                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-17-00381-CR


HECTOR JIMENEZ                                                      APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

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      FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
               TRIAL COURT NO. CR-2016-05099-A

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                        MEMORANDUM OPINION1

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      In two issues, Hector Jimenez contends that the evidence is insufficient to

support his misdemeanor conviction for driving while intoxicated (DWI) and that

the trial court erred by denying his motion for new trial without first holding an

evidentiary hearing. We affirm.




      1
       See Tex. R. App. P. 47.4.
                          Sufficiency of the Evidence

      Federal due process requires that the State prove, beyond a reasonable

doubt, every element of the crime charged. Jackson v. Virginia, 443 U.S. 307,

316, 99 S. Ct. 2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-

process review of the sufficiency of the evidence to support a conviction, we view

all of the evidence in the light most favorable to the verdict to determine whether

any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Jenkins

v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). The trier of fact is the sole

judge of the weight and credibility of the evidence and may draw reasonable

inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Jenkins, 493 S.W.3d at 599; Blea v. State, 483 S.W.3d 29, 33 (Tex.

Crim. App. 2016); see Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979). We

determine whether inferences are reasonable based upon the cumulative force of

the evidence when viewed in the light most favorable to the verdict. Murray v.

State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198

(2015).

      A person commits a DWI if that person is intoxicated while operating a

motor vehicle in a public place. Tex. Penal Code Ann. § 49.04(a) (West Supp.

2017). The penal code defines intoxication, in part, as “not having the normal use

of mental or physical faculties by reason of the introduction of alcohol.” Id.

§ 49.01(2)(A). Relevant evidence of intoxication as it is defined in the penal code


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includes any sign of impairment in the ability to speak, refusal to take a blood-

alcohol test, unsteady balance, gait problems, the odor of alcohol, glassy eyes,

bloodshot eyes, the presence of intoxication clues during standardized field

sobriety tests, and a person’s admissions about drinking alcohol. See, e.g.,

Burnett v. State, 541 S.W.3d 77, 84 (Tex. Crim. App. 2017); Kirsch v. State, 306

S.W.3d 738, 745 (Tex. Crim. App. 2010); Griffith v. State, 55 S.W.3d 598, 601

(Tex. Crim. App. 2001).

      Alexis Melson, an employee of a RaceTrac gas station on Round Grove

Road in Lewisville, testified that while she was working the night shift on April 23,

2016, appellant walked in around midnight and asked her “about food.” She had

been cleaning the roller grill and told him the store would not have fresh food

available until 6:00 a.m. Appellant was friendly and was walking and talking

normally, but he smelled of alcohol. Appellant walked away from Melson, but

then he came back, leaned on the counter, told her she had beautiful eyes, and

asked for her phone number. She stopped talking to him and told her manager.

      Appellant then went outside and approached several women in the store’s

parking lot. He followed one woman inside the store and back to her car, where

he started banging on her window. Melson told her manager to call the police.

Appellant then left the store in what Melson described as a white vehicle. A short

time later, a Lewisville police officer came to the RaceTrac, and Melson wrote a

statement for him; she did not mention in her written statement that appellant

smelled like alcohol.


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      Lewisville police officer Antonio Barletta testified that he responded to a

911 call2 about a man harassing women at the Round Grove RaceTrac. When he

pulled into the RaceTrac’s parking lot, an employee pointed in the direction that

the man had driven on Rockbrook. Barletta traveled in the same direction,

looking for a Gold Geo Prizm3 with a specific license plate number; he saw that

car pull onto 121 Business and followed it for about two minutes. The driver was

not swerving or speeding.

      After the driver failed to signal twice, Barletta activated his overhead lights

to initiate a stop, and the driver pulled into the parking lot of a QT. When Barletta

contacted the driver, appellant, he smelled a strong odor of alcohol from

appellant’s breath. Appellant’s eyes were red and watery and his speech was

“real slurred.” Appellant was driving the opposite direction from his stated

destination, and he had a styrofoam cup of liquid in the center console that

smelled like alcohol mixed with soda. Barletta thought appellant might be

intoxicated.

      Barletta asked appellant whether he had drunk anything, and appellant

responded that he had drunk two beers. Appellant initially refused Barletta’s

request to perform field sobriety tests, telling Barletta that he had a leg injury and


      2
       The State attempted to admit the 911 call into evidence, but the trial court
sustained appellant’s objection to its admission.
      3
       We note that in the officer’s dash cam video admitted into evidence, the
vehicle appears to be white or light-colored under bright lights.


                                          4
either a hip or ankle injury. When Barletta stated that he wanted to perform a

horizontal gaze nystagmus (HGN) test, which would not be affected by those

injuries, appellant told Barletta he had recently crushed his head in a vise or

some kind of machinery. Barletta observed appellant for equal tracking and equal

pupil size, a technique designed to rule out traumatic brain injury; he did not see

any problems that would indicate appellant was a poor candidate for the HGN

test.

