                                                                                                     ACCEPTED
                                                                                                 03-13-00494-CR
                                                                                                         7547892
                                                                                      THIRD COURT OF APPEALS
                                                                                                 AUSTIN, TEXAS
                                                                                           10/26/2015 6:07:20 PM
                                                                                               JEFFREY D. KYLE
                                                                                                          CLERK
                                  No. 03-13-00494-CR

                                     In the                     FILED IN
                                                         3rd COURT OF APPEALS
                             COURT OF APPEALS                 AUSTIN, TEXAS
                                    For the              10/26/2015 6:07:20 PM
                    THIRD SUPREME JUDICIAL DISTRICT JEFFREY D. KYLE
                                   at Austin                      Clerk
                    ______________________________________

                 On Appeal from the 264th Judicial District Court of
                               Bell County, Texas
                              Cause Number 68431
                  ______________________________________

                EUGENE KELLY WOLFENBERGER, Appellant
                                   v.
                     THE STATE OF TEXAS, Appellee
                    _______________________________

                  APPELLANT’S MOTION FOR REHEARING1
                     __________________________________

                                       Background

       On July 12, 2013, a jury found Appellant guilty of the offense of

intoxication manslaughter and assessed Appellant’s punishment at twenty years in

prison and a $10,000.00 fine. Appellant timely filed Notice of Appeal and on

October 23, 2015, this Court affirmed Appellant’s conviction in a memorandum

opinion.     Wolfenberger v. State, No. 03-13-00494-CR (Tex. App.—Austin,

delivered October 23, 2015).
1
  Simultaneous with this filing, Appellant has also filed a Motion for Reconsideration En Banc
in light of Texas Rule of Appellate Procedure 49.1 and Franks v. State, 97 S.W.3d 584, 584
(Tex. Crim. App. 2003).

                                              1
                              Grounds for Rehearing

      On appeal, Appellant argued that Appellant received ineffective assistance

of counsel when trial counsel failed to move to suppress the results of a blood draw

taken pursuant to Texas’s now invalidated implied consent mandatory blood draw

statute. Specifically, Appellant’s blood was taken without a warrant in violation of

Missouri v. McNeely, 133 S.Ct. 1522 (2013), and his attorneys failed to object on

that basis. Despite the fact that the McNeely case, which held that Texas’s implied

consent statute did not provide an exception to the Supreme Court’s long-held

requirement that a warrant be obtained to draw a suspect’s blood, was released

more than two months prior to trial, and was binding Supreme Court’s precedent,

trial counsel made no effort to suppress the results of the blood draw.

      Rehearing should be granted because this Court absolved trial counsel’s

deficient performance by failing to recognize the authority of the United States

Supreme Court in analyzing its own precedent and instead, ruled that the Texas

Court of Criminal Appeals decisions analyzing United States Supreme Court

precedent should control.




                                          2
        Ineffective Assistance of Counsel

        As discussed above, on Appeal, Appellant argued that he received

ineffective assistance of counsel2 when trial counsel failed to move to suppress the

results of the mandatory blood draw in this case pursuant to the United States

Supreme Court’s holding in Missouri v. McNeely, 133 S.Ct. 1522 (2013).

        On April 17, 2013, the United States Supreme Court issued an opinion in

Missouri v. McNeely, 133 S.Ct. 1522 (2013), holding that “In those drunk-driving

investigations where police officers can reasonably obtain a warrant before a blood

sample can be drawn without significantly undermining the efficacy of the search,

the Fourth Amendment mandates that they do so.” Id. In so holding, the Court

rejected a per se rule that the dissipation of alcohol in the blood stream creates an

exigency which absolves the State of the duty to obtain a warrant before taking a

suspect’s blood. Id. In fact, the Court recognized its long-standing directive that

exigency be determined on the totality of the circumstances and cited its opinion in

Schmerber v. California, 384 U.S. 757 (1966). Despite the fact that Appellant’s

trial occurred more than two months after the McNeely decision, trial counsel made


2
     As this Court is aware, to prevail on a claim of ineffective assistance of counsel, Appellant
    must show that (1) trial counsel’s representation was deficient in that it fell below an objective
    standard of reasonableness; and (2) counsel’s deficient performance prejudiced Appellant so
    that there is a reasonable probability that the result of the proceeding would have been
    different but for the deficient performance. Strickland v. Washington, 466 U.S. 668 (1984);
    Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
                                                  3
no attempt to move to suppress evidence of Appellant’s blood alcohol content of

.30 and trial counsel made no objection to that evidence.

