PD-0252-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
APRIL 9, 2015 Transmitted 4/6/2015 3:06:11 PM
Accepted 4/9/2015 9:07:11 AM
ABEL ACOSTA
IN THE TEXAS CLERK
COURT OF CRIMINAL APPEALS
NO. PD-0252-15
(Court of Appeals No. 02-14-00039-CR)
BARCLAY EDWARD BERDAN,
Petitioner
vs.
THE STATE OF TEXAS,
State
APPELLANT'S 1sT AMENDED PETITION FOR DISCRETIONARY
REVIEW
OF THE SECOND COURT OF APPEALS' OPINION AND JUDGMENT IN
CAUSE NO. 02-14-00039-CR ON APPEAL FROM COUNTY CRIMINAL
COURT NO. 9 OF TARRANT COUNTY, HON. BRENT A. CARR
PRESIDING.
Tim Choy
State Bar No. 24056721
204 W. Central Ave.
Fort Worth, TX 76164
Ph: (817) 625-5582
Fax: (817) 625-5881
Email: tim@timchoylaw.com
COUNSEL FOR PETITIONER
IDENTITY OF PARTIES AND COUNSEL
The Parties to the trial Court's Judgment are:
Barclay Edward Berdan, II Defendant/Petitioner
A resident of the City of Fort Worth
c/o Tim Choy, Attorney At Law
204 West Central Ave.
Fort Worth, Texas 79601
Counsel are:
Tim Choy Defense Counsel
Attorney At Law
204 West Central Ave.
Fort Worth, Texas 79601
The State of Texas Prosecution
Hon. Debra Windsor,
Chief of Appeals
Tarrant CountyOffice of
the Tarrant County District Attorney
401 West Belknap Street
Fort Worth, Texas, 76196
Hon. Brent A. Carr. Judge Presiding
County Criminal Court 9
gth Floor, Justice Center
401 West Belknap Street
Fort Worth, Texas, 76196
Hon. David L. Richards
Tex. State Bar No. 16945500 Former Defense Counsel
3001 West 5111 Ste. 800
Fort Worth, Texas 76107
2
Hon. Lisa McMinn State ofTexas
Office of the State Prosecutor
Supreme Court Bldg.
Austin, Texas
TABLE OF CONTENTS
Identity of Parties and Counsel.. ............................................................. ........... 2
Table of Contents ... ...... .. ... .. .. ....... .. . .. ... . .. . .. ... .. ... ..... . .... . .. . . . .. ........ 3
Index of Authorities ............................................................................................ 4
Statement Regarding Oral Argument. ... .......................................... ................... 5
Statement of The Case... ............ ......................................................................... 5
Statement of Procedural History ..................... ............ ........... ............................ 6
Question Presented for Review ..................................... ..................................... 6
Whether the Court of Appeals was conect in its analysis and determination
that the evidence was legally sufficient to support Mr. Berdan's conviction for the
offense of Driving While Intoxicated?
Reason for Review, Arguments and Authorities .............................................. 6
The Court of Appeals has decided a significant issue of Texas law that has
not been, but should be, decided by this Court, to-wit: whether a breath test refusal,
coupled with a field-sobriety test refusal, is sufficient to support a conviction for
Driving While Intoxicated, where the defendant admits to drinking alcohol?
Prayer................ ............ .................................................. ............... .................. 7
Certificate of Service ......................................................................................... 8
Court of Appeals' Opinion and Judgment. ......................................... Appendix
3
INDEX OF AUTHORITIES
Texas Appellate Court Cases
Barclay Edward Berdan, II v. State of Texas,
No. 02-14-00039-CR, Jan. 22, 2015 (Memorandum Opinion on Rehearing)
(Unpublished) ........................... .............................................. ........................... 6
Jackson v. Virginia,
443 U.S. 307,319,99 S.Ct. 2781,2789 (1979); Dobbs v. State, 134 S.W.3d
166, 170 (Tex. Crim. App. 2014) ................................. ........................... .......... 6
Huffman v. State,
No. 02-13-00175-Cr, 1014 WL 3696132, (Tex. FortWorth July 24, 2014,
no pet.) ......... ............... ....... .................... ..... .. .. .... .... ..... ... .. .. ............ 7
RULE
TEX. R. APP. P. 66.3(b ) .. ..... .. ... ......... .. ........ .. .... ..... .............................. 5
4
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:
COMES NOW BARCLAY EDWARD BERDAN, II, by and through his
attorney of record, Tim Choy, and pursuant to Rule 68, Texas Rules of Appellate
Procedure, files this PETITION FOR DISCRETIONARY REVIEW, and for such
Petitioner would show this Court as follows:
STATEMENT REGARDING ORAL ARGUMENT
This petition involves a novel question of state law concerning whether a
defendant's conviction may be deemed legally sufficient where the primary
evidence against him is a refusal to perform a standard field sobriety tests and a
refusal to provide a breath sample. For that reason, Petitioner believes oral
argument would assist the Court in arriving at its decision.
