ACCEPTED
13-13-00066-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
2/25/2015 5:05:22 PM
DORIAN RAMIREZ
CLERK
IN THE COURT OF APPEALS FOR
THE THIRTEENTH DISTRICT OF TEXAS
CAUSE NO. 13-13-00066-CR FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
ON APPEAL FROM 2/25/2015 5:05:22 PM
THE 357TH DISTRICT COURTDORIAN E. RAMIREZ
OF CAMERON COUNTY, TEXAS Clerk
CAUSE NO. 2012-DCR-1135-E
ERIC ROEL JIMENEZ V. STATE OF TEXAS
* * * * * * * * * *
APPELLANT'S BRIEF
* * * * * * * * * *
Larry Warner,
ATTORNEY AT LAW
Counsel for Eric Jimenez
3109 Banyan Circle
Harlingen, Tx 78550 7443
Phone (956) 230 0361
Tex.State Bar# 20871500
Usdc,Stdx# 1230
office@larrywarner.com
website: larrywarner.com
Member, Bar of the Supreme
Court of the United States
(1984)
APPELLANT REQUESTS ORAL ARGUMENT,
PURSUANT TO TEX.R.APP.PROC.39.7
Pursuant to Tex.R.App.Proc.38.1(a),Appellant provides the
following identity of parties and counsel:
PARTIES AND INTERESTED PERSONS
1. Eric Roel Jimenez, Appellant.
2. Hon. Brian Clark Erskine, State Bar No.
24074182, Assistant District Attorney, Cameron
County Courthouse, 964 East Harrison,
Brownsville, Texas 78520, Phone (956) 544-0849.
PROSECUTING ATTORNEY AT TRIAL
3. Hon. Brandy Bailey, State Bar No. 24050244,
Assistant District Attorney, Cameron County
Courthouse, 964 East Harrison, Brownsville,
Texas 78520, Phone (956) 544-0849.
PROSECUTING ATTORNEY AT TRIAL
4. Hon. Luis V. Saenz, State Bar No. 17514880,
District Attorney, District Attorney, Cameron
County Courthouse, 964 East Harrison,
Brownsville, Texas 78520, Phone (956) 544-0849.
PROSECUTING ATTORNEY AT TRIAL AND ON APPEAL
5. Hon. Jennifer Marie Avendano, State Bar No.
24052304, District Attorney, District Attorney,
Cameron County Courthouse, 964 East Harrison,
Brownsville, Texas 78520, Phone (956) 544-0849.
PROSECUTING ATTORNEY ON APPEAL
6. Hon. Richard R. Rodriguez (DECEASED), State Bar
No. 17148527, Attorney at Law, 1117 E Harrison
St., Harlingen, Texas 78550, Phone (956) 425-
4992.
DEFENSE ATTORNEY AT TRIAL
7. Hon. Ricardo Alonzo Barrera, State Bar No.
24071959, Attorney at Law, 1314 E. Harrison,
Harlingen, Texas 78550, Phone (956) 428-2822.
DEFENSE ATTORNEY ON APPEAL
INITIAL BRIEF - 2
8. HON. LARRY WARNER, State Bar No. 20871500, Law
Office of Larry Warner, 3109 Banyan Circle,
Harlingen, TX 78550. Phone (956) 230-0361.
DEFENSE ATTORNEY ON APPEAL
INITIAL BRIEF - 3
Pursuant to Tex.R.App.Proc.38.1(b,Appellant provides the
following table of contents:
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES...................................2-3
TABLE OF CONTENTS.....................................4-5
TABLE OF AUTHORITIES..................................6-8
STATEMENT OF CASE.......................................9
ISSUES PRESENTED.......................................10
1. Is this a proscribed summary of the evidence or
comment on the weight of the evidence? Is the
error fundamental? Is any error harmless beyond
a reasonable doubt?
Immediately after the prosecutor argued that
the defendant must be guilty because he
refused the breath test, the Judge said, “I
mean, it just tracks the evidence”.
