                                                                             PD-0252-15
                                                            COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
APRIL 9, 2015                                              Transmitted 4/6/2015 3:06:11 PM
                                                             Accepted 4/9/2015 9:07:11 AM
                                                                              ABEL ACOSTA
                       IN THE TEXAS                                                  CLERK
                 COURT OF CRIMINAL APPEALS

                           NO. PD-0252-15
                (Court of Appeals No. 02-14-00039-CR)

                  BARCLAY EDWARD BERDAN,

                                              Petitioner

                                 vs.

                      THE STATE OF TEXAS,

                                                 State



     APPELLANT'S 1sT AMENDED PETITION FOR DISCRETIONARY
                           REVIEW

OF THE SECOND COURT OF APPEALS' OPINION AND JUDGMENT IN
CAUSE NO. 02-14-00039-CR ON APPEAL FROM COUNTY CRIMINAL
COURT NO. 9 OF TARRANT COUNTY, HON. BRENT A. CARR
PRESIDING.

                                          Tim Choy
                                          State Bar No. 24056721
                                          204 W. Central Ave.
                                          Fort Worth, TX 76164
                                          Ph: (817) 625-5582
                                          Fax: (817) 625-5881
                                          Email: tim@timchoylaw.com

                                          COUNSEL FOR PETITIONER
               IDENTITY OF PARTIES AND COUNSEL

The Parties to the trial Court's Judgment are:

Barclay Edward Berdan, II                        Defendant/Petitioner
A resident of the City of Fort Worth
c/o Tim Choy, Attorney At Law
204 West Central Ave.
Fort Worth, Texas 79601

Counsel are:

Tim Choy                                         Defense Counsel
Attorney At Law
204 West Central Ave.
Fort Worth, Texas 79601


The State of Texas                               Prosecution

Hon. Debra Windsor,
Chief of Appeals
Tarrant CountyOffice of
the Tarrant County District Attorney
401 West Belknap Street
Fort Worth, Texas, 76196

Hon. Brent A. Carr.                              Judge Presiding
County Criminal Court 9
gth Floor, Justice Center

401 West Belknap Street
Fort Worth, Texas, 76196

Hon. David L. Richards
Tex. State Bar No. 16945500                      Former Defense Counsel
3001 West 5111 Ste. 800
Fort Worth, Texas 76107



                                       2
      Hon. Lisa McMinn                                                                  State ofTexas
      Office of the State Prosecutor
      Supreme Court Bldg.
      Austin, Texas

                                         TABLE OF CONTENTS

      Identity of Parties and Counsel.. ............................................................. ........... 2

      Table of Contents ... ...... .. ... .. .. ....... .. . .. ... . .. . .. ... .. ... ..... . .... . .. . . . .. ........ 3

      Index of Authorities ............................................................................................ 4

      Statement Regarding Oral Argument. ... .......................................... ................... 5

      Statement of The Case... ............ ......................................................................... 5

      Statement of Procedural History ..................... ............ ........... ............................ 6

      Question Presented for Review ..................................... ..................................... 6

       Whether the Court of Appeals was conect in its analysis and determination
that the evidence was legally sufficient to support Mr. Berdan's conviction for the
offense of Driving While Intoxicated?

       Reason for Review, Arguments and Authorities .............................................. 6

      The Court of Appeals has decided a significant issue of Texas law that has
not been, but should be, decided by this Court, to-wit: whether a breath test refusal,
coupled with a field-sobriety test refusal, is sufficient to support a conviction for
Driving While Intoxicated, where the defendant admits to drinking alcohol?

        Prayer................ ............ .................................................. ............... .................. 7

       Certificate of Service ......................................................................................... 8

       Court of Appeals' Opinion and Judgment. ......................................... Appendix



                                                               3
                               INDEX OF AUTHORITIES

Texas Appellate Court Cases

      Barclay Edward Berdan, II v. State of Texas,
No. 02-14-00039-CR, Jan. 22, 2015 (Memorandum Opinion on Rehearing)
(Unpublished) ........................... .............................................. ........................... 6

      Jackson v. Virginia,
443 U.S. 307,319,99 S.Ct. 2781,2789 (1979); Dobbs v. State, 134 S.W.3d
166, 170 (Tex. Crim. App. 2014) ................................. ........................... .......... 6

      Huffman v. State,
No. 02-13-00175-Cr, 1014 WL 3696132, (Tex. FortWorth July 24, 2014,
no pet.) ......... ............... ....... .................... ..... .. .. .... .... ..... ... .. .. ............ 7


