                                                                             ACCEPTED
                                                                         01-14-00247-CR
                                                              FIRST COURT OF APPEALS
                                                                      HOUSTON, TEXAS
                                                                    7/23/2015 4:03:18 PM
                                                                   CHRISTOPHER PRINE
                                                                                  CLERK

               No. 01-14-00247-CR
                        In the                          FILED IN
                                                 1st COURT OF APPEALS
                 Court of Appeals                    HOUSTON, TEXAS
                       For the                   7/23/2015 4:03:18 PM
              First District of Texas            CHRISTOPHER A. PRINE
                                                         Clerk
                     At Houston

               ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯

                     No. 1330035
              In the 174th District Court
                Harris County, Texas

               ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯

            TERRI COX FERGUSON
                       Appellant
                          V.
            THE STATE OF TEXAS
                       Appellee

               ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯

APPELLANT’S MOTION FOR REHEARING AND EN BANC
              RECONSIDERATION

               ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯




                                            DAVID MITCHAM
                                            State Bar No: 14205300
                                            1314 Texas, Suite 1314
                                            Houston, Texas 77002
                                            Tel.: 713/222-1616
                                            FAX No.: 713/222-6262
                                            mitchamlaw@att.net




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                                  TABLE OF CONTENTS



AUTHORITIES...……………………………………………………………..……iii
INTRODUCTION ...............................................................Error! Bookmark not defined.

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

POINT FOR REHEARING……………………………..…………………..……..1

        THE EVIDENCE WAS INSUFFICIENT, AS TO                                             THE
        ELEMENT OF INTOXICATION, TO SUPPORT                                              THE
        CONVICTION.

CONCLUSION………………………………………..………………………….10

CERTIFICATE OF COMPLIANCE………………….………………………….10

CERTIFICATE OF SEVICE………………………….…………………………..11




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                                       INDEX OF AUTHORITIES

CASES

Adames v. State, 353 S.W.3d 854 (Tex. Crim. App. 2011) .................................................... 2


Hernandez v. State, 107 S.W.3d 41 (Tex. App.- San Antonio, 2003, pet. Ref’d) ................3


Jackson v. Virginia, 99 S Ct. 2781(1979) ........................................................................ 1, 2, 10


Smithhart v. State, 503 S.W.2d 283 (Tex.Crim.App.1973) ................................................. 3,4


In re Winship, 397 U.S. 358 (1970) ...........................................................................................2




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TO THE HONORABLE COURT OF APPEALS:


                                 INTRODUCTION

      On July 9, 2015, the court filed a memorandum opinion affirming appellant’s

conviction. Appellant incorporates by reference her brief and the Court’s opinion in

support of her motion for rehearing and en banc reconsideration.

                        ⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯


                           POINT FOR REHEARING


      THE EVIDENCE WAS INSUFFICIENT, AS TO THE ELEMENT OF
      INTOXICATION, TO SUPPORT THE CONVICTION.

                        ⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯


                       SUMMARY OF THE ARGUMENT
      The Court’s opinion erred in holding that the evidence is sufficient to establish

that the appellant was intoxicated by not having the normal use of her mental and

physical faculties by reason of the introduction of a controlled substance, a drug, a

dangerous drug, a combination of those substances, or any substance into her body.

                        ⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯


                                    ARGUMENT

      The Court reviewed the evidence using the Jackson standard of review. “When

reviewing the sufficiency of the evidence, we view all of the evidence in the light most
favorable to the verdict to determine whether any rational fact finder could have

found the essential elements of the offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Adames v. State, 353 S.W.3d

854, 859 (Tex. Crim. App. 2011) (holding that Jackson standard is only standard to use

when determining sufficiency of evidence).” (Op. 3) However, under this standard,

evidence is insufficient to support a conviction if considering all record evidence in

the light most favorable to the verdict, a factfinder could not have rationally found

that each essential element of the charged offense was proven beyond a reasonable

doubt. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781; In re Winship, 397 U.S. 358, 361, 90

S.Ct. 1068, 25 L.Ed.2d 368 (1970). Evidence is insufficient under this standard in four

circumstances: (1) the record contains no evidence probative of an element of the

offense; (2) the record contains a mere "modicum" of evidence probative of an

element of the offense; (3) the evidence conclusively establishes a reasonable doubt;

and (4) the acts alleged do not constitute the criminal offense charged. See Jackson, 443

U.S. at 314, 318 n. 11, 320, 99 S.Ct. 2781.