2. Is this egregious harm: “Intoxication
means...having an alcohol concentration of 0.08
or more”? (CR52)
3. Did the state’s proof disprove this exception:
“except a device used exclusively on stationary
rails or tracks” in proving operation of a
“motor vehicle”?(CR8)
4. Is this egregious harm? Does this instruction
amount to a proscribed comment on the weight of
the evidence? “The law in our State provides
that a person may be convicted on the testimony
of one witness....”(CR 53, ¶3)
INITIAL BRIEF - 4
STATEMENT OF FACTS..................................11-12
SUMMARY OF ARGUMENT............................... 13-15
ARGUMENT............................................16-34
CONCLUSION AND REQUEST FOR RELIEF.....................35
CERTIFICATE OF SERVICE.................................36
CERTIFICATE OF COMPLIANCE..............................36
INITIAL BRIEF - 5
Pursuant to Tex.R.App.Proc.38.1(c),Appellant provides the
following index of authorities arranged alphabetically
and indicating the pages of the brief where the
authorities are cited:
INDEX OF AUTHORITIES
CASES PAGES
Almanza v. State,686 S.W.2d157(Tex.Crim.App.[en
banc]1984) . . . . . . . . . . . . . . . . . . . . 24
"Intoxication means...having an alcohol concentration
of 0.08 or more."
Blue v. State,41 S.W.3d 129(Tex.Crim.App.[En Banc]2000)
. . . . . . . . . . . . . . . . . . . . . . 16,17,22,33
The Code prohibits the Judge from commenting on or
summing up the evidence.
Boozer v. State,717S.W.2d608(Tex.Crim.App.1986) . . 30
It used to be that the measure of the legal
sufficiency of the evidence was the instruction to
the jury actually given.
Carbide Int.,Ltd. v. State, 695S.W.2d653,659hn10(Tex.
App.–Austin 1985,no pet.) . . . . . . . . . . . . . 26
A penal statute... must be couched in such explicit
terms that the party upon whom it is to operate may
with reasonable certainty ascertain what the statute
requires to be done, and when it must be done;
otherwise, there would be no opportunity for a person
charged with the duty to protect himself by the
performance of it according to the law.
Clark v. State(App. 5 Dist. 1994) 878 S.W.2d 224 . 21
To determine whether trial court's comments on
evidence prejudiced defendant's rights, reviewing
court considers consequences that probably resulted
from trial court's comments; error is harmless if
reviewing courts determines beyond reasonable doubt
that court's error made no contribution to
conviction.
INITIAL BRIEF - 6
Fulminante v. Arizona,499 U.S.279(1991) . . . . . 23,33
The error was structural, not trial error.
Hoang v. State (App. 6 Dist. 1999) 997 S.W.2d 678. 18,20
A trial court improperly comments on the weight of
the evidence if it makes a statement that implies
approval of the state's argument, that indicates any
disbelief in the defense's position, or that
diminishes the credibility of the defense's approach
to its case.
Leal v. State,338S.W.2d 443(Tex.Crim.App.1960) . . 25
“[T]he jury[,] relied heavily upon its alcohol
content.”
Malik v. State,953 S.W.2d 234(Tex.Crim.App.[En Banc]1997)
. . . . . . . . . . . . . . . . . . . . . . . . . 14,31
The Court of Criminal Appeals said the measure of
review was a theoretically correct charge, rather
than the charge actually given.
McElroy v. State,667S.W.2d856(Tex.App.–Dallas 1984,pet.
granted,affirmed) . . . . . . . . . . . . . . . . . 30
The state did not disprove it.No one said, “This was
not a device used exclusively on stationary rails or
tracks”.
Rodriguez v. State,758 S.W.2d 787,788(Tex.Crim.App.[En
Banc]1988) . . . . . . . . . . . . . . . . . . . . 24
"On rehearing, this Court held that Rule 81(b)(2),
Tex.R.App.Pro., and not the tests set out in Almanza,
supra, govern in deciding whether this kind of charge
error was harmless to the defendant."
Rosamond v. State,730 S.W.2d 147(Tex.App.–Corpus
Christi,no pet.) . . . . . . . . . . . . . . . . . 31
The Court of Appeals acquitted Appellant when the
state failed to prove a different exception.
Strong v. State (App.13 Dist.2004)138S.W.3d 546 . 17,18
INITIAL BRIEF - 7
To be a comment on the weight of the evidence, the
Judge’s comments must be in the presence of the jury.
Williams v. State (App. 2 Dist. 1992) 834 S.W.2d 502,pet.
refd. . . . . . . . . . . . . . . . . . . . . . . . 32
An instruction is not an improper comment on weight
of evidence if it was not reasonably calculated to
benefit state or to prejudice defendant's rights.
OTHER REFERENCES:
TEX.PEN.CODE§49.01(2)(B) . . . . . . . . . . . . . 24
TEX.PEN.CODE§49.01(2)(B),art. 6701l . . . . . . . . 25
Jones on Evidence § 2:34 . . . . . . . . . . . . . 26
http://www.intheknowzone.com/substance-abuse-topics/bin
ge-drinking/blood-alcohol-concentration.html(accessed
February 23, 2015) . . . . . . . . . . . . . . . . 27
INITIAL BRIEF - 8
Pursuant to Tex.R.App.P.38.1(a), Appellant provides the
following statement of the case, stating concisely the
nature of the case, the course of the proceedings, and
the trial court's disposition of the case:
STATEMENT OF THE CASE
The defendant was prosecuted for DWI, a felony.
