ACCEPTED 04-14-00198-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 1/5/2015 5:13:59 PM KEITH HOTTLE CLERK
No. 04- 14-00l98—CR IN THE COURT CRIMINAL OF APPEALS FOR THEFILED IN FOURTH JUDICIAL DISTRICT OF TEXAS4thSAN COURT OF APPEALS ANTONIO, TEXAS 1/5/2015 5:13:59 PM KEITH E. HOTTLE Clerk JORGE ALVAREZ GOMEZ APPELLANT, VS.
THE STATE OF TEXAS, APPELLEE.
APPEALED FROM THE COUNTY CORT NUMBER 6, OF BEXAR COUNTY, TEXAS, CAUSE No. 362070
APPELLANT’S REPLY BRIEF
Respectfully submitted,
Victor M. Valdes, J.D., Ed.D. lll Soledad, Suite 300 San Antonio, Texas 78205 Tel. (210) 229-9652 Fax (210) 590-6713 Bar No. 20424500 Attorney for Appellant Email:VValdes@satx.rr.com
Oral Argument Respectfully Requested NAME OF PARTIES Jorge Alvarez Gomez is the Appellant. He was represented during the Motion to
suppress evidence and at the trial by Victor Manuel Valdes who also represents
him on Appeal. The State of Texas was represented during the Motion to Suppress
and the trial by Mr. Courtney Scipio and Matt Howard. The State’s Appellant
Counsel is Mathew B. Howard, Assistant Criminal District Attorney. COMES NOW, Jorge Alvarez Gomez, by and through his court appointed
Attorney, Victor Manuel Valdes, and files this his Reply Brief, pursuant to Rule
38.3 of the Texas Rules of Appellate Procedure, and in support thereof, would
show the Court the following:
In his brief Appellant contended that the Trial Court erred when it denied
Appellant’s Article 38.23 of the Texas Code of Criminal Procedure instructions.
The State is disingenuous when it alleges that Appellant “. . .fails to adequate
present a clear and concise,.. did not affirmatively dispute any issues related to a
potential 38.23 instruction”. The video recording, admitted into evidence, clearly
indicates that Appellant told the arresting officer “I was not driving...” That
evidence is sufficient to meet the requirements of Article 38.23 of the Texas Code
of Criminal Procedure. Furthermore, Mr. John Orozco, the owner of the vehicle
where Appellant was waiting, testified, not only by affidavit, but in person and
subject to cross examination, that Appellant was no driving his vehicle. He testified as follows: that he was the owner of the vehicle where Appellant was
sleeping and that the vehicle broke down on him. And that he went across the
street to get cables to start the vehicle again. That, when he left the vehicle,
Appellant was in the passenger’s seat. (See Appendix B, Affidavit by Mr. John
Orozco). Again, we agree with the State when it makes reference to Courts’ precedents as follows:
The Appellate Court should consider the Trial Court as the sole finder of fact at a suppression hearing. Amador V State, 221 S.W. 3d 666, 673 (Tex. Crim. App. 2007). The Trial Court has discretion to believe or disbelieve any portion of a witnesses’ testimony. Id. Trial Court Judges are uniquely situated to observe the demeanor and appearance of any witness and the evidence as it ispresented to the jury. Wiede V. State, 214 S.W. 3d 16, 24 (Tex. Crim. App. 2007). Additionally, the Trial Court may make reasonable inferences from the evidence presented. Amador, 221 S.W. 3d at 673.
The above analysis of the state law is of significance in this case. The trial
Court believed the owner of the vehicle vis-c‘z—vz's the police officer. The truck
broke down and the owner went to look for cables. The truck was on “park” and
when the officer told him to change gears that was when the truck moved
backwards. Appellant was not familiar with the truck and the owner testified to
that, please see his affidavit, Appendix B. Article 28.01 of the Code of Criminal
Procedure authorizes the Trial Court during Motions to Suppress to consider
motion plus affidavits, subject to the discretion of the court. State V. Miller, 116
S.W. 3d 912. The State further indicates that the Court took over two months to sentence
Appellant. We do not understand the point that the State is trying to make in this respect. However, Appendix A, provides us some light in that respect. It indicates
that the Court was not satisfied with the jury’s decision and of the decision of the
jury. Furthermore, the court maintains plenary powers, during those two months.
