                                                                            ACCEPTED
                                                                        13-14-00384-CR
                                                        THIRTEENTH COURT OF APPEALS
                                                               CORPUS CHRISTI, TEXAS
                                                                   8/19/2015 3:44:58 PM
                                                                 CECILE FOY GSANGER
                                                                                 CLERK


               No. 13-14-384-CR

         IN THE COURT OF APPEALS RECEIVED IN
                                13th COURT OF APPEALS
   FOR THE THIRTEENTH DISTRICT OF TEXAS
                             CORPUS  CHRISTI/EDINBURG, TEXAS
             AT CORPUS CHRISTI   8/19/2015 3:44:58 PM
                                          CECILE FOY GSANGER
                                                Clerk

              JASON CHAVEZ,
                APPELLANT,                                 FILED
                                                 IN THE 13TH COURT OF APPEALS
                                                   CORPUS CHRISTI - EDINBURG

                       v.                               08/19/15

          THE STATE OF TEXAS,                   CECILE FOY GSANGER, CLERK
                                                BY CCoronado
               APPELLEE.


ON APPEAL FROM THE COUNTY COURT AT LAW # 2
           NUECES COUNTY, TEXAS

          BRIEF FOR THE STATE


                  Douglas K. Norman
                  State Bar No. 15078900
                  Assistant District Attorney
                  105th Judicial District of Texas
                  901 Leopard, Room 206
                  Corpus Christi, Texas 78401
                  (361) 888-0410
                  (361) 888-0399 (fax)
                  douglas.norman@co.nueces.tx.us

                  Attorney for Appellee


    ORAL ARGUMENT IS NOT REQUESTED
                                    TABLE OF CONTENTS

INDEX OF AUTHORITIES .......................................................................... ii

SUMMARY OF THE ARGUMENT ..............................................................1

ARGUMENT ...................................................................................................2

Reply Point No. 1
The evidence was legally sufficient to show that Chavez was the driver. 2

         I. Standard of Review. .........................................................................2
         II. Statement of Facts. .........................................................................3
         III. Physical Evidence of Operation...................................................4
         IV. Implied or Adoptive Admissions. ................................................6

Reply Point No. 2
The trial court did not err in refusing to grant a mistrial based on the
prosecutor’s jury argument. .........................................................................8

         I. Statement of Facts. ...........................................................................8
         II. Comment on Failure to Testify. ....................................................9
         III. The Present Comments. ............................................................ 11
         IV. Harm Analysis. ........................................................................... 12

PRAYER ....................................................................................................... 15

RULE 9.4 (i) CERTIFICATION .................................................................. 15

CERTIFICATE OF SERVICE ..................................................................... 16
                                    INDEX OF AUTHORITIES

                                                       Cases

Acosta v. State, 429 S.W.3d 621 (Tex. Crim. App. 2014). ........................ 3, 6
Archie v. State, 221 S.W.3d 695 (Tex. Crim. App. 2007). ........................... 13
Archie v. State, 340 S.W.3d 734 (Tex. Crim. App. 2011). ..............................9
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). .............................2
Busby v. State, 253 S.W.3d 661 (Tex. Crim. App. 2008)............................. 10
Bustamante v. State, 48 S.W.3d 761 (Tex. Crim. App. 2001). .................... 10
Crestfield v. State, 471 S.W.2d 50 (Tex. Crim. App. 1971)....................... 6, 7
Gamboa v. State, 296 S.W.3d 574 (Tex. Crim. App. 2009)......................... 14
Green v. State, 640 S.W.2d 645 (Tex. App.—Houston [14th Dist.] 1982, no
pet.). .................................................................................................................5
Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229 (1965). .............................9
Griffith v. State, 55 S.W.3d 598 (Tex. Crim. App. 2001). ........................... 12
Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004). ......................... 13
Holder v. State, 172 Tex. Crim. 153, 354 S.W.2d 153 (1962). .......................4
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007). ................................3
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). ......................... 2, 3
Johnson v. State, 871 S.W.2d 183 (Tex. Crim. App. 1993). ...........................3
Moore v. State, 999 S.W.2d 385 (Tex. Crim. App. 1999). ........................... 14
Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). .......................... 13
Mumphrey v. State, 774 S.W.2d 75 (Tex. App.—Beaumont 1989, no pet.). ..6
Padilla v. State, 326 S.W.3d 195 (Tex. Crim. App. 2010)..............................2


                                                           ii
Perez v. State, 432 S.W.2d 954 (Tex. Crim. App. 1968). ...............................4

Pope v. State, 802 S.W.2d 418 (Tex. App.—Austin 1991, no pet.). ...............5

Randolph v. State, 353 S.W.3d 887 (Tex. Crim. App. 2011). .................. 9, 10

