                       PD-0268-15
                                                                      May 6, 2015

                         NO. ______________________


             IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                           AUSTIN, TEXAS


                          JORGE ALVAREZ GOMEZ,
                             Appellant/Petitioner,

                                        V.

                            THE STATE OF TEXAS,
                             Appellee/Respondent.



          APPELLANT‘S PETITON FOR DISCRETIONARY REVIEW
________________________________________________________________________
                              No. 04-14-00198-CR
                 Court of Appeals for the Fourth District of Texas
                             At San Antonio, Texas


 On Appeal from Cause Number 362070 in the County Court at Law of Bexar County,
              Texas Honorable Wayne A. Christian, Judge Presiding.


                                                   Respectfully submitted,
                                                   ________//S//________________
                                                   Victor M. Valdes, J.D., Ed.D.
                                                   111 Soledad, Suite 300
                                                   San Antonio, Texas 78205
                                                   Tel. (210) 229-9652
                                                   Fax (210) 590-6713
                                                   Bar No. 20424500
                                                   Attorney for Appellant
                                                   Email:vvaldes@satx.rr.com

APPELLANT REQUESTS ORAL ARGUMENT
                                  TABLE OF CONTENTS
INDEX OF AUTHORITES …………………………………………………………...….ii

STATEMENT REGARDING ORAL ARGUMENT……………………………...…….iii

STATEMENT OF THE CASE…………………………………………………………....1

STATEMENT OF PROCEDURAL HISTORY……………………………………..…....1

                                GROUNDS FOR REVIEW

FIRST GROUND FOR REVIEW: Whether the Court of Appeals erred when it ignored
Petitioners request to take judicial notice and failed to accurately recite relevant facts?....2
SECOND GROUND FOR REVIEW: Whether the Court of Appeals erred when it
concluded that it was not a comment on the weight of the evidence?……………….....…7
THIRD GROUND FOR REVIEW: Whether the Court of Appeals erred when it
concluded Appellant was not entitled to Article 38.23 instructions?……………………..8
FOURTH REASON FOR REVIEW: Whether the Court of Appeals erred when
Appellant was not allowed to present a defense?……………………………………..…11
FIFTH GROUND FOR REVIEW: Whether the Court of Appeals erred when it ignored
its own previous decisions in violation of The Doctrine of Stare Decisis?.......................14

PRAYER FOR RELIEF……………………………………………………………..…..14

CERTIFICATE OF SERVICE……………………………………………………….….15

CERTIFICATE OF COMPLIANCE……………………………………………….........15

APPENDIX A
    Alvarez-Gomez v. State, No. 04-14-00198-CR (Tex.App.-San Antonio, delivered
    February 11, 2015) (Not designated for Publication).
APPENDIX B
    Alvarez-Gomez v. State, No. 04-14-00198-CR (Tex.App.-San Antonio, delivered
    on March 3, 2015) (Motion for Rehearing and Reconsideration En Banc, denied).
APPENDIX C
    Transcript of Trial Court‘s interaction with the State.




                                                    i
                          INDEX OF AUTHORITIES
Chamber v. Mississippi, 410 U.S. 284 S. Ct. 1083, 35 L. Ed 2d 297 (1973)……………12
Clark v. State, 878 S.W. 2d 224………………………………………………………...…8
Crawford v. Washington, 544 U.S. 36, 51 (2004)…………………………………….....16
Dawbert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 599 (1993)……………......13,14
Ex Parte Reter, 827 S.W. 2d 324 (Tex. Cr. App. 1992)………………………………....15
Grant V. State, 738 S.W. 2d 309…………………………………………………...…….10
Gifford v. State, 793 S.W. 2d 48 (1991)……………………………………..……….11,17
Hewitt v. State, 734 S.W. 2d 745……………………………………………...…………10
Kumho Tire Co. Ltd. v. Carmichael 526 U.S. 137, (1999)…………………..………….13
Miranda v. Arizona, 384 U.S. 436 (1966)………………………………………………...8
Ray v. State, 749 S.W. 2d 939 (1998)………………………………………………..….11
State v. Henan, 89 Ohio St. 3d 421, 723 N.E. 2d 952………………………………..….13
Stone v. State, 703 S.W. 2d 562………………………………………………………....10
                RULES AND STATUTORY PROVISIONS
Sixth Amendment…………………………………………………………………………9
Texas Penal Code, Section 49.0…………………………………………………...……...1
Article 38.05, Texas Code of Criminal Procedure………………………………………...8
Article 38.23, Texas Code of Criminal Procedure……...…………………………..9,10,16
Rule of Evidence 513……………………………………………………………………..9
Rule of Evidence 702…………………………………………………………………….10
                           SECONDARY SOURCES
NHTSA…………………………………………………………………...…....10,12,13,14
Western, The Compulsory Process Clause, 73 Mich. L.R. 72, 159 (1974)……..……….11
Dr. Marceline Burns,…………………………………………………………………......13
Hon. Judge Edward D. Re on Stare Decisis…………………………………………..…13
                                       ii
                 STATEMENT REGARDING ORAL ARGUMENT

