Case Information
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*4 TO: COURT GLERK ABEL ACGSTA.
DR ACGSTA:
Could Van Biease File this Motif? AND PRESENT THESE (3) EXERITS THAT WAS NOT ELLIVIDED WITH MY 11:07. FROM DAIIAS COWTY.
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COURT OF CRIMINAL APPEALS OF TEXAS
| JERRELL GLENN DITTMAN, Petitioner | |
| :--: | :--: |
| V. | |
| WILLIAM STEPHENS,
Dir. TDCJ-ID | |
TCCA No. WR-81;594-03 TR. CT. No. W10-00566-V(B)
MOTION TO COMPEL RULING IN FINDINGS OF FACTS AND CONCLUSION OF LAW HEARING
PROCEDURAL HISTORY
In Applicant's Writ of Habeas Corpus pursuant to Art. 11.07, Mr. Dittman claimed that his trial attorneys were ineffective for failing to file a Motion to Suppress the evidence which was taken illegally and for failure to object during the course of trial to evidence being admitted in effort to obtain conviction.
On March 4,2015, the Texas Court of Criminal Appeals remanded Applicant's State Habeas back to the 292nd Judicial Court of Dallas County, Texas for further findings of the Facts and Conclusion of Law. The Texas Court of Criminal Appeals instructed the Dallas County Judicial Court to respond to the following questions to determine if Applicant's claims are factual and contain merit.
1). If Applicant's blood sample was drawn solely for medical purposes or at the request of a peace officer? 2). If Applicant was placed under arrest for a Chapter 49 offense at the time of the blood draw?
*6 3). If Applicant gave consent to the blood draw? 4). If there was a search warrant issued?and; 5). if èxigènticircumstances existed?
On September 11,2015, the 292nd Judicial District Court of Dallas County, Texas held a hearing to determine these factual allegations presented on State Habeas. Applicant's retained attorney disputed the Dallas County District Attérney's claim that it wás irrelevant that the illegal sample was entered into evidence because they had another sample taken for medical purposes only, that eventually would support the State's claim of intoxication. Therefore the contents in the blood sample was going to be admitted via medical treatment blood sample that had been taken.
IN SUPPORT OF APPLICANT'S ILLEGAL BLOOD SAMPLE CLAIM
Applicant argues that the second blood sample came after the fact. The illegal blood sample is what was used to charge, sindict; and subsequently convict Applicant. Applicant presents a factual allegation that the hospital blood sample would have been "fruit of the poisonous tree" (Wolf v. State, 137 S.W. 3d 797 (Tex. App.-Waco 2004). Under the "fruit of the:poisonous tree doctrine;" all evidence derived from exploitation of an illegal seizure must be suppressed unless the State shows that there was a break in the chain of events sufficient to refute the inference that the evidence was a product of the Fourth Amendment.
*7 Applicant argues that the State admitted the results of the medical treatment sample that wasn't in the original records at the time of trial. The District Attorney retrived the medical treatment sample results after the trial and presented them in the record during the said hearing conducted on September 11,2015 some four and a half years after the trial in this instant case.
Applicant request this Court to reverse this judgment and conviction according to Rule 44.2(A) that states that "if the appellant record in a criminal case reveals Constitutional error that is subject to harmless error review that the Court of Appeals must reverse a judgment of conviction or punishment unless the Court determines beyond reasonable doubt that the error did not contribute to the conviction or punishment.
Applicant brings before this Honorable Court that it was the illegal blood draw and not the medical treatment blood draw that was used to charge, indict, and convict Applicant.Applicant's attorneys were ineffective in failing to suppress the illegal blood draw and object during the course of the trial to said evidence being entered into evidence.
PRAYER
Applicant has presented factual allegations that has taken place in the instant case along with presenting to this Court the disregard exercised by the State by not responding to the questions presented by this Court. Applicant pleas this Court to grant relief deemed necessary in the name of justice.
Respectfully submitted,
JPKLL G. D. D. T. 3
*8 Pursuant to the provisions of Tex. Transp. Code Ann. §724.012, the underaligned peace officer requires that
give a specimen or specimens of blood under the 21 wisions of Tex. Transp. Code Ann. Ch. 724, subch. B. Acting in my capacity as a peace officer, I have arrested the above-named person for an offense under Chapter 49 of the Texas Penal Code; such person is as the operator of a motor vehicle or watercraft, involved in an accident that I reasonably believed occurred as a result of the offense. When I arrested the above-named person, I reasonably believed that another person lad died or would die as a result of the accident, and the above-named person has prior to the issuance of this order refused my request to voluntarily give an appropriate specimen or specimens under the authority of Tex. Transp. Code Ann. Ch. 724.
This request is made pursuant to Tex. Transp. Code Ann. 724.012 \ , the person taking the specimen and the hospital where the specimen is secured are not liable in damages for compliance with this order, provided the specimen is obtained according to recognized medical procedures and is accomplished without negligence in the withdrawing of the specimen.
*9 DINVING WHILE INTOXICATED CASES DIVA 2 RED 09D0592 MESHITE POLICE DEPARTMENT BLOOD ANALYSIS REL CRAICIHOL B. DRUGS (two tubes of blood needed)
Suspected drug or type of drug:
Suspect's name DDE TDE LYE Chelation Race Sex M DOB MIDDLE Charge (circle one) DWI Intox Assault Intox Manslaughter Date/ Time sample drawn DZ 25 GBA 1 pm Location where sample drawn: Lew Sterrett Other: BADDE MEDIAR Name of Person Drawing Blood: MIDDLE: REDDEN Title EH Antiseptic Used: MAU Witnessing Officer: Name: TOHN BADMEE ID# 854 Agency MESSHITE DN Where Sample Deposited: PAKELAND ER (COEPDY PYKUP 4-13-OR 6:50AM Person Depositing Sample: Name: TOEIEY RHONE ID# 285 Agency MESSHITE DN For laboratory personnel only AGENCY ID:
STATE'S EXHIBIT 57
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SOLIDING
SOUTHWESTERN
INSTITUTE OF FORENSIC SCIENCES
AT DALLAS
5230 Medical Center Drive Dallas, Texas 75235-7710
TOXICOLOGY
FL# D9D0592
About 15, 2009
Mesquite Police Department Attn: Lisa Gates, CID P. G. Box 850357
Mesquite: TX 75185-0137
RE: Joe Doe
DW I 01276435
EVIDENCE:
Received: Two tubes of blood: red tops Received from: Parkland Hospital Police Room Lockbox Received by: A. McCall Date received: April 13, 2009
RESULTS:
AFFIDAVIT STATE OF TEXAS COUNTY OF DALLAS Before me, the undersigned authority, personally appeared A. McCall, who being by me duly sworn, deposed as follows: "My name is A. McCall, I am over 11. 19s of 18 years and capable of making this affidavit. I have personal knowledge of the faces stated herein. I performed the analysis of the specimen referenced above for alcohol content using heedspace gas chromatography at the Southwestern Institute of Forensic Sciences. Headspace gas chromatography is a recognized technique in the scientific community for determining the ethyl alcohol content of blood. I am educated, trained, and qualified to perform the procedure, I correctly applied the technique to this specimen, and I attest to the results of the analysis as stated above."
Aiflant
SWORN TO AND SUBSCRIBED before me on the day of
Linda Valadez, Notary Public-State of Texas
CC: Department of Public Safety Driver Improvement &; Control Division