                            NUMBER 13-11-00115-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS,                                                        Appellant,

                                           v.

DANIEL ZALMAN,                                                              Appellee.


                       On appeal from the County Court
                          of Wharton County, Texas.


                        MEMORANDUM OPINION
            Before Justices Rodriguez, Benavides, and Perkes
               Memorandum Opinion by Justice Benavides
      The appellant, the State of Texas, contends the trial court erred when it granted a

motion for new trial in a driving while intoxicated case.   See TEX. PENAL CODE ANN. §

49.04 (West 2011). By two issues, the State argues that the trial court abused its

discretion when:   (1) the visiting judge granted a new trial based on untimely arguments

not raised in appellee, Daniel Zalman’s, initial motion for a new trial and (2) when it
granted Zalman’s motion for new trial “in the interest of justice.” We affirm.

                                       I.      BACKGROUND

       A jury found Zalman guilty of driving while intoxicated on December 8, 2010.

See id.    He was sentenced to 180 days in county jail but the sentence was probated for

twelve months pursuant to an agreement between the parties.                  On January 4, 2011,

Zalman filed a motion for new trial on grounds that “the verdict in this cause [was]

contrary to the law and the evidence.”            The motion was neither supported by an

affidavit, nor citations to any specific portions of the trial court record.

       The trial judge who originally heard Zalman’s case, the Honorable Judge John

Murrile, retired at the end of 2010.           The Honorable Judge Philip Spenrath, who

subsequently assumed the bench, then recused himself from the matter. 1                          The

presiding judge of the administrative judicial district, the Honorable Olen Underwood,

therefore appointed a visiting judge, the Honorable Susan Lowery, to hear the motion.

Although an initial hearing date was set, Zalman’s attorney visited Judge Lowery in her

home courtroom in Wharton County to obtain a new hearing date. While discussing the

re-setting of the hearing, Judge Lowery requested that the parties file a “memorandum of

law” on the motion for new trial to help familiarize herself with the case.             No attorney

from the State was present, and apparently the State was never notified of this request.

       Zalman’s “Memorandum of Law in Support of Court Granting Defendant’s Motion

for New Trial” was filed on February 17, 2011, one day before the hearing.                It set forth

four bases, previously argued in both pre-trial and trial motions, regarding why the

       1
        The record showed that appellee, Daniel Zalman, was a contributor to Judge Spenrath’s judicial
campaign.

                                                  2
motion for new trial was “contrary to the law and evidence.” First, Zalman argued that

police officers did not have a reasonable suspicion to initially pull Zalman over. 2

Second, Zalman argued that the “blood warrant” for his arrest was improper because it

was not signed by a licensed attorney.                    Third, Zalman contended that the

circumstances under which his blood specimen was taken were unhygienic and

unsanitary, as he alleged there were cockroaches and a cricket in the room. One

cockroach, he claimed, even crawled up his arm during the blood draw.                Fourth, Zalman

argued that his search warrant affidavit was flawed because it lacked a date or time.

       The State vehemently protested the filing of the Memorandum of Law at the

hearing on February 18, 2011 and argued that it was an untimely-filed amended motion

for new trial.    The State contended that “the motion present[ed] . . . new grounds

outside the 30-day time period for motion[s] for new trial.” The trial court explained that

it had requested memorandum from both sides for its own purposes, apologized that the

State had not received notice of this request, and offered the State time to respond to

Zalman’s memorandum. The State refused.                  The hearing proceeded, during which

Zalman’s attorneys referred to portions of the trial testimony offered into evidence which

supported their request for a new trial and the four bases elaborated upon in Zalman’s

memorandum. After the hearing, Judge Lowery stated:

       I do not have before me the search warrant or any of the evidentiary

       2
           According to testimony, Zalman momentarily fell asleep while at a Whataburger drive-thru at 2
a.m. Two off-duty security guards, who were police officers, were informed by a Whataburger employee
that the drive-thru line was not moving. The security guards called local police to investigate, but no
criminal activity was reported. When the security guards approached the vehicle, Zalman’s wife, who was
apparently texting on her cell phone while sitting in the passenger seat, nudged him awake. Zalman
awoke and proceeded through the line to pay for their food order. As Zalman was leaving the drive-thru,
police officers arrived and pulled him over. Zalman was subsequently arrested on suspicion of driving
while intoxicated.
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       matters or seen a DVD. In fact, the first time I saw the transcripts was
       when I walked in the courtroom a moment ago. However, listening to
       what I’m hearing—and both of you have done an outstanding job—in the
       interest of justice, I will order a new trial in this case and let these matters
       be sorted out by a different judge at a different time.

