May 29, 2015 PD-0197-15
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
JESSICA NICOLE NANCE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
MOTION FOR REHEARING IN CAUSE NUMBER CR 1101695
IN THE COUNTY COURT AT LAW NO. 1
OF HUNT COUNTY, TEXAS
MOTION FOR REHEARING
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Comes Now the Appellant and submits this Motion for Rehearing pursuant to the provisions ofthe Texas Rules ofAppellate Procedure in Support of her request for the judgment of conviction to be overturned in Cause CR 1101695.
RECEIVED IN COURT OF CRIMINAL APPEALS MAY 29 2015 IDENTITY OF PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellate Procedure 38.1, the undersigned counsel of record certifies that the following persons have an interest in the outcome of this case. These representations are made so that the Justices of this Honorable Court can evaluate whether they are disqualified to serve or should recuse themselves from participation in the decision of this case.
APPELLATE:
Jessica Nicole Nance
PO. Box 211362
Bedford, Texas 76095
APPELLATE ATTORNEY:
Jason A. Duff
2615 Lee Street
P.O. Box 11 Greenville, Texas 75403
Appellee:
The State of Texas by and through
Joel D. Littlefield
Jeffery Kovach
Hunt County Attorney
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401 TABLE OF CONTENTS
Identity of the Parties and Counsel
Table of Contents
Index of Authorities
Statement of the Case
Issues Presented
Statement of the Facts
Summary of the Argument
Prayer for Relief
Certificate of compliance of typeface and word count Certificate of Service INDEX OF AUTHORITIES
CASES
Brooks v. State, 323 S.W.3d 893
(Tex.Crim.App. 2010)
Clayton v. State, 235 S.W.3d 772
(Tex.Crim.App. 2007)
Gilliand v. State, 2011WL 3862861
(Tex.App.—Texarkana 2011)
Hartsfield v. State, 305 S.W.3d 859
(Tex.App.—Texarkana 2010)
Hooper v. State, 214 S.W.3d 9
(Tex.App.—Texarkana 2007)
Jackson v. Virginia, 433 U.S. 307 (1979)
Johnson v. State, 517 S.W.2d 536
(Tex.Crim.App.1975)
Gonzales v. State, 369 S.W.3d 851,854 (Tex. Crim. App. 2012)
Haynes v. State, 475 S.W.2d 739, 741 (Tex. Crim. App. 1971)
Kentucky v. King, 131 S.Ct. 1849,1856 (2011)
Mincey v. Arizona, 437 U.S. 385, 390 (1978) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)) Gonzales, 369 S.W.3d at 854
Bray v. State, 597 S.W.2d 763, 765 n.l (Tex. Crim. App. [Panel Op.] 1980) (quoting McDonald v. United States, 335 U.S. 451,455 (1948)) Johnson v. United States, 333 U.S. 10,17 (1948) Jones v. United States, 357 U.S. 493,499 (1958). McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). Hudson v. State, 588 S.W.2d 348, 351 (Tex. Crim. App. 1979) (quoting United States v. Chadwick, 433 U.S. 1, 9(1977), abrogated on other grounds by California v. Acevedo, 500 U.S. 565,568-80 (1991) (internal quotation marks omitted)). United States v. Martinez-Fuerte, 428 U.S. 543, 565 (1976); see also Beck v. Ohio, 379 U.S. 89, 96 (1964)
Clay v. State, 391 S.W.3d 94,100 n.21 (Tex. Crim. App. 2013) (quoting Wayne R. LaFave, 2Search and Seizure: ATreatise on the Fourth Amendment § 4.3(b), at 511 (4th ed. 2004))). State v. Robinson, 334 S.W.3d 776, 778-79 (Tex. Crim. App. 2011) (footnotes omitted)
Robinson, 334 S.W.3d at 780 (Cochran, J., concurring); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
Robinson, 334 S.W.3d at 779; Amador v. State, 221 S.W.3d 666, 672-73 (Tex. Crim. App. 2007).