Please see Appendix C, page 56-57 of Volume 2 of the transcript, in which the
judge was “bothered” by the jury’s decision. He wanted time to get with Rick
Bowman, the Staff Attorney to see his “options”.
He had the option to grant the Motion to Suppress, motion for a New Trial, in the interest of justice, as the Court indicated, etc. The Trial Court judge erred
when he felt that he did not have any alternative. In addition, and in accordance
with this court’s ruling in State V. Savage, 933 S. W. 2d 497, the court had the
option of granting a judgment non obstante veredicto (JNOV) or an arrest of
judgment. This is equivalent to a directed verdict in a motion for a new trial. The
court should have granted the Motion to Suppress evidence as requested by
Appellant. In page 26 of it’s brief, the State alleges that Appellant was not sick at
the time of the encounter, the trial court judge concluded that Appellant was sick,
and even the police officer asked Appellant, are you sick, and he was not able to
perform the SFST. The availability of the Video helps us understand the situation and, the failure to
record at the Video room was a Violation of Appellants equal protection.
The Trial Court was under the erroneous impression that it needed
permission from the State to grant a “motion for mistrial”, see Appendix A. The
court relinquished its authority to the State. CONCLUSION FOR THESE REASONS, as well as for the reasons set out in Appellant’s opening brief, his conviction must be reversed and the charge against him dismissed with
prejudice. Alternatively, the conviction must be reversed, and the case remanded
for a new trial with instructions to suppress the evidence.
//S// Victor M. Valdes, J.D., Ed.D. 111 Soledad, Suite 300 San Antonio, Texas 78205 Tel.(210)229-9652 Fax (210) 590-6713 Bar No. 20424500 Attorney for Appellant
CERTIFICATE OF SERVICE
I, the undersigned attorney, hereby certifies that a true and correct copy of the
Reply Brief for Appellant was Emailed to the Attorney for the State of Texas,
Mathew B. Howard at matthew.howard@bexar.org on this the 5”‘ day of January
2015.
//S// Victor M. Valdes, J .D., Ed.D. APPENDIX A
Court Reporter’s Transcript dated February 28, 2014 REPORTER'S RECORD (ORIGINAL) VOLUME 1 OF 1 VOLUMES FLEDIN 4th COUIIRTOFAPPEALS SAN ANTONIO, TEXAS TRIAL COURT CAUSE N0. 36207§flQm49g535AM THE STATE OF TEXAS ET OTTLE * IN THE édUR§ KCOURT VS. * AT LAW NO. 6
JORGE ALVAREZ—GOMEZ * BEXAR COUNTY, TEXAS 47**9:***********'k***‘k***'k**‘J\‘ SENTENCING FEBRUARY 28TH, 2014 *************************** A-P—P-E—A-R—A-N—C—E—S: 10 MS. COURTNEY SCIPIO and 11 MR. ANDREW FIELDS Assistant Criminal District Attorneys 12 Paul Elizondo Tower 1 101 West Nueva 13 San Antonio, Texas 78205 Phone: (210) 335-2311 14 ATTORNEYS FOR THE STATE 15 MR. VICTOR VALDES 111 Soledad Street, Suite 300 16 San Antonio, Texas 78205 Phone: (210) 229~9652 17 SBTN: 20424500 ATTORNEY FOR DEFENDANT 18
19 On the 3rd, 4th, 5th and‘6th days of December, 20 2013, and the 28th day of February, 2014, the following 21 proceedings came on to be heard in the above—entit1ed 22 and numbered cause before the HONORABLE WAYNE A. 23 CHRISTIAN, PRESIDING JUDGE, held in the County 24 Court at Law No. 6, San Antonio, Bexar County, Texas.
