                                                                    PD-0330-15
                                                   COURT OF CRIMINAL APPEALS
                                                                   AUSTIN, TEXAS
                                                 Transmitted 5/22/2015 11:16:05 PM
                                                   Accepted 5/26/2015 10:30:21 AM
                                                                    ABEL ACOSTA
                       PD-0330-15                                           CLERK

         COURT OF CRIMINAL APPEALS OF TEXAS




                   JAY SANDON COOPER

                           V.

                     STATE OF TEXAS




          PETITION FOR DISCRETIONARY REVIEW

               FILED BY JAY SANDON COOPER



                 ON APPEAL FROM
THE COUNTY COURT AT LAW NO.2, GRAYSON COUNTY, TEXAS
                CASE NO. 2011-2-1391.

    THE FIFTH COURT OF APPEALS AT DALLAS, TEXAS
               CASE NO. 05-14-00089-CR.


                                JAY SANDON COOPER, PRO SE
                                        1520 JANWOOD DRIVE
    May 26, 2015                          PLANO, TEXAS 75075
                                                 (972) 358-8999
                                                       NO FAX
                                     jaysandoncooper@gmail.com
                                                  APPELLANT
                    ORAL ARGUMENT
                      REQUESTED

                           1
         IDENTITY OF JUDGE, PARTIES AND COUNSEL
TRIAL COURT JUDGE:    The Honorable Carol M. Siebman
                      County Court at Law No.2, Grayson County, Texas

PARTIES and COUNSEL:

Appellant:                Jay Sandon Cooper

             Counsel:     Jay Sandon Cooper, Pro Se
                          1520 Janwood Dr.
                          Plano, Texas 75075
                          (972) 358-8999
                          No Fax

             Trial:       J. Richard Dunn
                          Texas Bar Card No. 00783995
                          108 S. Crockett
                          Sherman, Texas 75090
                          (903)893-5535

             Appeal:      Pro Se

Appellee:                 State of Texas

                          Joe Brown
                          Criminal District Attorney
                          Grayson County, Texas
      Counsel:
             Trial:       Michael S. Kelly
                          Texas Bar Card No. 24055767
                          200 S. Crockett, Ste. 116A
                          Sherman, Texas 75090

             Appeal:      Karla R. Hackett
                          Texas Bar Card No. 01923400
                          200 S. Crockett, Ste. 116A
                          Sherman, Texas 75090
                          Phone: (903) 813-4361
                          Fax: (903) 892-9933


                                   2
                              TABLE OF CONTENTS
Identity of Judges, Parties, and Counsel……………………………………                        2

Table of Contents……………………………………………………………                                      3

Index of Authorities…………………………………………………………                                    4

Statement Regarding Oral Argument……………………………………….                          4

Statement of the Case……………………………………………………….                                5

Statement of Procedural History……………………………………………                           5

Grounds for Review…………………………………………………………                                   5

ISSUE 1.   Did the Trial Court have Jurisdiction?

ISSUE 2.   Was the Judge Biased?

ISSUE 3.   Did the Appellate Court Follow the Process?

ISSUE 4. Does our judicial system permit a person to be convicted of a
criminal offense when the trial was fundamentally unfair, including for
untruthful testimony?

Argument……………………………………………………………………                                        5

Prayer……………………………………………………………………….                                        22

Appendix……………………………………………………………………                                        24




                                     3
                         INDEX OF AUTHORITIES

Cases                                                                  Page
Abdygapparova v. State, 243 S.W.3d 191, 209 (Tex.App.-San Antonio, 2007)..10

Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003)…………………7

City of Houston v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502,
      96 L.Ed.2d 398 (1987)…………………………………………………….10

Davis v. State, 61 S.W.3d 94, 99 (Tex.App.-Amarillo, 2001)…………………..21

Davis v. State, 947 S.W.2d 240, 242-244 (Tex.Crim.App.1997)………………..15

Drago v. State, 553 S.W.2d 375, 377–78 (Tex.Crim.App.1977)…………………15

Earhart v. State, 823 S.W.2d 607, 616 (Tex. Crim. App. 1991) cert. granted,
   judgment vacated, 509 U.S. 917, 113 S. Ct. 3026, 125 L. Ed. 2d 715 (1993)..21

Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App.1989)……………………..15

Hinojosa v. Dretke, No. CIV. SA-01-CA-136-RF,
      2004 WL 2434353, at 6 (W.D. Tex. Sept. 30, 2004) ……………………20