      Appellant has raised important questions of first impression in the Court and

believes that oral argument would help clarify the issues presented in this petition for

discretionary review. THEREFORE he respectfully requests oral argument.




                                              iii
           TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

           NOW COMES, Jorge Alvarez Gomez Appellant in this cause, by and through his

attorney of record, Victor Manuel Valdes, and, pursuant to the provisions of Tex. R. App.

Pro. 66, et seq., moves this Court to grant discretionary review, and in support will show

as follows:

                                            STATEMENT OF THE CASE

           Appellant was charge by information with driving while intoxicated, in violation

of Tex. Penal Code, Section 49.01 (CR, P. 12)1 He filed a motion to suppress evidence

(intoxilyzer), on 21st of December 2011, but the trial court denied the motion who he

carried with the trial, however we cannot find the order. (CR. p._).           A jury found

Appellant guilty and was assessed a $500.00 fine and six months‘ probation and 48 hours

of community service, (CR. p.41). He timely perfected his appeal. (CR. p.45).

                                  STATEMENT OF PROCEDUAL HISTORY

           Appellant presented five issues in his appellate brief. The conviction was affirmed

in an opinion not designated for publication, delivered on February 11, 2015. A motion

for Rehearing and Reconsideration En Banc was timely filed, however, it was denied on

3rd of March 2015. On 12th of March 2015, this Honorable Tribunal granted Appellant‘s

Motion for and Extension of Time in which to file the Petition for Discretionary Review

until the 4th day of May 2015, therefore this petition is timely filed.



                                                             1.


1
    The record on appeal is cited as “[volume] R. [page]”.
       FIRST GROUND FOR REVIEW: Whether the Court of Appeals erred when
it ignored Petitioners request to take judicial notice and failed to accurately recite
relevant facts?
                                   ARGUMENT

       The Court of Appeals opinion does fail to accurately recite the relevant facts.

Just after midnight on the 17th day of May 2011, Appellant, fell asleep in an interception

near highway 281 while waiting in the truck of his friend, Mr. John Carlos Orozco.

According to the police officer he noticed the ―… APV with no head lights on….‖ The

owner of the vehicle testified as follows:

