Hector Jimenez v. State

Opinion

ACCEPTED

02-17-00381-CR

SECOND COURT OF APPEALS

FORT WORTH, TEXAS

5/24/2018 4:17 PM

DEBRA SPISAK

CLERK

IN THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS AT FORT WORTH FILED IN

2nd COURT OF APPEALS

HECTOR JIMENEZ, § FORT WORTH, TEXAS APPELLANT § 5/24/2018 4:17:28 PM § DEBRA SPISAK Clerk

v. § No. 02-17-00381-CR §

THE STATE OF TEXAS, § APPELLEE §

APPEALED FROM CAUSE NUMBER CR-2016-05099-A IN COUNTY CRIMINAL COURT NO.1 IN DENTON COUNTY, TEXAS

THE HONORABLE JIM CROUCH, JUDGE, PRESIDING

MOTION FOR LEAVE TO FILE AMENDED BRIEF

TO THE HONORABLE JUDGES OF SAID COURT:

COMES NOW the State of Texas, by and through the Criminal

District Attorney of Denton County, Texas, and respectfully requests leave to file the State’s Amended Brief in the above styled and numbered cause. In support of this motion, the State would show the Court the following:

I.

This cause is an appeal from a conviction of Driving While Intoxicated.

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II.

The Texas Rules of Appellate Procedure provide that a brief may be amended whenever justice requires. Tex. R. App. P. 38.7. The State’s filing of an amended brief will not delay this case because submission via briefs has not been scheduled. The purpose of the State’s filing of an amended brief is as follows:

At the time the State filed its original brief in this case, the prevailing law dictated that evidence was legally insufficient to prove a Class A misdemeanor DWI if the prior DWI was proved up during the punishment phase of trial instead of in the guilt-innocence phase. See Oliva v. State, 525 S.W.3d 286, 293 (Tex. App.—Houston [14th Dist.] 2017), rev’d, No. PD-17-0398, 2017 Tex. Crim. App. LEXIS 650 (Tex. Crim. App. July 26, 2017); Carrasco v. State, No. 02-17-00142-CR, 2018 Tex. App. LEXIS 122, at **6-11 (Tex. App.—Fort Worth January 4, 2018 no pet.) (not designated for publication); Goodroe v. State, No. 06-16-00205-CR, 2017 Tex. App. LEXIS 8354, at **9-10 (Tex. App.—Texarkana July 31, 2017 no pet.) (not designated for publication); see also Tex. Penal Code § 49.09(a). As such, in its original brief, the State conceded

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that the evidence was insufficient because the prior was proved up during the punishment phase in this case. Since the State filed its original brief, however, the Court of Criminal Appeals has issued an opinion in Oliva v. State, No. PD-17-0398, 2017 Tex. Crim. App. LEXIS 650 (Tex. Crim. App. July 26, 2017, no cert. h.). In Oliva, the Court of Criminal Appeals has held that the existence of a single prior conviction for misdemeanor DWI is a punishment issue that should be litigated at the punishment phase of trial, as was done in the instant case. See id. Accordingly, as to Appellant’s Issue One, the State now simply argues that the evidence was sufficient to support Appellant’s conviction for DWI and, thus, Appellant’s first issue should be overruled.

The State requests the opportunity to amend the State’s brief in order to provide the Court with recently published case law relevant to the issue in the case.

Respectfully submitted,

PAUL JOHNSON

Criminal District Attorney Denton County, Texas

/s/ Catherine Luft

CATHERINE LUFT

Assistant Criminal District Attorney Chief, Appellate Division State Bar No. 24013067

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1450 East McKinney, Suite 3100 Denton, Texas 76209

(940) 349-2600

FAX (940) 349-2751

catherine.luft@dentoncounty.com

CERTIFICATE OF CONFERENCE I hereby certify that Carlton Hughes, Attorney for Appellant, has no objection to the State’s motion for leave to file an amended brief.

/s/ Catherine Luft

CATHERINE LUFT

CERTIFICATE OF COMPLIANCE The State certifies that the State’s Motion for Leave to File Amended Brief in the instant cause contained a word count of 427, said count being generated by the computer program Microsoft Word that was used to prepare the document.

/s/ Catherine Luft

CATHERINE LUFT

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CERTIFICATE OF SERVICE

A true copy of the State’s Motion for Leave to File Amended Brief has been sent by electronic service through efile.txcourts.gov notification, to counsel for Appellant, Carlton Hughes, 118 Lynn Avenue, Suite 304, Lewisville, Texas 75057, at CarltonHughes@aol.com, on this, the 24th day of May 2018.

/s/ Catherine Luft

CATHERINE LUFT