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 RECEIVED 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 § ___________________________________________________
STATE’S AMENDED BRIEF ___________________________________________________ FROM COUNTY CRIMINAL COURT NO.1 DENTON COUNTY, TEXAS TRIAL CAUSE NUMBER CR-2016-05099-A THE HONORABLE JIM CROUCH, JUDGE, PRESIDING
PAUL JOHNSON Criminal District Attorney Denton County, Texas
CATHERINE LUFT Assistant Criminal District Attorney Oral argument is requested Chief, Appellate Division only if Appellant is State Bar No.24013067 requesting argument. 1450 East McKinney, Suite 3100 Denton, Texas 76209 (940) 349-2600 FAX (940) 349-2751 catherine.luft@dentoncounty.com
BARRETT DORAN ALI HORTON Assistant Criminal District Attorneys TABLE OF CONTENTS
INDEX OF AUTHORITIES ......................................................................ii STATEMENT OF THE CASE .................................................................. 1 STATEMENT OF FACTS ......................................................................... 2 SUMMARY OF THE STATE’S ARGUMENTS ........................................ 6 STATE’S RESPONSE TO APPELLANT’S ISSUE ONE (SUFFICIENCY) ....................................................................................... 7 Appellant’s Contention ......................................................................... 7 State’s Reply ......................................................................................... 7 Argument And Authorities ................................................................... 7 Standard of Review .......................................................................... 7 Pertinent Law................................................................................... 8 The evidence was sufficient to support Appellant’s conviction for DWI ........................................................ 8 STATE’S RESPONSE TO APPELLANT’S ISSUE TWO (HEARING ON MOTION FOR NEW TRIAL) ....................................... 11 Appellant’s Contention ....................................................................... 11 State’s Reply ....................................................................................... 11 Argument And Authorities ................................................................. 11 The trial court acted properly in not holding a hearing on Appellant’s motion for new trial and allowing Appellant’s motion to be overruled by operation of law ......................................................................... 11 CONCLUSION AND PRAYER ............................................................... 14 CERTIFICATE OF COMPLIANCE ........................................................ 14 CERTIFICATE OF SERVICE................................................................. 15
i INDEX OF AUTHORITIES
Statutes, Codes, and Rules Page Tex. Penal Code Ann. § 1.07(a) (40) (West Supp. 2017) ......................... 10
Tex. Penal Code Ann. § 49.04(a) (West Supp. 2017) ................................ 8
Tex. Transp. Code Ann. § 724.061 (West 2011) ........................................ 9
Cases Annis v. State 578 S.W.2d 406 (Tex. Crim. App. [Panel Op.] 1979) .............................. 9
Bartlett v. State 270 S.W.3d 147 (Tex. Crim. App. 2008) ................................................. 9
Denton v. State 911 S.W.2d 388 (Tex. Crim. App. 1995) ............................................... 10
Hailey v. State 87 S.W.3d 118 (Tex. Crim. App. 2002) ................................................. 12
Jackson v. Virginia 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) ........................... 7
Kelly v. State 824 S.W.2d 568 (Tex. Crim. App. 1992) ............................................... 13
King v. State 29 S.W.3d 556 (Tex. Crim. App. 2000) ..................................... 11, 12, 13
Kirsch v. State 306 S.W.3d 738 (Tex. Crim. App. 2010) ................................................. 8
Murray v. State 457 S.W.3d 446 (Tex. Crim. App. 2015) ................................................. 7
ii Reyes v. State 849 S.W.2d 812 (Tex. Crim. App. 1993) ............................................... 12
York v. State 342 S.W.3d 528 (Tex. Crim. App. 2011) ............................................... 10
iii IN THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS AT FORT WORTH
HECTOR JIMENEZ, § APPELLANT § § v. § No. 02-17-00381-CR § THE STATE OF TEXAS, § APPELLEE §
___________________________________________________
STATE’S AMENDED BRIEF ___________________________________________________
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
The Charge ............................................... Driving While Intoxicated, 2nd (C.R. at 7) Tex. Penal Code § 49.04
The Plea ..................................................................................... Not Guilty (2 R.R. at 5, 101; C.R. at 100)
The Verdict (Jury) ............................................................................ Guilty (3 R.R. at 111; C.R. at 98, 100)
The Punishment (Judge) ......................................... 365 Days, County Jail (3 R.R. at 149; C.R. at 100)
1 STATEMENT OF FACTS
At some time close to 1:00 a.m. in April of 2016, Appellant walked
into a RaceTrac store and started talking to Alexis Melson, a RaceTrac
employee, about food (2 R.R. at 108). Appellant was very friendly,
although he “kind of smelled like alcohol” (2 R.R. at 108). Melson told
Appellant that the store would not have food until 6:00 a.m., and
Appellant walked away (2 R.R. at 108). Appellant then walked back to
Melson, leaned on the counter, told her that she had beautiful eyes, and
asked for her phone number (2 R.R. at 108-09, 113-14). Melson did not
give him her phone number and, feeling as though Appellant had acted
inappropriately during this second conversation, Melson went to her
manager and told him how Appellant had approached her (2 R.R. at 109).