Q. Mr. Orozco, would you state your full name for the record, please.
A. John Carlos Orozco.
Q. Orozco. Mr. Orozco, you know the reason you are here today?
A. Yes, sir, I do.
Q. Okay. Do you remember an incident that occurred at 11 may, 2011?
A. Yes, sir, I do.
Q. Now, also you know this young man here sitting next to me?
A. I do, very well.
Q. How long have you known him?
A. Since we were kids. We were very good friends.
Q. Do you know what he‘s – what he does for a living?
A. He works for Northside School District as a Counselor.
Q. Okay. Anything else he does?
A. Military service.
Q. Sir?
A. He‘s a Vet from the – for the military.
                                             2.
Q. OK.
A. As well.
Q. Now, the day of this incident, in particular on the 11th of May, 2011, you -- explain to
us what you remember about that day pertaining to the stuff of Jorge.
A. On that day, um, my truck had stalled on the highway. I was the one operating,
parked it. I stalled, I had battery issues, so I did walk across the street, which is literally
where we were just at, picked up jumper cables a friend gave me—let me come back,
which I am in the video doing that. When I came to jump my truck again, the officers
were already there speaking with Mr. Alvarez.
The Court: Can everybody hear the witness? You want him to use the microphone, or
everybody can hear fine? All good. Go ahead, sir.
The Witness: Um, I told ‗em – I explained to one of the officers, that‘s my truck. He‘s
not driving, let me have the truck.
The officer interviewing Mr. Alvarez would not let me basically say anything that had to
do with that. I was – performed the test. I was—I passed everything. I was the one
driving. Mr. Alvarez should have never been arrested for anything in that case for that
day.
Q. (By Mr. Valdes) Now, have you prepared an affidavit to that respect?
A. Yes, sir, I have.
Mr. Valdes: you honor, I think—we can mark it.
The Court: Counsel, you have got a live witness. Why are we worrying about an
affidavit?
Mr. Valdes: Well, I‘d like to present it to the –
The Court: It‘s not admissible Counsel.
Mr. Valdes: I‘m sorry?
The Court: Not admissible. You‘ve got a witness here live to testify.
Mr. Valdes: Okay. All right.
Q. (By Mr. Valdes) But, you prepared a document to that respect before. Am I right, sir?
A. Yes, sir.
Q. Okay. Now, is that the first time that the truck it stalls on you?
                                                    3.
A. No, sir. It‘s not a regular truck. I have done a lot of modifications. My electrical
system in not the very best. It‘s not the first time it stalled out on me. I do have a history
with that truck.
Q. So why—why do you have an idea why it stalls?
A. Battery issues. That‘s the – that‘s the main issue on my truck.
Q. Okay. By the way, what kind of work do you do?
A. I‘m a commercial truck driver. I drive across the interstate, all Texas type of loads.
Q. Okay. Have you ever been arrested?
A. Not once.
Q. Not once. Okay. And is Jorge familiar with you truck?
A. Not at all. I don‘t let my girlfriend drive it.
Mr. Valdes: I pass the witness, your Honor.
       Appellant was sick and he was throwing up. The officer did not give him any of

the field sobriety tests. He was concerned with the vomit emanating from Appellant. In

addition to the testimony of Mr. Orozco, the video, indicates that Appellant was not

familiar with the vehicle. At one time, he pulled the hood latch instead of the emergency

brake. In the video, Appellant clearly informs the officer that he was not driving. On

cross examination, Mr. Orozco testified that when he left to look for the cables, Appellant

was in the passenger‘s seat, and that he knew that Appellant was sick and that he left and

told appellant ―… hey, I‘m going to run around—I‘m going to run across the street and

get some jumper cables. Make sure no one take my truck‖. (Rep.‘s Record, Vol. 2, page

20), at the end of the States presentation Appellant moved for a directed verdict,

however, the trial court denied it. (P. 7, Vol. 2 of Rep.‘s Record).



                                              4.
       Again, the Appellant requested the Court to take judicial notice of the proper

proceedings of conducting the standard field sobriety test and the following colloquy

followed:

Mr. Valdes: Now let‘s talk about motion to take judicial notice.
The Court: We have already talked about that, and that, once again, has been respectfully
denied.
Oh, okay. Well, I just wanted for the record—
The Court: Respectfully denied on the record yesterday. (p.7, vol. 2 of Rep.‘s Record).
       On December 4, 2013, Appellant re-urged the Motion to Suppress evidence as

follows:

Mr. Valdes: I still have—I‘m going re-urge my Motion to Suppress, your Honor. Okay?
Well, you know, there‘s a bunch of comments that the police officer made like ―oh, that‘s
disgusting,‖ you know, so the fact that he is in handcuffs in front of the jury. Also, your
Honor, the police officer said—
The Court: I‘m sorry. Which motion to suppress are we talking about?
Mr. Valdes: I‘m Sorry?
The Court: About officer making statements on the video?
Mr. Valdes: yeah. He made the statement.
The Court: It‘s already been denied in the nicest possible way.
Mr. Valdes: Well, your Honor before—you denied before – you denied before you
listened to – watch the whole tape.
The Court: well, it‘s still denied.
Mr. Valdes: Okay. May I finish because—
The Court: By all means.
Mr. Valdes: Okay. Thank you, your Honor, with all respects he says that‖ that‘s too
much to drink,‖ he is supposed to be an expert on that. It‘s going to be misleading in
front of the jury. Okay. ―That is too much to drink‖. So that‘s a self-serving type of
                                                5.
comment by the officer and ―that‘s disgusting‖ that‘s another thing that—these comments
like that and a few other comments that he made that it‘s completely prosecutorial that
is—that tends to favor the prosecutor in this case.
That‘s why I think we should suppress all of the audio in this case.
The Court: you don‘t think people throwing up is disgusting? It absolutely is.
Mr. Valdes: Well—but the –but the—
The Court: Overruled. Your objection is noted for the record and for appellate purposes.
No hard feeling. How is that?
Mr. Valdes: No hard feeling.
       The arresting officer also testified that ―he did not give him the HGN. (page 75,

vol. 1 of Rep.‘s Record). And that there are no elements that affect the test, such as wind,

lights, inclines. (vol.1, Pages 78-99, of Rep.‘s Record). According to the arresting officer

watery eyes do not affect the HGN, red eyes, contact lenses do not affect the HGN.