Free access — add to your briefcase to read the full text and ask questions with AI
ACCEPTED 04-14-00198-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 1/5/2015 5:13:59 PM KEITH HOTTLE CLERK
No. 04- 14-00l98—CR IN THE COURT CRIMINAL OF APPEALS FOR THEFILED IN FOURTH JUDICIAL DISTRICT OF TEXAS4thSAN COURT OF APPEALS ANTONIO, TEXAS 1/5/2015 5:13:59 PM KEITH E. HOTTLE Clerk JORGE ALVAREZ GOMEZ APPELLANT, VS.
THE STATE OF TEXAS, APPELLEE.
APPEALED FROM THE COUNTY CORT NUMBER 6, OF BEXAR COUNTY, TEXAS, CAUSE No. 362070
APPELLANT’S REPLY BRIEF
Respectfully submitted,
Victor M. Valdes, J.D., Ed.D. lll Soledad, Suite 300 San Antonio, Texas 78205 Tel. (210) 229-9652 Fax (210) 590-6713 Bar No. 20424500 Attorney for Appellant Email:VValdes@satx.rr.com
Oral Argument Respectfully Requested NAME OF PARTIES Jorge Alvarez Gomez is the Appellant. He was represented during the Motion to
suppress evidence and at the trial by Victor Manuel Valdes who also represents
him on Appeal. The State of Texas was represented during the Motion to Suppress
and the trial by Mr. Courtney Scipio and Matt Howard. The State’s Appellant
Counsel is Mathew B. Howard, Assistant Criminal District Attorney. COMES NOW, Jorge Alvarez Gomez, by and through his court appointed
Attorney, Victor Manuel Valdes, and files this his Reply Brief, pursuant to Rule
38.3 of the Texas Rules of Appellate Procedure, and in support thereof, would
show the Court the following:
In his brief Appellant contended that the Trial Court erred when it denied
Appellant’s Article 38.23 of the Texas Code of Criminal Procedure instructions.
The State is disingenuous when it alleges that Appellant “. . .fails to adequate
present a clear and concise,.. did not affirmatively dispute any issues related to a
potential 38.23 instruction”. The video recording, admitted into evidence, clearly
indicates that Appellant told the arresting officer “I was not driving...” That
evidence is sufficient to meet the requirements of Article 38.23 of the Texas Code
of Criminal Procedure. Furthermore, Mr. John Orozco, the owner of the vehicle
where Appellant was waiting, testified, not only by affidavit, but in person and
subject to cross examination, that Appellant was no driving his vehicle. He testified as follows: that he was the owner of the vehicle where Appellant was
sleeping and that the vehicle broke down on him. And that he went across the
street to get cables to start the vehicle again. That, when he left the vehicle,
Appellant was in the passenger’s seat. (See Appendix B, Affidavit by Mr. John
Orozco). Again, we agree with the State when it makes reference to Courts’ precedents as follows:
The Appellate Court should consider the Trial Court as the sole finder of fact at a suppression hearing. Amador V State, 221 S.W. 3d 666, 673 (Tex. Crim. App. 2007). The Trial Court has discretion to believe or disbelieve any portion of a witnesses’ testimony. Id. Trial Court Judges are uniquely situated to observe the demeanor and appearance of any witness and the evidence as it ispresented to the jury. Wiede V. State, 214 S.W. 3d 16, 24 (Tex. Crim. App. 2007). Additionally, the Trial Court may make reasonable inferences from the evidence presented. Amador, 221 S.W. 3d at 673.