After talking to Melson, Appellant went outside the store,
approached two girls who were walking in, walked and talked with them,
and then approached another girl and started talking to her (2 R.R.
at 109). He followed the girl inside the store as she went in to pay for her
gas, followed her around the store, followed her out to her car and then,
after she had gotten inside her car, Appellant started banging on the
girl’s window (3 R.R. at 109-10, 162).
2 Seeing what was going on outside, Melson told her manager about
Appellant’s actions and then went outside to confront Appellant so that
the girl could leave the store (2 R.R. at 110). Then Melson, concerned for
the safety of other people at the store, told her manager to call the police,
and her manager did so (2 R.R. at 110-11). Appellant drove away from
the RaceTrac in a northbound direction (2 R.R. at 111, 162).
Emery Flowers, a 911 telecommunicator, received a call about a
man approaching a woman at a gas station, and Officers Antonio Barletta
and James Robey were subsequently dispatched to the scene (2 R.R.
at 119-20, 127, 162; State’s Exhibit 1). Dispatch had told Officer Barletta
that Appellant was driving a gold Geo Prism and had given the officer
the car’s license plate number (2 R.R. at 163).
Officer Barletta caught up with Appellant not too far from the
RaceTrac, witnessed Appellant fail to signal twice, activated his overhead
lights, and then followed Appellant’s vehicle into a Quick Trip
parking lot (2 R.R. at 128, 162-64; 3 R.R. at 40-43; State’s Exhibit 2).
Officer Barletta made contact with Appellant and saw that Appellant
matched a description of the male who had been at the RaceTrac (2 R.R.
at 165). Officer Barletta also detected a strong odor of alcohol coming
3 from Appellant’s breath (2 R.R. at 165-66). Appellant’s speech was “real
slurred,” he had red, watery eyes, and he was inconsistent about from
which direction he had come (2 R.R. at 166-67). When Officer Barletta
asked Appellant what the liquid was in a Styrofoam cup in Appellant’s
center console, Appellant replied that it was “nothing” (2 R.R. at 168).1
Officer Barletta had Appellant get out of his vehicle and, when asked if
he’d had any alcohol, Appellant replied that he’d had two beers (2 R.R.
at 169; 3 R.R. at 11, 64-65).
Officer Barletta performed the horizontal gaze nystagmus (“HGN”)
test on Appellant, and Appellant exhibited six of six clues (2 R.R.
at 170-82; 3 R.R. at 15-16, 46-51, 54-59). 2 Officer Barletta asked
Appellant about taking the walk-and-turn and one-leg stand tests, and
Appellant said no because he had hip or ankle injuries (2 R.R. at 132,
169-70, 182-84). Based on Appellant’s HGN test, his not being able to
follow simple instructions, his slurred speech, his swaying, his dry
1 When Officer Barletta later inventoried Appellant’s car, he discovered that the liquid smelled like alcohol mixed with a soda (3 R.R. at 10-11). 2 Although Appellant told Officer Barletta that he’d had his head crushed in a vice recently, the officer did not see any markings on Appellant’s head that would indicate that Appellant’s head had been crushed by a vice, nor did Appellant’s pupil size or tracking indicate that he had suffered traumatic brain injury (2 R.R. at 140-41, 144, 170-82; 3 R.R. at 39-40).