Mahaffey v. State, 316 S.W.3d 633 (Tex.Crim.App.2010). ………………………7

Powell v. State, 5 S.W.3d 369, 375 (Tex.App.-Texarkana 1999, pet. ref'd) ……..13

State v. Duran, 396 S.W.3d 563, 569 (Tex.Crim.App.2013)……………………. 15

State v. Elias, 339 S.W.3d 667, 674 (Tex.Crim.App.2011)………………………15

State v. Johnson, 198 S.W.3d 795, 797 (Tex. App.-San Antonio, 2006)……….6 21

Stearns v. State, No. 13-05-112-CR,
      2007 WL 2142651, at 1 (Tex. App. July 26, 2007) not pub’d……………..20

Thomas v. State, 919 S.W.2d 427, 430 (Tex.Crim.App.1996)……………… 6, 21

Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006)………………… 21

                                       4
STATUTES AND RULES
U.S. Const. Amend I………………………………………………………………10

Texas Constitution Article I, §5……………………………………………… 7, 10

§ 25.0003(a), (b), Tex. Gov. Code. ………………………………………………..9

§ 25.0932, Tex.Gov. Code…………………………………………………………9

§ 545.351, Tex. Transp. Code……………………………………………………..9

§724.019, Texas Transportation Code…………………………………………….18

§724.062, Texas Transportation Code. …………………………………………..18

Rule 38.8(b), Tex.R. App.P……………………………………………………….10

Rule 603, Texas Rules of Evidence…………………………………………… 7, 10

             STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument.




                            5
                         STATEMENT OF THE CASE
      This is an appeal from a conviction for Driving While Intoxicated (First), on

January 23, 2014.     After a review for fundamental error, the judgment was

affirmed by the Fifth Court of Appeals at Dallas.

               STATEMENT OF PROCEDURAL HISTORY
      The Fifth Court of Appeals opinion was issued on January 8, 2015.

Appellant filed a Motion for Rehearing on January 23, 2015. The Motion for

Rehearing was overruled on February 9, 2015. A Motion to Extend Time to file

this Petition was granted on March 27, 2015.

         GROUNDS FOR REVIEW / STATEMENT OF QUESTIONS
(Petitioner did not have access to the record at the time the Petition was prepared)

ISSUE 1.     Did the Trial Court have Jurisdiction?

ISSUE 2.     Was the Judge Biased?

ISSUE 3.     Did the Appellate Court Follow the Process?

ISSUE 4. Does our judicial system permit a person to be convicted of a
criminal offense when the trial was fundamentally unfair, including for
untruthful testimony?


                                   ARGUMENT

STANDARD

      “Any doubt as to whether an offense has been committed should be

resolved in favor of the accused.” Thomas v. State, 919 S.W.2d 427, 430

(Tex.Crim.App.1996); State v. Johnson, 198 S.W.3d 795, 797 (Tex. App.-San


                                          6
Antonio, 2006). The Court’s duty to administer justice outweighs its duty to be

consistent. Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003).

Questions of law are reviewed by this Court de novo. Mahaffey v. State, 316

S.W.3d 633 (Tex.Crim.App.2010).

STATUTES AND RULES
Texas Constitution Article 1, §5
Witnesses not disqualified by religious beliefs; oaths and affirmations
No person shall be disqualified to give evidence in any of the Courts of this State
on account of his religious opinions, or for the want of any religious belief, but all
oaths or affirmations shall be administered in the mode most binding upon the
conscience, and shall be taken subject to the pains and penalties of perjury.

Rule 603, Texas Rules of Evidence
Before testifying, every witness shall be required to declare that the witness will
testify truthfully, by oath or affirmation administered in a form calculated to
awaken the witness' conscience and impress the witness' mind with the duty to do
so.

RECORD REFERENCES
    All references to the Reporter’s Record (RR) are to Volume (Vol.) 7, unless

otherwise stated. References to the RR follow this format: page number “:” lines.

Eg. 38:5-12 is RR Vol.7, page 38 at lines 5-12.

      Citations to the Clerk’s Record are to the page number identified in the

Index to Vol.1: CR1:(page numbers). Supplements will be identified by original

documents.

      The ALR hearing (Administrative License Revocation) was placed in the

record along with the Motion to Suppress. It will be referred to as “ALR”.



                                          7
ISSUE 1.       Did the Trial Court have Jurisdiction?

ISSUE 2.       Was the Judge Biased?

ISSUE 3.       Did the Appellate Court Follow the Process?

ISSUE 4. Does our judicial system permit a person to be convicted of a
criminal offense when the trial was fundamentally unfair, including for
untruthful testimony?