      SECOND GROUND FOR REVIEW: Whether the Court of Appeals erred
when it concluded that it was not a comment on the weight of the evidence?

       It is difficult to envision a more damaging situation during a trial in which the trial

judge, in front of the jury, and sua sponte, tells the defense attorney that: ―It‘s not

admissible counsel‖. There will not be judge‘s instruction to the jury, regardless of how

it is phrased, that can erase the impression on the jury.

       Article 38.05 of the Texas Code of Criminal Procedure provides some guidance in

this respect as follows: ―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; …‖



                                                 6.
       The trial court interfered with Appellant‘s right to present evidence in a critical

area of the case. The Court in Clark v. State, 878 S.W. 2d 224, 226 (Tex. App. – Dallas

1994, no pet.). indicates that: A trial court improperly comments on the weight of

evidence if it makes a statement that: (1) implies approval of the State‘s argument, (2)

indicates any disbelief in the defense‘s position, (3) diminishes the credibility of the

defense‘s approach to its case‖.

       The trial Court‘s erroneous ruling had a direct impact on Appellant‘s

constitutional rights to present a defense and it cannot be considered harmless. Rule of

Evidence 513 prohibits the trial Judge from making any comment about the evidence.

      THIRD GROUND FOR REVIEW: Whether the Court erred when it
concluded that Appellant was not entitled to Article 38.23, of the Code of Criminal
Procedure Instructions?

                                          ARGUMENT
       Article 38.23 (a) provides:
                     No evidence obtained by an officer on other
                     person in violation of any provisions of the
                     Constitution or laws of the State of Texas, or of
                     the Constitution or laws of the United States of
                     America, shall be admitted in evidence against the
                     accused on the trial of any criminal case. In any
                     case where the legal evidence raises an issue
                     hereunder, the jury shall be instructed that if it
                     believes, or has a reasonable doubt, that the
                     evidence was obtained in violation of the
                     provisions of the Article, then and such event, the
                     jury shall disregard any such evidence as obtained.

In DWI cases, as in other areas of the penal laws, the recurring question is how and when

is an issue of illegally obtained evidence raised? The answer is, first, there must be a

                                             7.
conflict in the facts, not just a conflict in the possible interpretation of an un-contradicted

set of facts. Second, if there is such a conflict in the facts, and if one of the conflicting

versions of the facts reasonably leads to the conclusions that the Constitution or law was

violated, a charge under Article 38.23 must be given. See Stone v. State, 703 S.W. 2d

652 (Tex. Crim. App. 1986); Grant v. State, 738 S.W. 2d 309 (Tex. App.-Houston, 1987,

pet. Ref.‘d); Hewitt v. State 734 S. W. 2d 745 (Tex. App.—Fort Worth 1987, pet. Ref.‘d).

       There was evidence that the officer did not follow the NHTSA procedures during

the administration of the STANDARD field Sobriety Test.               Furthermore, there was

evidence in the video in which the Appellant tells the arresting officer, ―I was not

driving‖ and that he was not advised of his Miranda rights.

       The leading DWI case in Article 38.23 is Stone v. State, 703 S.W. 2d 652 (Tex.

Crim. App. 1986), aff‘g 685 S.W. 2d 791 (Tex. App Fort Worth 1985).

       In this case, the officer did not see the Appellant drive the vehicle to the

intersections and Appellant and the owner of the truck testified that he was sick and that

the truck stalled on him because of electrical problems. Furthermore, the trial court judge

believed Mr. Orozco and not the police officer. In addition, because the police officers.

admitted that he did not observe Appellant continuously for fifteen minutes prior to the

actual breath test, and Appellant was not allowed Article 38.23 instructions, hence, he

was denied a fair trial. The Appellant objected to the evidence and filed a Motion to

Suppress evidence.

