 PA Su per 288, 2013 WL 6096222 (2013)

. ... .. ..... ........ ... 35

Crane v. Kentucky

, 476 U.S. 683 (1986).......................

................... . .. .......... . 23, 25

Davis v. Alaska , 415 U.S. 308 (1974)

.................................... ......... ............... ..... .29

Deaton v. State , 948 S.W.2d 371 (Tex. App.

— Beaumont 1977, no pet.).

..... .... .. 31

Estrada v. State , 313 S.W.3d 274 (Tex. Crim. App. 2010)..

....................... .. ...... . 33

Gallo v. State , 239 S.W.3d 757 (Tex. Crim. App. 2007)

.... ...................... . .... ...... 31

Gonzalez v. State , 04

- 07

- 00804

- CR, 2008 WL 5083125 (Tex. App.

— San An tonio

Dec. 3, 2008, pet. ref'd) (mem. op.) (not designated for publication)

.... . .... . . ....... 31

Heiselbetz v. State , 906 S.W.2d 500 (Tex. Crim. App. 1995).

............ ..... .. . ....... . . 31

Henley v. State , 454 S.W.3d 106 (Tex. App.

— Fort Worth 2014, pet.

gra nted)

.... ............................................................ ............................. ... .. . ....... .25, 29

Holmes v. S. Carolina , 547 U.S. 319 (2006)

............. ................ .... ....... .. ....... . 23, 25

Holmes v. State , 323 S.W.3d 163 , 174 ( Tex. Crim. App. 2009)...

.. . ....... . 25, 26, 27

Hurd v. State , 725 S.W.2d 249 (Tex. Cr. App. 1987)

.......... ...... ............... ... ....... . 24

Janecka v. State , 937 S.W.2d 456 (Tex. Crim. App. 1996)

.... ................ .... ....... . . 31

Lewis v. State , 815 S.W. 2d 560 (Tex. Cr. App. 1991).

........ ....................... ........ . 24Love v. State , 861 S.W.2d 8 99 (Tex. Crim. App. 1993)...

. ........................ ......... .. 24

Melancon v. State , 66 S.W.3d 375 (Tex. App.

— Houston [14th Dist.] 2001, pet.

ref'd) (en b anc)

.................................. ............................. ...... ....................... ......... . 33

Montgomery v. State , 810 S.W. 2d 372 (Tex. Crim. App. 1 991)....

............. ........ . 25

Mosley v. State , 983 S.W.2d 2 49 ( Tex. Crim. App. 1998)....

...... ............... ........ .. 29

Rankin v. State , 974 S.W.2d 707 (Tex. Crim. App. 1996).....

.. ........................... . 25

Roberts v. State , 963 S.W.2d 894 (Tex. App.

— Texarkana 1998, no pet).

..... .....24

Rodriguez v. State, 21 S.W.3d 562 (Tex. App.

— Ho uston [14th Dist.] 2000, pet.

ref’d).....................................................................................

............................... . 24

Speth v. State , 6 S.W.3d 530 (Tex. Crim. App. 1999)............

.................. ............34

St ahl v. State , 749 S.W.2d 826 (Tex. Crim. App. 1988)

........ ................ ............. . 33

State v. Ballard , 987 S.W.2d 889 (Tex. Crim. App. 1999)

... .............. ............... .. 25

Todd v. State , 911 S.W.2d 807 (Te x. App.

— El Paso, 1995, no pet.)

........ ......... . 34

United States v. Bell , 367 F.3d 452 (5th Cir. 2004)...............

......... .................... . 33

Woodall v. State , 216 S.W.3d 530 (Tex. App.

— Texarkana 2007 , pet. granted) aff'd

sub nom. Holmes v. State , 323 S.W.3d 163 (Tex. Crim. App. 2009).

.. ....... ... 26, 27

CONSTITUTIONS, STATUTES, AND OTHER AUTHORITIES PAGE

30 No. 26 West's Criminal Law News NL 58

..................................... . .......... ...... 35

T EX

. C ONST . art. I, § 19

.................................................... ........ ......................... ...23

T EX

. C RIM

. P ROC

. C ODE A NN . art. 29.13 (West 2015)........................................ .31

T EX

. R. A PP

. P. 39.7 ( West 2011)

............................................. ............................. . 2

T EX

. R. A PP

. P. 44 .2 (West 2011 )

............................................... ....................28, 29T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.12 (West 2015)................ .........................34

T EX

. R. A PP

. P

. 9.4 ( West 2011)

......................................... ......... .........................38

U.S. C ONST . amend. XIV

........................................................... ......................... . 23PRELIMINARY STATEMENT

On June 3, 2014, Appellant was charged by information with the offense of

resisting arrest, and driving while intoxicated with a BAC greater than 0 .15

,

alleged to have occurred on or about April 30, 2014. ( I C.R. 10 ; II C.R. 8)

. 1

Appellant was brought to trial before a jury on March 23, 2015 , and entered a plea

of not guilty to resistin g arrest and driving while intoxicated

. (1 R.R. 2; 3 R.R. 10)

.

The jury found Appellant guilty of both charges . ( 4 R.R. 76).

In cause number 458109 (resisting arrest) t he trial court assessed punishment

at: a $100 fine, court costs, one year confineme nt in the Bexar County jail probated

for 18 months, 80 hours of community service, the APSE c ourse, and ordered

Appellant to write an apology letter to the complainant, Officer Steven Rivas of the

San Antonio Police Department. (5 R.R. 11).