He pleaded not guilty and tried the issue to a jury.
The jury found the defendant guilty.
The judge assessed punishment at probation.
Defendant filed a timely notice of appeal.
His lawyer died.
The District Court asked Mr. Warner to represent
appellant.
INITIAL BRIEF - 9
Pursuant to Tex.R.App.Proc.38.1(e), Appellant presents
this statement of issues presented:
ISSUES PRESENTED
1. Is this a proscribed summary of the evidence or
comment on the weight of the evidence? Is the
error fundamental? Is any error harmless beyond
a reasonable doubt?
Immediately after the prosecutor argued that
the defendant must be guilty because he
refused the breath test, the Judge said, “I
mean, it just tracks the evidence”.
2. Is this egregious harm: “Intoxication
means...having an alcohol concentration of 0.08
or more”? (CR, 52)
3. Did the state’s proof disprove this exception:
“except a device used exclusively on stationary
rails or tracks” in proving operation of a
“motor vehicle”?(CR, 8)
4. Is this egregious harm? Does this instruction
amount to a proscribed comment on the weight of
the evidence? “The law in our State provides
that a person may be convicted on the testimony
of one witness....”(CR 53, ¶3)
INITIAL BRIEF - 10
Pursuant to Tex.R.App.Proc.38.1(f), Appellant provides
the following statement of facts stating concisely
without argument the facts pertinent to the issues of
points presented:
STATEMENT OF FACTS
1. Is this a proscribed summary of the evidence or
comment on the weight of the evidence? Is the
error fundamental? Is any error harmless beyond
a reasonable doubt?
Immediately after the prosecutor argued that the
defendant must be guilty because he refused the breath
test, the Judge said, “I mean, it just tracks the
evidence”.
“Now he has got to prove his innocense.
MS. BAILEY: And Your Honor, failure to take
or refuse to take the breath test is a legal
argument to show guilt.
THE COURT: I mean, it just tracks the
evidence. Overruled.” (RR 1, 4-5)”
2. Is this egregious harm: “Intoxication
means...having an alcohol concentration of 0.08
or more”? (CR52)
The instructions are found at CR 52.
3. Did the state’s proof disprove this exception:
“except a device used exclusively on stationary
rails or tracks” in proving operation of a
“motor vehicle”?(CR8)
The theoretically correct charge states the
exception.
INITIAL BRIEF - 11
There was no testimony or evidence to negate the
exception.
4. Is this egregious harm? Does this instruction
amount to a proscribed comment on the weight of
the evidence? “The law in our State provides
that a person may be convicted on the testimony
of one witness....”(CR 53, ¶3)
The noted instruction appears at (CR 5,3¶3)
INITIAL BRIEF - 12
Pursuant to Tex. R. App. Proc. 38.1(g), Appellant
provides the following summary of the argument which he
hopes the Court will find to be a succinct and accurate
statement of the argument made in the body of the brief
not merely a repetition of the issues or points presented
for review:
SUMMARY OF ARGUMENT
1. Is this a proscribed summary of the evidence or
comment on the weight of the evidence? Is the
error fundamental? Is any error harmless beyond
a reasonable doubt?
Immediately after the prosecutor argued that the
defendant must be guilty because he refused the breath
test, the Judge said, “I mean, it just tracks the
evidence”.
“Now he has got to prove his innocense.
MS. BAILEY: And Your Honor, failure to take
or refuse to take the breath test is a legal
argument to show guilt.
THE COURT: I mean, it just tracks the
evidence. Overruled.” (RR 1, 4-5)”
2. Is this egregious harm: “Intoxication
means...having an alcohol concentration of 0.08
or more”? (CR52)
Someone with that much alcohol in his system would be
dead.
INITIAL BRIEF - 13
Prior versions over the last century have expressed
the proscribed amount as a decimal followed by a
percentage sign: “0.10%” and “0.15%”.
Criminal statutes must be strictly construed. The
Court of Appeals may not add or understand a percent
sign when none appears in the statute.
3. Did the state’s proof disprove this exception:
“except a device used exclusively on stationary
rails or tracks” in proving operation of a
“motor vehicle”?(CR 8)
This was the “theoretically correct” instruction
which Malik said was the measure for the legal
sufficiency of the evidence. It is the instruction the
Judge gave. There is no testimony or evidence in the
record to disprove the exception. The Court should acquit
Jimenez.