RULE


TEX. R. APP. P. 66.3(b ) .. ..... .. ... ......... .. ........ .. .... ..... .............................. 5




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      TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL

APPEALS:

      COMES NOW BARCLAY EDWARD BERDAN, II, by and through his

attorney of record, Tim Choy, and pursuant to Rule 68, Texas Rules of Appellate

Procedure, files this PETITION FOR DISCRETIONARY REVIEW, and for such

Petitioner would show this Court as follows:

                STATEMENT REGARDING ORAL ARGUMENT

      This petition involves a novel question of state law concerning whether a

defendant's conviction may be deemed legally sufficient where the primary

evidence against him is a refusal to perform a standard field sobriety tests and a

refusal to provide a breath sample.        For that reason, Petitioner believes oral

argument would assist the Court in arriving at its decision.

                          STATEMENT OF THE CASE

      Appellant was convicted of the offense of Driving While Intoxicated

following a one-vehicle accident occurring near a five-street intersection in Fort

Worth.




                                           5
                  STATEMENT OF PROCEDURAL HISTORY

       Petitioner seeks review of the Court of Appeals Judgment and Opinion in

Barclay Edward Berdan, II v. State of Texas, No. 02-14-00039-CR, Jan. 22, 2015 (

Memorandum Opinion on Rehearing) (Unpublished). This Court granted Petitioner

one extension of time in which to file this p.d.r., which it ordered due no later than

today, March 25, 2015.

                    QUESTION PRESENTED FOR REVIEW

       Whether the Court of Appeals was correct in its analysis and legal
sufficiency determination when it held that failure to comply with requests to
perform field sobriety tests and breath tests can be the primary factors
supporting the verdict?
                          REASON FOR REVIEW

       The Court of Appeals has decided a significant issue of Texas law that has
not been, but should be, decided by this Court.

                                   DISCUSSION

      Mr. Berdan respectfully disagrees with the Fort Worth Court of Appeals'

focus and emphasis on his field sobriety test refusal and breath test refusal in its

determination and resolution of his legal sufficiency challenge.

      The Court correctly set forth the standard of review set forth in Jackson v.

Virginia,443 U.S. 307,319, 99 S.Ct. 2781, 2789 (1979)(requiring review of

evidence in light most favorable to the State).    The mistake Mr. Berdan suggests

was made by the Court of Appeals was its stated reliance on his failure to comply

                                          6
with the investigating officer's request that he perform standard field sobriety tests,

and a later request by law enforcement that he provide a specimen of his breath.

Slip. Op. p. 3.   While it is true that the trier of fact (here, the jury) can take the

refusals as indicators of guilt, see Huffman v. State, No. 02-13-00175-Cr, 1014 WL

3696132, (Tex. FortWorth July 24, 2014), to Petitioner's knowledge no case

authority exists stating how strong those indicators can be. Here, although Mr.

Berdan admitted having two drinks, and admitted driving the vehicle involved in a

one car accident while executing a left hand turn at night on one of the most

confusing intersections in the City of Fort Worth, there is scant evidence of guilt,

unless heavy reliance is placed on his decision not to comply with field sobriety and

breath test requests.   Accepting this case for discretionary review would allow this

Court to consider how much weight such refusals should have.

                              PRAYER FOR RELIEF

      Petitioner prays that for the above reasons this Court grant discretionary

revie, and order further briefing and oral argument on the issue presented.         He

further requests reversal of the lower court's decision and remand of his case for

new trial.




                                           7
                                               Respectfully Submitted,




                                               204 West Central Avenue
                                               Fort Worth, Texas 76164
                                               Phone: 817/625-5582

                       CERTIFICATE OF COMPLIANCE

       The undersigned attorney certifies that this petition contains 1.097 words and

complies in all other respects, including 14 point font, with T.R.A.P., Rule

9.04(i)(3).




                          CERTIFICATE OF SERVICE

       The undersigned, TIM CHOY, certifies that he has sent a

copy of this document (in that it has been e-filed) with the appellate division of the

Tarrant County District Attorney's Office, Hon. Debra Windsor, and with the Hon.

Lisa McMinn, Office. of the State Prosecutng Attorney, Austin, Texas, this 61h day

of April, 2015.