       After granting the motion for new trial, the State requested Findings of Fact and

Conclusions of Law.       The trial court complied.    In the case’s “Procedural History,” the

trial court noted that it heard “no evidence from witnesses, nor was [it] provided with a

transcript of the pre-trial matters and the trial until the time of hearing.”      The court

explained instead that it “heard only the arguments of counsel and portions of the prior

records that were read by counsel during their arguments.”          The court also noted that

Zalman’s motion to suppress the results of his blood test was the subject of different

pre-trial rulings.   The trial court’s “Findings of Fact” follow:

       1.      Visiting Judge Susan Lowery was appointed to hear the Motion for
               New Trial.

       2.      The visiting judge did not have the opportunity to review the clerk’s
               folder, the trial exhibits, or a record of pretrial or trial proceedings
               prior to the hearing.

       3.      This Court finds that the Whataburger manager’s report of a
               customer not quickly pulling forward at the drive-thru to receive his
               order was not a report of criminal activity.

       4.      This Court finds that the Blood Search Warrant was not signed by a
               licensed Texas attorney nor was the judge hearing the suppression
               issues a licensed attorney.

       5.      This Court finds that there are legitimate issues concerning the
               blood draw as to whether the place where the blood was taken was
               sanitary due to the infestation of insects; whether two samples were
               taken or the original sample was contaminated; and whether the
               proper medical safeguards were taken.

       6.      This Court finds that there is a legitimate concern as whether the

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              Search Warrant Affidavit was stale because the affidavit did not
              state the time which the witness observed Mr. Zalman and used the
              “on or about” language. This forced the magistrate to look beyond
              the four corners of the affidavit to establish sufficient facts to
              establish enough probable cause to issue a search warrant.

       7.     The Court finds that there is a legitimate concern as to the
              sufficiency and specific of the Search Warrant affidavit and that the
              Search Warrant should have been suppressed. There is no
              specific location in the Affidavit for the Search Warrant other than
              Wharton County, Texas. There is more than one Whataburger in
              Wharton County, Texas. There is no specific time given as to
              when the witness observed the Defendant or where he was when he
              observed him or when he reported such.

       8.     The Court further finds through admissions of both the State and the
              Defendant that the place where Defendant’s blood was drawn was
              infested with insects and that the video of the blood draw shows a
              bug crawling down Defendant’s sleeve.

The trial court also filed the following related “Conclusions of Law”:

       1.     This Court has jurisdiction over the parties, the subject matter, and
              retains the power to grant a new trial in the interest of justice void
              any abuse of discretion.

       2.     This Court finds Mr. Zalman’s motion was sufficient to hold a
              hearing for a new trial by articulating that the judgment was contrary
              to law and the evidence and/or the judgment was invalid for some
              other reason.

       3.     This Court finds that the officers that initially stopped Mr. Zalman
              lacked reasonable suspicion that Mr. Zalman was committing an
              illegal activity before they stopped him. This is a violation of Mr.
              Zalman’s Fourth Amendment rights against unreasonable searches
              and seizures.

       4.     This Court finds that the Search Warrant Affidavit is alleged to have
              forced the magistrate to go beyond the four corners of the affidavit
              and therefore violated Mr. Zalman’s Fourth Amendment rights
              against unreasonable searches and seizures, and in violation of
              Chapter 18 of the Texas Code of Criminal Procedure.

       5.     This Court finds that place where the blood was taken violated his

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                Fourth Amendment rights against unreasonable searches and
                seizures because the insects marked the room unsanitary and void
                of any generally accepted medical practices of drawing blood in a
                sterile medical environment.

       6.       This Court finds that the Code of Criminal Procedure Art. 18.01(j)
                requires a licensed Texas attorney judge to sign the blood search
                warrant.    Judge Kubicek is not a licensed Texas attorney.
                Therefore, the search warrant fails because the State did not follow
                the proper procedure as clearly stated within the Code.

       7.       The Court finds due to the totality of the circumstances the results of
                the blood draw should be suppressed.

       8.       This Court finds that all wrongful evidence obtained against Mr.
                Zalman by the officers and presented to the jury at this first trial may
                have violated Art. 38.23 of the Code of Criminal Procedure.

