ACCEPTED
06-13-00110-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/27/2015 3:16:49 PM
DEBBIE AUTREY
CLERK
NO. 06-13-00110-CR
IN THE FILED IN
6th COURT OF APPEALS
SIXTH COURT OF APPEALS TEXARKANA, TEXAS
1/27/2015 3:16:49 PM
AT TEXARKANA, TEXAS
DEBBIE AUTREY
_______________________ Clerk
Michael Earitt White,
Appellant,
v.
The State of Texas,
Appellee.
_______________________________
On Appeal from the
County Court at Law, Lamar County, Texas
Hon. Bill Harris, Presiding
_______________________________
APPELLANT’S BRIEF IN REPLY
Don Biard
State Bar No. 24047755
Counsel for Appellant
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Defendant Below
Appellant in this Court
Michael Earitt White
Counsel for Appellant:
Don Biard (on appeal)
State Bar No. 24047755
38 First Northwest
Paris, Texas 75460
Tel: (903)785-1606
Fax: (903)785-7580
Email: dbiard@att.net
Jo Nita Moody (at trial)
State Bar No. 16340800
41 West Side Square
Cooper, Texas 75432
Tel: (903)395-2400
Appellee in this Court
The State of Texas
Counsel for Appellee:
Gary Young
Lamar County Attorney’s Office
119 N. Main Street
Paris, Texas 75460
Tel: (903)737-2458
Fax: (903)737-2455
1
TABLE OF CONTENTS
Identity of Parties and Counsel………………..........………………………………1
Table of Contents………………………..........…………………………………….2
Index of Authorities………………......………………………………………….....3
Issues Presented…………………………………………………………….………4
Statement of the Case………………………………….…………………………...5
Procedural History………………………....…………………………………….....6
Argument and Authorities……………………......…………………….…….......7-9
Prayer……………………..……………………………………………………….10
Certificate of Service…………………......…………………………………..…...11
Certificate of Compliance With Rule 9.4(i)(3)........................................................12
2
INDEX OF AUTHORITIES
Caselaw
Republic Underwriters Ins. Co. v. Mex-Tex., Inc., 150 S.W.3d 423, 427 (Tex.
2004)..........................................................................................................................7
Rogers v. Stevens, 697 S.W.2d 75 (Tex. App. – Fort Worth 1985)..........................7
Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000).............................................7
Washington v. State, 127 S.W. 3d 197, 203 (Tex. App. – Houston [1st Dist.] 2003,
pet. dism’d)................................................................................................................8
Statutes
Texas Transportation Code §521.457........................................................................7
SUBJECT MATTER OF ISSUE PRESENTED
I. Appellant’s point of error is adequately briefed.
II. A claim of insufficient evidence may be raised for the first time on appeal.
III. Appellant was not required to request a jury instruction on an
affirmative defense at trial to challenge the sufficiency of the evidence on
appeal.
4
STATEMENT OF THE CASE
Nature of the Case: Plea of Not Guilty to One Charge of Driving
While License Suspended
Trial Court: The Honorable Bill Harris
County Court at Law, Lamar County, Texas
Trial Court Disposition: A jury convicted Appellant and sentenced
Appellant to a 90 day jail term and a $1,000.00
fine
5
PROCEDURAL AND FACTUAL HISTORY
Appellant adopts herein the procedural and factual background set forth in
Appellant’s Original Brief.
6
ARGUMENT AND AUTHORITIES
Issue No. 1 in Reply Restated: Appellant has adequately brief the point of
error by citing to relevant primary authority.