      This Court absolved trial counsel of any duty to file a motion to suppress or

object to evidence of Appellant’s blood alcohol content because “The law on

mandatory blood draws and implied consent was not settled when trial counsel

presented appellant’s case” and stated further in a foot note that:

      Trial commenced on July 8, 2013, more than two months after the
      Supreme Court held that blood-alcohol dissipation is not a per se
      exigency justifying warrantless, nonconsensual blood draws in
      Missouri v. McNeely, 133 S. Ct. 1552 (2013). However, the Texas
      Court of Criminal Appeals did not address whether nonconsensual
      blood draws taken pursuant to Texas Transportation Code § 724.012
      require a warrant until after appellant’s trial concluded, and the court
      has since decided to reconsider that ruling on rehearing. State v.
      Villarreal, __ S.W.3d __, No. PD-0306-14, 2014 WL 6734178, at *8-
      9, 11 (Tex. Crim. App. Nov. 26, 2014) (reh’g granted). The law
      surrounding Texas’s implied-consent and mandatory-blood-draw
      statutes has been unsettled since before appellant’s trial.


Wolfenberger v. State, No. 03-13-00494-CR (Tex. App.—Austin, delivered

October 23, 2015), at 7.

      Interestingly, this Court acknowledges the Supreme Court’s clear holding

“that blood-alcohol dissipation is not a per se exigency justifying warrantless,

nonconsensual blood draws” in Missouri v. McNeely, 133 S. Ct. 1552 (2013),

which would have triggered counsel’s duty to object or move to suppress the


                                          4
evidence on that basis. The Court then essentially states that it is up to the Court of

Criminal Appeals to interpret the Supreme Court’s holdings and until the Court of

Criminal Appeals does so, the Supreme Court’s holdings are not binding on

counsel.

         In its opinion, this Court cites two cases for the proposition that counsel’s

performance cannot be held to be deficient where an area of law is unsettled. See

State v. Bennett, 415 S.W.3d 867 (Tex. Crim. App. 2013) and Bernal v. State, No.

02-13-00381-CR, 2014 WL 5089182 (Tex. App.—Fort Worth Oct. 9, 2014, no

pet.).

         In the first of those cases, the area of unsettled law was that of a State statute

and its meaning as interpreted by several conflicting opinions by the Court of

Criminal Appeals. See State v. Bennett, 415 S.W.3d at 868-869. The Bennett

opinion in no way contemplated United States Supreme Court precedent. See Id.

         In the second, unpublished case with no precedential value, the Fort Worth

Court of Appeals held that counsel was not ineffective for failing to suppress

results of a warrantless, nonconsensual blood draw under McNeely because

“McNeely did not address directly the effect of mandatory-blood-draw or implied-

consent statues on the warrant requirement,” and “the import of McNeely on

Texas’s mandatory-blood-draw and implied-consent statutes was unsettled at the

                                              5
time of [appellant’s] trial . . .” See Bernal, No. 02-13-00381-CR, slip. op. at 10-12.

       However, those statements are incorrect.       In fact, in its opinion in the

McNeely case, the United States Supreme Court directly addressed the various

implied consent laws adopted by the fifty states and noted that a driver who has

impliedly consented to blood alcohol testing as a condition of operating a motor

vehicle on public roads can withdraw that consent if asked to give a blood or

breath sample. Missouri v. McNeely, 133 S.Ct. 1522 (2013). The Court stressed

that “wide-spread state restrictions on nonconsensual blood testing provide further

support for our recognition that compelled blood draws implicate a significant

privacy interest.” Id.

      It is well-settled that United States Supreme Court precedent controls and

when the United States Supreme Court requires a warrant in a blood draw case,

counsel should have a duty to object to blood evidence obtained without a warrant.

To fail to do so is deficient performance, especially in a case where the evidence

indicates Appellant was almost four times the legal level for intoxication and there

is a dispute as to whether he was intoxicated at the time the alleged offense was

committed. Because this Court held to the contrary, and for the foregoing reasons

rehearing should be granted.




                                          6
                                      PRAYER

     WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

requests that this Court grant rehearing in this case.

                                                Respectfully submitted,

                                                         /s/ Kristen Jernigan


                                                KRISTEN JERNIGAN
                                                State Bar Number 90001898
                                                207 S. Austin Ave.
                                                Georgetown, Texas
                                                (512) 904-0123
                                                (512) 931-3650 (fax)
                                                Kristen@txcrimapp.com


                          CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing Appellant’s

Motion for Rehearing was mailed to Bob Odom at the Bell County District

Attorney’s Office, 1200 Huey Road, Belton, Texas 76513, on October 27, 2015.


                                                /s/ Kristen Jernigan

                                               Kristen Jernigan




                                           7
                    CERTIFICATE OF WORD COUNT

      The undersigned hereby certifies that the foregoing document consists of

1,371 words in compliance with Texas Rule of Appellate Procedure 9.4.



                                    ______/s/ Kristen Jernigan______________
                                    Kristen Jernigan




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