In cause nu mber 458110 (driving while intoxicated) , the trial court assessed

punishment at: a $400 fine, court costs, 180 days confinement in the Bexar County

jail probated for 180 days, 80 hours of community service, DWI Education class,

the DIP Live class, a TAIP evaluation, Ignition Interlock with a camera for the full

term of probation, and three days in the Bexar County Jail

, held in abeyance by the

1 Ms. Castillo will be referred to as “Appellant”. The Clerk’s Record in trial court cause no.

458109, an d appellate court cause no. 04

- 15

- 00207 (resisting arrest) will be referred to as “(I

458109, an d appellate court cause no. 04

- 15

- 00207 (resisting arrest) will be referred to as “(I

C.R.)”. The Clerk’s Record in trial court cause no. 459110, and appellate court cause no. 04

- 15

- 00208 (DWI) will be referred to as “(II C.R.)”. The reporter’s record wi ll be referred to as

“(R.R.)”. References to the reporter’s record are not distinguished, as the records are identical.

However, the reporter’s record in cause no. 458110 was used to cite this brief.trial court . (5 R.R. 11

- 12). Appellant gave timely notice of appeal and the trial

court’s certification of defen dant’s rights of appeal ensures Appellant has the legal

right to appeal. (I C.R. 30; II C.R. 26).STATEMENT OF FACTS

The arrest

San Antonio Police Department Officer Steven Rivas (“Officer Rivas”) was

patrolling the 281 and Bitters area of San Ant onio, Texas on April 30, 2014, at

around 2:30 a.m. (3 R.R. 18, 24

- 25). While Officer Rivas was looking for

impaired drivers, Appellant’s Nissan minivan caught his attention when it crossed

over the solid white line because

, “it’s a traffic violation

. ” ( 3 R.R. 46). The officer

followed the vehicle for a few minutes and eventually initiated a traffic stop right

after the interchange from southbound 281 to westbound Loop 410. (3 R.R. 47).

Appellant’s vehicle stopped on the right shoulder before the McCul lough exit. (3

R.R. 47). Officer Rivas instructed Appellant to move off the highway and park in

the Cavender’s Boot City parking lot. (3 R.R. 47

- 48). Appellant complied and the

officer made con tact with her. (3 R.R. 48). While Appellant retrieved her driver’s

license and insurance paperwork, Officer Rivas testified he smelled “a strong od or

of intoxicants on her breath”; the officer also testified Appellant had slurred

speech, and admitted to drinking two whiskey drinks at the Falls from 9:00 p.m. to

1:00 a.m. (3 R.R. 48

- 49, 50 ).

Officer Rivas asked Appellant to step out of the vehicle and began to qualify

her to administer standard field sobrie ty tests. (3 R.R. 53) Officer Rivas next

began administering the field sobriety tests including the ho rizontal gazenystagmus , the walk and turn test, and the one leg stand. (3 R.R. 59

- 60, 60

- 66, 66

-

67). After Appellant performed the battery of tests, Officer Rivas concluded,

“T hat she was intoxicated. She was impaired.” (3 R.R. 67).

Officer Rivas asked Appellant to place her hands on his patrol car. (3 R.R.

68). Appellant failed to immediately comply so the officer took her to the ground

using a simple body slam take down maneuver in an attempt to grab her arms and

handcuff her. (3 R.R. 70 , 87). While Appellant was yelling and screaming, the

officer was able to take her into custody. (3 R.R. 75).

Appellant sat on the curb and was read “her Miranda rights and a form

called the DIC

- 24.” (3 R.R. 75 ). The DIC

- 24 form “[i] s a state form askin g for a

sample of a person’s breath and/or blood.” (3 R.R. 77 ). The DIC

- 24 form was

introduced into evidence as State’s Exhibit 3 and p ublished to the jury. (3 R.R.

78 ). Officer Rivas called both a supervisor

, because placing someone on the

ground “is considered a use of force report

, ” and “EMS for precautionary reasons

to check the defendant.” (3 R.R. 79). Detective Quinn took photographs of any

injuries and Appellant was transported to jail . (3 R.R. 81).

The blood draw

Once in jail, Appellant re fused to give a voluntary sample of her breath. (6

R.R. 9; 12). In response, Officer Rivas pursued, and was granted, a search warrant

to draw Appellant’s blood. (6 R.R. 9).The blood sample was sent to Integrated Forensic Laboratories (IFL) for

foren sic testing. (6 R.R. 21). Senior Forensic Scientist Elizabeth Feller tested the

two blood vials taken from Appellant on April 30, 2014. (6 R.R. 21).

The admissibility of evidence concerning this blood draw was a hotly

contested issue at trial and is th e focus of this appeal.

The State’s motions in limine and the excluded blood draw evidence

The written motion

On March 25, 2015, the day of trial, the prosecutor filed a motion in limine

seeking to: 1) “prohibit mention of, or allusion to, the past employment history of

Intergrated Forensic Laboratory (IFL) analyst Elizabeth Feller, specifically, her

termination by Cellmark Forensics prior to her employment with IFL and why;”

and 2) “Any mention of any errors or mistakes made in a different cause, o ther

than in the above listed and numbered cause of action, in which Elizabeth Feller,

while employed by IFL, issued the Forensic Blood Alcohol Report.” (II C.R. 17

-

18). The trial court granted the State’s motion. (II C.R. 19).

Before voir dire, the S tate requested a hearing on the written motion in

limine and the following exchange occurred on the record:

THE COURT: . . . I see that there has been a State's Motion in Limine in

reference to Elizabeth Feller. Mr. Mehler, have you gotten that?

MR. MEHLER: I have.