The above analysis of the state law is of significance in this case. The trial
Court believed the owner of the vehicle vis-c‘z—vz's the police officer. The truck
broke down and the owner went to look for cables. The truck was on “park” and
when the officer told him to change gears that was when the truck moved
backwards. Appellant was not familiar with the truck and the owner testified to
that, please see his affidavit, Appendix B. Article 28.01 of the Code of Criminal
Procedure authorizes the Trial Court during Motions to Suppress to consider
motion plus affidavits, subject to the discretion of the court. State V. Miller, 116
S.W. 3d 912. The State further indicates that the Court took over two months to sentence
Appellant. We do not understand the point that the State is trying to make in this respect. However, Appendix A, provides us some light in that respect. It indicates
that the Court was not satisfied with the jury’s decision and of the decision of the
jury. Furthermore, the court maintains plenary powers, during those two months.
Please see Appendix C, page 56-57 of Volume 2 of the transcript, in which the
judge was “bothered” by the jury’s decision. He wanted time to get with Rick
Bowman, the Staff Attorney to see his “options”.
He had the option to grant the Motion to Suppress, motion for a New Trial, in the interest of justice, as the Court indicated, etc. The Trial Court judge erred
when he felt that he did not have any alternative. In addition, and in accordance
with this court’s ruling in State V. Savage, 933 S. W. 2d 497, the court had the
option of granting a judgment non obstante veredicto (JNOV) or an arrest of
judgment. This is equivalent to a directed verdict in a motion for a new trial. The
court should have granted the Motion to Suppress evidence as requested by
Appellant. In page 26 of it’s brief, the State alleges that Appellant was not sick at
the time of the encounter, the trial court judge concluded that Appellant was sick,
and even the police officer asked Appellant, are you sick, and he was not able to
perform the SFST. The availability of the Video helps us understand the situation and, the failure to
record at the Video room was a Violation of Appellants equal protection.
The Trial Court was under the erroneous impression that it needed
permission from the State to grant a “motion for mistrial”, see Appendix A. The
court relinquished its authority to the State. CONCLUSION FOR THESE REASONS, as well as for the reasons set out in Appellant’s opening brief, his conviction must be reversed and the charge against him dismissed with
prejudice. Alternatively, the conviction must be reversed, and the case remanded
for a new trial with instructions to suppress the evidence.
//S// Victor M. Valdes, J.D., Ed.D. 111 Soledad, Suite 300 San Antonio, Texas 78205 Tel.(210)229-9652 Fax (210) 590-6713 Bar No. 20424500 Attorney for Appellant
CERTIFICATE OF SERVICE
I, the undersigned attorney, hereby certifies that a true and correct copy of the
Reply Brief for Appellant was Emailed to the Attorney for the State of Texas,
Mathew B. Howard at matthew.howard@bexar.org on this the 5”‘ day of January
2015.
//S// Victor M. Valdes, J .D., Ed.D. APPENDIX A
Court Reporter’s Transcript dated February 28, 2014 REPORTER'S RECORD (ORIGINAL) VOLUME 1 OF 1 VOLUMES FLEDIN 4th COUIIRTOFAPPEALS SAN ANTONIO, TEXAS TRIAL COURT CAUSE N0. 36207§flQm49g535AM THE STATE OF TEXAS ET OTTLE * IN THE édUR§ KCOURT VS. * AT LAW NO. 6
JORGE ALVAREZ—GOMEZ * BEXAR COUNTY, TEXAS 47**9:***********'k***‘k***'k**‘J\‘ SENTENCING FEBRUARY 28TH, 2014 *************************** A-P—P-E—A-R—A-N—C—E—S: 10 MS. COURTNEY SCIPIO and 11 MR. ANDREW FIELDS Assistant Criminal District Attorneys 12 Paul Elizondo Tower 1 101 West Nueva 13 San Antonio, Texas 78205 Phone: (210) 335-2311 14 ATTORNEYS FOR THE STATE 15 MR. VICTOR VALDES 111 Soledad Street, Suite 300 16 San Antonio, Texas 78205 Phone: (210) 229~9652 17 SBTN: 20424500 ATTORNEY FOR DEFENDANT 18