       9.       This Court finds that Mr. Zalman’s first trial prejudiced his
                substantial rights that resulted in a miscarriage of justice.

The State appealed.

                      II.    STANDARD OF REVIEW AND APPLICABLE LAW

       Texas Rule of Appellate Procedure 21 deals with motions for new trials.         TEX. R.

APP. P. 21.4.    Rule 21.4 provides that persons must file their motion for new trial and

any amendments thereto no later than thirty days after the trial court imposes sentence

in court. TEX. R. APP. P. 21.4. Once the thirty-day window has passed, a defendant

may not amend his motion for new trial even with a trial court’s leave.          See State v.

Moore, 225 S.W.3d 556, 558 (Tex. Crim. App. 2007).

       An appellate court reviews a trial court's granting or denial of a motion for new trial

under an abuse of discretion standard.        Holden v. State, 201 S.W.3d 761, 763 (Tex.

Crim. App. 2006); State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993).           As

an appellate court, “we do not substitute our judgment for that of the trial court; rather, we

                                               6
decide whether the trial court's decision was arbitrary or unreasonable.”       Holden, 201

S.W.3d at 763.    A trial court abuses its discretion only when no reasonable view of the

record could support the trial court's ruling.   Id.   “A trial judge does not have authority

to grant a new trial unless the first proceeding was not in accordance with the law.”

State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007). A judge “cannot grant a

new trial on mere sympathy, an inarticulate hunch, or simply because he personally

believes that the defendant is innocent or ‘received a raw deal.’”    Id.

       In Herndon, the court of criminal appeals established that a trial court would avoid

an abuse of discretion ruling when granting a motion for new trial if the defendant:      (1)

articulated a valid legal claim in his motion for new trial; (2) produced evidence or pointed

to evidence in the trial record that substantiated his legal claim; and (3) showed prejudice

to his substantial rights under the standards in rule 44.2 of the Texas Rules of Appellate

Procedure.    Id. at 901; see TEX. R. APP. P. 44.2.

                                        III. DISCUSSION

A.     Arguments in the Motion for New Trial

       By its first issue, the State contends that the trial court abused its discretion when

it granted a new trial based on untimely arguments not raised in Zalman’s initial motion

for a new trial. The State argues that Zalman’s initial motion was inadequate because it

only stated that the verdict was “contrary to the law and the evidence,” and his

“Memorandum of Law” was an untimely amendment to the motion for new trial. The

State asserted that, under Texas Rule of Appellate Procedure 21.4, no amendments to a

motion for new trial could be made after the thirty days following sentencing.     See TEX.


                                             7
R. APP. P. 21.4; see also Moore, 225 S.W.3d at 558.

       Here, assuming without deciding that Zalman’s “Memorandum of Law” was in fact

an amended motion for new trial and thus disregarding it as untimely, we find that the

trial court did not abuse its discretion in ordering a new trial.   The facts of this case meet

the Herndon three-part test.     First, Zalman “articulated a valid legal claim in his motion”

by stating that “the verdict in this cause [was] contrary to the law and the evidence.”

See Herndon, 215 S.W.3d at 901.          This sentence sets forth a sufficient legal claim.

See TEX. R. APP. P. 21.9(a) (providing that “a court must grant a new trial when it has

found a meritorious ground for new trial”).

       Second, Zalman’s attorneys “produced evidence or pointed to evidence in the trial

record that substantiated his legal claim.”    Herndon, 215 S.W.3d at 901.       For example,

Zalman’s counsel cited to portions of Trooper Jose Mena’s trial testimony to buttress

Zalman’s argument that there was no reasonable suspicion or alleged criminal activity to

pull him over.   See Crain v. Texas, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010) (holding

that an officer may not detain a motorist without a showing of reasonable suspicion).

Zalman’s counsel also referenced that the blood warrant was admitted into evidence,

noted its lack of a date or time, and the fact that it was not signed by a licensed attorney.

See TEX. CODE CRIM. PROC. ANN. art. 18.01(c), (j) (West Supp. 2011) (establishing the

requirements necessary for issuing a proper search warrant).         Zalman’s attorney further

pointed out that a video of Zalman’s blood draw was admitted into evidence, which

allegedly showed the unsanitary conditions under which the draw was taken.