      The evidence fails to show that appellant did not have the normal use of her

mental or physical faculties as a result of any substance. No officer testified that

appellant did not have the normal use of her physical and mental faculties. Further, no

evidence shows “a controlled substance, a drug, a dangerous drug, a combination of

those substances, or any substance” caused appellant to not have the normal use of

her mental or physical faculties.

                                              2
       The evidence and testimony in the instant case is devoid of expert testimony as

found in various other cases to reasonably find that appellant did not have normal use

of her mental or physical faculties resulting from the introduction of a drug or

combination of drugs.

       “While intoxicated” is the contested element, but the reason for not having the

normal use is important and necessary since, by definition, one cannot be found to be

intoxicated if he lacks the normal use of mental or physical faculties for a different

reason, such as disability, illness, fatigue, stress, or seizures. An individual can only be

found intoxicated by reason of the introduction of a substance into the body.

Hernandez v. State, 107 S.W.3d 41 (Tex. App.- San Antonio, 2003, pet. Ref’d)

       In the present case, none of the investigating officers smelled alcohol, nor did

they find any alcohol, or suspect alcohol as the reason for not having the normal use

of mental or physical faculties.

       After being arrested, appellant was asked and agreed to submit the draw of a

blood sample at Memorial Hermann Southeast Hospital. (R.R. III. 149-160) The

blood test was negative for alcohol. Furthermore, none of the toxicology experts

presented by the State could say with any reasonable degree of medical certainty that

the medications and marijuana in the appellant’s blood alone or together caused loss

of the normal use of her mental or physical faculties.

       Alcohol intoxication is a common occurrence and requires no expertise, but the

rule as to whether a person is under the influence of drugs is different. Smithhart v.

                                             3
State, 503 S.W.2d 283 (Tex.Crim.App.1973). Smithhart was charged with operating a

vehicle while under the influence of drugs to the degree, which renders the driver

incapable of safely operating a vehicle. In Smithhart, the police officer testified to many

symptoms of possible intoxication: incoherent speech, glassy eyes, admission of

recent ingestion of valium and drinking vodka earlier, and an accident, but unable to

connect the symptoms to the reason for not having the normal use of faculties since

the officer was not qualified to give an opinion as to drugs.

       A person waking up from a seizure might experience fatigue, confusion, and

difficulty with gross motor skills such as walking, dilated pupils, flushing, retrograde

amnesia, and thick-tongued speech. Appellant coming out of a seizure, which can

mimic intoxication, could have caused the symptoms observed by the officers.

       The first person to come into direct contact with the appellant following the

accident was Deputy Michael White who stated she was unresponsive to his requests

to get out of the car, very incoherent in a daze, had “foam” coming out of her mouth

and was shaking (R.R. III. 84-86, 102-103)

       Stephen Bynum observed the appellant just before Deputy White and stated

that the appellant was either drunk or having a seizure. (R.R. VI. 84-85). He stated

that when he looked at her face she did not appear to be drunk but was having some

type of episode. (R.R. VI. 88)

       Sergeant Robert Francis conducted field sobriety tests on the appellant. The

first test he administered was the Horizontal Gaze Nystagmus Test. The first thing he

                                             4
noticed was that she had unequal pupil size. (R.R. IV. 33) He asked her if she had a

recent head injury and she stated that her dog had knocked her down and she injured

her head. He did not detect any odors of alcohol. He was not able to complete the