SUMMARY

         The Judge was biased and recused herself after trial and ruling Cooper’s

Motion to Suppress, so the trial was fundamentally unfair.

         The Arresting Officer (AO) had his radar unit in stationary mode while he

was moving toward Cooper, thus adding the speed of his vehicle to the speed of

Mr. Cooper’s vehicle. So, the reason for the traffic stop was not valid.

         The arrest was not for an offense: Without any indication that Mr. Cooper

was not safe to drive, he was arrested for failure or refusal to participate in

roadside field sobriety tests to convince the officer that Mr. Cooper was safe to

drive.

         The breath test on which Mr. Cooper was convicted was administered after

the intoxilyzer machine gave an error indicating the presence of “mouth alcohol”.

The DPS standard requires that the operator wait 15 minutes before administering

the next test to let the mouth alcohol dissipate. Instead, the BTO waited only 2

minutes, fooling the machine into a result that Mr. Cooper had a Blood Alcohol


                                         8
Content (BAC) that he was intoxicated, instead of a mouth alcohol content.

      Convictions have to based upon the truth of the testimony and evidence;

otherwise, the judicial system is fundamentally unfair. The ability to convict upon

lies makes the system no better than the witch trials.

JURISDICTION

      The plain language of the statute conferring jurisdiction on the statutory

county court appears to deny jurisdiction over matters concerning public highways,

such as U.S. 75. § 25.0003(a), (b), Tex. Gov. Code. The County Court at Law

No.2 is a statutory county court. § 25.0932, Tex.Gov. Code. The offense with

which Mr. Cooper was charged is alleged to have been committed on that public

highway. RR Vol.9, State’s Exhibit 6 at p.1 (“Location of Incident SB HWY 75”).

Mr. Cooper contends that the County Court at Law No.2 of Grayson County,

Texas had no jurisdiction to hear or preside over this case where the traffic stop

was allegedly for speeding (§ 545.351, Tex. Transp. Code) and the charge was

Driving While Intoxicated. Sec. 49.04, Tex.Penal Code. Both concern a public

highway. § 25.0003(a), (b), Tex. Gov. Code.

THE JUDGE

      After denying Mr. Cooper’s Motion to Suppress and presiding over his jury

trial, the Trial Court Judge recused herself. CR1 589.

      The Court’s Findings of Fact (CR1 543-545) demonstrate that the Court


                                          9
denied Mr. Cooper’s Motion to Suppress based on Mr. Cooper’s protected speech.

U.S. Const. Amend I; City of Houston v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502,

96 L.Ed.2d 398 (1987). The Trial Judge’s personal attacks contained in her

findings and conclusions (CR1:543-545) demonstrate that the Judge should have

recused herself before trial and before ruling on Mr. Cooper’s Motion to Suppress.

Instead, the Judge recused herself post-trial. CR1:589. Because the Trial Judge

should have recused herself, and did not, the trial was fundamentally unfair. Mr.

Cooper is entitled to an impartial judge by the U.S. Constituion, and a violation of

that right is a structural error that is not subject to a harm analysis. Abdygapparova

v. State, 243 S.W.3d 191, 209 (Tex.App.-San Antonio, 2007) (citations omitted).

DID THE COURT OF APPEALS CONSIDER THIS CASE WITHOUT
FOLLOWING RULE 38.8(b), Tex.R. App.P.?
    The Court of Appeals’ Opinion (Tab 1) makes it clear that it did not refer

this case to the trial court to determine whether appeallant desired to prosecute this

appeal before allegedly determining it only on fundamental error. Rule 38.8(b),

Tex.R. App.P.

FAILURE TO TELL THE TRUTH IS A STRUCTURAL ERROR, and so is
ARRESTING PERSONS FOR THINGS THAT ARE NOT CRIMES
    If people can be convicted of crimes on the fantastic imaginations of others,

the system means nothing, so the truth must be structural.              We have a

constitutional and statutory edict to ensure that the truth is told. Tex.Const.Art.1,

Sec.5; Rule 603, Tex.R.Evid.


                                         10
        This case involves the Arresting Officer holding fast to his imagination that

his radar was in moving mode while it was actually in stationary mode, so that the

speed of his vehicle was added to the speed of Cooper’s vehicle. Even confronted

with the manual of how the radar works, the officer did not vary.

        The officer stopped Mr. Cooper for the speed of his own vehicle, then

arrested Mr. Cooper not for suspicion of any offense, but for refusing to perform

road side field sobriety tests. That is not even an offense.