4. Is this egregious harm? Does this instruction
amount to a proscribed comment on the weight of
the evidence? “The law in our State provides
that a person may be convicted on the testimony
of one witness....”(CR 53, ¶3)
The state put on three witnesses. The first two said
they did not even see the defendant on that day. The
INITIAL BRIEF - 14
third was the officer who thought he was intoxicated and
who arrested him. The Judge’s correct instruction
amounted to a comment on the weight of the evidence. The
error was fundamental in this one witness case. The jury
must have thought that since the Judge said they could
convict on the testimony of one witness, then the
defendant must be guilty. The error is not harmless
beyond a reasonable doubt because the Judge’s perceived
opinion tipped the scales. The defendant said he had one
drink. Other testimony was that the airbags deployed and
that people hit by airbags are dazed. The Court of
Appeals should order a new trial.
INITIAL BRIEF - 15
Pursuant to Tex. R. App. Proc. 38.1(h), Appellant
provides the following argument or the contentions made,
with appropriate citations to the authorities and to the
record:
ARGUMENT
1. Is this a proscribed summary of the evidence or
comment on the weight of the evidence? Is the
error fundamental? Is any error harmless beyond
a reasonable doubt?
“He had the ability to take the test, to
14 definitively show if he was intoxicated, and
he refused.
15 MR. RODRIGUEZ: Your Honor, I'm going to
16 object to this line of argument, she is
putting the burden
17 on the defense, and that is totally --
18 THE COURT: What's the objection?
19 MR. RODRIGUEZ: Huh?
20 THE COURT: What is your objection?
21 MR. RODRIGUEZ: The objection is that's an
22 illegal argument -- not illegal, it's an
unconstitutional
23 argument, she is putting the burden on the
defendant. Now
24 he has got to prove his innocense.
25 MS. BAILEY: And Your Honor, failure to
1 take or refuse to take the breath test is a
legal argument
2 to show guilt.
3 THE COURT: I mean, it just tracks the
4 evidence. Overruled.” (RR 1, 4-5)
The Code prohibits the Judge from commenting on or
summing up the evidence. That is what happened here.
This is very similar to the fundamental error in Blue v.
State,41 S.W.3d 129(Tex.Crim.App.[En Banc]2000)
INITIAL BRIEF - 16
The Judge may not comment on the weight of the
evidence:
“In ruling upon the admissibility of evidence,
the judge shall not discuss or comment upon the
weight of the same or its bearing in the case,
but shall simply decide whether or not it is
admissible; nor shall he, at any stage of the
proceeding previous to the return of the
verdict, make any remark calculated to convey to
the jury his opinion of the case.”Blue v.
State,41 S.W.3d 129(Tex.Crim.App.[En Banc]2000)
To be a comment on the weight of the evidence, the
Judge’s comments must be in the presence of the jury.
Comments made by trial judge concerning admissibility of
testimony by State's rebuttal witness in trial of
defendant on two counts of aggravated sexual assault,
giving defendant choice of returning to the stand to
preclude the testimony of the witness or remaining silent
and relying on his original statement, did not violate
defendant's right to due process or statute prohibiting
judges from commenting on the weight of evidence or its
bearing in a case; comments were made outside the
presence of the jury, and did not provide assistance to
the State. Strong v. State (App. 13 Dist. 2004) 138
S.W.3d 546.
INITIAL BRIEF - 17
The comments in Strong were outside the presence of
the jury, so they were not the proscribed comments on the
weight of the evidence.
The comments in Jimenez were in the presence of the
jury.
“THE COURT: So let's go ahead and proceed
3 with closing arguments.***(RR1 4)
MS. BAILEY: Now, ladies and gentlemen of
6 the jury, you have all of the evidence before
you....”(RR 1, 5)
The prosecutor’s remarks appear between the two
citations above.
A trial court improperly comments on the weight of
the evidence if it makes a statement that implies
approval of the state's argument, that indicates any
disbelief in the defense's position, or that diminishes
the credibility of the defense's approach to its case.
Hoang v. State (App. 6 Dist. 1999) 997 S.W.2d 678.
The following comment by the Judge is a statement
that implies approval of the state’s argument:
“He had the ability to take the test, to
14 definitively show if he was intoxicated, and
he refused.