THE COURT: Do you have anything in response to that Motion in Limine?MR. MEHLER: I would absolutely object. I do believe her prior disciplinary

record goes directly to her credibility as a witness as well as an

expert.

THE COUR T: State?

MR. HOOKER: Judge, the State doesn't plan on calling Miss Fellers as an expert

in this case and, therefore, any discussion of a blood test or

anything about IFL is totally prejudicial, is not probative at all,

and I think will only le ad to confuse the jury.

MR. MEHLER: Might I respond, Your Honor? I do believe the presence of

blood, presence of warrant is an absolutely material fact that are

completely relevant to the prosecution of this case and the

circumstances surroundi ng everything. I believe it is absolutely

admissible.

THE COURT: Mr. Mehler, unless you choose to call Miss Feller, Elizabeth

Feller, I believe if the State doesn't bring her in I don't know

how her test

-- speaking of her termination or anyth ing like that

would be of any relevant value to the court proceedings. But if

you do call her in or if you do want to put something on the

record for the Court

-- if you are going to want to approach

when you are questioning somebody, you w ant to possibly go

into it, please approach before you do that because I am going

to grant this State's Motion in Limine just in part that you can

re

- approach and argue at any time. Okay?

MR. MEHLER: Sounds good, Your Honor.

THE COURT: All r ight. With saying that, State, just be aware of that. Okay?

MR. HOOKER: Yes, Judge. Thank you.

(2 R.R. 4

- 5)

.The State’s oral motion in limine and Appellant’s oral request for a

c ontinuance

After voir dire, but before testimony commenced, the pros ecutor made a

separate, oral motion in limine seeking to exclude the blood test and the following

exchange occurred on t he record:

THE COURT: State, do you have a Motion?

MR. HOOKER: Yes, Your Honor. At this time I think as the Court is aware and

the d efense is aware we will not be bringing down any blood

expert to testify about the blood test or anything like that. There

will be no forensic toxicology or anything like that, so we will

be solely going on the officer's observations as far as l oss of

normal use of physical and mental faculties. Because of that,

Judge, I believe that any testimony or statements about blood

tests or what the blood would have shown or anything like that

isn't relevant. It is prejudicial to the State . We would ask that

any mention of blood being taken or anything like that be

excluded.

THE COURT: Okay. Defense counsel.

MR. MEHLER: I would object, Your Honor. I do believe that, one, there was a

blood warrant issued. It is absolutely a rele vant fact. The officer

will have personal testimony and personal knowledge of that

warrant and the affidavit and the events leading up to it. I do

believe it is absolutely relevant. The jury is absolutely entitled

to hear it.

THE COURT: I h ave had several cases like this before. I am going to grant the

Motion in Limine to exclude the portions

-- the actual blood

test, the actual taking of the blood and the blood warrant in this

case. However, I will allow defense to bring up the f act it is a

no refusal policy, that the proper avenues are to

-- When they're

investigating the case is the policy is a no refusal.

MR. MEHLER: Your Honor,THE COURT: Hold on. And so I will allow you to go into that, but I believe

that would be just more prejudicial and be confusing to the jury

to hear about a blood test that unless

-- Unless defense is going

to bring in the evidence with the proper witnesses, I don't

believe that it would be more probative than prejudicial.

MR. MEH LER: If I may respond.

THE COURT: You may respond.

MR. MEHLER: The officer swore to an affidavit, acquired a warrant. He has

personal knowledge to that. He actually observed the blood

being drawn. It's absolutely relevant to this case. I am not

understanding why that is prejudicial to the jury to know blood

was drawn. If it is stopped right there, I am not getting into

--

THE COURT: Why would it be probative? That is the point. I am not asking

you to answer it because I have already ans wered it. I don't

believe it is more probative than prejudicial. I believe it will

confuse the jury, and it won't be probative to the jury. Anything

else from the State?

MR. HOOKER: Nothing at this time, Judge.

THE COURT: And, again, just to re iterate, if the defense counsel is going to

bring forth that evidence, the Motion in Limine

--

MR. MEHLER: I would ask for a Motion for Continuance. I have not been

provided the addresses of the potential witnesses that could do

this. I have n ot been provided their phone numbers pursuant to

proper procedure. I have not been provided any of that. I would

ask for a continuance at this point if you are not going to allow

me to use their own officer against them.

THE COURT: That will b e denied. I mean, one thing is is that if you want to

go into the blood warrant, if you believe there was a

discrepancy, approach the bench. We can speak at that time.

Anything else from defense?

MR. MEHLER: No.THE COURT: Anything else from State?

MR. HOOKER: Nothing from the State.

(3 R.R. 5

- 8)

.

Denial of cross

- examination

T he state called Officer Rivas and during cross

- examination by defense

counsel the following exchange occurred on the record:

Q. Okay. At the time of this incident

-- Y ou're familiar with who

the District Attorney was at the time, right?

A. Yes.

Q. Susan Reed?

A. Yes.

Q. No refusal policy?

A. Yes.

Q. And after my client refused, what happened?

(3 R.R. 92).

The prosecutor objected and the trial court asked the parties to approach the

bench. (3 R.R. 92). At the bench, and on the record, the following exchange took

place:

MR. MEHLER: I haven't gotten into it. I asked about policy to serve warrants

after. I haven't said anything about blood yet , Your Honor.

THE COURT: I believe you're trying to elicit the point.MR. MEHLER: It is their witness. They can instruct him he is not allowed to

say anything about that.

THE COURT: Have you instructed your witness?

MR. HOOKER: Yes.

THE COURT: Th at is fine.

(At the Bench concluded.)

(3 R.R. 92

- 93).