The state asserts in its brief that Appellant has failed to adequately brief his
point of error. Courts have long recognized that there are some cases in which the
appropriate authorities are very limited.1 Admittedly, there is very limited case law
regarding the underlying offense in this case. However, this is understandable
given the offense. It is ordinarily a Class C misdemeanor offense and numerous
published appellate opinions on such offenses are not the norm.2
Further, legal authority is sometimes of limited value when an argument
consists primarily of reviewing pertinent portions of the record and urging the
court of appeals that there is no evidence supporting a particular finding by the
trier of fact.3
However, here, Appellant has provided the court with numerous citations to
primary authority – the controlling statutes. And, Appellant has given the court “a
relevant jurisprudential framework for evaluating” Appellant’s point of error.4
1
Republic Underwriters Ins. Co. v. Mex-Tex., Inc., 150 S.W.3d 423, 427 (Tex. 2004).
2
Tex. Transp. Code §521.457(e)
3
Rogers v. Stevens, 697 S.W.2d 75 (Tex. App. – Fort Worth 1985).
4
Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000).
7
Issue No. 2 in Reply Restated: In a criminal case, the appellant may raise
legal sufficiency for the first time on appeal.
In its brief, the state asserts that Appellant has failed to preserve his point of
error because “this argument did not comport to the argument made in the trial
court.”5 However, it is well settled that a criminal appellant may raise a claim of
insufficient evidence for the first time on appeal.6 There is no requirement that a
criminal Appellant make this argument to the trial court or assert it in a motion for
new trial. The state has not provided any authority to the contrary nor asserted any
argument why the rule should be different in this case.
Issue No. 3 in Reply Restated: Appellant was not required to request a jury
instruction on an affirmative defense.
The state asserts in its brief that “it was incumbent upon White to prove that
his suspension period could not have lawfully begun under Tex. Transp. Code
Ann. §521.292(a), §521.295(a)-(b), §521.297(a) (West 2013) by requesting an
issue in the jury charge and to prove such an affirmative defense by a
preponderance of the evidence.”7
As noted in Appellant’s brief, Appellant’s point of error does not concern
the affirmative defense provided in Tex. Transp. Code §521.457(d). That
5
State’s Brief, pg. 11
6 st
Washington v. State, 127 S.W. 3d 197, 203 (Tex. App. – Houston [1 Dist.] 2003, pet. dism’d).
7
State’s Brief, pg. 17
8
provision provides for an affirmative defense to prosecution if it can be shown that
the defendant did not receive actual notice of his license suspension.
Again, that is not what is being argued on appeal. Appellant asserts on
appeal that the evidence is insufficient to support his conviction because the
evidence at trial did not show that his license was suspended at the time he was
driving. As shown in Appellant’s brief, that is an essential element of the charged
offense and one which the state was required to prove beyond a reasonable doubt.8
CONCLUSION
There is no evidence to show that Michael Earl White was driving during a time
when his license was lawfully suspended. Accordingly, the conviction should be
reversed.
8
Appellant’s Brief, pg. 11
9
PRAYER
Appellant asks this court to reverse the conviction and render a judgment of
acquittal.
Respectfully Submitted,
/s/ Don Biard
____________________________
Don Biard
State Bar No. 24047755
38 First Northwest
Paris, Texas 75460
Tel: (903)785-1606
Fax: (903)785-7580
Email: dbiard@att.net
Counsel for Appellant
10
CERTIFICATE OF SERVICE
I certify that on January 27, 2015 a copy of the foregoing Appellant’s Brief was
served to the following parties by hand delivery and regular mail.
/s/ Don Biard
___________________________
Don Biard
Attorney for Appellee:
Gary Young
Lamar County Attorney’s Office
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CERTIFICATE OF COMPLIANCE PURSUANT TO TEXAS RULE OF APPELLATE
PROCEDURE 9.4(i)(3)
TO THE HONORABLE COURT OF APPEALS:
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
Counsel for Appellant files this certification that Appellant’s brief is a computer-
generated document that contains 1,227 words. Counsel further certifies that he
relied on the word count of the computer program used to prepare this document.
Respectfully submitted,
___/s/Don Biard___________________________
DON BIARD
State Bar No. 24047755
McLaughlin, Hutchison & Biard
38 First Northwest
Paris, Texas 75460
Tel: (903)785-1606
Fax: (903)785-7580
Attorney for Appellant
12