Sandford v. State, 169 Tex. Crim. 388, 334 S.W.2d 184 (1960).....................4

Smith v. State, 635 S.W.2d 591 (Tex App.—Dallas 1982, no pet.). ..............6

Snowden v. State, 353 S.W.3d 815 (Tex. Crim. App. 2011). ....................... 13

South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916 (1983). .................... 12

Thomas v. State, 488 S.W.2d 777 (Tex. Crim. App. 1972). ....................... 6, 7

Thomas v. State, 756 S.W.2d 59 (Tex. App.—Texarkana 1988, pet. ref'd). ...5

Tucker v. State, 771 S.W.2d 523 (Tex. Crim. App. 1988). .............................7

Vasquez v. State, 415 S.W.2d 188 (Tex. Crim. App. 1967). ...........................4

Webb v. State, 232 S.W.3d 109 (Tex. Crim. App. 2007). ............................ 13

Young v. State, 544 S.W.2d 421 (Tex. Crim. App. 1976). ..............................5
                               Constitutions, Statutes & Rules
Tex. Const. art. I, § 10. ....................................................................................9

Tex. Code Crim. Proc. art. 38.08. ....................................................................9

Tex. Transp. Code Ann. § 724.061. .............................................................. 12

Tex. R. App. P. 44.2. .................................................................................... 13

Tex. R. Evid. 801. ............................................................................................7




                                                      iii
                             NO. 13-14-384-CR

JASON CHAVEZ,                          §    COURT OF APPEALS
         Appellant,                    §
                                       §
V.                                     §     FOR THE THIRTEENTH
                                       §
THE STATE OF TEXAS,                    §
         Appellee.                     §     DISTRICT OF TEXAS

                         BRIEF FOR THE STATE

TO THE HONORABLE COURT OF APPEALS:

                   SUMMARY OF THE ARGUMENT

      First Issue – The fact that Chavez was found trapped in the driver’s

seat after the accident, as well as his own statements to police at the scene

provide sufficient evidence to show that he was the driver, and to support his

conviction for driving while intoxicated.

      Second Issue – The prosecutor’s comment suggesting that Chavez did

not “take responsibility” was vague and did not clearly refer to his failure to

testify, such that the trial court did not abuse its discretion in refusing

Chavez’s request for a mistrial.
                               ARGUMENT

                          Reply Point No. 1
The evidence was legally sufficient to show that Chavez was the driver.

      In his challenge to the legal sufficiency of the evidence to support his

conviction for driving while intoxicated, Chavez argues specifically only

that the evidence was insufficient to show that he was the driver of the

vehicle in question.

                           I. Standard of Review.

      In order to determine if the evidence is legally sufficient, the appellate

court reviews all of the evidence in the light most favorable to the verdict

and determines 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 (1979). In Brooks v. State, 323

S.W.3d 893 (Tex. Crim. App. 2010), the Court of Criminal Appeals

abandoned factual sufficiency review and determined that the Jackson v.

Virginia legal-sufficiency standard is the only standard that a reviewing

court should apply in determining whether the evidence is sufficient. This

“familiar standard gives full play to the responsibility of the trier of fact

fairly to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.” Padilla v.



                                       2
State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010) (quoting Jackson, 443

U.S. at 319).

      Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt. Acosta v. State, 429 S.W.3d 621, 625 (Tex.

Crim. App. 2014); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007). In such cases, it is not necessary that every fact and circumstance

point directly and independently to the defendant's guilt; it is enough if the

conclusion is warranted by the combined and cumulative force of all the

incriminating circumstances. Acosta, 429 S.W.3d at 625; Johnson v. State,

871 S.W.2d 183, 186 (Tex. Crim. App. 1993).

                           II. Statement of Facts.

      Based on testimony by the police and those involved, a major accident

occurred “close to” 5:30 a.m. (RR vol. 2, p. 180), medics and the police

were on scene almost immediately and encountered Chavez in one of the

vehicles at 5:21 a.m. (RR vol. 2, p. 108), and he was later arrested and read

the statutory warnings in DIC-24 at 6:05 a.m. (SX # 1)

      Specifically, Police Officer Braden Tackett testified that he responded

to a report of a major accident and found medics trying to pry open the door

to a car in which Chavez was stuck in the driver’s seat. (RR vol. 2, pp. 82-


                                      3
84) When Officer Tackett asked Chavez at the scene about the accident,

Chavez said that the other vehicle ran a red light. (RR vol. 2, pp. 90-91)

When Officer Tackett then asked Chavez if he had anything to drink that

night or felt drunk, Chavez said that “he felt buzzed and he had a couple of

mixed drinks.” (RR vol. 2, p. 91) When Officer Tackett then asked where

Chavez was coming from, Chavez said “he was coming from an after party

and he was just trying to get home. He just wanted to get his friends home.”