Defense counsel again attempted to get into the search warrant that

accompanies a refusal under the “no refusal” policy:

Q. (By Mr.Mehler) So a no refusal policy, right?

A. Yes, sir.

Q. You go get a search warrant, right?

A. Yes.

Q. And then take her to the hospital?

A. No.

Q. Where did you take her?

A. There is a nurse's station at the magistrate's office.

Q. Nurse's station?

A. Yes.

Q. Okay.

MR. MEHLER: Your Honor, may I approach?THE COURT: Yes.

(At the Bench, on the record.)

MR. MEHLER: I believe at this point he absolutely is free to disclose the search

warrant after he has testified to his knowledge of it.

THE COURT: If you want to

-- since it has come ou t

-- want to go over their

search warrant, I mean

-- It has been an objection at this point,

but the Motion in Limine is not to go into the blood test on this

case.

MR. HOOKER: It is side bar. I thought we were going

-- I did not think that was

opened.

THE COURT: I believe I agree with the prosecutor at this point. You're trying

to open the door to this. You're not allowed to open the door

unless you are going to have the person who tested the blood

-- bring them in. I think we all know there was a blood test,

correct?

MR. MEHLER: That is part of the facts of the case, Your Honor.

THE COURT: It is not relevant. It is not probative. It is not good for the jury.

It is going to be confusing. So, no, you're not allowed to go into

it.

MR. MEHLER: Haven't gotten there yet.

THE COURT: I agree. You are not going there unless you want to bring in

somebody that, you know, can testify to that actual blood test.

Unless you do that, you are not going into it. That is th e Motion

in Limine.

MR. MEHLER: Haven't even gone there yet. You're talking about something I

haven't done at this point, with all due respect.

THE COURT: I know, but I believe that I know where you're going with it. Do

not do it.MR. MEHLER: I haven't yet so we're on the same page.

THE COURT: I am not having this discussion about this. I am just telling you

not to go into it.

MR. MEHLER: Understand.

THE COURT: Thank you. Go back.

The trial court

(At the Bench concluded.)

(3 R.R. 93

- 95)

.

At this point, defense counsel attempted to get the search warrant checklist

into evidence but was prevented from doing so by the trial court.

THE COURT: You may proceed.

MR. MEHLER: Just one second, Your Honor.

THE COURT: Yes, sir.

MR. MEHLER : May I approach?

THE COURT: Yes.

(Defendant's Exhibit No. 1 marked for identification.)

Q. (By Mr. Mehler) Your Honor, (sic) I'm handing you what has previously been

marked Defense Exhibit Number 1. Do you recognize that?

MR. HOOKER: Judge, can we approach again? I apologize.

THE COURT: Sure. In fact

-- Sorry. Deputy Fox

-- Take a seat

-- take the jury

out for five minutes at least.The trial court excused the jury and the following exchange occurred:

THE COURT: All right.

MR. MEHLER: If I may.

THE COURT: What is the Defendant's Exhibit Number 1?

MR. MEHLER: It is the blood warrant checklist.

THE COURT: Sir, we're not going into this.

MR. MEHLER: It's part of his investigation, Your Honor. If I don't

--

THE COURT: We're not going into it. You go over the fact that

-- Y'all may

be seated. The Motion in Limine, and let me reiterate, is not to

go into the blood test on this case nor the search warrant. If you

want to go into the search warrant as an affidavit that he made,

you can, but not to that it is a blood search warrant.

MR. MEHLER: Absolutely, and I haven't. I was going to have him verify that

this is what happens, if he recognizes this document, that he did

seek a search warrant, that there was a search warr ant issued.

THE CO URT: We're not going into the search warrant. We are going into the

fact that it's an affidavit. That is all we are going into. If you

-- if you want him to testify to certain parts on there, if they, say,

are in discrepancy of his report, that is fine. That is a sworn

affidavit. I will allow that. I will not allow you to go into a

search warrant for the blood or the blood. You already went

over the policy of no refusal and that the next thing they are

supposed to do is get a search warrant.

MR. MEHLER: I understand.

THE COURT: So this is not going to come in. The search warrant or blood for

this case is not coming in. It is not good faith on your part to go

into it when you know that it is not going t o come in. Unless

you are going to bring somebody else in here to testify to the

blood, that is

-- I mean.MR. MEHLER: Your Honor, I understand, but I haven't even gotten there. I do

believe that

--

THE COURT: I think you have gotten there. I th ink you have gone there. What

I am telling you is you have gone far enough. Okay?

MR. MEHLER: I respectfully disagree.

THE COURT: That is fine. You can respectfully disagree all you want. I am

telling you what you can and cannot do. Okay. You have got to

follow those rules. Are we in agreement on that?

MR. MEHLER: I understand. I would lodge a running objection to this ruling. I

respectfully disagree with this Court. I will respect the Court's

ruling.

THE COURT: Thank you. All rig ht. Take a seat, please. Anything else from

the State right now?

MR. HOOKER: No, Judge. Thank you.

THE COURT: State, just to let you know, I am not allowing a running

objecti on, so if you do feel that it is going to be needed again,

you need to object. That goes for both sides. Mr. Mehler, if you

feel there there is anything t hat you need to object to, please

object just as the State will.

MR. MEHLER: Your Honor, if we may address it, so I am not allowed to

discuss the submissio n of the blood to Bexar County Medical

Examiners? It's not IFL. Completely outside the Motion in

Limine.

THE COURT: No. No. No. We are not getting into the blood test on this case.

The only thing you can get into is the fact that it's a no ref usal

24/7 in Bexar County at the time that this person was place d

under arrest for driving while intoxicated.