STATEMENT OF THE CASE
Appellant was convicted of the offense of Driving While Intoxicated
following a one-vehicle accident occurring near a five-street intersection in Fort
Worth.
5
STATEMENT OF PROCEDURAL HISTORY
Petitioner seeks review of the Court of Appeals Judgment and Opinion in
Barclay Edward Berdan, II v. State of Texas, No. 02-14-00039-CR, Jan. 22, 2015 (
Memorandum Opinion on Rehearing) (Unpublished). This Court granted Petitioner
one extension of time in which to file this p.d.r., which it ordered due no later than
today, March 25, 2015.
QUESTION PRESENTED FOR REVIEW
Whether the Court of Appeals was correct in its analysis and legal
sufficiency determination when it held that failure to comply with requests to
perform field sobriety tests and breath tests can be the primary factors
supporting the verdict?
REASON FOR REVIEW
The Court of Appeals has decided a significant issue of Texas law that has
not been, but should be, decided by this Court.
DISCUSSION
Mr. Berdan respectfully disagrees with the Fort Worth Court of Appeals'
focus and emphasis on his field sobriety test refusal and breath test refusal in its
determination and resolution of his legal sufficiency challenge.
The Court correctly set forth the standard of review set forth in Jackson v.
Virginia,443 U.S. 307,319, 99 S.Ct. 2781, 2789 (1979)(requiring review of
evidence in light most favorable to the State). The mistake Mr. Berdan suggests
was made by the Court of Appeals was its stated reliance on his failure to comply
6
with the investigating officer's request that he perform standard field sobriety tests,
and a later request by law enforcement that he provide a specimen of his breath.
Slip. Op. p. 3. While it is true that the trier of fact (here, the jury) can take the
refusals as indicators of guilt, see Huffman v. State, No. 02-13-00175-Cr, 1014 WL
3696132, (Tex. FortWorth July 24, 2014), to Petitioner's knowledge no case
authority exists stating how strong those indicators can be. Here, although Mr.
Berdan admitted having two drinks, and admitted driving the vehicle involved in a
one car accident while executing a left hand turn at night on one of the most
confusing intersections in the City of Fort Worth, there is scant evidence of guilt,
unless heavy reliance is placed on his decision not to comply with field sobriety and
breath test requests. Accepting this case for discretionary review would allow this
Court to consider how much weight such refusals should have.
PRAYER FOR RELIEF
Petitioner prays that for the above reasons this Court grant discretionary
revie, and order further briefing and oral argument on the issue presented. He
further requests reversal of the lower court's decision and remand of his case for
new trial.
7
Respectfully Submitted,
204 West Central Avenue
Fort Worth, Texas 76164
Phone: 817/625-5582
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this petition contains 1.097 words and
complies in all other respects, including 14 point font, with T.R.A.P., Rule
9.04(i)(3).
CERTIFICATE OF SERVICE
The undersigned, TIM CHOY, certifies that he has sent a
copy of this document (in that it has been e-filed) with the appellate division of the
Tarrant County District Attorney's Office, Hon. Debra Windsor, and with the Hon.
Lisa McMinn, Office. of the State Prosecutng Attorney, Austin, Texas, this 61h day
of April, 2015.
8
APPENDIX
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00039-CR
BARCLAY EDWARD BERDAN II APPELLANT
v.