Bray, 597 S.W.2d at 765 n.l (quoting McDonald, 335 U.S. at 456). Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). Crane v. State, 786 S.W.2d 338, 346 (Tex. Crim. App. 1990) STATUTES and RULES Texas Penal Code 49.04
Rule 44.2(a) of the Texas Rules of Appellate Procedure
See TEX. R. APP. P. 44.2(a)
Hernandez v. State, 60S.W.3d 106 (Tex. Crim. App. 2001)
Snowden v. State, 353 S.W.3d 815, 821 (Tex. Crim. App. 2011).
End Notes:
1Adams, R., &Victor, M. (1993). Principles of Neurology, Sth edition. McGraw-Hill, Inc.: New York
2 Burns, M.,& Anderson, H.( 1995). A Coloradovalidation study of the standardized field sobriety (SFST) battery. Final Report. Colorado Department of Transportation.
3 Burns, At, & Dioquino, T.( 1997). A Florida validation study of standardized field sobriety test (S.F.S.T. battery. Florida Department of Transportation.
4 De Myer, W. Neuroanatomy. Williams &Wilkins, Baltimore.
5 DWI detection and standardized field sobriety testing Student manual.(1995). NHTSA, U.S. Department of Transportation.
6 DWI detection and standardized field sobriety testing Instructor manual. (1995). NHTSA, U.S. Department of Transportation.
7 Elliot. C, & Murray. A. (1998). Repeatability of body sway measurements; day-to-day variation measured by)sway magnetometry. Physiol. Meas.19,159-164.
8 Lee, D..& Lishman, J. (1975). Vision -the most efficient source of proprioceptive information for balance control. Symposium international de posturegraphie, 83-93.
9 Mills, K., & Bisgrove, E. (1983). Body sway and divided attention performance under the influence of alcohol: Dose-response differences between males and females. Alcohol Clincial and Experimental Research, 7(4), 393-397.
10 Nardone, A., Tarantola, J., Giordano, A., & Schieppati, M. (1997). Fatigue effects on body balance. Electroencephalography and clinical Neurophysiology, 105,309-320. STATEMENT OF THE CASE
This is an appeal of the judgment and sentence in acriminal case for the County Court at Law Number 1 in Hunt County, Texas. Appellant Plead Guilty to the crime of Driving while Intoxicated Second. (RR Vol. 3p.8) Appellant filed in the trial court an election to punishment to be made by the trial court on August 12th, 2013. The court ordered a pre-sentence investigation. Appellant was assessed asentence of imprisonment for Two Hundred Fifty (250) days in the Hunt County Jail, $0.00 fine, and $433.00 in court costs on October 14th, 2013 by the trial court. Motion for New Trial was timely filed on November 4th, 2013 in the trial court and has yet to be heard.
Free access — add to your briefcase to read the full text and ask questions with AI
May 29, 2015 PD-0197-15
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
JESSICA NICOLE NANCE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
MOTION FOR REHEARING IN CAUSE NUMBER CR 1101695
IN THE COUNTY COURT AT LAW NO. 1
OF HUNT COUNTY, TEXAS
MOTION FOR REHEARING
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Comes Now the Appellant and submits this Motion for Rehearing pursuant to the provisions ofthe Texas Rules ofAppellate Procedure in Support of her request for the judgment of conviction to be overturned in Cause CR 1101695.
RECEIVED IN COURT OF CRIMINAL APPEALS MAY 29 2015 IDENTITY OF PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellate Procedure 38.1, the undersigned counsel of record certifies that the following persons have an interest in the outcome of this case. These representations are made so that the Justices of this Honorable Court can evaluate whether they are disqualified to serve or should recuse themselves from participation in the decision of this case.