19 On the 3rd, 4th, 5th and‘6th days of December, 20 2013, and the 28th day of February, 2014, the following 21 proceedings came on to be heard in the above—entit1ed 22 and numbered cause before the HONORABLE WAYNE A. 23 CHRISTIAN, PRESIDING JUDGE, held in the County 24 Court at Law No. 6, San Antonio, Bexar County, Texas. 25 Proceedings reported by machine shorthand. 1QLHME_jLLn1;L_1QLUME§ Page Proceedings.. . . . . ........................ . . . . . . ......3 Court gives chronology of tria1......................3 Court explains attempt to ask State if they would be willing to allow Court to grant mistrial..........3 Court explains numerous attempts in trying to Contact Defense attorney Victor Valdes and Defendant........................ . . . . . . . . . ...........5 10 Court sends out setting form for sentencing . . . . . . ....5 ll Defense attorney Victor Valdes was absent from 12 sentencing because of being in a seminar.............6 13 Court sentenced in absentia..........................7 14 Court informs defendant what he has to do............8 15 State's recommendation on punishment................l1 16 SIAIELSJHHDENQE fiIAIELS.flIIflEsSEs: DE CE RD RC 17 (No witnesses.) DEF E‘ EN E 18 DEFENSE'S WITNESSES: DE CE RD RC (No witnesses.) 19 Proceedings concluded..................i..... . . . . . ..11 20 Court Reporter's Certificate............ . . . . ........12 21 E X H I B I T S 22 STATE'S: NO. DESCRIPTION MARKED OFFERED ADMITTED I
A
23 (No exhibits.) I
24 DEFENSE'S: NO. DESCRIPTION MARKED OFFERED ADMITTED 25 (No exhibits.) P R 0 C E E D I N G S
(Open court, defendant present.) THE COURT: This is Cause 362070, The State of Texas versus Jorge Alvarez-Gomez, who is charged by information and complaint with the offense of driving while intoxicated, alleged to have occurred
May 17th, 2011. Defense requested a jury trial, which was held on December 3rd through 6th, 2013. The jury finding the defendant guilty of the offense of driving 10 while intoxicated. Defense filed a motion for a new 11 trial, which the Court respectfully denied on February 12 7th, 2014. Numerous attempts were made -- or,
13 actually, the Court deferred sentencing in an attempt 14 to work something out with the District Attorney's 15 Office, that was not able to be worked out. 16 MR. VALDES: And that you spoke with Mary 17 Green. 18 THE COURT: I spoke with my two 19 prosecutors, Andrew Fields and Courtney Scipio, and I
20 spoke to their supervisor, Mary Green. 21 MR. VALDES: To see if it's possible 22 to --
23 THE COURT: And what I was attempting to 24 do at that point was to see if the State would be 25 willing to allow me to grant a motion for mistrial,
~ based exclusively on the fact that I personally did not agree with the jury's verdict. However, the law does not account for that being sufficient for me to grant a motion for a new trial or override the jury's verdict, in my opinion, and I was going to attempt to see if the District Attorney's Office would be willing to allow me to grant a motion for a new trial, with the understanding that they would offer Mr. Alvarez—Gomez a
lesser offense of obstruction of a highway, which I
10 thought was more appropriate for this case since it 11 involved a vehicle stuck in the middle of an 12 intersection. Both my assigned trial court prosecutors 13 and Ms. Green were very nice and professional about it, 14 but they said they're not going to disparage the 15 verdict of a Texas jury, and that all of the evidence 16 was presented to the jury and that was their finding. 17 Mr. Field's, is that more or less 18 accurate? 19 MR. FIELDS: As far as I know, yes, sir. 20 THE COURT: Okay. 21 I want to advise Mr. Alvarez—Gomez that, 22 in my opinion, you got as fair a trial as you can get. 23 You have a very competent attorney. We had to jump 24 through a few hoops to get your witness there, who was 25 testifying that you were not driving the automobile and that he had left you intoxicated in the car and that you weren't doing anything accept being in the car waiting for him to get back with jumper cables, if I