        It also involves the State’s Expert Witness testifying that the breath test had

to be conducted after a 15 minute waiting period due to the machine determining

that mouth alcohol was present between two samples taken from Mr. Cooper. Yet,

the test results showed that Mr. Cooper was convicted for a result obtained without

that wait time, and the condemning sample was taken after only two (2) minutes.

Yet, the State’s expert testified that the test was conducted properly. So, Mr.

Cooper was convicted of mouth alcohol, not blood alcohol content.

        This is a case of actual innocence.

THE TRAFFIC STOP

        Cooper was stopped for allegedly driving in excess of the speed limit as he

drove south on the freeway toward an officer who was driving north on the service

road.




                                           11
      One tuning fork calibrates the police radar in stationary mode. RR 204:2-16;

RR 204:20-25; RR Vol.9, State’s Exhibit 7 at page 21. The Training Officer (TO)

confirmed that by reviewing the manufacturer’s user manual. RR 204:20-25; RR

Vol.9, State’s Exhibit 7 at page 21. To test the radar for use in moving mode

requires the officer to use two (2) tuning forks at the same time. Id. The TO said

the radar unit had to be tested every shift. RR 198: 21-25.

      The TO also testified that operating the radar unit in stationary mode while

the patrol vehicle is moving toward the target vehicle, in this case Mr. Cooper,

would add the speed of the patrol car to the speed of Mr. Cooper’s vehicle. RR

208:20 to 209:16.

      It was Officer Olivares’ (AO) routine to only check the radar unit using one

(1) tuning fork. RR 29:9-16, 69:13 to 82:6. He did not testify that he checked the

radar on August 12, 2011. RR 84:3 to 85:9. AO never manually switched his radar

unit to mobile mode. RR 72:4-8; RR 31:3-10. AO believed that his radar unit

automatically toggled from stationary mode to moving mode without any

intervention by him. RR 72:4-8 (the radar automatically switches from stationary

to moving mode); RR 31:3-10 (“[I]t’s all calculated for you. Once it’s on, it’s on,

you don’t have to push any other buttons...”). AO was not able to testify that the

radar unit was attached to the Vehicle Speed Sensor (VSS) to enable automatic

toggling between stationary and moving modes. RR 72:9-19; RR Vol.9, State’s


                                         12
Exhibit 7 at pages 8-9, and 23.

      The Court of Appeals determines from the totality of the circumstance

whether the traffic stop was reasonable for a police officer who used due caution.

Powell v. State, 5 S.W.3d 369, 375 (Tex.App.-Texarkana 1999, pet. ref'd) (internal

citations omitted) emphasis added.

THE ARREST

      Mr. Cooper was not arrested for any offense, he was arrested for not

performing field sobriety tests (SFST’s).

      What informed Officer Olivares’ decisions varies depending on whether one

believes his arrest report on August 13, 2011; testimony on February 21, 2012, at

the Administrative License Revocation (ALR) hearing; or testimony at trial on

January 22, 2014, none of which are the same.

      After the initial contact, Officer Olivares conducted an investigative

detention. Mr. Cooper declined to participate in Standard Field Sobriety Tests

(SFST’s) (RR 37:17-19) and blow in a Portable Breath Test (PBT) device. RR

37:20-25. It was Van Alstyne Police Department’s Standard Operating Procedure

to arrest persons who refuse to participate in the SFST’s. ALR 27:24 to 28:1. Mr.

Cooper was handcuffed and seatbelted inside the locked police car. RR 38:5-12.

Officer Olivares called his supervisor at home. ALR 28:1-2. He confirmed the

practice of arresting persons for not performing SFST’s. ALR 28:7-10.


                                        13
      When Officer Olivares did not obtain any clues of DWI (RR 44:16-24), he

arrested Mr. Cooper for not participating in SFST’s, because Officer Olivares was

unable to determine whether Mr. Cooper was safe to drive. RR 39:13-18; RR

Vol.9, State’s Exhibit 6 (Arrest Report p.3, last ¶). The AO did not determine that

Mr. Cooper was “not safe to drive.” RR 39:13-18; RR Vol.9, State’s Exhibit 6

(Arrest Report p.3, last ¶).

      Mr. Olivares testified, “It’s standard operating procedure…if you

refuse standard field sobriety tests, that you are placed under arrest.” ALR

27:24 to 28:1. There was nothing else previous to the final arrest to cause Officer

Olivares to believe Mr. Cooper was intoxicated. ALR 32:21-24.