APPELLATE:
Jessica Nicole Nance
PO. Box 211362
Bedford, Texas 76095
APPELLATE ATTORNEY:
Jason A. Duff
2615 Lee Street
P.O. Box 11 Greenville, Texas 75403
Appellee:
The State of Texas by and through
Joel D. Littlefield
Jeffery Kovach
Hunt County Attorney
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401 TABLE OF CONTENTS
Identity of the Parties and Counsel
Table of Contents
Index of Authorities
Statement of the Case
Issues Presented
Statement of the Facts
Summary of the Argument
Prayer for Relief
Certificate of compliance of typeface and word count Certificate of Service INDEX OF AUTHORITIES
CASES
Brooks v. State, 323 S.W.3d 893
(Tex.Crim.App. 2010)
Clayton v. State, 235 S.W.3d 772
(Tex.Crim.App. 2007)
Gilliand v. State, 2011WL 3862861
(Tex.App.—Texarkana 2011)
Hartsfield v. State, 305 S.W.3d 859
(Tex.App.—Texarkana 2010)
Hooper v. State, 214 S.W.3d 9
(Tex.App.—Texarkana 2007)
Jackson v. Virginia, 433 U.S. 307 (1979)
Johnson v. State, 517 S.W.2d 536
(Tex.Crim.App.1975)
Gonzales v. State, 369 S.W.3d 851,854 (Tex. Crim. App. 2012)
Haynes v. State, 475 S.W.2d 739, 741 (Tex. Crim. App. 1971)
Kentucky v. King, 131 S.Ct. 1849,1856 (2011)
Mincey v. Arizona, 437 U.S. 385, 390 (1978) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)) Gonzales, 369 S.W.3d at 854
Bray v. State, 597 S.W.2d 763, 765 n.l (Tex. Crim. App. [Panel Op.] 1980) (quoting McDonald v. United States, 335 U.S. 451,455 (1948)) Johnson v. United States, 333 U.S. 10,17 (1948) Jones v. United States, 357 U.S. 493,499 (1958). McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). Hudson v. State, 588 S.W.2d 348, 351 (Tex. Crim. App. 1979) (quoting United States v. Chadwick, 433 U.S. 1, 9(1977), abrogated on other grounds by California v. Acevedo, 500 U.S. 565,568-80 (1991) (internal quotation marks omitted)). United States v. Martinez-Fuerte, 428 U.S. 543, 565 (1976); see also Beck v. Ohio, 379 U.S. 89, 96 (1964)
Clay v. State, 391 S.W.3d 94,100 n.21 (Tex. Crim. App. 2013) (quoting Wayne R. LaFave, 2Search and Seizure: ATreatise on the Fourth Amendment § 4.3(b), at 511 (4th ed. 2004))). State v. Robinson, 334 S.W.3d 776, 778-79 (Tex. Crim. App. 2011) (footnotes omitted)
Robinson, 334 S.W.3d at 780 (Cochran, J., concurring); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
Robinson, 334 S.W.3d at 779; Amador v. State, 221 S.W.3d 666, 672-73 (Tex. Crim. App. 2007).
Bray, 597 S.W.2d at 765 n.l (quoting McDonald, 335 U.S. at 456). Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). Crane v. State, 786 S.W.2d 338, 346 (Tex. Crim. App. 1990) STATUTES and RULES Texas Penal Code 49.04
Rule 44.2(a) of the Texas Rules of Appellate Procedure
See TEX. R. APP. P. 44.2(a)
Hernandez v. State, 60S.W.3d 106 (Tex. Crim. App. 2001)
Snowden v. State, 353 S.W.3d 815, 821 (Tex. Crim. App. 2011).
End Notes:
1Adams, R., &Victor, M. (1993). Principles of Neurology, Sth edition. McGraw-Hill, Inc.: New York
2 Burns, M.,& Anderson, H.( 1995). A Coloradovalidation study of the standardized field sobriety (SFST) battery. Final Report. Colorado Department of Transportation.
3 Burns, At, & Dioquino, T.( 1997). A Florida validation study of standardized field sobriety test (S.F.S.T. battery. Florida Department of Transportation.
4 De Myer, W. Neuroanatomy. Williams &Wilkins, Baltimore.
5 DWI detection and standardized field sobriety testing Student manual.(1995). NHTSA, U.S. Department of Transportation.
6 DWI detection and standardized field sobriety testing Instructor manual. (1995). NHTSA, U.S. Department of Transportation.