THE STATE OF TEXAS STATE
FROM COUNTY CRIMINAL COURT NO . 9 OF TARRANT COUNTY
TRIAL COURT NO. 1327699
EN BANC MEMORANDUM OPINION 1
ON MOTIONS FOR REHEARING
After reviewing appellant Barclay Edward Berdan ll's motion for rehearing
and motion for rehearing en bane, we deny the motions, withdraw our November
6, 2014 memorandum opinion and judgment, and substitute the following in their
place .
1
See Tex. R. App. P. 47.4.
I. BACKGROUND
Berdan went drinking with a friend in the West 7th Street area of Fort
Worth. While driving home, Berdan hit a light post in an intersection causing
the back of his truck to swing out, blocking a lane of traffic. Fort Worth Police
Officer Brian White saw the accident happen and approached the truck. White
testified that Berdan willingly stepped out of his car, and as Berdan got out, he
stumbled backward. Berdan had bloodshot eyes, and White could smell alcohol
on Berdan's breath. Berdan admitted that he "had a couple of drinks" at a
nearby bar. After the initial observations of intoxication, White decided to
conduct a fie ld-sobriety evaluation. 2 White twice asked Berdan to perform the
tests , but Berdan refused each time , without giving a reason. Believing that
Berdan had lost the normal use of his mental and physical faculties due to the
introduction of alcohol into his body, White arrested Berdan and took him to the
City of Fort Worth jail. 3 In the parking lot of the jail , White read Berdan the
required statutory warnings and asked Berdan to provide a breath sample. See
Tex. Transp. Code Ann . § 724.015 (West Supp. 2014). He refused. Berdan
would not sign the form indicating that he was refusing to provide a sample. A
2
There are three different tests that the Fort Worth Police Department
performs: the horizontal-gaze nystagmus, the walk and turn, and the one-leg
stand. [3 RR 77]
3
Before White took Berdan to the jail, MedStar EMS arrived to treat
Berdan. He had no injuries that would have prevented him from performing the
tests. The medical personnel noted , however, that Berdan smelled of alcohol
and that Berdan had admitted to drinking alcohol.
2
jury convicted Berdan of driving while intoxicated , and the trial court assessed
his punishment at ninety days' confinement, probated for twenty-four months,
with a $600 fine. See Tex. Penal Code Ann . § 49.04 (West Supp. 2014).
II. SUFFICIENCY OF THE EVIDENCE
Berdan argues that the evidence was insufficient to show that he was intoxicated.
In our due-process review of the sufficiency of the evidence to support a conviction, we
view all of the evidence in the light most favorable to the verdict to determine 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, 2789 (1979);
Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
Intoxication is statutorily defined as "not having the normal use of mental or physical
faculties by reason of the introduction of alcohol . . . or any other substance into the body."
Tex. Penal Code Ann. § 49.01 (2)(A) (West 2011 ). A person's refusal of a request by an
officer to submit to the taking of a specimen of breath or blood, whether the refusal was
express or the result of an intentional failure to give the specimen, may be introduced into
evidence at the person's trial and be considered as evidence of guilt. Tex. Transp. Code
Ann.§ 724.061 (West2011); Huffman v. State, No. 02-13-00175-CR, 2014 WL 3696132,
at *2 (Tex. App.-Fort Worth July 24, 2014, no pet.) (mem. op., not designated for
publication).
Berdan was driving erratically such that he drove his car into a light post. Berdan
was stumbling when he got out of the car and had bloodshot eyes. He admitted he had
been drinking. White testified that Berdan had lost the normal use of his physical and
3
mental faculties due to alcohol consumption and that Berdan refused to provide a breath
sample. This evidence allowed the jury to draw the reasonable inference that Berdan was
intoxicated at the time he was driving; thus, the evidence was sufficient to support his
conviction for driving while intoxicated. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex.
Crim. App. 2010); Kiffe v. State, 361 S.W .3d 104, 108 (Tex. App.-Houston [1st Dist.]
2011, pet. refd); Coggins v. State, 160 S.W.3d 177, 180 (Tex. App.-Texarkana 2005, no
pet.). We overrule Berdan's sole issue.
Ill. CONCLUSION
Having overruled Berdan's issue, we affirm the trial court's judgment. See Tex. R.
App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
EN BANC
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 22, 2015
4
Berdan, Barclay Edward Ii
Combined Opinion