PD-1623-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS December 18, 2015 Transmitted 12/17/2015 11:02:52 AM Accepted 12/18/2015 4:01:08 PM ABEL ACOSTA No. CLERK

In the COURT OF CRIMINAL APPEALS of the STATE OF TEXAS

EUGENE WOLFENBERGER, Petitioner THE STATE OF TEXAS, Respondent PETITION FOR DISCRETIONARY REVIEW FROM THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS AT AUSTIN IN CAUSE NUMBER 03-13-00494-CR APPEAL FROM THE 264TH DISTRICT COURT OF FORT BEND COUNTY IN CAUSE NUMBER 68431 Kristen Jernigan Attorney for Petitioner State Bar Number 90001898 207 S. Austin Ave. Georgetown, Texas 78626 (512)904-0123 (512) 931-3650 (Fax) Kristen@txcrimapp. com IDENTIFICATION OF PARTIES Pursuant to Texas Rule of Appellate Procedure 38.1, a complete list of the names of all interested parties is provided below so the members of this Honorable Court may at once determine whether they are disqualified to serve or should recuse themselves from participating in the decision of this case. Appellant: Eugene Kelly Wolfenberger Counsel for Appellant: Michael L. Rizzo (at trial) Michael F. White (at trial) Brett H. Pritchard (at trial) 100 Kasberg Drive, Suite A 1201 S. W.S. Young Drive, Ste. C Temple, Texas 76502 Killeen, Texas 76543 Kristen Jernigan (on appeal) 207 S. Austin Ave. Georgetown, Texas 78626 Counsel for Appellee, The State of Texas: Henry Garza Lisa C. McMinn Bell County District Attorney State Prosecuting Attorney M i c h a e l W a l d m a n P. O . B o x 1 3 4 0 6 F r e d B u r n s A u s t i n , Te x a s 7 8 7 11 - 3 4 0 6 Assistant District Attorneys 1201 Huey Road Belton, Texas 76513 Trial Court Judge: The Honorable Martha Trudo TABLE OF CONTENTS I D E N T I F I C AT I O N OF PA RT I E S ii INDEX OF AUTHORITIES iv S TAT E M E N T R E G A R D I N G O R A L A R G U M E N T v S TAT E M E N T OF THE CASE 1 S TAT E M E N T OF PROCEDURAL HISTORY 1 GROUNDS FORREVIEW 2 ARGUMENT 2 DISCUSSION 3 P R AY E R FOR RELIEF 7 C E RT I F I C AT E OF SERVICE 7 C E RT I F I C AT E OF WORD COUNT 8 APPENDIX 9 in INDEX OF AUTHORITIES CASES Bernal v. State, 02-13-00381-CR (Tex. App.—Fort Worth 2014) 5, 6 S c h m e r b e r v. C a l i f o r n i a , 3 8 4 U . S . 7 5 7 ( 1 9 6 6 ) 4 , 5 , 6 State v. Bennett, 415 S.W.3d 807 (Tex. Crim. App. 2013) 5, 6 S t r i c k l a n d v. Wa s h i n g t o n , 4 6 6 U . S . 6 6 8 ( 1 9 8 4 ) 3 Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) 3 STATUTES & RULES Te x . R . A p p . P. 66.3 3, 6 Te x . R. App. P. 68.2 2 IV STATEMENT REGARDING ORAL ARGUMENT Pursuant to Texas Rule of Appellate Procedure 39.1, Petitioner requests oral argument. No. In the COURT OF CRIMINAL APPEALS of the STATE OF TEXAS EUGENE WOLFENBERGER, Petitioner THE STATE OF TEXAS, Respondent PETITION FOR DISCRETIONARY REVIEW STATEMENT OF THE CASE 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. STATEMENT OF PROCEDURAL HISTORY Petitioner timely filed Notice of Appeal and on October 23, 2015, this Court affirmed Petitioner's conviction in a memorandum opinion. Wolfenberger v. State, No. 03-13-00494-CR (Tex. App.—Austin, delivered October 23, 2015). Petitioner filed a Motion for Rehearing and a Motion for Reconsideration En Banc, which were both denied on November 17, 2015. Petitioner's Petition for Discretionary Review is now due on December 17, 2015. Tex. R. App. P. 68.2(a). GROUND FOR REVIEW 1. Whether the Third Court of Appeals decided an important question of state or federal law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals or the Supreme Court of the United States by holding that the United States Supreme Court's opinion in Missouri v. McNeely, 133 S.Ct. 1522 (2013), was not binding precedent until ratified by the Texas Court of Criminal Appeals, thus depriving Petitioner of the effective assistance of counsel when his attorney failed to challenge a warrantless blood draw. See Tex. R. App. P. 66.3(c). ARGUMENT Petitioner'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 at trial. The result was that the jury heard that Petitioner's blood alcohol content was .30 even though that evidence was inadmissible. 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. Inexplicably, the Third Court of Appeals absolved trial counsel's deficient performance in failing to challenge the inadmissible blood result evidence in this case 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. DISCUSSION On appeal, Petitioner argued that he received ineffective assistance of counsel1 when trial counsel failed to move to suppress or challenge the results of a warrantless blood draw taken pursuant to Texas's implied consent law in violation of the United States Supreme Court's holding in Missouri v. McNeely, 133 S.Ct. 1522 (2013). The holding in McNeely was issued two months prior to Appellant's trial. 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 1 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).