7 Elliot. C, & Murray. A. (1998). Repeatability of body sway measurements; day-to-day variation measured by)sway magnetometry. Physiol. Meas.19,159-164.
8 Lee, D..& Lishman, J. (1975). Vision -the most efficient source of proprioceptive information for balance control. Symposium international de posturegraphie, 83-93.
9 Mills, K., & Bisgrove, E. (1983). Body sway and divided attention performance under the influence of alcohol: Dose-response differences between males and females. Alcohol Clincial and Experimental Research, 7(4), 393-397.
10 Nardone, A., Tarantola, J., Giordano, A., & Schieppati, M. (1997). Fatigue effects on body balance. Electroencephalography and clinical Neurophysiology, 105,309-320. STATEMENT OF THE CASE
This is an appeal of the judgment and sentence in acriminal case for the County Court at Law Number 1 in Hunt County, Texas. Appellant Plead Guilty to the crime of Driving while Intoxicated Second. (RR Vol. 3p.8) Appellant filed in the trial court an election to punishment to be made by the trial court on August 12th, 2013. The court ordered a pre-sentence investigation. Appellant was assessed asentence of imprisonment for Two Hundred Fifty (250) days in the Hunt County Jail, $0.00 fine, and $433.00 in court costs on October 14th, 2013 by the trial court. Motion for New Trial was timely filed on November 4th, 2013 in the trial court and has yet to be heard. The court reporter's record was filed on April 26th, 2013. Appeal was affirmed on November 10th, 2014. Motion for rehearing was filed on November 12th, 2014. Motion was granted on November 25th, 2014. Motion for rehearing was overruled on 1/6/15. Petition for discretionary review was filed on 4/17/15. PDR was refused on 5/13/2015. ISSUES PRESENTED
Point of Error One:
Defendant's Fourth Amendment rights were violated when the officers failed to obtain a search warrant.
Point of Error Two:
Trial court erred in the admissibility, utilization and refutation oftheState's evidence concerning field-sobriety test.
Point of error Three:
Trial court erred in allowing Trooper Goodwin to testify that there is a certain level of intoxication that can be determined bythe HGN . Statement of the facts
Appellant pled guilty to Driving While Intoxicated, Second . (RR Vol. 3 p.8). The trial court admonished Appellant of the charge and the range of punishment. (RR Vol. 3 p.8-15). The trial court then admonished the Appellant that the State was seeking to enhance his punishment range from a Class B misdemeanor to a Class A misdemeanor. (RR Vol. 3 p. 8-15). The court informed Appellant that she had the rightto have a presentence investigation and ordered it done. (CR Vol. 1 p. 195). Duringthe sentencing hearing the State moved to admit Exhibits 1-6 which included the roadside videos, intoxilizer videos and her test results and records obtained from criminal records from Dallas County. Without objection from the Defense the trial court admitted them. (RR Vol. 3 p. 25). Both sides presented arguments and the Court came back with a sentence of two hundred and fifty days in jail. (RR Vol. 5p. 113-125). SUMMARY OF THE ARGUMENT
Jessica Nicole Nance appeals from herconviction, on an open plea ofguilty, ofdriving while Intoxicated (DWI) second offense. Following a hearing on punishment, the trial court sentenced Nance to 250days injail. Nance's appointed appellant counsel filed an Anders brief in the matter detailing the procedural history ofthe case, summarizing and analyzing thetrial evidence, and stating that he found no meritorious issues to raise on appeal. Nance availed herselfof the opportunity to file a pro se response. Nance contendsthat she received ineffective assistance ofcounsel with respect to each ofthe following issues: (1) Defendant's Fourth Amendment rights were violatedwhen the officers failed to obtain a search warrant. (2) Trial court erred In the admissibility, utilization and refutation of the State's evidence concerning field-sobriety test. (3) Trial court erred in allowing Trooper Goodwin to testify that there isacertain level of intoxication that can be determined bythe HGN .