       On Gifford v. State, 793 S.W. 2d 48 (Tex. App.- Dallas 1990, pet gtd.), pet.

                                                   8.
dism‘d, improvidently. Gtd., 810 S.W. 2d 225 (Tex. Crim. App. 1991), the Dallas Court

held that where evidence raised an issue of whether the Defendant was continuously

observed fifteen minutes prior to taking the breath test, the trial court‘s refusal to charge

the jury on this issue was reversible error. In Ray v. State, 749 S.W. 2d 939, (Tex. App.-

San Antonio 1998, pet. ref‘d), the San Antonio Court held differently.

       It is obvious, that the regulations exists for a particular purpose and should be

followed at all times. The State should be held accountable for any violations of the law.

     FOURTH REASON FOR REVIEW: Whether the Court of Appeals erred
when Appellant was not allowed to present a defense?.

       A defendant has a right to introduce material evidence in his favor whatever its

character, unless the state can demonstrated that the jury is incapable of determining its

weight and credibility and that the only way to ensure the integrity of the trial is to

exclude the evidence altogether. (See Western, the Compulsory Process Clause, 73

Mich. L.R. 72, 159 (1974). The instant case is similar to Chambers v. Mississippi, 410

U.S. 284 S. Ct. 1083, 35 L. Ed. 2d 297 (1973). In which the Supreme Court found

violations of due process and the Sixth Amendment. Both rulings by the trial court in

Chambers operated to deprive the defendant of his compulsory process rights, by

preventing him from attempting to elicit facts from this witness through examination, and

by preventing him from introducing independent evidence of those facts. Appellant

presented sufficient evidence such that the jury could find, beyond a reasonable doubt,

that Appellant was not operating the vehicle, and that Mr. Orozco, the owner drove the

vehicle to the intersection. In addition the evidence presented proved beyond a

                                             9.
reasonable doubt that the arresting officer failed to follow the standard procedures as

established by the NHTSA in the administration of the Standard Field Sobriety Test.

       The only testing of field sobriety tests that meets the definition as standard was

conducted at the request of the National Highway Traffic Safety Administration

(hereinafter NHTSA) (See p. 8). Additionally, only the three standardized tests, and their

standardized administration, adopted by NHTSA have been so evaluated. In the case at

bar, the officer did not use the three tests that have been made the subject of extensive

research.

       The police officer admitted he does not follow the Standard procedures in

conducting the HGN. (Vol. 2), pages 99-102). The field sobriety test used in this

case does not meet the Dawbert v. Merrill Dow Pharmaceuticals, Inc. (1993) 509 U.S.

579, standards and in Kumho Tire Co. Ltd. v. Carmichael (1999) 526 U.S. 137, 119 S. Ct.

1167, and Rule 702 of the Texas Rules of Evidence.

       The Appellate Court erred in approving the trial court‘s failure to maintain its

―gatekeeping‖ function.     The Appellant attempted to introduce documents for the trial

court to take judicial notice of the proper manner of performing the HGN and factors that

affect its accuracy; however, the trial court denied his requests.

       The 1975, NHTSA funded research conducted by Dr. Marceline Burns found out

that variance from the prescribed manner of administering, observing, and evaluating an

individual‘s performance of the three standardized tests, deprives the tests of reliability,

and accuracy. This position, that only tests given in the ―standardized‖ manner have any

                                             10.
validity is echoed in virtually every police manual regarding field sobriety tests.

       In State v. Homan (April 26, 2000) 89 Ohio St. 3d 421, 732 N.E. 2d 952, The Ohio

Supreme Court held that any variation in the use of the NHTSA Standardized Field

Sobriety Tests makes the results completely unreliable as it relates to probable cause.

The court found ―it is well established that in field sobriety testing even minor deviations

from the standardized procedures can severely bias the tests.‖ (Ibid). The trial judge‘s

refusal to allow the introduction of the NHTSA excerpts, amounted to a refusal of

Appellant‘s right to present a defense. These were precisely the issues that were before

the jury, and the trial judge‘s ruling essentially denied petitioner an opportunity to

establish that a reasonable doubt existed as to his guilt.

       The very concept at the heart of Dawbert, is the scientific mythology. The State

was allowed to introduce evidence as to the HGN‘s reliability; hence, Appellant should

have been allowed to introduce the NHTSA Manual in the area of proper procedures and

reliability of the test.