             The arrest report stated that Mr. Cooper was speeding; had a smell of

alcohol coming from his vehicle and breath; and slightly red eyes. RR Vol.9,

Exhibit 6 (Arrest Report p.3). “Alone”, these are not signs of intoxication. RR

60:12-20. Officer Olivares observed Mr. Cooper obtain his driving license and

insurance, exit his vehicle and walk to the rear, all without exhibiting signs of

intoxication. RR Vol.9, State’s Exhibit 6 (Arrest Report p.3)

      The State adduced no evidence that slightly red eyes were in any way related

to being intoxicated. Mr. Cooper was arrested after he refused to perform SFST’s

and blow in a Portable Breath Tester (PBT). RR Vol.9, State’s Exhibit 6 (Arrest

Report p., last 3¶¶). Officer Olivares further described this arrest as for refusing


                                        14
the SFST’s and PBT “since he was not giving [Officer Olivares] a chance to

determine if [Mr. Cooper] was able to operate a motor vehicle safely.” RR Vol.9,

State’s Exhibit 6 (Arrest Report p.3, last ¶).

        First, a lawful arrest or detention requires reasonable suspicion. Davis v.

State, 947 S.W.2d 240, 242-244 (Tex.Crim.App.1997); citing Garza v. State, 771

S.W.2d 549, 558 (Tex.Crim.App.1989). The standard is an objective one. State v.

Elias, 339 S.W.3d 667, 674 (Tex.Crim.App.2011); See also Drago v. State, 553

S.W.2d 375, 377–78 (Tex.Crim.App.1977). “Would a reasonable officer in the

same situation believe a crime had been or was being committed?” State v. Duran,

396 S.W.3d 563, 569 (Tex.Crim.App.2013) emphasis added.

THE BREATH TEST

BTO
Certification
      The person with a key to the Intoxilyzer 5000 was Deputy Windon. RR

126:8-16. Deputy Windon became a certified Breath Test Operator in February

2009. RR 121:8-23. His certification expired at two (2) years (February 2011). RR

122:11-17.    He was next certified in October 2011. RR 122:18-22.             So, his

certification was expired when he performed the test on Mr. Cooper in August,

2011.

        Q.    Okay. And so, do you know when you would have been last
              certified in order to be able to operate the intoxilyzer?
        A.    I was recertified, I believe my last certificate expired October of
              2011.

                                           15
      Q.    Okay, And so, when --in August of 2011, were you a certified
            breath test operator?
      A.    Yes, sir.

RR 122:18-22.

      Deputy Windon testified that his training and certification as a BTO was not

issued by the State, but by a private company that the State did not show was

authorized to train and certify BTO;s: Fondren Forensics. RR 121:16-18.

TS / Certification
      The Technical Supervisor (TS) testified that it was her responsibility to

provide training and certification to BTO’s in Grayson County, including Deputy

Windon. RR 146:10-24.

TS / Breath Test Results
      Deputy Windon testified:

      A.   “[T]hen [I] begin my 15-minute waiting period.
      Q.   What is that for?
      A.   To make sure there is no residual alcohol inside their mouth.
      RR 123:22 to 124:1.

      Deputy Windon testified that the “valid test results” were obtained after

waiting only two (2) minutes (RR 130:1-4; 134:9-22).

      There were four samples of Mr. Cooper’s breath within a ten (10) minute

period. RR Vol.9, State’s Exhibits 5 and 3. The fist two were taken by 1:55 a.m.

RR Vol.9, State’s Exhibit 5. The first registered .164 and the second registered

.138. RR 166:8-21. The third sample was taken at 2:02 a.m. RR Vol.9, State’s

Exhibit 3. The third sample registered .15. Id. The fourth sample was taken at

                                       16
2:05 a.m. Id. The fourth sample was measured at .153. Id. Although taken in close

proximity (RR 134:14-22), the first and second samples were rejected by the

machine for being .026 apart. RR 166:20-25.

      After waiting 15 minutes inside the intoxilyzer room (RR 123:17-23), Mr.

Cooper provided a sample of his breath to determine his blood alcohol content

(BAC). RR Vol.9, State’s Exhibit 4. The first of three (3) tests ended at 1:48a.m.

(one (1) hour and 52 minutes after the initial stop). RR. Vol.9, States Exhibit 4.

The first breath sample was deficient either as to the length of time Mr. Cooper

blew or the pressure. RR 154:5-7; 177:24 to 178:3.