recall correctly, to start the car, which was stalled in an intersection at a red light or something, and it appears the jury did not believe that testimony, and it's not up to me what the jury believes or doesn't believe. So I feel bad for Mr. A1varez—Gomez, but I'm bound by the law. That's kind of where we're at. 10 So that being said, we attempted to ll contact both Mr. Alvarez-Gomez and Defense counsel 12 numerous times on the phone and by texting, and me 13 personally trying to get Mr. Valdes to get in contact 14 with me. Apparently everybody was busy because I -- 15 and wanted to relate to them that I was going to have I
16 to have a sentencing hearing. Ultimately I was not ~ 17 able to contact them, so I had Ms. Benavidez, as court 18 coordinator, send out an official setting form setting 19 this for sentencing on February 25th, 2014. And I 20 assume you got that, Mr. Valdes? 21 MR. VALDES: Yes, Your Honor, but --
22 THE COURT: Because the defendant showed 23 up in the morning -- 24 MR. VALDES: Yes, Your Honor, because 25 THE COURT: -— but you weren't here. MR. VALDES: No, because I called him to tell him to show up here, to report. THE COURT: He showed up in the morning, and we'll ask Ms. Benavidez, but my understanding is, he was told to come back at 1:30 to give us time to contact you to be here also, and he didn't show up at 1:30. MR. VALDES: I understand, Your Honor, 10 but ~- 11 THE COURT: No hard feelings. I'm not 12 holding that against anybody. 13 MR. VALDES: No, no, but I was in a 14 seminar. 15 THE COURT: Marines are late all the time 16 anyway. 17 MR. VALDES: I was in a seminar at Corpus 18 Christi. 19 THE COURT: And once again, no hard 20 feelings. 21 MR. VALDES: I'm sorry. 22 THE COURT: It's just we needed to get 23 this done and that's how we did it. 24 MR. VALDES: Yes, sir, and that's why 25 we're here. THE COURT: And when neither Defense counsel nor defendant were present, I sentenced in absentia, and I followed the jury's verdict and found Mr. Alvarez~Gomez guilty of the offense of driving while intoxicated, first offense. I sentenced him to six months in the Bexar County Jail, probated for six months, a $500 fine, probating all of that, plus court costs, 48 hours community service, probating all of that based on his extensive military service as a 10 combat marine, DWI education course he's required to ll take to keep his driver's license, DWI Victim Impact 12 Panel, which takes approximately two hours, I think, to 13 finish, and an outpatient drug evaluation through 14 either Elite counseling or the Veterans 15 Administration. I assume you're still eligible for 16 that. 17 THE DEFENDANT: Yes, sir. 18 THE COURT: And whatever the 19 professionals in that category tell me ~- if you need 20 outpatient counseling, I'm going to order it, if that's 21 what they tell me. If they tell me you don't need it, 22 I'm not going to order it. 23 THE DEFENDANT: Yes, Your Honor. 24 THE COURT: It's just that simple. I
25 initially ordered you to report to the adult probation department at 9 o'clock a.m. —- I'm sorry, Marine, 0900 hours on February 26th, 2014. You weren't able to do that. No problem. We have since issued a warrant for you, but you're here, so no problem. We're going to recall the warrant, and I'm going order you, in the nicest possible way, to go to probation and sign in today. THE DEFENDANT: Yes, Your Honor. THE COURT: My understanding —- and I've