        Barletta went ahead with the HGN test, and appellant showed six out of six

clues for intoxication. He also swayed slightly during the test. Appellant had

trouble following Barletta’s instructions for the test. Appellant refused to perform

the walk-and-turn and one-leg-stand tests. Barletta arrested appellant for

suspicion of DWI.

        After Barletta arrested appellant and placed him in a patrol car, appellant

refused to give a breath or blood sample. Appellant began to yell extreme

profanity, made threats against Barletta and his family, became violent, banged

his head on the window of the patrol car, and kicked it. He continued to make

threats at the jail. The State played two videos from Barletta’s in-car camera that

show this behavior. Additionally, these videos allowed the jury to observe the

stop and appellant’s physical demeanor as Barletta talked to him and

administered the HGN test. Barletta testified that he believed appellant had lost

the normal use of his mental or physical faculties.




                                         5
      James Robey, also a Lewisville police officer, testified that on April 23,

2016, he was dispatched to the RaceTrac station where Melson worked.

According to Robey, the 911 caller had stated that a person at the gas station

was potentially intoxicated. Robey spoke to Melson and obtained a written

statement from her. Robey also watched Barletta perform the HGN test and saw

appellant “swaying back and forth a lot”; he noticed that appellant had a hard

time following Barletta’s instructions.

      Because the foregoing evidence shows that appellant was driving a motor

vehicle in a public place and that he exhibited relevant indicia of intoxication––

slurred speech, unsteady balance, the odor of alcohol, glassy and bloodshot

eyes, the presence of six out of six clues on the HGN test, blood-or-breath test

refusal, and admission that he had drunk alcohol––we hold that the evidence is

sufficient to support appellant’s conviction for DWI.4 See, e.g., Tex. Penal Code

Ann. §§ 49.01(2)(A), .04(a); Kirsch, 306 S.W.3d at 745; Jackson v. State, 468



      4
        The State originally filed a brief in which it conceded that the evidence
was insufficient to support appellant’s conviction as a Class A misdemeanor
because the State presented evidence of his prior DWI conviction during
punishment instead of guilt-innocence. See Tex. Penal Code Ann. § 49.09(a)
(West Supp. 2017) (enhancing punishment for second DWI conviction to Class A
misdemeanor). But the State filed an amended brief abandoning its concession
after the court of criminal appeals issued its opinion in Oliva v. State, in which it
held that the existence of a prior conviction is not an element of the offense of a
second DWI that must be litigated at guilt-innocence but is instead a punishment
issue. No. PD-0398-17, 2018 WL 2329299, at *1, *8, *12 (Tex. Crim. App. May
23, 2018). Appellant has not challenged the sufficiency of the evidence of his
prior conviction that the trial court admitted at punishment.


                                          6
S.W.3d 189, 192–94 (Tex. App.––Houston [14th Dist.] 2015, no pet.). We

overrule his first issue.

          Denial of Motion for New Trial Without Evidentiary Hearing

      In his second issue, appellant claims that he was entitled to an evidentiary

hearing on his motion for new trial.

      The purpose of a motion for new trial hearing is to enable the trial court to

decide whether the case should be retried and to enable the defendant to

develop a record for presenting issues on appeal if the trial court denies the

motion. Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009). A hearing

on a motion for new trial is mandatory only when the motion and accompanying

affidavits raise matters that are not determinable from the record and the

defendant establishes the existence of reasonable grounds showing that he

could be entitled to relief. Id. at 338–39. When the grounds in the motion are

based on matters not already in the record, the motion must be supported by an

affidavit specifically setting out a sufficient factual basis for the claims made. Id.

at 339.

      On appeal, appellant contends that the State’s fingerprint expert who

testified at punishment was not aware of an underlying fingerprint analysis

theory. Appellant’s trial counsel had questioned this expert on voir dire and

objected to his testimony under Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim.

App. 1992). The trial judge overruled the objection. Appellant’s motion for new

trial stated only generally that the verdict was “contrary to the law and the


                                          7
evidence” and that the trial court should grant a new trial in the interest of justice.

Appellant did not reurge his Kelly complaint, did not identify a matter not

determinable from the record, and did not attach an affidavit to his motion. Thus,

we hold that the trial court did not abuse its discretion by denying the motion for

new trial without first holding an evidentiary hearing because (1) the motion did

not raise a matter that the trial judge could not determine from the record and (2)

even if it did, appellant did not support the motion with a sufficiently factually

specific affidavit raising a matter not determinable from the record that could

reasonably entitle him to relief. See Gonzales v. State, 304 S.W.3d 838, 842–44

(Tex. Crim. App. 2010); King v. State, 29 S.W.3d 556, 569 (Tex. Crim. App.

2000). We overrule appellant’s second issue.

      Having overruled both of appellant’s issues, we affirm the judgment.



                                                     /s/ Wade Birdwell
                                                     WADE BIRDWELL
                                                     JUSTICE

PANEL: SUDDERTH, C.J.; WALKER and BIRDWELL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 26, 2018




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