4 mouth, the odor of alcohol emitting from his breath, his bloodshot, “glazy”
eyes, and the fact that he had caused a disturbance in a public place,
Officer Barletta decided to arrest Appellant, so he placed Appellant in
handcuffs and put him in the back seat of a patrol car (2 R.R. at 184-85;
3 R.R. at 8-9, 15, 17-19, 21-22, 32-33, 57, 65; see also 2 R.R. at 130-31,
139, 146-47, 154). After Appellant was placed under arrest, his mood
changed; he became very violent, made threats, banged his head on the
window, kicked the window, and did not consent to giving a sample of his
breath or blood (2 R.R. at 132; 3 R.R. at 9-10, 16-18, 21, 59; State’s
Exhibits 2, 3). Specifically, Appellant said things to the officers such as
“I hope y’alls’ children fuckin’ die of a suffering death,” “hey fucking
cocksuckers, fuck you,” “I hope your kids choke on a dick,” “I hope they
cut your kids’ heads off,” “my posse’s gonna kill your fucking ass,” and
“when I get out of jail, I’ll fucking kill you myself, bitch,” among other
choice phrases (State’s Exhibits 2, 3). 3
3 Officer Barletta testified that he added a charge of retaliation because of what Appellant said to him after Appellant was arrested (3 R.R. at 20-21).
5 SUMMARY OF THE STATE’S ARGUMENTS
State’s Reply To Appellant’s Issue One
The evidence was sufficient to support Appellant’s conviction for
Driving While Intoxicated (“DWI”) as it showed that Appellant was
intoxicated while operating a motor vehicle in a public place.
State’s Reply To Appellant’s Issue Two
The trial court acted properly in not holding a hearing on
Appellant’s motion for new trial as none of the bare assertions in
Appellant’s motion established facts entitling him to a new trial.
6 STATE’S RESPONSE TO APPELLANT’S ISSUE ONE (SUFFICIENCY)
Appellant’s Contention
The evidence was legally insufficient to support Appellant’s
conviction for Driving While Intoxicated (“DWI”), and this Court should
reverse the conviction and order an acquittal or a new trial.
State’s Reply
The evidence was legally sufficient to support Appellant’s
conviction for DWI and Appellant’s first issue should be overruled.
Argument and Authorities
Standard of Review
In reviewing legal sufficiency in a criminal case, an appellate court
views all the evidence in the light most favorable to the prosecution and
determines whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979). When the record supports conflicting inferences, appellate courts
presume the factfinder resolved the conflicts in favor of the verdict, and
defer to that determination. Murray v. State, 457 S.W.3d 446, 449
(Tex. Crim. App. 2015).
7 Pertinent Law
A person commits a DWI if that person is intoxicated
while operating a motor vehicle in a public place. Tex.
Penal Code Ann. § 49.04(a) (West Supp. 2017).
The Evidence was sufficient to support Appellant’s conviction for DWI.
The evidence was sufficient to support Appellant’s conviction
for DWI as it showed that Appellant was intoxicated while operating a
motor vehicle in a public place. See Tex. Penal Code § 49.04(a). For
example, Appellant’s intoxication was proved by evidence that he caused
a disturbance in a public place, smelled like alcohol, failed to signal twice,
was inconsistent about from which direction he had been coming, said
he’d had two beers, said “nothing” was in his Styrofoam cup (which
smelled like alcohol and soda), was not able to follow simple instructions,
had slurred speech and a dry mouth, had bloodshot and watery or “glazy”
eyes, swayed, and exhibited six of six clues on the HGN test (2 R.R.
at 108-10, 130-31, 139, 146-47, 154, 162, 164, 166-82, 184-85; 3 R.R.
at 8-11, 15-19, 21-22, 32-33, 46-51, 54-59, 64-65). See Kirsch v. State,
306 S.W.3d 738, 745 (Tex. Crim. App. 2010) (evidence of
intoxication includes erratic driving, stumbling, swaying, slurring or
8 mumbling words, and bloodshot or glassy eyes). Additionally, Appellant
refused to give samples of his breath or blood (3 R.R. at 9-10).
See Tex. Transp. Code Ann. § 724.061 (West 2011); Bartlett v. State,
270 S.W.3d 147, 153 (Tex. Crim. App. 2008) (jury may consider refusal to
provide breath or blood probative evidence of intoxication as it
establishes consciousness of guilt). And the arresting officer testified that
he believed that Appellant had lost the normal use of his mental or
physical faculties due to alcohol (3 R.R. at 19). See Annis v. State,
578 S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.] 1979) (police officer’s
opinion regarding defendant’s behavior and opinion that the defendant
was intoxicated provided sufficient support to uphold a jury verdict).