15 MR. RODRIGUEZ: Your Honor, I'm going to
INITIAL BRIEF - 18
16 object to this line of argument, she is
putting the burden
17 on the defense, and that is totally --
18 THE COURT: What's the objection?
19 MR. RODRIGUEZ: Huh?
20 THE COURT: What is your objection?
21 MR. RODRIGUEZ: The objection is that's an
22 illegal argument -- not illegal, it's an
unconstitutional
23 argument, she is putting the burden on the
defendant. Now
24 he has got to prove his innocense.
25 MS. BAILEY: And Your Honor, failure to
1 take or refuse to take the breath test is a
legal argument
2 to show guilt.
3 THE COURT: I mean, it just tracks the
4 evidence. Overruled.” (RR 1, 4-5)
This comment approved the state’s argument that
“failure to take or refuse to take the breath test is a
legal argument to show guilt.” The state’s argument was
made immediately before the Judge’s comment. The Judge’s
comment was on the “evidence”. The prosecutor’s argument
was about the defendant’s guilt. The judge’s comment
approved the prosecutor’s argument by intimating that the
evidence showed that the defendant was guilty by
commenting on the evidence.
What would a lay juror have thought? That is the
test. To determine whether trial judge's remarks were
INITIAL BRIEF - 19
improper comment on evidence, some factors to be
evaluated are whether the remarks were made in the
presence of the jury and whether the comments, however
impartially they may have been made, may have led the
jury to infer the judge's own opinion of the merits of
the case. Hoang v. State (App. 6 Dist. 1999) 997 S.W.2d
678.
The remarks were in the presence of the jury, as
indicated by the Trial Judge’s calling for final
arguments and the prosecutor’s addressing the “Ladies and
Gentlemen of the Jury”.(RR 1, 4-5)
Right after the prosecutor made an argument that the
evidence(of his not taking the test) indicated he was
guilty, the Trial Judge commented on the “evidence”,
saying “I mean, it just tracks the evidence.” The Judge
did not say, “I mean, it just tracks the statute”. The
Judge said, “I mean, it just tracks the evidence.” A lay
juror would have thought that the Judge thought that the
evidence showed, that the evidence showed that the
defendant was guilty.
INITIAL BRIEF - 20
To determine whether trial court's comments on
evidence prejudiced defendant's rights, reviewing court
considers consequences that probably resulted from trial
court's comments; error is harmless if reviewing courts
determines beyond reasonable doubt that court's error
made no contribution to conviction. Clark v. State(App.
5 Dist. 1994) 878 S.W.2d 224.
There was no blood test. There was no breath test.
There was no crash. There was a refusal. There was an
argument that he must be guilty because he refused the
test. The evidence that he did not take the test was
admissible. The prosecutor could point out to the jury
that the defendant did not take the test. But the Judge
could not approve the prosecutor’s argument that the
defendant must be guilty because he did not take the
test. Coming right after the prosecutor’s argument and
mentioning the evidence, the evidence, makes the comment
one on the weight of the evidence and the error not
harmless beyond a reasonable doubt. The Court of Appeals
cannot say that as the reviewing court it determines
beyond reasonable doubt that the trial court's error made
INITIAL BRIEF - 21
no contribution to conviction in this weak case. The
prosecutor’s very argument depended on Jimenez’ having
refused the test.
The Court of Appeals should find error, fundamental
error, harmful error, in that the Judge’s comment
approved the prosecutor’s argument and helped the
prosecution.
The Court of Appeals should order a new trial.
The error was fundamental
The Judge in Blue v. State,41S.W.3d
129(Tex.Crim.App.[EnBanc]2000) told the jury that he
wished the Defendant had pleaded guilty so that everyone
would not have to waste time. The Court of Criminal
Appeals deemed the comment error, fundamental error. In
Jimenez the Trial Judge told the jury that the evidence
showed the defendant was guilty; the Judge did that by
approving the prosecutor’s argument that the defendant
was guilty because the defendant did not take the test.
Of course the refusal was admissible. That is not the
test for whether the Judge made a comment on the weight
INITIAL BRIEF - 22
of the evidence. Of course the prosecutor could argue
that the refusal was some evidence of guilt. Perhaps that
argument was error. It does not matter when we are
examining the Trial Judge’s comment. What matters is
that the Trial Judge approved the prosecutor’s argument
that the defendant must be guilty because the defendant
refused the test. In a weak case, the Judge’s comment
helped the state. The test is whether the Court of
Appeals can say beyond a reasonable doubt that the
comment made no contribution to the verdict.
The error was structural, not trial error. Fulminante
v. Arizona,499 U.S.279(1991) If the Judge tells the jury
that the prosecutor’s argument that the defendant must be
guilty since the defendant refused the test “tracks the
evidence”, why bother with a jury. The Judge agrees with
the prosecutor that the defendant must be guilty because
the Judge approves the prosecutor’s argument.