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

no attempt to move to suppress evidence of Appellant's blood alcohol content of .30 and trial counsel made no objection to that evidence.

In its opinion, the Third Court of Appeals 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, the Court acknowledged 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 evidence on that basis. The Court then essentially stated 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, the Third Court cited 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 u 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 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.

Further, there was no unsettled area of law. In fact, 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. It is not an exception to this duty because the Court of Criminal Appeals had not yet ratified binding United

States Supreme Court precedent. The Third Court of Appeals decided an

important question of state or federal law in a way that conflicts with the applicable decisions of the Supreme Court of the United States. See Tex. R. App.

P. 66.3(c). Therefore, review should be granted. Tex. R. App. P. 66.3(c).

PRAYER

WHEREFORE, PREMISES CONSIDERED, Petitioner prays that the Court of Criminal Appeals grant this Petition for Discretionary Review, that the case be set for submission in the Court of Criminal Appeals, and that, after submission, this Court reverse the decision of the Court of Appeals.

Respectfully submitted, /s/ Kristen Jernigan

Kristen Jernigan Attorney for Petitioner State Bar Number 90001898 207 S. Austin Ave. Georgetown, Texas 78626 (512)904-0123 (512) 931-3650 (fax) [email protected]

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this the 15th day of December

2015, a copy of the foregoing Petition for Discretionary Review was mailed to the Bell County District Attorney's Office, 1200 Huey Road, Belton, Texas 76513; and the State Prosecuting Attorney's Office, P.O. Box 13406, Austin, Texas

78711-3046.

/s/ Kristen Jernigan

Kristen Jernigan

CERTIFICATE OF WORD COUNT

The undersigned hereby certifies that the foregoing document consists of 2,418 words in compliance with Texas Rule of Appellate Procedure 9.4.