(RR vol. 2, p. 91)

      James Lawrence, a passenger in the vehicle that had been hit by

Chavez’s car, testified, without immediate objection, that he was told there

were two men and a woman in Chavez’s car and that the passenger door was

open after the accident. (RR vol. 2, pp. 196-97)

                     III. Physical Evidence of Operation.

      Numerous cases have considered the fact that the defendant is found

alone sitting in the driver’s seat or behind the steering wheel after an

accident or after the car is stopped as evidence that he was the driver or

operator of the car for purposes of the DWI statute. See Perez v. State, 432

S.W.2d 954 (Tex. Crim. App. 1968); Vasquez v. State, 415 S.W.2d 188, 190

(Tex. Crim. App. 1967); Holder v. State, 172 Tex. Crim. 153, 155, 354

S.W.2d 153, 154-55 (1962); Sandford v. State, 169 Tex. Crim. 388, 390, 334


                                      4
S.W.2d 184, 185-86 (1960); Pope v. State, 802 S.W.2d 418, 420 (Tex.

App.—Austin 1991, no pet.); Thomas v. State, 756 S.W.2d 59, 61-62 (Tex.

App.—Texarkana 1988, pet. ref'd); Green v. State, 640 S.W.2d 645, 648

(Tex. App.—Houston [14th Dist.] 1982, no pet.).

      In Young v. State, 544 S.W.2d 421 (Tex. Crim. App. 1976), however,

where the defendant and another person were found lying on the ceiling of

an overturned car, with the defendant in the front and in the vicinity of the

wheel, the Court of Criminal Appeals held that the defendant’s position in

the upside down car was insufficient to infer that he was the driver. Id. at

423-24.

      In the present case, as in Young, the evidence suggests that Chavez

was not alone in the car at the time of the accident. However, unlike Young,

the car had not been turned upside down such that it would be impossible to

make any assumptions about who was in the driver’s seat at the time of the

accident. It was still a reasonable assumption that Chavez, having been

found in the driver’s seat after the accident, was there before the accident

when the vehicle was being driven.

      Moreover, the fact that he had been pinned into that seat by the force

of the accident strengthens the presumption that he was in that seat at, and

immediately before, the collision. The jury may use common sense and


                                      5
apply common knowledge, observation, and experience gained in ordinary

affairs when drawing inferences from the evidence. Acosta, 429 S.W.3d at

625. It stands to reason that the appellate court may likewise draw on

common sense in judging the reasonableness of inferences and determining

the sufficiency of the evidence. While it may be possible for an occupant to

be thrown around in the car before being pinned, and no accident

reconstruction expert was called to examine this possibility, common sense

and common experience suggest that it is much more likely the defendant

was pinned where he sat in the car at the time of the collision.

                     IV. Implied or Adoptive Admissions.

      In addition, in the present case Chavez’s own statements suggest that

he was the driver.

      Where a statement or remark is made in the defendant's presence, that

he heard and understood and which statement called for a reply or a denial,

then his silence or acquiescence may be shown as an admissible fact having

probative value; and his silence or acquiescence may even be shown as in

the nature of a confession on his part where that same defendant is not under

arrest. Crestfield v. State, 471 S.W.2d 50, 53 (Tex. Crim. App. 1971);

Thomas v. State, 488 S.W.2d 777, 778 (Tex. Crim. App. 1972); Mumphrey

v. State, 774 S.W.2d 75, 78-79 (Tex. App.—Beaumont 1989, no pet.); Smith


                                       6
v. State, 635 S.W.2d 591 (Tex App.—Dallas 1982, no pet.); see also Tucker

v. State, 771 S.W.2d 523, 535 n.5 (Tex. Crim. App. 1988) (citing Crestfield

and Tex. R. Evid. 801(e)(2)(B), and referring to tacit acceptance of this

nature as an “adoptive admission”).

      In Thomas, for example, a third party at a murder scene accused the

defendant in the presence of both the defendant and a police officer before

the officer had arrested the defendant, and the defendant made no reply to

the accusation, which the Court of Criminal Appeals considered to be an

admission or confession. 488 S.W.2d at 778 (citing Crestfield).

      Likewise, under the present circumstances, having been found as the

only person in the car, and in the driver’s seat at that, and with a police

officer on scene asking questions about the accident and about whether

Chavez had been drinking, a normal person in Chavez’s position who had

been merely a passenger would be expected in his reply to make that fact

known to the officer at the time, rather than answering his questions as if he

had been the driver and impliedly or adoptively admitting to that fact.