       Because the court erred in not allowing the judicial notice of the NHTSA Manual

excerpts, the Appellant was denied the right to present a defense, and this Honorable

Tribunal should reverse the Appellate Court with and order for a new trial.

       FIFTH REASON FOR REVIEW: Whether the Court of Appeals erred when
it ignored its own previous decisions in violation of The Doctrine of Stare Decisis?

       A brief study of the doctrine of stare decisis indicates that it was received in the

United States, as part of the common law tradition. In addition to fostering stability and

permitting the development of a consistent and coherent body of law, it also served other

                                             11.
beneficial functions. It preserved continuity, manifested respect for the past, assured

equality of treatment for litigants similarly situated, spared judges the task of re-

examining rules of law with each succeeding case, and afforded the law a desirable

measure of predictability.    See the Federal Judicial Center, article on Stare Decisis

presented by the Hon. Edward D. Re, Chief Judge, United States Customs Court, May

13th-16th, 1975.

       The doctrine of stare decisis commands that the Court follow settled questions of

law in the absence of compelling reasons to reject them, see Ex Parte Porter, 827 S.W.

2d 324, 329 (Tex. Cr. App. 1992), and cases cited therein.

       The Court of Appeals ignored its own previous decision in State of Texas v.

Savage, 905 S.W. 2d 265 (1994-4th Court of Appeals). In that case, the Fourth Court of

Appeals found that: the trial court‘s past-verdict determination that the evidence was not

sufficient to support the verdict was a ruling on a matter of law….‖ Ibid, at 271.

       Furthermore, because the trial court wanted the district attorney to change the

charges to obstruction of a highway vis-a vis-DWI, and because, obviously, the Petitioner

was sick and, because the trial court believed Mr. Orozco, the owner of the truck, and not

the police officer. The trial court should have granted the motion for directed Verdict.

                                   CONCLUSIONS

       The Court of Appeals ruled against Petitioner because it erroneously focused

exclusively on the alleged intoxication rather than determining whether the procedural

aspects and due process of law were followed. The Court concluded that ―the evidence

                                            12.
supported the jury‘s finding that Alvarez-Gomez was driving the vehicle while

intoxicated….‖ (See page 3, of Appendix A). However, there was sufficient testimony

indicating the opposite; in other words, that Petitioner was not driving.         Therefore,

Petitioner was entitled to Article 38.23 instructions. Furthermore, it was obvious, that the

Petitioner was sick.

       The Court of Appeals also erred when it erroneously sustained the trial courts

denied the Motion to Suppress evidence. The video was obviously testimonial and

Petitioner was entitled to suppress the audio. In Crawford v. Washington, 544 U.S. 36,

51 (2004) the Supreme Court was precise in the area of testimonial. For example, pretrial

statements that the declarants would reasonably expect to be used prosecutorially are

testimonial‖. Ibid.

       The Court of Appeals, additionally, focused on some elements that can be easily

explained. For example, the Court of Appeals found that Petitioner had ―trouble standing

on his own, and the audio indicates his speech is slurred‖. (See page 5 of Appendix A).

However, it does not find that even the arresting officer recognized that Petitioner was

sick and that Mr. Orozco testified that Petitioner was sick, it was a selective finding by

the court.

       The Appellate Court committed error by construing the attitude of the trial court as

accountable. The trial court erred when it asked permission to the State to grant a new

trial. The trial court erroneously asked the State for permission to grant a new trial to the

detriment of the Petitioner. (See Appendix A, page 6-7).

                                            13.
       The Court of Appeals erroneously focused on the intoxilyzer results; however, it

ignored the fact that the procedures leading to the tests were not observed. There is a

mandatory waiting period of 15 to 20 minutes in which the defendant is observed. This

observation period was not complied with and, as a result, Petitioner‘s rights were

violated. This observation period is crucial in situations where in the present case,

Petitioner was vomiting and was sick. (See Gifford v. State, 793 S,W, 2d 48(1991)



                               PRAYER FOR RELIEF

       WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that

this court grant discretionary review and, after full briefing on the merits, issue an

opinion reversing the Court of Appeals‘ judgment and remanding the cause to the trial

court for a new trial.