10 also found you indigent for purposes of the state 11 surcharge. Otherwise you would have to be paying 12 $3,000 to keep your driver's license. Okay? 13 THE DEFENDANT: Yes, sir. 14 THE COURT: I've annotated in the Court 15 file: Defense counsel provided proper legal notice of 16 sentencing hearing on 2—7~2014, and defendant further 17 spoke to Pat Benavidez on the —— I can't even read my 18 writing -— on the morning on 2-25-2014 and was 19 specifically told to be back in the courtroom at 20 1:30 p.m. Defense counsel repeatedly refused to return 21 phone calls. 22 No hard feelings. That's just on the 23 record of how we tried to contact you. You're here, so 24 we're all happy. 25 So that being said, I need Mr. Alvarez- Gomez to go report in to probation, with the understanding that once he pays the monies that are due -— and I think that's going to be, according to the front of this jacket, $462 or $427. Toni in the back can tell you the exact amount. That's his court costs. Once that is paid —- there's also a $25 a month supervisory fee, and I'm going to waive that. Once he's done that, I'm going to allow him to answer by mail for six months, which means he doesn't have to go 10 to probation after today. They'll give you a form and 11 allow you to answer by mail. As a matter of fact, I'm 12 just going to order that he can answer by mail. That's 13 the best way to do that. You're going to have to do a 14 DWI education course, and that can be taken online. 15 THE DEFENDANT: Yes, sir. 16 THE COURT: And I don't know what it 17 costs, but not much. You need that to keep your 18 driver's license. This Victim Impact Panel, you're 19 going to have to talk to your probation officer or Ron 20 today about how to set up for that. But it's only two 21 hours once you start. 22 THE DEFENDANT: Yes, sir. 23 THE COURT: So as soon as you get that 24 out of the way, that's great. But technically you got 25 six months to do that. 10
So I tried to make it as kind and gentle on him as I possibly can. In 34 years of doing this, I've never sentenced anybody this meek and mild. And the prosecutor will confirm that. And I'm recalling warrants. And it is now 10:30, so I'm going to say at 11 o'clock? Or anytime today. Is this afternoon better for him? What's better? MR. VALDES: To report to probation? THE COURT: Yes, sir. 10 MR. VALDES: Yeah, this afternoon. Yes, ll sir. 12 THE comm‘: Okay. 1:30, 1330 your time. 13 THE DEFENDANT: I can report right after 14 this. 15 THE COURT: Well, you can go now. You 16 know, anytime up to or including 1330. Before or at 17 1330 hours today. 18 MR. FIELDS: So, Judge, was this the 19 sentence that was already given the last time? 20 THE COURT: The sentence that I gave? 21 MR. FIELDS: Yes. 22 THE COURT: Six months over six months -- 23 MR. FIELDS: That was already recommended 24 by the State? 25 THE COURT: I didn't even ask the State a ll
recommendation. I just sentenced him. But I'll be happy to hear the State's recommendation for the record. MR. FIELDS: I was just going to recommend —— and what's different from yours is a $700 fine, a hundred and eighty days over two years, and 60 hours of community service, in addition to the ignition interlock. I didn't hear you say that. THE COURT: Thanks. 10 Okay. Anything further from the State or 11 the Defense on Mr. Jorge Alvarez-Gomez, United States 12 Marine Corps? 13 MR. FIELDS: No, Your Honor. 14 THE COURT: Best of luck, sir. 15 THE DEFENDANT: Thank you, Your Honor. ~ 16 THE COURT: I'm sorry it worked out this 17 way. Your attorney did the best job he could, and the 18 State had to do their job, and the Defense had to do 19 theirs, and that's what the jury came back with. 20 That's the way the cookie crumbles. 21 MR. VALDES: May I be excused, Your 22 Honor? 23 THE COURT: You bet. Thank you. 24 MR. VALDES: Thank you, Your Honor. 25 (Sentencing proceedings concluded.) 12
STATE OF TEXAS )
COUNTY OF BEXAR )
I, MICHAEL A. STACHOWITZ, Court Reporter in and for the County of Bexar, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of the entire sentencing proceedings in the above-styled and numbered cause, all of which occurred in open court and were reported by me. 10 I further certify that this Reporter's Record 11 of the proceedings truly and correctly reflects the 12 exhibits, if any, admitted by the respective parties. 13 I further certify that the total cost for the 14 preparation of this Reporter's Record is ____________. 15 WITNESS MY OFFICIAL HAND this the 5th day of 16 May, 2014. 17
18 ,3 H. I 1 E 5 I .
