                                                                          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