But a fair trial requires a neutral judge. The lack
of a neutral judge is structural. Fulminante,supra
The Court of Appeals should find the error
fundamental and should review it. On review, it should
INITIAL BRIEF - 23
find that the error is not harmless beyond a reasonable
doubt. It should order a new trial.
2. Is this egregious harm: “Intoxication
means...having an alcohol concentration of 0.08
or more”? (CR, 52) Almanza v. State,686
S.W.2d157(Tex.Crim.App.[en banc]1984) superseded
by rule as stated in Rodriguez v. State,758
S.W.2d 787,788(Tex.Crim.App.[En Banc]1988) The
correct statement is “0.08%” or “0.0008). So,
the error is off by a factor of 100.
“After the Court of Appeals decided the instant
appeal, this Court delivered its opinion on the
Court's own motion for rehearing in Rose v.
State, 752 S.W.2d 529 (Tex.Cr.App.1988). On
rehearing, this Court held that Rule 81(b)(2),
Tex.R.App.Pro., and not the tests set out in
Almanza, supra, govern in deciding whether this
kind of charge error was harmless to the
defendant. This Court further held that failure
to object to the unconstitutional jury charge
did not waive error. Since an objection was not
required, it is of no consequence in the instant
case that appellant's point of error on appeal
was not raised at trial.”Rodriguez v. State,758
S.W.2d 787,788(Tex.Crim.App.[En Banc]1988)
The relevant law
Here is what the law says:
“(B) having an alcohol concentration of 0.08
or more.”TEX.PEN.CODE§49.01(2)(B)
INITIAL BRIEF - 24
Here is what the law meant to say:
“(B) having an alcohol concentration of
0.08% or more.”
Here is what the immediate predecessor of
TEX.PEN.CODE§49.01(2)(B),art. 6701l –1, said:
“Until art. 6701l –1 was amended, effective
January 1, 1984, the sole definition of
“intoxication” in Texas was that a driver
did not have the normal use of his mental or
physical faculties by reason of introduction
of alcohol into his body. The statutory
amendment added the new definition of
“having an alcohol concentration of 0.10% or
more.”
Here is what the 1923 to ~1960 version provided
in a prosecution for murder by driving while
intoxicated:
Leal was prosecuted “under Art. 802c,
Vernon's Ann.P.C.” “Roger Bickham, chemist
and toxicologist, who examined the specimen,
testified that the urine had an alcohol
content of .15 percent.” “[T]he jury[,]
relied heavily upon its alcohol content.”
Leal v. State,338S.W.2d
443(Tex.Crim.App.1960)
The Court of Appeals may not add a percent sign that
the Legislature did not state:
INITIAL BRIEF - 25
The Third Court of Appeals set out the guiding maxim:
“It is a well-established principle of
statutory construction that penal statutes
must be strictly construed in determining
the liability of the person upon whom the
penalty is imposed, and that the more severe
the penalty, and the more disastrous the
consequence to the person subject to the
provisions of the statute, the more rigid
will be the construction of its provisions
in favor of such a person and against the
enforcement of such law.... A penal statute
... must be couched in such explicit terms
that the party upon whom it is to operate
may with reasonable certainty ascertain what
the statute requires to be done, and when it
must be done; otherwise, there would be no
opportunity for a person charged with the
duty to protect himself by the performance
of it according to the law.”Carbide
Int.,Ltd.v.State,695S.W.2d653,659hn10(Tex.
App.–Austin 1985,no pet.)
The Court of Appeals may take judicial notice of
percentages and decimals.
“Judicial notice has been taken of a world-wide
financial crisis, an extraordinary stock market
collapse, a general economic and financial
depression which followed it, and an ensuing
adverse business and financial condition and
distress and widespread unemployment.” Jones on
Evidence § 2:34....
The figure “.08" is equivalent to 8%. A person with
8% alcohol in his blood would be dead:
INITIAL BRIEF - 26
“Blood Alcohol Concentration (BAC)
“The legal system uses a more scientific method for
determining when a person is drunk, Blood Alcohol
Concentration (BAC,) the percentage of alcohol in the
blood (or proportion of alcohol to blood in the body)
as someone drinks.
In most states, a BAC of .10% is considered legally
drunk. This means that for every 1,000 milliliters of
blood, the body contains 1 milliliter of alcohol. In
some states, the legal definition of intoxication is
.08%, which means that for every 1000 milliliters of
blood, the body contains 8/10ths of a milliliter of
alcohol.