                                                       Respectfully submitted,
                                                       ________//S//______________
                                                       Victor M. Valdes, J.D., Ed.D.
                                                       SBN 20424500
                                                       111 Soledad, Suite 300
                                                       San Antonio, Texas 78205
                                                       Tel. (210) 229-9652
                                                       Fax (210) 590-6713
                                                       Email:vvaldes@satx.rr.com




                                              14.
                               CERTIFICATE OF SERVICE

I, Victor M. Valdes, hereby certify, by affixing my signature above, that a true and

correct copy of the foregoing Petition for Discretionary Review was emailed to Nathan

E. Morey, nathan.morey@bexar.org, Officer to the Bexar County District Attorney.

Also, mailed through the U.S. Postal Service to, Lisa McMinn, P.O. Box 13046, Capital

Station, Austin, Texas 78711, on this day, May 4th 2015.

                                                      ___________//S//___________
                                                      Victor M. Valdes, J.D., Ed.D
                                                      SBN 20424500
                                                      111 Soledad, Suite 300
                                                      San Antonio, Texas 78205
                                                      Tel. (210) 229-9652
                                                      Fax (210) 590-6713
                                                      Email:vvaldes@satx.rr.com




                         CERTIFICATE OF COMPLIANCE

I, Victor M. Valdes, certify that, pursuant to Texas Rules of Appellate Procedure

9.4(i)(2)(B) and 9.4(i)(3), the above Petition for Discretionary Review contains 3,655

words according to the ―word count‖ feature of Microsoft Office.

                                                      Respectfully submitted,
                                                      _________//S//_____________
                                                      Victor M. Valdes, J.D., Ed.D.




                                           15.
             APPENDIX A
                    Jorge Alvarez Gomez,
                               Appellant,
                             v.
                      The State of Texas
                                Appellee.


                  Cause No. 04-14-00198-CR

Decision by the Fourth Court of Appeals dated February 11, 2015
                    APPENDIX B
                           Jorge Alvarez Gomez,
                                      Appellant,
                                    v.
                            The State of Texas
                                      Appellee.


                   Court of Appeals No. 04-14-00198-CR

ORDER denying Appellant‘s Motion for Rehearing and Reconsideration En Banc.
                       APPENDIX C
                               Jorge Alvarez Gomez,
                                          Appellant,
                                        v.
                                 The State of Texas
                                           Appellee.



                            Cause No. 04-14-00198-CR

Excerpts from the trial courts final hearing pertaining to the negotiation with the
District Attorney as to changing of the charge. The trial court believed that the
jury had it wrong.
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  Envelope 5146506
   Case Information
   Location                               Court Of Criminal Appeals
   Date Filed                             05/04/2015 05:18:40 PM
   Case Number
   Case Description
   Assigned to Judge
   Attorney                               Victor Valdes
   Firm Name                              Law Office Of Victor M. Valdes
   Filed By                               Victor Valdes
   Filer Type                             Not Applicable
   Fees
   Convenience Fee                        $0.09
   Total Court Case Fees                  $0.00
   Total Court Filing Fees                $0.00
   Total Court Service Fees               $0.00
   Total Filing & Service Fees            $0.00
   Total Service Tax Fees                 $0.00
   Total Provider Service Fees            $2.99
   Total Provider Tax Fees                $0.25
   Grand Total                            $3.33
   Payment
   Account Name                           Victor M. Valdes
   Transaction Amount                     $3.33
   Transaction Response
   Transaction ID                         8447266
   Order #                                005146506-0

   Petition for Discretionary Review
   Filing Type                                            EFile
   Filing Code                                            Petition for Discretionary Review
   Filing Description                                     Petition for Discretionary Review
   Reference Number                                       602077
   Comments
   Status                                                 Rejected
   Fees
   Court Fee                                              $0.00
   Service Fee                                            $0.00
   Rejection Information
   Rejection Time       Rejection Comment
   Reason
             05/06/2015 The petition for discretionary review does not contain the identity of Judge, Parties
   Other     10:25:31 and Counsel [Rule 68.4(a)]. You have ten days to tender a corrected petition for


https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=1d63c93b-a2e6-4d2e-b37c-fb6ee916b381[5/6/2015 10:27:07 AM]
Envelope Details

           AM                    discretionary review.
   Documents
   Lead Document                          Jorge Alvarez Gomez Petition PDR.pdf                                                 [Original]




https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=1d63c93b-a2e6-4d2e-b37c-fb6ee916b381[5/6/2015 10:27:07 AM]