/s/ Kristen Jernigan

Kristen Jernigan

APPENDIX

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-13-0494-CR

Eugene Kelly Wolfenberger, Appellant v. The State of Texas, Appellee FROM THE 264TH DISTRICT COURT OF BELL COUNTY, TEXAS NO. 68431, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING MEMORANDUM OPINION A jury found appellant, Eugene Kelly Wolfenberger, guilty of intoxication manslaughter and assessed a punishment of twenty years' confinement in the Texas Department of Criminal Justice and a fine of $10,000. Appellant timely appealed, asking this Court to reverse his judgment and sentence because: (1) he received ineffective assistance of counsel; (2) the trial court erroneously admitted privileged statements into evidence; and (3) there was insufficient evidence to support his conviction. For the following reasons, we will affirm. BACKGROUND Appellant is a military veteran who struggles with alcoholism and has been diagnosed with severe post traumatic stress disorder (PTSD). On August 22,2010, he struck and fatally injured a motorcyclist while driving his wife's Toyota Camry home from a bar and then fled the scene of the accident. He was later tried and convicted of intoxication manslaughter. At appellant's trial, the State offered the testimony of Officer Garland Potvin, an expert witness certified in accident reconstruction who concluded that appellant struck the motorcyclist from behind while driving at least fifty-four miles per hour in a thirty-miles-per-hour zone. Brian Haygood, appellant's expert witness who is a forensic mechanical engineer, testified that appellant was driving near the speed limit and that Potvin's conclusions are unreliable because he used an inappropriate formula and performed tests with a Chevrolet Impala rather than a Toyota Camry. The collision occurred at approximately 9:30 p.m. It was dark, and the motorcyclist was allegedly wearing dark clothing. Appellant admits to hitting and killing the motorcyclist, but maintains that he was not intoxicated at that time. He claims that the accident triggered his PTSD, causing him to panic and flee to his home two blocks away where he proceeded to drink heavily to avoid facing the situation. At trial, appellant's wife testified that she arrived at their home sometime between 9:30 p.m. and 10:30 p.m. to find appellant naked, disoriented, and surrounded by numerous empty beer cans. She also testified that she did not see him consume any alcohol after finding him. After discovering the damage to her Camry, appellant's wife called 911 at 10:25 p.m. to report what she then believed to be an incident of drunk driving. Officer William Pereyra was dispatched to appellant's home. At trial, he testified that he arrived at approximately 10:51 p.m., that appellant displayed signs of intoxication, and that appellant said "I'm the one you're looking for. I did the bad deed," and "I hit him." Pereyra arrested appellant and transported him to a hospital. Appellant did not consent to a blood draw, so Pereyra obtained one despite appellant's refusal pursuant to the Texas Transportation Code1 at approximately 11:30 p.m. A forensic scientist determined that appellant's blood-alcohol concentration was 0.3 when it was drawn, more than three times higher than the concentration at which a person is deemed to be intoxicated under Texas law. See Tex. Penal Code § 49.01(2) ("'Intoxicated' means ... having an alcohol concentration of 0.08 or more."). Appellant asserts that he consumed a total of three alcoholic drinks prior to the accident—one beer at home in the afternoon, a second beer at a bar where he met his son that evening, and a third beer at another bar they visited later that evening. At trial, appellant produced bills for $5.75 from the first bar and $20.00 from the second bar, which includes a $7.00 tip. He claims that he made no additional drink purchases that evening, that he paid for his son's drinks as well as his own, and that the second bill includes approximately $5.00 for use of a pool table. Appellant's son testified that he showed no signs of intoxication while they were together. Appellant's wife took him to the VA emergency room two days after the accident, where they met with social worker, Debra Housewright. Housewright testified that appellant "said he was intoxicated and he hit them and he panicked and fled the scene." Housewright also noted that they discussed his drinking and that she "did an alcohol assessment on him." Appellant's wife testified that neither of them told Housewright that he was intoxicated at the time of the accident, that appellant was intoxicated when he struck the motorcyclist at 9:30 p.m. rather than believing that he drove home sober and then drank enough alcohol—in the short period of time before his wife found him—to have a blood-alcohol concentration of 0.3 when his blood was finally drawn at

11:30 p.m. Viewing the evidence in the light most favorable to the verdict, we find it sufficient to support a conviction of intoxication manslaughter. We, therefore, overrule appellant's final point of error.

CONCLUSION

Having overruled appellant's three points of error, we therefore affirm appellant's conviction of intoxication manslaughter.