       Zalman’s arguments about the arrest and his blood warrant sustain his assertion


                                               8
that the verdict was “contrary to the law and evidence.”   The multiple references to trial

testimony, documents offered into evidence, and the blood draw video provided the

evidence necessary to support Zalman’s legal claim under Herndon.        See 215 S.W.3d

at 901; TEX. R. APP. P. 21.7 (outlining the types of evidence a court can consider at a

hearing on a motion for new trial).       All of this evidence was within the court’s

record—the trial court did not consider evidence outside the record or evidence that was

untimely filed.

       Third, we conclude that there was sufficient evidence to question whether,

through all the evidence presented, there was prejudice to Zalman’s substantial rights

under the standards in rule 44.2 of the Texas Rules of Appellate Procedure.           See

Herndon, 215 S.W.3d at 901.        This rule provides that “if the appellate record in a

criminal case reveals constitutional error that is subject to harmless error review, the

court of appeals must reverse a judgment of conviction or punishment unless the court

determines beyond a reasonable doubt that the error did not contribute to the conviction

or punishment.”    See TEX. R. APP. P. 44.2. The circumstances surrounding Zalman’s

arrest, the issuance of his blood warrant, and his blood draw all potentially implicate

constitutional rights.   See Aliff v. State, 627 S.W.2d 166, 169 (Tex. Crim. App. 1982)

(holding that “the taking of a blood sample is a search and seizure under both the federal

and Texas constitutions”).

       Even disregarding Zalman’s “Memorandum of Law,” we conclude that Zalman’s

attorneys presented sufficient evidence at the hearing on the motion for new trial to meet

the Herndon three-part test.    See Herndon, 215 S.W.3d at 901; TEX. R. APP. P. 21.7.


                                            9
Accordingly, the trial court did not abuse its discretion in granting the motion.      See

Herndon, 215 S.W.3d at 901.

       The State cites Curcuru v. State to support its argument that the motion for new

trial was improperly granted.    See 13-08-00734-CR, 2010 Tex. App. LEXIS 9748, at

**10–11 (Tex. App.—Corpus Christi Dec. 9, 2010, no pet.) (mem. op., not designated for

publication). The facts of Curcuru, however, are distinguishable from the facts of this

case. In Curcuru, the defendant timely filed a motion for new trial. See id. at *30.    His

motion included several arguments, like ineffective assistance of counsel, which were

based on matters outside the trial record. Id. Curcuru did not include any evidence to

support these arguments. Id. Curcuru later filed an untimely amended motion for new

trial which included evidence in the form of several affidavits to support his

argument. Id.     The trial court properly refused to consider the late affidavits.      Id.

“Texas courts . . . have long held that when the grounds for a new trial are outside the

record, a defendant must support his motion by. . . affidavit.” Id. at *31 (citing Klapesky

v. State, 256 S.W.3d 442, 454 (Tex. App.—San Antonio 2008, pet. ref’d) (emphasis

added)).

       The basis for Zalman’s motion for a new trial, on the other hand, is that the verdict

was “contrary to the law and evidence.”     Zalman’s ground for a new trial is essentially

one of sufficiency, which is allowed under Texas Rule of Appellate Procedure

21.3(h). See TEX. R. APP. P. 21.3(h).    Importantly, Zalman’s basis was already rooted

within the court’s record.   The arguments Zalman asserted at the hearing on the motion

for new trial about his illegal arrest and improper blood draw were not outside the record,


                                            10
thus making Curcuru inapplicable.

         We overrule the State’s first issue.

B.       In the Interest of Justice

         By its second issue, the State argues the trial court erred when it granted

Zalman’s motion for new trial in the “interest of justice.” A trial judge has discretion to

grant or deny a motion for new trial "in the interest of justice.”    Herndon, 215 S.W.3d at

906-07.      “Justice” means “in accordance with the law.”     Id.   “A court must grant a new

trial when it has found a meritorious ground for new trial.”     TEX. R. APP. P. 21.9.

         The trial court conducted a full hearing wherein it considered the motion, evidence

from the trial record, and heard arguments of counsel. The trial court later entered

multiple findings of fact and conclusions of law which supported its decision to grant a

new trial.    A trial court abuses its discretion only when no reasonable view of the record

could support the trial court's ruling.   Holden, 201 S.W.3d at 763. We do not find that

to be the case here.