      Two (2) minutes later (RR 130:1-4), Mr. Cooper began a second test, in

which he provided two (2) consecutive samples of his breath. RR Vol.9, State’s

Exhibit 5. The Intoxilyzer 5000 rejected the samples because they were more than

.02 apart. RR 163:2-16. According to the TS, who instructs BTO’s to obtain

certification to operate the Intoxilyzer machines (RR 146:10-15), an “02”

disagreement is caused by the measurement of mouth alcohol instead of BAC. RR

163:2-16. The DPS requires that a test not be administered within 15 minutes of

an incident of mouth alcohol. RR 183:6 to 184:2. Mouth alcohol can result from

belching (RR 179:20 to 180:3) or regurgitating the contents of the stomach (RR

159:6-23) and fool the machine when the tests are in close proximity. RR 151:3-

17. The second test concluded at 1:55 a.m. RR Vol.9, State’s Exhibit 5. The


                                       17
results were indicative of an incident of mouth alcohol (RR 163:2-16) requiring a

15-minute waiting period. RR 183:6 to 184:2.

       The third test began two (2) minutes later (RR 130:1-4), with the two (2)

samples for that test both obtained in the next ten (10) minutes, by 2:05 a.m (RR

Vol.9, State’s Exhibit 3), two (2) hours and nine (9) minutes after the initial traffic

stop. RR Vol.9, State’s Exhibit 6 (Arrest Report p.1).

       The incident began to be recorded when Officer Olivares radioed his

dispatcher before approaching Mr. Cooper’s parked vehicle. RR 34:22-25; ALR

37:12-19. The Texas Legislature has stated that it is not reasonable to take a breath

or blood sample more than two (2) hours after the traffic stop. RR 184:9-15;

§724.019, §724.062, Texas Transportation Code.

TS’ Testimony
     The Trial Court described Julie Evans as an expert witness. RR 190:3-5, :11-
12.
Breath Tests
     The Texas Department of Public Safety has developed Rules for the

administration of intoxilyzer examinations by BTO’s. RR 183:6-9.

       After an incident of mouth alcohol (.02 disagreement), 15-minutes required

before the next breath test. RR 159:6 to 160:1. Nonetheless, Julie Evans testified

that the breath test results (RR Vol.9, State’s Exhibit 3) were proper. RR 160:21-

24; 163:1-7. The State presented this test result first. So, the State knew of the

falsity.


                                          18
      The reason samples are .02 apart is because of the measurement of “mouth

alcohol”, instead of a deep lung sample reflective of Blood Alcohol Content

(BAC). RR 163:2-16. Tests that are in close proximity can fool the machine. RR

151:3-17. The Technical Supervisor testified that it is a rule implemented by the

Texas Department of Public Safety that certified Breath Test Operators wait 15

minutes after evidence of mouth alcohol before administering an intoxilyzer

examination. RR 183:6-9; RR 159:10-23. Waiting 15 minutes after an incident of

mouth alcohol prevents the machine from being fooled. RR 151:6-17. Mouth

alcohol can result from belching (RR 179:20 to 180:3) or regurgitation of the

contents of one’s stomach. RR 159:6-23. According to the Technical Supervisor,

the 15-minute protocol is to prevent or safeguard against inaccurate test results

from the presence of mouth alcohol. RR 183:6 to 184:2. After an 02 disagreement,

“start the clock over…” RR 159:20-23.

      Although the test was incorrectly administered (waiting only 2 minutes

instead of 15 minutes to clear mouth alcohol), Ms. Evans testified for the State that

Mr. Cooper would have a BAC about the same as the intoxilyzer test (allegedly

.015) at the time he was driving. RR 169:13-21.

      An appellate court may, however, “tak[e] notice of fundamental errors
      affecting substantial rights although they were not brought to the
      attention of the [trial] court.” Tex.R. Evid. 103(d); see Jasper v. State,
      61 S.W.3d 413, 420 (Tex.Crim.App.2001); Blue, 41 S.W.3d at 132.
      No objection is required when the error is so egregious that it rises to
      constitutional dimensions. See Jasper, 61 S.W.3d at 421; Blue, 41

                                         19
      S.W.3d at 130. Fundamental errors exist when rights are violated that
      are considered so fundamental to the proper functioning of our
      adjudicatory process that they cannot be forfeited, i.e., they are not
      extinguished by inaction alone. Blue, 41 S.W.3d at 131. For an
      accused to lose a fundamental right, he or she must expressly
      relinquish that right. Id.; Nunez v. State, 117 S.W.3d 309, 319
      (Tex.App.-Corpus Christi 2003, no pet.).

Stearns v. State, No. 13-05-112-CR, 2007 WL 2142651, at 1 (Tex. App. July 26,

2007) not pub’d.