                                           8
APPENDIX
                               COURT OF APPEALS
                                SECOND DISTRICT OF TEXAS
                                     FORT WORTH

                                    NO. 02-14-00039-CR


BARCLAY EDWARD BERDAN II                                              APPELLANT

                                            v.
THE STATE OF TEXAS                                                          STATE




          FROM COUNTY CRIMINAL COURT NO . 9 OF TARRANT COUNTY
                       TRIAL COURT NO. 1327699



                        EN BANC MEMORANDUM OPINION 1
                          ON MOTIONS FOR REHEARING



          After reviewing appellant Barclay Edward Berdan ll's motion for rehearing

and motion for rehearing en bane, we deny the motions, withdraw our November

6, 2014 memorandum opinion and judgment, and substitute the following in their

place .



          1
              See Tex. R. App. P. 47.4.
                               I. BACKGROUND

      Berdan went drinking with a friend in the West 7th Street area of Fort

Worth. While driving home, Berdan hit a light post in an intersection causing

the back of his truck to swing out, blocking a lane of traffic. Fort Worth Police

Officer Brian White saw the accident happen and approached the truck. White

testified that Berdan willingly stepped out of his car, and as Berdan got out, he

stumbled backward. Berdan had bloodshot eyes, and White could smell alcohol

on Berdan's breath.    Berdan admitted that he "had a couple of drinks" at a

nearby bar.   After the initial observations of intoxication, White decided to

conduct a fie ld-sobriety evaluation. 2 White twice asked Berdan to perform the

tests , but Berdan refused each time , without giving a reason.    Believing that

Berdan had lost the normal use of his mental and physical faculties due to the

introduction of alcohol into his body, White arrested Berdan and took him to the

City of Fort Worth jail. 3 In the parking lot of the jail , White read Berdan the

required statutory warnings and asked Berdan to provide a breath sample. See

Tex. Transp. Code Ann . § 724.015 (West Supp. 2014).       He refused.   Berdan

would not sign the form indicating that he was refusing to provide a sample. A

      2
       There are three different tests that the Fort Worth Police Department
performs: the horizontal-gaze nystagmus, the walk and turn, and the one-leg
stand. [3 RR 77]
      3
       Before White took Berdan to the jail, MedStar EMS arrived to treat
Berdan. He had no injuries that would have prevented him from performing the
tests. The medical personnel noted , however, that Berdan smelled of alcohol
and that Berdan had admitted to drinking alcohol.



                                        2
jury convicted Berdan of driving while intoxicated , and the trial court assessed

his punishment at ninety days' confinement, probated for twenty-four months,

with a $600 fine. See Tex. Penal Code Ann . § 49.04 (West Supp. 2014).

                          II. SUFFICIENCY OF THE EVIDENCE

       Berdan argues that the evidence was insufficient to show that he was intoxicated.

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 v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).

       Intoxication is statutorily defined as "not having the normal use of mental or physical

faculties by reason of the introduction of alcohol . . . or any other substance into the body."

Tex. Penal Code Ann. § 49.01 (2)(A) (West 2011 ). A person's refusal of a request by an

officer to submit to the taking of a specimen of breath or blood, whether the refusal was

express or the result of an intentional failure to give the specimen, may be introduced into

evidence at the person's trial and be considered as evidence of guilt. Tex. Transp. Code

Ann.§ 724.061 (West2011); Huffman v. State, No. 02-13-00175-CR, 2014 WL 3696132,

at *2 (Tex. App.-Fort Worth July 24, 2014, no pet.) (mem. op., not designated for

publication).

       Berdan was driving erratically such that he drove his car into a light post. Berdan

was stumbling when he got out of the car and had bloodshot eyes. He admitted he had

been drinking. White testified that Berdan had lost the normal use of his physical and



                                              3
mental faculties due to alcohol consumption and that Berdan refused to provide a breath

sample. This evidence allowed the jury to draw the reasonable inference that Berdan was

intoxicated at the time he was driving; thus, the evidence was sufficient to support his

conviction for driving while intoxicated. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex.

Crim. App. 2010); Kiffe v. State, 361 S.W .3d 104, 108 (Tex. App.-Houston [1st Dist.]

2011, pet. refd); Coggins v. State, 160 S.W.3d 177, 180 (Tex. App.-Texarkana 2005, no

pet.). We overrule Berdan's sole issue.

                                   Ill. CONCLUSION

       Having overruled Berdan's issue, we affirm the trial court's judgment. See Tex. R.

App. P. 43.2(a).

                                                      /s/ Lee Gabriel

                                                      LEE GABRIEL
                                                      JUSTICE

EN BANC

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

DELIVERED: January 22, 2015




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