MR. MEHLER: So I can't talk about the police investigation or anything that

followed it for the record?THE COURT: For the record yo u cannot speak

-- Listen to me again

-- about

the blood test for this case or the search warrant for this case.

You can talk about policy that is in place, the 2 4/7 no refusal.

You can go into that. Okay? That is what you can go into. Let's

bring them back in. Everybody ready?

MR. HOOKER: Yes, sir.

(3 R.R. 96

- 99).

The jury was brought back into the courtroom and defense counsel asked

Officer Rivas to explain the no refusal policy. Officer Rivas explained, “ [i] n Bexar

County whe n a perso n is offered to give a sample of their breath and/or blood and

they refuse, we type up a warrant and their blood is taken. ” (3 R.R. 99). Defense

counsel requested to approach the bench and attempted one last time to convince

the trial court to lift the m otion in limine under the theory the officer opened the

door . (3 R.R. 99). The trial court denied defense counsel’s request, successfully

shutting down any real chance of meaningful cr oss

- examination. (3 R.R. 99).

Defense counsel asked one last quest ion about the no refusal policy and was forced

to follow with “nothing further, Your Honor.” (3 R.R. 99).POINT OF ERROR ONE

APPELLANT WAS DENIED THE DUE PROCESS RIGHT TO

PRESENT A DEFENSE

POINT OF ERROR TWO

THE TRIAL COURT ABUSED ITS DISCRETION BY

D ENYING APPELLANT’S MOTION FOR CONTINUANCE

POINT OF ERROR THREE

THE TRIAL COURT’S ERRORS HAD A CUMULATIVE EFFECT

Appellant’s first three points of error rely on identical facts and arguments

and will be briefed together to avoid repetition.

APPELLANT WAS DENIED THE DUE PROCESS RIGHT TO PRESENT A

DEFENSE

“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment

or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment,

the Constitution guarantees criminal defendants ‘a meaningful opportunity to

present a complete defense.’ ”

Holmes v. S. Carolina , 547 U.S. 319, 324 (2006) (citing Crane v. Kentucky

, 476 U.S. 683, 689

– 90 (1986)).

A. Standard of review and applicable law

The federal and state constitution s entitle an accused to due process and due

course of law, respectively. See U.S. C ONST . amend. XIV; T EX

. C ONST . art. I, §

19

. Compulsory process is an integral component, a core interest, of due process

law. Washington v. Texas , 388 U.S. 14, 19 (1967)

. Compulsory process includes “

‘the right to present a defense, the right to present the defendant's version of thefacts as well as the prosecution's to the jury so it may decide where the truth lies.’ ”

Coleman v. State, 966 S.W.2d 525, 527 (Tex. Crim. A pp. 1998) (quoting

Washington, 388 U.S. at 19); Rodriguez v. State, 21 S.W.3d 562, 568 (Tex. App.

—

Houston [14th Dist.] 2000, pet. ref’d).

The Constitutional right of confrontation is violated when appropriate cross

examination is limited. Carroll v. St ate , 916 S.W.2d 494, 497 (Tex. Crim. App.

1996) (citing Hurd v. State , 725 S.W.2d 249, 252 (Tex. Cr. App. 1987)). The

scope of appropriate cross

- examination is necessarily broad. Id . A defendant is

entitled to pursue all avenues of cross

- examination rea sonably calculated to expose

a motive, bias or interest for the witness to testify. Id . (citing Lewis v. State , 815

S.W.2d 560, 565 (Tex. Cr. App. 1991).

A trial court's decision to limit a defendant’s cross

- examination is reviewed

under the abuse of d iscretion standard. Love v. State , 861 S.W.2d 899, 903 (Tex.

Crim. App. 1993). A trial court may properly limit the scope of cross

- examination

to prevent pre judice, confusion of the issu es, or marginally relevant interrogation.

Carroll

, 916 S.W.2 d 497 ( listing only the reasons applicable to this case)

.

However, the defendant should be granted wide latitude even though he is unable

to state what facts he expects to prove through his cross

- examination. Id

. This

inquiry depends on the facts of each case. Love , 861 S.W.2d 904; Roberts v. State

,

963 S. W.2d 894, 901 (Tex. App.

— Texarkana 1998, no pet ). If the trial court'sdecision falls outside the “zone of reasonable disagreement,” it has abused its

discretion. Rankin v. State , 974 S.W.2d 707, 718 (Tex. Crim. App. 1996) (op. on

reh'g); Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on

reh'g). T he Fort Worth Court of Appeals recently recognized:

The abuse of discretion standard, however, is viewed in light of

and subject to constitut ional protections. The Supreme Court of

the United States reminds us that while states “have broad

latitude under the Constitution to establish rules excluding

evidence from criminal trial,” “[t]his latitude . . . has limits . . .

[T]he Constitution guara ntees criminal defendants a meaningful

opportunity to present a complete defense.” Further, “an

essential component of procedural fairness is an opportunity to be

heard. That opportunity would be an empty one if the State were

permitted to exclude compet ent, reliable evidence

. . . when such

evidence is central to the d efendant's claim of innocence.” Thus,

a trial judge whose evidentiary ruling undermines or disregards a

constitutional protection abuses his discretion; such a ruling

cannot be within the zone of reasonable di sagreement.

Henley v. State , 454 S.W.3d 106, 114 (Tex. App.

— Fort Worth 2014, pet. granted)

(citing Crane v. Kentucky , 476 U.S. 683, 690 (1986) (citations and internal

quotation marks omitted); Holmes v. South Carolina , 547 U.S. 319, 3 24 (2006)

(citations and internal quotation marks omitted); State v. Ballard , 987 S.W.2d 889,

893 (Tex. Crim. App. 1999) (also recognizing “[m]isapplication of the law to the

facts of a particular case is a per se abuse of discretion.”).