      A state denies a criminal defendant due process when it knowingly
      uses perjured testimony at trial or allows untrue testimony to go
      uncorrected. To succeed in showing a due process violation from the
      use of allegedly perjured testimony, a defendant has the burden of
      establishing that (1) the witness in question actually gave false
      testimony, (2) the falsity was material in that there was a reasonable
      likelihood that it affected the judgment of the jury, and (3) the
      prosecution used the testimony in question knowing that it was false.
      For use of perjured testimony to constitute constitutional error, the
      prosecution must have knowingly used the testimony to obtain a
      conviction. In order for allegations of perjured testimony to constitute
      a due process violation, a defendant “must show that the prosecution
      knowingly presented materially false evidence to the jury.” For the
      perjury to be material, there must have been a reasonable likelihood
      that the false testimony could have affected the judgment of the jury.

Hinojosa v. Dretke, No. CIV. SA-01-CA-136-RF, 2004 WL 2434353, at 6 (W.D.

Tex. Sept. 30, 2004) not pub’d. (citations omitted) emphasis in orig.

      When the fact finders (judge or jury) decided against the great weight and

preponderance of the evidence, the Court of Appeals should exercise its appellate

fact jurisdiction and order a new trial.

      We have always held that an appellate court must first be able to say,
      with some objective basis in the record, that the great weight and

                                           20
      preponderance of the (albeit legally sufficient) evidence contradicts
      the jury's verdict before it is justified in exercising its appellate fact
      jurisdiction to order a new trial.

Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) emphasis in original

(overruling Zuniga v. State, 144 S.W.3d 477, 483 (Tex. Crim. App. 2004).

      [I]f there is a reasonable hypothesis other than the guilt of the
      accused, then it cannot be said that guilt has been established beyond
      a reasonable doubt.
Earhart v. State, 823 S.W.2d 607, 616 (Tex. Crim. App. 1991) (emphasis in

original) cert. granted, judgment vacated, 509 U.S. 917, 113 S. Ct. 3026, 125 L.

Ed. 2d 715 (1993).

      “Any doubt as to whether an offense has been committed should be resolved

in favor of the accused.” Thomas v. State, 919 S.W.2d 427, 430

(Tex.Crim.App.1996); State v. Johnson, 198 S.W.3d 795, 797 (Tex. App.-San

Antonio, 2006).

HARM

      Appellant has shown harm by the errors complained of. Consequently, this

Court cannot but hold that the trial court's error was harmful under Texas Rule of

Appellate Procedure 44.2(a).”      Davis v. State, 61 S.W.3d 94, 99 (Tex.App.-

Amarillo, 2001). Cooper was stopped and arrested having committed no crimes.

Then, he was convicted having committed no crime. The State’s own evidence

proves his innocence.



                                         21
                         CONCLUSION AND PRAYER

      WHEREFORE, Appellant requests that this Court of Criminal Appeals

grant his Petition and afterwards reverse and render judgment or remand to the trial

court for further proceedings consistent with this Court’s opinion.

                                      Respectfully submitted,

                                      /s/ Jay Sandon Cooper
                                      Jay Sandon Cooper
                                      1520 Janwood Dr.
                                      Plano, Texas 75075
                                      (972)358-8999
                                      NO FAX
                                      JaySandonCooper@gmail.com
                                      APPELLANT

                      CERTIFICATE OF COMPLIANCE

      This Brief complies with the requirements of Rule 9.4(i)(2)(D) because it is

produced on a computer in a conventional typeface no smaller than 14-point except

for footnotes, which are no smaller than 12-point; and contains 3,672 words.


                                      /s/ Jay Sandon Cooper
                                      JAY SANDON COOPER




                                         22
                       CERTIFICATE OF SERVICE
      A true and correct copy of the foregoing and attached documents were

electronically served to the following recipients, if that option was available

through the electronic filing manager, and if not, it was mailed to Appellee’s

counsel on May 22, 2015:

                               Joe Brown,
                               Criminal District Attorney
                               Grayson County, Texas
                               Karla R. Hackett
                               Texas Bar Card No. 01923400
                               200 S. Crockett, Ste. 116A
                               Sherman, Texas 75090
                               Phone: (903) 813-4361
                               Fax: (903) 892-9933


and in accordance with Rules 68.11 and 79.7, Tex.R.App.P., in the same manner it

was provided to:

                                Lisa C. McMinn
                                State Prosecuting Attorney
                                P. O. Box 13046
                                Austin, Texas 78711-3046
                                Telephone: (512) 463-1660
                                Fax: (512) 463-5724
                                information@spa.texas.gov


and 10 paper copies will be delivered to the Clerk of this Court of Criminal

Appeals within three (3) business days as required by the Rules.