Specifically, the officer’s questions about the accident, whether Chavez had

anything to drink or felt drunk, and where Chavez was coming from,

together would imply to a normal driver that this officer suspected Chavez

of DWI and was asking questions to either confirm or dispel that suspicion.


                                      7
If Chavez had been a passenger, the expected reply would have been

something like “I wasn’t driving,” or “I was only a passenger.” The absence

of any such reply as a part of Chavez’s otherwise responsive answers to the

officer’s questions operates as a common sense admission that the officer

was correct in his assumption that Chavez was the driver.

      In addition, Chavez’s statement that he “just wanted to get his friends

home,” implied that he had some amount of control over “getting” them

home, which is more consistent with a driver of the car than a mere

passenger.

      For all of these reasons combined, the evidence was legally sufficient

to prove that Chavez was the driver.

      Chavez’s first issue on appeal should be overruled.

                            Reply Point No. 2
        The trial court did not err in refusing to grant a mistrial
               based on the prosecutor’s jury argument.

                            I. Statement of Facts.

      During the State’s closing argument at the guilt-innocence phase of

trial, the prosecutor attempted to make the following argument, before he

was cut-off by an objection:

             Defense counsel had a lot of arguments during trial about why
      his client is not responsible, and I think that's one of the focuses in this
      case. He didn't want to take responsibility at the time. He refused –


                                        8
(RR vol. 3, p. 11)     Chavez’s attorney then objected that this argument

amounted to an improper comment on Chavez’s Fifth Amendment right not

to testify. (RR vol. 3, pp. 11-12) After the trial court sustained the objection

and instructed the jury that “what the lawyers say are [sic] not evidence,” the

defense moved for, but was denied, a mistrial. (RR vol. 3, p. 12)

      The prosecutor then continued his argument, “Okay, so he refused to

give blood in a [sic] case.” (RR vol. 3, pp. 12-13)

      Paragraph 5 of the jury charge instructed the jury not to “refer or

allude to [the fact that Chavez elected not to testify] throughout your

deliberations or take it into consideration for any purpose whatsoever as a

circumstance against the defendant.” (CR p. 34)

                     II. Comment on Failure to Testify.

      A comment on the defendant's failure to testify violates the Fifth

Amendment, Tex. Const. art. I, § 10, and Tex. Code Crim. Proc. art. 38.08.

See Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229 (1965); Randolph

v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011); Archie v. State, 340

S.W.3d 734, 738 (Tex. Crim. App. 2011).

      In assessing whether the prosecutor has improperly commented on the

defendant's failure to testify, courts must view the State's argument from the

jury's standpoint and resolve any ambiguities in the language in favor of it


                                       9
being a permissible argument, such that the implication that the State

referred to the defendant's failure to testify must be a clear and necessary

one. Randolph, 353 S.W.3d at 891; Bustamante v. State, 48 S.W.3d 761,

767 (Tex. Crim. App. 2001). If the language might reasonably be construed

as merely an implied or indirect allusion, there is no violation. Randolph,

353 S.W.3d at 891; Busby v. State, 253 S.W.3d 661, 666 (Tex. Crim. App.

2008). The test is whether the language used was manifestly intended or

was of such a character that the jury would necessarily and naturally take it

as a comment on the defendant's failure to testify, as applied within the

context in which the comment was made. Randolph, 353 S.W.3d at 891;

Bustamante, 48 S.W.3d at 765.

      Specifically, with regard to the prosecutor’s comments of the present

nature -- that the defendant did not take responsibility for his crime -- there

may be numerous proper arguments concerning lack of responsibility, as

when the defendant raises a defense or claims accident; yet, it would be an

improper comment when the only basis for the prosecutor’s claim was the

defendant’s guilty plea, which would amount to a comment on his failure to

testify. See Randolph, 353 S.W.3d at 892.




                                      10
                        III. The Present Comments.

      The prosecutor’s supposedly improper comment, “He didn't want to

take responsibility at the time,” begs the questions (1) what time is he

referring to?, and (2) how exactly is he claiming that Chavez failed to take

responsibility? The context suggests possible answers that do not amount to

an improper reference to Chavez’s failure to testify.

      In view of the prosecutor’s immediately preceding comment that

“Defense counsel had a lot of arguments during trial about why his client is

not responsible,” the prosecutor’s comment could have been directed at the

defense counsel for attempting to shift responsibility away from his client at

trial. Alternatively, the prosecutor could have been referring to Chavez at

the time he was first approached after the accident and admitted only to

being “buzzed” and having had a “couple of mixed drinks” (RR vol. 2, p.

