Jorge Alvarez Gomez v. State

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.

Respectfully submitted,

//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

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”
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