                                      /s/ Jay Sandon Cooper
                                      Jay Sandon Cooper


                                        23
                             APPENDIX

TAB 1
1.   Opinion of the Fifth District Court of Appeals……………………..Pass Im
2.   Opinion on Rehearing………………………………………………Pass Im




                                 24
                     PD-0330-15

        COURT OF CRIMINAL APPEALS OF TEXAS




                JAY SANDON COOPER

                         V.

                  STATE OF TEXAS




                       TAB 1



                 ON APPEAL FROM
THE COUNTY COURT AT LAW NO.2, GRAYSON COUNTY, TEXAS
                CASE NO. 2011-2-1391.

    THE FIFTH COURT OF APPEALS AT DALLAS, TEXAS
               CASE NO. 05-14-00089-CR.


                               JAY SANDON COOPER, PRO SE
                                       1520 JANWOOD DRIVE
                                         PLANO, TEXAS 75075
                                                (972) 358-8999
                                                      NO FAX
                                    jaysandoncooper@gmail.com
                                                 APPELLANT
Affirmed and Opinion Filed January 8, 2015




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-14-00089-CR

                             JAY SANDON COOPER, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the County Court at Law No. 2
                                  Grayson County, Texas
                            Trial Court Cause No. 2011-2-1391

                             MEMORANDUM OPINION
                 Before Chief Justice Wright, Justice Myers, and Justice Brown
                               Opinion by Chief Justice Wright
       A jury found Jay Sandon Cooper guilty of driving while intoxicated and assessed

punishment at thirty’ days confinement in jail and a $2,000 fine. The trial court sentenced

appellant in accordance with the jury’s verdict. Appellant filed a notice of appeal, and he

thereafter chose to represent himself on appeal. The reporter’s record was filed on May 7, 2014.

The clerk’s record was filed on May 13, 2014. On July 16, 2014, we ordered appellant to file his

brief within thirty days. A supplemental clerk’s record was filed on September 11, 2014, and on

September 12, 2014, we ordered appellant to file his brief by October 3, 2014. On September

16, 2014, appellant filed a letter designating additional items for the clerk’s record. On October

14, 2014, we received a supplemental clerk’s record with a letter from the Grayson County Clerk

stating that the items requested were included in the September 11, 2014 supplemental clerk’s
record, except for the documents for in camera inspection and the Bond Information were not

filed as of record. On November 13, 2014, this Court ordered appellant to file his brief by

December 1, 2014. We warned that failure to do so would result in submission, without further

notice, of the appeal without briefs. See Lott v. State, 874 S.W.2d 687, 87–88 (Tex. Crim. App.

1994); see also TEX. R. APP. P. 38.8(b)(4). Appellant neither filed a brief nor responded to the

Court’s order. Accordingly, the appeal is submitted without briefs.

       Absent briefs, no issues are before us. Finding no fundamental error, we affirm the trial

court’s judgment.



                                                    /Carolyn Wright/
                                                    CAROLYN WRIGHT
                                                    CHIEF JUSTICE

Do Not Publish
TEX. R. APP. P. 47
140089F.U05




                                              –2–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

JAY SANDON COOPER, Appellant                       On Appeal from the County Court at Law
                                                   No. 2, Grayson County, Texas
No. 05-14-00089-CR        V.                       Trial Court Cause No. 2011-2-1391.
                                                   Opinion delivered by Chief Justice Wright,
THE STATE OF TEXAS, Appellee                       Justices Myers and Brown participating.

       Based on the Court’s opinion of this date, we AFFIRM the trial court’s judgment.


Judgment entered January 8, 2015.




                                             –3–
Order entered February 9, 2015




                                             In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                      No. 05-14-00089-CR

                             JAY SANDON COOPER, Appellant

                                               V.

                              THE STATE OF TEXAS, Appellee

                       On Appeal from the County Court at Law No. 2
                                  Grayson County, Texas
                            Trial Court Cause No. 2011-2-1391

                                           ORDER
                   Before Chief Justice Wright and Justices Myers and Brown

       The Court GRANTS appellant’s January 23, 2015 motion to exceed the word limit on his

motion for rehearing. The motion for rehearing is filed as of the date of January 23, 2015.

       We DENY appellant’s motion for rehearing.


                                                      /s/   CAROLYN WRIGHT
                                                            CHIEF JUSTICE