91), thus minimizing his condition and attempting to avoid responsibility for

a DWI. Finally, based on the prosecutor’s comment concerning refusal of

the blood test immediately after his comments about responsibility, arguably

the most likely reference was to Chavez’s refusal to consent to the taking of

a blood specimen (See SX # 1) as a broader refusal to take responsibility for

the DWI.


                                      11
      The Texas Transportation Code provides that “[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.”

Tex. Transp. Code Ann. § 724.061. Nor does the admission into evidence of

a defendant's refusal to submit to a blood-alcohol test offend the Fifth

Amendment right against self-incrimination.        See Griffith v. State, 55

S.W.3d 598, 603 (Tex. Crim. App. 2001) (citing South Dakota v. Neville,

459 U.S. 553, 554, 103 S.Ct. 916 (1983)). Likewise, in the context of an

arrest for driving while intoxicated, a police inquiry of whether the suspect

will take a blood-alcohol test is not an interrogation within the meaning of

Miranda. Griffith, 55 S.W.3d at 603.

      Accordingly, to the extent that the prosecutor was arguing that Chavez

failed to take responsibility by his refusal to take a blood test after the

accident, this was a permissible inference that did not offend the right

against self-incrimination.

                              IV. Harm Analysis.

      However, even if the comment was improper, it was not sufficiently

harmful to require a mistrial.




                                       12
      An appellate court reviews a trial court's denial of a motion for

mistrial for an abuse of discretion. Webb v. State, 232 S.W.3d 109, 112

(Tex. Crim. App. 2007); Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim.

App. 2007).

      Because of the constitutional nature of the error, for comments on the

defendant’s failure to testify an appellate court must reverse the judgment

unless it can conclude “beyond a reasonable doubt that the error did not

contribute to the conviction or punishment.” Snowden v. State, 353 S.W.3d

815, 818 (Tex. Crim. App. 2011); Tex. R. App. P. 44.2(a). This analysis

considers

      [h]ow emphatically the prosecutor invited the jury to consider the
      failure to testify, whether he repeated the invitation, and how much
      heft the jury would likely have placed upon that invitation in light of
      the weight and character of the State's evidence.

Snowden, 353 S.W.3d at 822.

      Moroever, in determining whether improper jury argument warrants a

mistrial, the reviewing court should balance the severity of the misconduct,

the measures adopted to cure any misconduct, and the certainty of

conviction absent the misconduct. Hawkins v. State, 135 S.W.3d 72, 75

(Tex. Crim. App. 2004); Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App.

1998). Only in extreme circumstances where the prejudice is incurable will

a mistrial be required. Hawkins, 135 S.W.3d at 77.

                                     13
      Instructions to the jury will generally cure most improprieties that

occur during trial, and the reviewing court should presume that a jury

followed the judge's instructions. Gamboa v. State, 296 S.W.3d 574, 580

(Tex. Crim. App. 2009). Specifically, an instruction to disregard a comment

on the defendant's failure to testify will generally cure any harm except in

the most extreme cases. Moore v. State, 999 S.W.2d 385, 405 (Tex. Crim.

App. 1999).

      In the present case, the comment concerning failure to take

responsibility, if it was a comment on Chavez’s failure to testify, was vague,

brief and not elsewhere repeated in the argument. Moreover, although the

trial court’s oral instruction to disregard did not directly instruct the jury to

disregard the comment in question, the jury charge did contain a written

instruction not to consider Chavez’s failure to testify, which the jury

presumably obeyed.      Accordingly, any error was harmless and did not

require a mistrial.

      Chavez’s second issue on appeal should be overruled.




                                       14
                                  PRAYER

      For the foregoing reasons, the State respectfully requests that the

judgment of the trial court be affirmed.


                                Respectfully submitted,
                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman
                                State Bar No. 15078900
                                Assistant District Attorney
                                105th Judicial District of Texas
                                901 Leopard, Room 206
                                Corpus Christi, Texas 78401
                                (361) 888-0410
                                (361) 888-0399 (fax)
                                douglas.norman@co.nueces.tx.us



                      RULE 9.4 (i) CERTIFICATION

      In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I

certify that the number of words in this brief, excluding those matters listed

in Rule 9.4(i)(1), is 2,943.

                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman




                                      15
                      CERTIFICATE OF SERVICE

      This is to certify that a copy of this brief was e-mailed on August 19,

2015, to Appellant’s attorney, Mr. Ira Z. Miller, at imillerlaw@yahoo.com.



                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman




                                      16