B. The trial court abused its discretion

In Holmes v. State , the Court of Criminal Appeals held the trial court’s

denial of defendants’ pretrial motions to permit cross

- examination of the State’sexpert on the Intoxilyzer 5000 breath

- testing machine deprived the defendants of

the right to present a defense in violation of due process. Holmes v. State , 323

S.W.3d 163 , 174 (Tex. Crim. App. 2009). T he Court consolidated, and granted

review

, to eight separate cases where the defendants challenged the trial court’s

denial of a motion seeking to cross

- examine the State’s expert in “ eight areas of

concern about the internal workings ” of the machine. Id at 172, 167

.

In Woodall 2

, the State asked the trial court to take judicial notice of the

underlying science which supports t he Intoxilyzer breath

- testing machine, but to

leave open for cross

- examination only the testing done pertaining to the tests made

relating to this offense. Woodall v. State , 216 S.W.3d 530, 531 (Tex. App.

—

Texarkana 2007 , pet. granted) aff'd sub nom. Holme s v. State , 323 S.W.3d 163

(Tex. Crim. App. 2009). The pretrial ruling ordered no cross

- examination be made

on the general topic of the possible fallibility of the Intoxilyzer machine. Id . at

536. Defense counsel objected at length, but the court ultima tely ruled in favor of

the State. Id . The Intoxilyzer breath test results were not introduced into evidence

or otherwise presented to the jury. Id . at 531

- 32 . The C ourt explained, “[t]he

allowed scope of cross

- examination is broad and wide

- ranging and extends to any

matter relevant to the issues. ” Id

. The court held b ecause the accuracy and

reliability of the machine was clearly a matter relevant to an issue in the Woodall

2 Woodall is one of eight consolidated cases granted r eview in Holmes . Every case granted

review under Holmes has almost identical facts to the others.case the trial court abused its discretion. Id

.

The facts of this case are an alogous to the facts of Woodall as affirmed in

Homles . In this case, like in Woodall and Holmes

, Appellant was also denied the

right to present a defense when the trial court precluded meaningful cross

examination of the State’s witness. Like the trial c ourt in those cases, the trial

court in this case, effectively shut down any meaningful cross

- examination by

Appellant by sustaining the state’s objection to the line of questioning with regard

to the blood draw and blood testing in this case , which was a relevant issue

.

During cross

- examination, the defense presented Officer Rivas with the

Search Warrant Affidavit Checklist Sheet and marked it as Exhibit 1 for review.

(II C.R. 14). The exhibit was an affidavit signed and sworn to by Officer Rivas

atte sting to the fact he personally witnessed a registered nurse conduct a blood

draw of Appellant. (II C.R. 14). The court examined the exhibit and admonished

defense counsel he was about to violate the motion in limine. (II C.R. 14).

It was the good f aith belief of defense counsel that if the trial court had

permitted cross

- examination with regard to blood testing the following facts would

have been elicited from Officer Rivas: 1) A search warrant was sought by Officer

in this case, 2) A search warran t was granted, and 3) Officer Rivas personally

witnessed a registered nurse serving the search warrant by drawing blood from the

defendant. (II C.R. 15). Once the facts were in evidence, it was defense counsel’sintention to create reasonable doubt of Ap pellant’s intoxication by inquiring into

the surrounding facts and circumstances of the blood draw and subsequent blood

test. Defense counsel’s strategy was not to harass the witness with questions

related to the blood analyst who tested the blood (see st ate’s written motion in

limine) rather defense counsel’s strategy was to not allow the state to present a

false impression to the jurors by making them believe this was not a blood draw

case when it was. (II C.R. 15). The state would have been free to ex plain why the

blood sample was not offered. Not allowing the blood draw and blood test

evidence deprived Appellant of a fair trial, vi olated the right to due process, and

Appellant’s Sixth Amendment right to meaningful cross

- examination and the right

to c onfrontation. The evidence was central to Appellant’s claim of innocence and

the trial court’s evidentiary ruling undermined and disregarded her constitutional

protections.

Therefore, i t was constitutional error and an improper bar to evidence to

preclu de testimony and evidence of the blood draw and blood testing in this case.

Accordingly, the trial court abused its discretion.

C. The trial court’s error is reversible

Under Texas Rule of Appellate Procedure 44.2(a), if the appellate record

reveals a constitutional error, the judgment of conviction must be reversed unless

the error did not contribute to the conviction or punishment beyond a reasonabledoubt. See T EX

. R. A PP

. P. 44 .2(a) (West 2015) ; see also Davis v. Alaska , 415 U.S.

308, 318 (1974) ( holding that denial of effective cross

- examination is

“constitutional error of the first magnitude and no amount of showing of want of

prejudice would cure it”). T he reviewing court’s primary question is whether there

is a “reasonable possibility” that th e error might have contributed to the conviction.

Henley , 454 S.W.3d 117

- 18 (Tex. App.

— Fort Worth 2014, pet. granted) (citing

Mosley v. State , 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)).

In this case, the denial of meaningful cross

- examination was a ser ious denial

of Appellant’s Sixth Amendment rights. The trial court effectively eviscerated

Appellant’s defense, d efense counsel’s trial strategy

, and undoubtedly contributed

to Appellant’s conviction and punishment. The trial court denied Appellant the

f

undamental right to put on a complete defense and violated the due process right

to a fair trial. Defense counsel asserted in the Bill of Exception the trial court’s

denial violation of Appellant’s fundamental rights “have forced her counsel to

provide in effective assistance as he [was] precluded from providing the defense

necessary in this matter.” (II C.R. 16).