A BAC of .37%-.40% or higher can cause death.
Death may occur at .37% or higher. BACs of .45% and
higher are fatal to nearly all individuals.”
http://www.intheknowzone.com/substance-abuse-topics
/binge-drinking/blood-alcohol-concentration.html(ac
cessed February 23, 2015)
The Court of Appeals should find error, that the
error is not harmless beyond a reasonable doubt, and
should remand for a new trial.
The indictment charged driving while intoxicated:
“operate a motor vehicle in a public place while
said defendant was intoxicated....” (CR, 8)
The evidence:
INITIAL BRIEF - 27
Here is the essence of the testimony of the three
witnesses the state presented:
SUMMARY OF THE EVIDENCE
STATE'S WITNESSES:
JOSE MARTINEZ
A. Well, picking up the leaves from the trees,
12 the branches of the palm trees. (RR 3, 23)
19 Q. And what else did you see?
20 A. Well, the car wrecked between the palm
21 trees. (RR 3, 24)
A. Well, like a bit not all there. He might
15 have been a little, drinking a little. (RR 3,
28)
[Never IDs man walking as defendant.]
ROLANDO ORTEGA:
17 A. I am Officer Rolando Ortega with the La
18 Feria Police Department. (RR 3, 31)
Q. Were you near him at all?
2 A. No.
3 Q. So would you be able to testify about
4 whether or not he was intoxicated?
5 A. No. (RR 3, 35)
24 A. Yes. The vehicle hit the concrete and then
25 slid over and ended up where it is at right now.
(RR 3, 41)
9 Q. And then what was it's final resting place?
10 A. Final resting place was just about ten or
11 fifteen feet away from the point of impact,
facing north bound on Lilac. (RR 3, 42)
12 Q. (BY MS. BAILEY) So, but you saw no skid
INITIAL BRIEF - 28
13 marks.
14 A. Correct.
15 Q. And you were unable to determine the speed.
16 A. Yes. (RR 3, 44)
A. After the investigations, I spoke with
23 Officer Padilla, which he had told me his side
of the
24 story, and he had told me he had charged the
driver
25 with DWI because he smelled the alcohol on him.
1 So I just completed my accident
2 investigation, and concluded that fact there he
had
3 been drinking. (RR 3, 48-49)
JUAN PADILLA:
16 A. I am presently employed with the Harlingen
17 Police Department (RR 3, 59)
1 just only an individual I saw walking away from
it. (RR 3, 63)
the witness has
16 identified the defendant?
17 THE COURT: So noted. (RR 3, 63)
I noticed his eyes
3 were red. I mean, I could smell alcohol from him
4 when I was talking to him. He was staggering, he
5 couldn't keep his balance RR 3 65
he
22 stated that he was driving and somebody pulled
23 out in front of him, walked in front of him,
which
24 caused him to have the accident. (RR 3, 63)
INITIAL BRIEF - 29
A. He replied that he had one drink, one beer (RR
3, 67)
he actually had to hold on to the door to keep
16 from falling to the ground. (RR 3, 67)
A. The defendant stated to me that he was
4 driving. (RR 3, 68)
we asked him for a sample
25 of his breath, which he stated he would comply
with (RR 3, 72)
Q. But you were unable to obtain a blood
7 alcohol reading because he refused to provide
one, is
8 that correct?
9 A. He refused yes, sir. (RR 3, 81)
The prosecutor’s argument reinforced the error:
“So the first one is not having the normal
use of your mental faculties by the reason
of introduction of alcohol into the body,
for not having physical faculties, for
having an alcohol concentration of .08 or
higher.” (RR 1, 6/7-11)
3. Did the state’s proof disprove this exception:
“except a device used exclusively on stationary
rails or tracks” in proving operation of a
“motor vehicle”?(CR, 8)
This is an “exception”. The state has to disprove it:
INITIAL BRIEF - 30
McElroy v. State,667S.W.2d856(Tex.App.–Dallas
1984,pet.granted,affirmed) The state did not
disprove it.No one said, “This was not a device
used exclusively on stationary rails or tracks”.
It used to be that the measure of the legal
sufficiency of the evidence was the instruction to the
jury actually given. Boozer v.
State,717S.W.2d608(Tex.Crim.App.1986) Then the Court of
Criminal Appeals said the measure of review was a
theoretically correct charge, rather than the charge
actually given. Malik v. State,953 S.W.2d
234(Tex.Crim.App.[En Banc]1997)The judge’s charge in
Jimenez is theoretically correct in including the
language “not a device used exclusively on stationary
rails or tracks”. The proof failed to disprove the
exception. The Court of Appeals should acquit Appellant,
just as this Court of Appeals did when the state failed
to prove a different exception. Rosamond v. State,730
S.W.2d 147(Tex.App.–Corpus Christi,no pet.)