MICHAEL A. STACHOWITZ 19 Official Court Reporter, County Court 6 Texas CSR 2174 20 Expiration Date: 12-31-2014 Bexar County Justice Center, 2nd Floor 21 100 Dolorosa San Antonio, Texas 78205 22 (210) 335-1605 23
25 APPENDIX B
Affidavit by owner, Mr. John Orozco CAUSE NO. 362070 STATE OF TEXAS § IN THE COUNTY COURT § VS. § AT LAW NO. 6 § JORGE ALVAREZ GOMEZ § BEXAR COUNTY, TEXAS
AFFIDAVIT OF WITNESS
STATE OF TEXAS § COUNTY OF BEXAR §
BEFORE ME, the undersigned authority, on this day personally appeared JOHN OROZCO, and, afler I administered an oath to him, upon his oath, he said:
“ My name is JOHN OROZCO and I am a witness to the arrest for DWI of Jorge Alvarez Gomez. I am a witness because I just left Jorge inside my truck to get jump cables because my truck had stalled in the intersection. I walked directly to the Red Land Restaurant which was
across the street where the truck stalled on me. I told all that to the officer. However, he did not
believe me. I told the officer that it was my truck and that Jorge was not driving the truck when it
stalled. Obviously, while waiting for me, he fell asleep in the truck. However, the officer did not
know that it was my truck and he did not know why we were there or how long have we been in
there. I tried to explain it to him but he apparently, did not believe me. This is the truth; the truck
is mine, and Jorge did not get to operate or move the truck because it stalled on me at the
intersection.”
fifififi W SWORD TO AND SUBSCRIBED before me by¢.I'c>’l1’n”Orozcq£)r1, Day of December 2013.
Notary public in for the State of Texas. My commission expires on: ‘/7/{[33, /(0, 090 /5
~~ _ '5 MICHELLE H. LOPEZ NOWV Public. State of Texas My Commission Expires MOV lb. 2015 APPENDIX C
Court Reporter’s Transcript page 56-57 Judge “Bothered” ~
S6
DIP, TAIP Evaiuation, ignition interiock, and 10 days Bexar County jaii as a condition of probation. THE COURT: Defense? MR. VALDES: Your Honor, I don't have any probiem with those six month probated for a year, but I
think the ignition interiock shou1dn't get invoived in here. There's no need for a TAIP Evaiuation. There's no reason for a TAIP. There's no indication that this young man has a drug probiem. And that those 10 days as a condition of probation I don't think is necessary in this case, and it's not mandatory in this case either, Your Honor. I think that 300—do11ar fine, six month probated for a year, 24 hours of community service, driver's education, make sure he gets his drivers iicense is more than adequate, Your Honor, in this particuiar case. THE COURT: A11 right. Mr. Aivarez Gomez, I'm going to actua11y pronounce sentence next week, okay? I want some time to 100k at this. This is the only case in 34 years that's bothered me, okay? So 1et's Took at it, and I'11 give both sides a fair shot at figuring out what it is I think the right thing is to do. But I want some time to 100k at it. Next week wi11 give me enough time to get with Rick Bowman, our staff !’J.t‘_§§J
S7 attorney, and see what my options are, okay? MR. VALDES: Yes, sir. THE COURT: Go home, have a 1ove1y weekend. when I Figure it out, I w111 just ca11 you. (Proceedings adjourned.) $KOO0\I®U'|-P-LaUl\)}—\
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