HGN test because of the unequal pupil size. However, he stated that no nystagmus

was present. (R.R. IV. 34) The appellant was unable to perform the walk and turn test

as well as the one leg stand because of prior injuries. (R.R. IV. 57-59). He also had her

perform the Rhomberg Test and detected a sway and she estimated 30 seconds as 20

seconds. (R.R. IV. 59) She had issues doing the alphabet test but was able to do a

hand dexterity test. (R.R. IV. 61) Since Sergeant Francis was not currently certified as

a Drug Recognition Expert he was not allow to opine as to whether the appellant was

intoxicated. He stated that he did not smell any marijuana in the appellant’s vehicle,

on her breath or on her person. (R.R. IV. 125-126)

      Deputy James Stanley read the appellant her warnings and took her to the

hospital to obtain a blood draw and expressed no opinion as to whether she was

intoxicated or any signs of intoxication. (R.R. IV. 143-151)

      Dr. Walterscheid related the drugs reflected in the lab analysis report to include

no alcohol but clonazepam, 7 – aminoclonazepam, temazepam, carisoprodol,

meprobamate, delta-9– tetrahydrocannabinol and nor–carboxy–tetrahydrocannabinol.

(R.R. V. 120-121) At the conclusion of his testimony he answered that he could not

testify with any reasonable, reliable scientific basis for determining based upon his




                                           5
reading of the toxicology report and the evidence before the court that the appellant

was intoxicated at the time in question on September 29, 2011. (R.R. V. 139)

      Dr. Plunkett stated that based upon the State’s toxicology reports an opinion

could not be given that appellant was intoxicated or impaired. (R.R. VI. 129) She

stated that the lab report reflected low levels of each of the drugs reflected in the

report (R.R. VII. 118-125) and that the report did not reflect amounts consistent with

someone who had taken 10 somas. (R.R. VII. 124)

      Nu Lienko stated that somewhere between 4 and 5 o’clock, the appellant came

in and picked up an order to go. She sounded normal when she ordered the

sandwiches over the phone and appeared normal when she picked up the sandwiches.

(R.R. VI. 14-21)

      Dr. Irwin S. Novak stated a seizure is an electrical disorder of the brain. The

patient may be confused, may stare, be disoriented and may be able to do some motor

activities. They are unaware of their surroundings and have slurred speech, shaking,

salivation and foaming at the mouth. (R.R. VII. 47) They can continue to drive a car

but they would drive it erratically. (R.R. VII. 47) From reading the description of the

appellant at the scene and the police reports, DVD’s of the appellant and witness

statements he was able to determine that it was consistent with a seizure. (R.R. VII.

49)

      Dr. Novak stated that he has performed thousands of Horizontal Gaze

Nystagmus tests and that if a patient had unequal pupil sizes it would be consistent

                                          6
with someone who had just had a seizure. (R.R. VII. 51) The person should be taken

to a hospital because they would be in a postictal state and may be disoriented,

confused, unsteady, have slurred speech, be befuddled and may try to fill in details but

their memory is faulty. (R.R. VII. 52) They will not remember that they had a seizure

and will not remember events that occurred during the postictal state. (R.R. VII. 53)

Following a seizure it could take from minutes to days before their memory kicks

back in. (R.R. VII. 54) A person in the state of seizure is not capable of a conscious

act. If they are driving a car they cannot keep a proper lookout, control their speed

properly, maintain a single lane of traffic or avoid collision with persons or property.

(R.R. VII. 53-54)

      The fact that the appellant had no nystagmus was significant because patients

have nystagmus when they are taking medications such as benzodiazepines and non-

benzodiazepines in high levels. Anisocoria or unequal pupils would not be seen. The

unequal pupil sizes would indicate another medical condition such as seizures had

occurred. (R.R. VII. 56) When appellant was examined and determined to have

unequal pupil sizes she should have been taken to the hospital and been evaluated.

(R.R. VII. 57)

      From Dr. Novak’s review of the DVD reflecting the interrogation by the police

officers she appeared to be inconsistent and disoriented and a person who has had a

seizure is unaware that the seizure occurred. (R.R. VII. 57-58) The first seizure while

driving occurs frequently and is possibly unrecognized. They have seizures - - these

                                           7
are paroxysmal episodic events that can occur anywhere under any circumstances

whether they’re awake or asleep, but the first seizure while driving is a clinically

recognize event and possibly under recognized. (R.R. VII. 60)

      Dr. Novak conducted a medical examination of appellant beginning on

September 13, 2013, which included an EKG, electrocardiogram, an EEG,

electroencephalogram, a 72 – hour EEG with video and ambulatory monitoring, brain

MRI, magnetic resonance scan imaging, chest X-ray, and urinalysis.