         Because the trial court granted the new trial in accordance with the Herndon

three-part test and explained the basis for its decision, the new trial was “in accordance

with the law,” and the trial court did not abuse its discretion in granting a new trial in the

“interest of justice.”   Herndon, 215 S.W.3d at 906–07. We overrule the State’s second

issue.

C.       Response to Dissent

         The dissent ignores the majority opinion’s assertion that we did not consider the

memorandum of law filed by Zalman one day before the hearing on the motion for new


                                                11
trial.   As stated previously, we disregarded this memorandum in its totality.      Instead,

we considered only the timely filed motion for new trial and the arguments of counsel and

evidence proffered at the hearing in our analysis.

         Further, the dissent is mistaken when it proclaims that the majority contradicts

Cueva v. State.     339 S.W.3d 839, 858–59 (Tex. App.—Corpus Christi 2011, pet ref’d).

Cueva is distinguishable from the underlying case.        In Cueva, Cueva timely filed a

motion for new trial stating that his counsel was ineffective for several reasons. Id. at

854.     Cueva later filed an untimely amendment to his motion, along with affidavit

evidence, setting forth new grounds why he believed his attorney was ineffective.         Id.

The appellate court held that the trial court erred when it improperly considered the new

grounds and new evidence.        Id.   These circumstances did not occur here.        In the

underlying case, the trial court heard issues “contrary to the law and the evidence”

regarding the initial arrest, blood warrant, and blood draw that were already in the trial

record.    Even if Zalman had never filed his memorandum of law at Judge Lowery’s

request, he would have had the right to argue all of the points made within it at the

hearing.    See generally Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994)

(en banc) (setting out that “the purpose of the hearing is for a defendant to fully develop

the issues raised in the motion for new trial”).

         Finally, the dissent never explains how the trial court abused its discretion in

granting the motion for new trial.     See State v. Moreno, 297 S.W.3d 512, 520 (Tex.

Crim. App. 2009) (“the granting of a new trial rests within the sound discretion of the trial

court”); Holden, 201 S.W.3d at 763.     The trial court had a timely motion before it which


                                             12
argued that a new trial was necessary because the verdict was “contrary to the law and

evidence.”   This is a sufficient ground for a new trial.      See TEX. R. APP. P. 21.3(h);

Castleberry v. State, 646 S.W.2d 599, 601 (Tex. App.—Houston [1st Dist.] 1983),

overruled on other grounds at 704 S.W.2d 21 (Tex. Crim. App. 1986); see also Bonner v.

State, No. 01-04-00611-CR, 2005 Tex. App. LEXIS 5874, at **7–8 (Tex. App.—Houston

[1st Dist.] July 28, 2005, pet. ref’d).   At the hearing on the motion, the trial court heard

arguments previously made at both the pre-trial and trial levels, and considered evidence

already admitted into the record.     Compare Cueva, 339 S.W.3d at 839 (concluding that

it was improper for the trial court to consider evidence that was untimely filed and that

was not in the trial court’s record). The trial court then filed conclusions of law holding

that Zalman’s Fourth Amendment rights were violated because: the officers that initially

stopped Zalman lacked reasonable suspicion that Zalman was committing an illegal

activity before they stopped him; the search warrant affidavit forced the magistrate to go

beyond the four corners of the affidavit; Zalman’s blood draw was unsanitary and void of

any generally accepted medical practices; and the search warrant was not issued in

compliance with the Texas Code of Criminal Procedure.

       “An appellate court is not to substitute its judgment for that of the trial court; rather

the appellate court’s role is to examine the record to determine whether the trial court

granted a new trial without reference to any guiding rules or principles. . . .”       Moreno,

297 S.W.3d at 520.     The record shows that the trial court’s decision to grant a new trial

“in the interest of justice,” after listening to the evidence presented at the hearing, was

founded within the record and grounded in Fourth Amendment concerns.                       See


                                              13
Herndon, 215 S.W.3d at 909 (“For more than one hundred and twenty years, our trial

judges have had the discretion to grant new trials in the interest of justice.”). We fail to

see how the trial court abused its discretion in this regard.

                                         IV. CONCLUSION

       Having overruled all of the State’s issues, we affirm the trial court’s order to grant

a new trial in this matter.



                                                         __________________________
                                                         GINA M. BENAVIDES,
                                                         Justice


Dissenting Memorandum Opinion by Justice Gregory T. Perkes.

Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
31st day of August, 2012.




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