4. Is this egregious harm? Does this instruction
amount to a proscribed comment on the weight of
the evidence? “The law in our State provides
that a person may be convicted on the testimony
INITIAL BRIEF - 31
o f o n e w i t n e s s . . . . ” ( C R ,
53¶3).....................
An instruction is not an improper comment on weight
of evidence if it was not reasonably calculated to
benefit state or to prejudice defendant's rights.
Williams v. State (App. 2 Dist. 1992) 834 S.W.2d
502,pet.refd.
In Jimenez, the instruction did indeed benefit the
state by leaving the intimation that the judge would
permit a conviction on the testimony of the only witness
the state presented. In Jimenez, the instruction did
prejudice the defendant’s right not to have the Judge
comment on the weight of the evidence. The evidence was
in equipoise. There was testimony the jury could have
accepted that the defendant swerved to avoid a collision,
and that that caused the accident. There was testimony
that he had one beer. There was testimony that the
airbags deployed and that people impacted by airbags are
dazed. But the Judge’s instruction tipped the scales
INITIAL BRIEF - 32
against the defendant by effectively commenting on the
weight of the evidence.
The error was fundamental because the Judge’s
instruction deprived the defendant of a neutral and
detached magistrate. Blue,supra; Fulminante v. Arizona,
supra. The magistrate was not neutral and detached
because the Judge gave the jury an instruction which
emphasized some testimony and conveyed the Judge’s
opinion that the defendant was guilty.
The State presented three witnesses. The first two
did not see the defendant or identify him in court. Only
one witness identified the defendant. Only one said the
defendant was intoxicated. The “one witness” instruction
effectively was a comment on the weight of the evidence,
since it emphasized the one-witness-ness of the state’s
case. Above is a summary of the state’s witnesses and
the testimony of each.
The state put on three witnesses. The first two said
they did not even see the defendant on that day. The
third was the officer who thought he was intoxicated and
who arrested him. The Judge’s correct instruction
INITIAL BRIEF - 33
amounted to a comment on the weight of the evidence. The
error was fundamental in this one witness case. The jury
must have thought that since the Judge said they could
convict on the testimony of one witness, then the
defendant must be guilty. The error is not harmless
beyond a reasonable doubt because the Judge’s perceived
opinion tipped the scales. The defendant said he had one
drink. Other testimony was that the airbags deployed and
that people hit by airbags are dazed. The Court of
Appeals should order a new trial.
INITIAL BRIEF - 34
Pursuant to Tex. R. App. Proc. 38.1(I), Appellant
provides a short conclusion that clearly states the
nature of the relief sought:
CONCLUSION AND REQUEST FOR RELIEF
The Court of Appeals should find that the proof
failed to disprove the exception. The Court of Appeals
should acquit Appellant.
Failing which, the Court of Appeals should find
error, that the error is not harmless beyond a reasonable
doubt, and should remand for a new trial.
RESPECTFULLY SUBMITTED
February 25, 2015.
/s/Larry Warner
Larry Warner,
Counsel for Eric Roel Jimenez
3109 Banyan Circle
Harlingen, Tx 78550 7443
Phone (956) 230-0361
Tex.State Bar# 20871500
Usdc,Stdx# 1230
office@larrywarner.com
website: larrywarner.com
Member, Bar of the Supreme
Court of the United States
(1984); Board Certified,
Criminal Law, Texas Board of
Legal Specialization (1983)
INITIAL BRIEF - 35
CERTIFICATE OF SERVICE
I certify that I had delivered a copy of the
foregoing APPELLANT’S INITIAL BRIEF via fax to the
following counsel of record on this 25th day of February,
2015 to the District Attorney’s office at 964 E. Harrison
Street, 2nd Floor, Brownsville, Texas 78520. Fax: 1-956-
544-0869.
Respectfully Submitted,
February 25, 2015.
/s/Larry Warner
Larry Warner,
Counsel for Appellant
Certificate Of Compliance
I certify that this brief complies with
TEX.R.APP.9(i) (2)(B) and was prepared using WordPerfect
X3, font in Courier New 14pt. And contains 4406 words as
counted by the WordCount Tool of this software program.
Respectfully Submitted,
February 25, 2015.
/s/Larry Warner
Larry Warner,
Counsel for Appellant
INITIAL BRIEF - 36