The evidence was also sufficient to show that Appellant was
operating a motor vehicle at the time. Specifically, a RaceTrac employee
pointed the officer in the direction Appellant had gone in his vehicle after
leaving the store, and in less than two minutes the officer located a
vehicle nearby that matched the description given, and saw the vehicle
as Appellant was driving it down the road (3 R.R. at 162-64; State’s
Exhibit 2). After seeing the vehicle fail to signal twice, the officer
activated his lights and followed the vehicle into the Quick Trip parking
9 lot (2 R.R. at 162-64; 3 R.R. at 40-43; State’s Exhibit 2). Additionally, the
officer’s dash cam, which recorded the operation of Appellant’s vehicle
and the subsequent stop, was admitted into evidence (see State’s
Exhibit 2). See also Denton v. State, 911 S.W.2d 388, 389 (Tex. Crim. App.
1995) (driving a vehicle necessarily involves operation).
And the evidence was sufficient to show that Appellant was in a
public place, as demonstrated by both Officer Barletta’s testimony
and the video of the stop (3 R.R. at 19; State’s Exhibit 2). See Tex.
Penal Code Ann. § 1.07(a) (40) (West Supp. 2017) (“‘Public place’ means
any place to which the public or a substantial group of the public has
access and includes, but is not limited to, streets, highways, and the
common areas of schools, hospitals, apartment houses, office buildings,
transport facilities, and shops”); York v. State, 342 S.W.3d 528, 537
(Tex. Crim. App. 2011) (parking lot and sidewalk around gas station is
public place).
Accordingly, this Court should overrule Appellant’s first issue
presented.
10 STATE’S RESPONSE TO APPELLANT’S ISSUE TWO
(HEARING ON MOTION FOR NEW TRIAL)
The trial court erred in not holding a hearing on Appellant’s motion
for new trial because the testimony at trial supported that the State’s
fingerprint expert was not aware of the theory underlying fingerprint
analysis.
The trial court’s actions were proper.
The trial court acted properly in not holding a hearing on Appellant’s motion for new trial and allowing Appellant’s motion to be overruled by operation of law.
Appellant’s motion for new trial asserted that the verdict was
contrary to the law and evidence and that the trial court had the
discretion to grant a new trial in the interests of justice (C.R. at 116-18).
It is true that a trial judge abuses his or her discretion in failing to hold
a hearing when an accused presents a motion for new trial raising
matters not determinable from the record that could entitle him to relief.
See King v. State, 29 S.W.3d 556, 568-69 (Tex. Crim. App. 2000) (citing
11 Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993)). But the
motion must be supported by affidavit specifically showing the truth of
the grounds of attack. Id. Otherwise, general entitlement to a hearing
could lead to “fishing expeditions.” Id.
Here, none of Appellant’s bare assertions in his motion established
facts entitling him to a new trial. For example, he provided no support
for his allegations that the verdict was contrary to the law and evidence
or that the trial court should grant a new trial in the interests of justice.
Nor did Appellant make any mention of the State’s fingerprint expert in
his motion (C.R. at 116-18). As such, Appellant’s allegations were
insufficient to allow the trial court to determine whether any testimony
or other evidence would have been material to any issue in the case.
See Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002) (it violates
ordinary notions of procedural default for a Court of Appeals to reverse a
trial court’s decision on a legal theory not presented to the trial court by
the complaining party).
Moreover, in his brief on appeal, Appellant alleges that he
established during trial that the State’s fingerprint expert was not aware
of the theory underlying fingerprint analysis (Appellant’s Brief at 9). But
12 during the punishment phase of trial when the State’s fingerprint expert
testified, defense counsel took him on voir dire, fully questioned him
about the science underlying fingerprint comparison, objected to the
expert’s testimony citing the Kelly factors, had his objection overruled,
and received a running objection from the court (3 R.R. at 122-27).
See Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). Appellant has
not established what he would have done differently in a new trial on
punishment. See King, 29 S.W.3d at 569.
Accordingly, this Court should overrule Appellant’s second issue
13 CONCLUSION AND PRAYER
Appellant’s trial was without reversible error. The State requests
that Appellant’s conviction and sentence be affirmed.
Respectfully submitted,
/s/ Catherine Luft CATHERINE LUFT Assistant Criminal District Attorney Chief, Appellate Division State Bar No. 24013067 1450 East McKinney, Suite 3100 Denton, Texas 76209 (940) 349-2600 FAX (940) 349-2751 catherine.luft@dentoncounty.com
CERTIFICATE OF COMPLIANCE
The State certifies that the State’s Amended Brief in the instant
cause contained a word count of 2248, said count being generated by
the computer program Microsoft Word that was used to prepare
the document.
/s/ Catherine Luft CATHERINE LUFT
14 CERTIFICATE OF SERVICE
A true copy of the State’s 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.