Further, the presence of the evidence collected by the state during its

investigation of this case was relevant to the proceedings and should have been

presented to the jury. The facts Appellant sought to elicit through blood testing

testimony were essential to the defense of this case as the central question andtheme defense counsel sought to build re asonable doubt by was through the

testimo ny asking

— “Where’s the blood?”. (II C.R. 16). The lack of blood testing

evidence and the denial of cross

- examination on that topic also allowed the state to

create a false impression for the jury (the exact opposite result the trial court hoped

to accomp lish) when the blood draw and blood testing evidence Appellant sought

to present painted “a factually correct picture, that blood was drawn and the state

has chosen not to present it.” (II C.R. 16).

When viewing the record as a whole it is apparent t here is a “reasonable

possibility” that the trial court’s denial of Appellant’s right Sixth Amendment right

to cross

- examine Officer Rivas contributed to Appellant’s conviction s

.

D. Conclusion

The trial court abused its discretion by denying Appellant t he due process

right to present to present a defense and the trial court’s constitutional error

undoubtedly contributed to Appellant’ s conviction s . Accordingly, the judgments

of conviction should be reversed and this case remanded to the trial court for a new

trial.

THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

APPELLANT’S MOTION FOR CONTINUANCE

A. Applicable law and standard of review

Article 291.3 Texas Code of Criminal Procedure provides, “A continuance

or postponement may be granted on the moti on of the State or defendant after thetrial has begun, when it is made to appear to the satisfaction of the court that by

some unexpected occurrence since the trial began, which no reasonable diligence

could have anticipated, the applicant is so taken by surprise that a fair trial cannot

be had. T EX

. C RIM

. P ROC

. C ODE A NN . art. 29.13 (West 2015).

Although a motion for continuance should be in writing, an oral request for

delay may be addressed to the equitable powers of the trial court. Gonzalez v.

State , 04

- 07

- 00804

- CR, 2008 WL 5083125, at *3 (Tex. App.

— San Antonio Dec.

3, 2008, pet. ref'd) (mem. op.) (not designated for publication) (citing Deaton v.

State , 948 S.W.2d 371, 374 (Tex. App.

— Beaumont 1977, no pet.).

A matter of continuance is generally wit hin the discretion of the trial judge,

and the court review s a trial court's ruling on a motion for continuance under the

abuse of discretion standard. Gallo v. State , 239 S.W.3d 757, 764 (Tex. Crim.

App. 2007); Janecka v. State , 937 S.W.2d 456, 468 (Tex. Crim. App. 1996); see

also Deaton , 948 S.W.2d at 374. To establish an abuse of discretion, there must be

a showing that the defendant was actually prejudiced by the denial of his motion.

Gallo , 239 S.W.3d at 764; Janecka , 937 S.W.2d at 468. When review ing the trial

court's denial of a motion for continuance, the reviewing court examines the

circumstances presented to the trial court

. See Heiselbetz v. State , 906 S.W.2d 500,

517 (Tex. Crim. App. 1995).B. The trial court abused its discretion by actu ally prejudicing Appellant

No reasonable amount of diligence could have anticipated the State’s

motions in limine. Defense counsel had prepared for trial and based his trial

strategy on building reasonable doubt using the blood evidence he anticipated

bei ng able to talk about using the state’s own witness

. Defense counsel was

completely caught by surprise when he was precluded from talking about the blood

and timely requested a continuance. (3 R.R. 7). Defense counsel’s surprise was

compounded when the state requested, and trial court granted, a second motion in

limine requesting no mention of any blood at all. The trial court denied defense

counsel’s request for a continuance and advised him to approach the bench if he

“believed there was a discrepancy .” (3 R.R. 7). At that point in time the burden

shifted to Appellant to bring in the witnesses to prove up the blood test if he

wanted to discuss it. (3 R.R. 7). Defense counsel had not been provided the

addresses or contact information for any potenti al witness that could have been

brought in to prove the blood test up and did not have the burden to do so until that

point in the trial

.

C. Conclusion

When reviewing the circumstances presented to the trial court it is clear

Appellant was actually preju diced. A continuance would have cured any harm by

allowing Appellant , through defense counsel, to meet the newly conferred burdenof producing a witness that was not otherwise known to be needed until the day of

trial . Therefore, the tri al court abused i ts discretion and Appellant requests the

judgments of conviction be reversed and remanded to the trial court for a new trial.

THE TRIAL COURT’S ERRORS HAD A CUMULATIVE

EFFECT

A. Standard of Review

A number of errors, even if harmless when separately considered, may be

harmful in their cumulative effect. Chamberlain v. State , 998 S.W.2d 230, 238

(Tex. Crim. App. 1999) (citing Stahl v. State , 749 S.W.2d 826, 832 (Tex. Crim.

App. 1988)); Melancon v. State , 66 S.W.3d 375, 385 (Tex. App.

— Houston [14th

Di st.] 2001, pet. ref'd) (en banc)

. This doctrine provides relief only if the

cumulative effect rendered the phase of the trial fundamentally unfair. See Estrada

v. State , 313 S.W.3d 274, 311 (Tex. Crim. App. 2010) (citing United States v. Bell

,

367 F.3d 4 52, 471 (5th Cir. 2004)).

B. The trial court’s errors had rendered Appellant’s trial fundamentally

unfair

Appellant hereby incorporates by reference the arguments and authorities

found in the above two points of error set forth, supra . The trial court ’s error in

precluding meaningful cross

- examination and eviscerating Appellant’s right to

present a complete defense combined with the trial court’s denial of Appellant’soral motion for continuance rendered the guilt/innocence phase of the trial

fundament ally unfair.