      He also reviewed medical records for the Houston Methodist Hospital’s

emergency room for September 25, 2013. The medical records reflected that she had

had a seizure. (R.R. VII. 62-63) The EMS records of the incident noted, and an M.D.

was present, that there were multiple episodes of peti mal, which probably reflect

complex partial seizures. (R.R. VII. 63) Additionally the EEG that was recorded

revealed findings that were consistent with diffused disturbance of brain function and

focal potentially epileptogenic lesions. (R.R. VII. 64-65) Appellant had a interictal

abnormality that in her case was right and left, the frontal and central areas of the

brain which is consistent with a seizure but no actual seizures that were ongoing at the

time of the 72- hour monitors. Normal healthy patients do not have interictal activity.

They have normal EEG’s and do not have spikes and they don’t have sharp waves or

spikes in waves. (R.R. VII. 65) Seizures are episodic paroxysmal events that occur out

of the background, out of the blue. (R.R. VII. 66-67)




                                           8
       Dr. Novak also reviewed the records of appellant being admitted to St. Luke’s

Hospital at The Vintage on January 21, 2014. When she was admitted she had an

altered mental status, probable seizure and possible pseudo seizure. Pseudo seizures

are unconscious seizures. They have no abnormality in electrical activity. They occur

less often than regular seizures and there’s no abnormality in the EEG. The patients

are unconscious of what happens. It’s a subconscious disorder and falls into

psychiatric dysfunction and what they call disassociated state. (R.R. VII. 70-71) At St.

Luke’s the appellant was intubated after sedation and admitted on a respirator. (R.R.

VII. 71)

       In-reference to partial complex seizures it is possible that a person could be on

the beltway and go into a seizure and continue to drive. (R.R. VII. 74) The description

of the appellant that was reflected in the offense report would be consistent with a

tonic seizure. (R.R. VII. 102) The only time unequal pupil size are the result of drugs

is if the drugs were put in the eye. (R.R. VII. 103)

       The symptoms of unequal pupils, no nystagmus in the eyes, responsive to light,

foaming at the mouth, nonresponsive to questions, and shaking uncontrollably are

consistent with a seizure. (R.R. VII. 128)

       Facts supporting an essential element, “reason for not having the normal use”,

were not proved and a rational trier of fact could not have found beyond a reasonable

doubt the essential element that the appellant did not have normal use of her mental

faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a

                                             9
dangerous drug into the body, or a combination of two or more of these substances

into the body. Even viewing the evidence in the light most favorable to the verdict, no

rational trier of fact could have found the essential element of “intoxication” of the

crime of driving while intoxicated beyond a reasonable doubt. Jackson v. Virginia, 99

S.Ct. 2781 (1979).


                           ⎯⎯⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯⎯⎯


                                      CONCLUSION

       It is respectfully submitted that the Court grant this motion for rehearing and/or

grant en banc reconsideration.


                          CERTIFICATE OF COMPLIANCE

       This is to certify that the foregoing instrument has a total of 2636 words.


                                                          David Mitcham
                                                          DAVID MITCHAM
                                                          State Bar No: 14205300
                                                          1314 Texas, Suite 1314
                                                          Houston, Texas 77002
                                                          Tel.: 713/222-1616
                                                           FAX No.: 713/222-6262




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                              CERTIFICATE OF SERVICE

       This is to certify that a copy of the foregoing instrument has been mailed to the

appellee’s attorney at the following address on July 23, 2015.

ALAN CURRY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002




                                                          David Mitcham
                                                          DAVID MITCHAM
                                                          State Bar No: 14205300
                                                          1314 Texas, Suite 1314
                                                          Houston, Texas 77002
                                                          Tel.: 713/222-1616
                                                          FAX No.: 713/222-6262
                                                          mitchamlaw@att.net


Date: July 22, 2015




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