C. Conclusion

Therefore, the trial court’s errors had a cumulative effect. Accordingly,

Appellant requests the convictions be reversed and these cases remanded to the

trial court for a new trial.

POINT OF ERROR FOUR

THE APOLOGY LETTER ORD ERED AS A CONDITION OF

COMMUNITY SUPERVISION IN CAUSE NO. 458109

VIOLATES APPELLANT’S CONSTITUTIONAL RIGHT

AGAINST SELF

- INCRIMINATION

Along with the discretionary powers to decide whether to grant community

supervision, the trial court also has discretio n in determining the conditions to be

imposed. Speth v. State , 6 S.W.3d 530, 533 (Tex. Crim. App. 1999). The Code of

Criminal Procedure sets only general limits on the conditions of community

supervision that may be fashioned by trial courts. It provide s, “ The judge may

impose any reasonable condition that is designed to protect or restore the

community, protect or restore the victim, or punish, rehabilitate, or reform the

defendant .” T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.12 § 11(a)

- (b) ( West 2015 );

Abse nt an abuse of discretion, the condition will not be disturbed. See Todd v.

State , 911 S.W.2d 807, 818 (Tex. App.

— El Paso, 1995, no pet.).Appellant was ordered to write an apology letter to San Antonio Police

Department Officer S teven Rivas, the complai nant in cause no. 458109 (resisting

arrest)

, as a condition of com munity supervision. (5 R.R. 11 ; I C.R. 1 ).

Appellant asserts this condition of probation violates her right against self

incrimination during the pendency of this appeal and constitutes an abuse of

discretion. Texas appellate courts have not addressed the question of whether a

condition of probation requiring a defendant to write an apology letter violates the

right against self

- incrimination during the pendency of a direct appeal.

In Com m

. v. Melvin , the Court held a portion of a defendant's sentence that

required her to write letters of apology for her crimes violated the defendant's right

against self

- incrimination. See 30 No. 26 West's Criminal Law News NL 58

(citing Comm

. v. Melvin 2 013 PA Super 288, 2013 WL 6096222 (2013)). In that

case, the defendant, a former judge, was ordered to write an apology letter to every

judge and justice in the Commonwealth and to every former member of her

judicial staff and of the staff of her sister, who had been a state senator. The

sentencing order preceded the resolution of the defendant's direct appeal of the

underlying convictions and sentence. Id . The court explained, if the defendant's

conviction was reversed and the charges retried, the poss ibility existed that the

apology letters could be used as evidence against her. Id . The issue was one of

first impression in Pennsylvania, as it is in Texas. Id

.Appellant asserts the same argument as asserted in Melvin

, like in Mevin if

Appellant is required to write an apology letter and the trial court’s judgments are

reversed, then the possibility exists the State may introduce the letter as eviden ce

of Appellant’s guilt as permitted by Tex. R. Evid. 801(2).

Therefore, the condition of probation r equiring Appellant to write an

apology letter to Officer Rivas violates her right against self

- incrimination during

the pendency of this appeal. Accordingly, Appellant requests that condition of

probation be reversed and the judgment in Cause No. 458109 b e reformed to

eliminate the condition of probation requiring Appellant to write an apology letter

to Officer Rivas.

PRAYER FOR RELIEF

Appellant prays that this Honorable Court sustain the points of error

presented and requests this Honorable Court reve rse the judgment of the trial court

and remand these case s for a new trial , or in the alternative reform the judgments

of the trial court

. Appellant further requests any other relief to which she may be

legally entitled.Respectfully su bmitted,

L AW O FFICE OF D ANIEL D E L A G ARZA

, PLLC

/s/ Daniel De La Garza

Daniel De La Garza

Texas Bar No. 24077965

1800 McCullough

San Antonio, Texas 78212

(210) 263

- 1146 office

(210) 85 5

- 6274 fax

Daniel.DeLaGarza@me.com

L AW O FFICE OF D ANIEL M EHLER

/s/ Daniel Mehler

Daniel Mehler

Texas Bar No. 24085752

The Law Office of Daniel Mehl er

115 E. Travis Street, Suite 1500

San Antonio, Texas 78205

(210) 816

- 0529 office

(210) 519

- 2856 fax

Attorney s for Appellant

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served

upon the District Attorney of Bexar County, Texas, on the 17 th day of July 2015,

by email to: j.brandon@bexar.org

.

/s/ Daniel De La Garza

Daniel De La GarzaCERTIFICATE OF CO MPLIANCE

Pursuant to Rule 9.4(i)(3) Texas Rules of Appellate Procedure, the

undersigned counsel certifies that this brief complies with the type

- volume

limitations of TEX. R. APP. PROC. 9.4(e)(1).

1. Exclusive of the portions exempted by Tex. R. App. Proc. 9 .4

(i)(1), this brief contains 7,426 words printed in a proportionally spaced typeface.

2. This brief is printed in a proportionally spaced, serif typeface

using Times New Roman 14 point font in text, with 12 point foot used for any

footnotes.

3. Upon request, u ndersigned counsel will provide a copy of the

Word printout to the Court.

4. Undersigned counsel understands that a material misrepresentation

in completing this certificate, or circumvention of the type

- volume limits in Tex.

R. App. Proc. 9.4 , may result in the Court striking this brief and imposing

sanctions against the person who signed it.

/s/ Daniel De La Garza

Daniel De La Garza