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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                            NO. 33,375

 5 DAVID GURULE,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
 8 Mary L. Marlowe, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender
13 J.K. Theodosia Johnson, Assistant Appellate Public Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 ZAMORA, Judge.
 1   {1}   Defendant appeals from the district court’s judgment and sentence, convicting

 2 him for two counts of vehicular homicide while recklessly driving, one count of great

 3 bodily injury by vehicle, and one count of driving while license is suspended or

 4 revoked. Unpersuaded that Defendant demonstrated error, we issued a notice of

 5 proposed summary disposition, proposing to affirm. Defendant has responded to our

 6 notice with a memorandum in opposition and a motion to amend the docketing

 7 statement to add a challenge to the impartiality of the jury. Having considered

 8 Defendant’s arguments, we remain unpersuaded that Defendant established error.

 9 Also, we are not persuaded to grant the motion to amend the docketing statement.

10 Accordingly, we hereby deny the motion to amend and affirm the district court’s

11 judgment and sentence.

12   {2}   Defendant raised five issues in his docketing statement, all of which he pursues

13 in his response to our notice. First, he argues that the district court erred by denying

14 his motion to suppress, challenging the court’s ruling that the Implied Consent Act

15 obviates the need for a valid search warrant, where the affidavit in support of the

16 warrant was insufficient. [DS 5; MIO 4-5] Second, Defendant argues that the district

17 court violated his due process rights by scheduling the trial sporadically over a three-

18 week period and disallowing the jury from reviewing earlier testimony. [DS 5; MIO


                                               2
 1 6] Third, Defendant argues that the district court erred by ruling that his three crimes

 2 were “serious violent offenses.” [DS 5; MIO 6-8] Fourth, Defendant challenges the

 3 sufficiency of the evidence. [DS 5-6; MIO 9] Fifth and lastly, Defendant argues that

 4 trial counsel was ineffective by failing to object to the following: the piecemeal

 5 scheduling of the trial, the jury’s inability to recall prior testimony, and the admission

 6 of inflammatory photographs and a video recording showing the lifeless body of

 7 Zacariah Martinez, the child killed in the car accident. [DS 6; MIO 10-12]

 8   {3}   Our notice detailed the facts and the law relative to each issue that we believed

 9 supported affirmance. We do not repeat our proposed analysis here. Having examined

10 Defendant’s response to our notice, we do not find any new factual or legal argument

11 that persuades us that our analysis was incorrect. Specifically, we observe the

12 following about Defendant’s issues.

13   {4}   Defendant does not explain whether the district court denied his motion to

14 suppress based on lawful consent or Defendant’s incapacity to consent to a blood

15 draw. Based on the analysis in our notice, we hold that the facts support Defendant’s

16 incapacity to consent and his resulting presumed consent under the Implied Consent

17 Act, NMSA 1978, § 66-8-108 (1978). We further hold, based on the analysis in the

18 notice that the officer had “reasonable grounds to believe” that Defendant was driving


                                               3
 1 while intoxicated, as contemplated by NMSA 1978, § 66-8-107(B) (1993), based on

 2 the circumstances of the fatal, single-car accident, the officer’s observations that

 3 Defendant had “bloodshot[,] watery eyes,” “soiled or rumpled clothing,” “cover up

 4 odors,” and “unusual odors,” and the fact that the officer knew that Defendant had at

 5 least three prior DWI convictions. [RP 79-80] We hold that the district court did not

 6 err by denying Defendant’s motion to suppress.

 7   {5}   As for the piecemeal nature of the trial, Defendant’s response does not indicate

 8 that the issue was preserved and does not persuade us that there was any fundamental

 9 due process error.

10   {6}   As for the district court’s ruling that Defendant committed two “serious violent

11 offenses,” we are not persuaded by Defendant’s response that the district court erred

12 by finding a sufficient showing of recklessness. As a result, we hold that the district

13 court did not err in its application of the Earned Meritorious Deductions Act to the

14 facts underlying Defendant’s convictions.

15   {7}   As for the sufficiency of the evidence to support Defendant’s convictions for

16 homicide by vehicle and great bodily harm by vehicle under the theory of reckless

17 driving, we continue to be persuaded that sufficient evidence was presented. We,

18 therefore, affirm his convictions.


                                               4
 1   {8}   As for Defendant’s claims of ineffective assistance of counsel, we are not

 2 persuaded that the facts necessary to a full determination are part of the record. Thus,

 3 his ineffective assistance claims are more properly brought through a habeas corpus

 4 petition. State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61. Thus,

 5 Defendant’s claims do not provide a basis for reversal.

 6 Motion to Amend

 7   {9}   In cases assigned to the summary calendar, this Court will grant a motion to

 8 amend the docketing statement to include additional issues if the motion (1) is timely,

 9 (2) states all facts material to a consideration of the new issues sought to be raised, (3)

10 explains how the issues were properly preserved or why they may be raised for the

11 first time on appeal, (4) demonstrates just cause by explaining why the issues were not

12 originally raised in the docketing statement, and (5) complies in other respects with

13 the appellate rules. State v. Rael, 1983-NMCA-081, ¶¶ 7-8, 10-11, 14-17, 100 N.M.

14 193, 668 P.2d 309. This Court will deny motions to amend that raise issues that are

15 not viable, even if they allege fundamental or jurisdictional error. State v. Moore,

16 1989-NMCA-073, ¶¶ 36-51, 109 N.M. 119, 782 P.2d 91, superceded by rule on other

17 grounds as recognized in State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d

18 730.


                                                5
 1   {10}   Defendant moves to amend the docketing statement to add his contention that

 2 the jury was not impartial. [MIO 1-2, 12-13] Defendant pursues this matter under the

 3 demands of State v. Franklin, 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 982, and

 4 State v. Boyer, 1985-NMCA-029, ¶ 24, 103 N.M. 655, 712 P.2d 1. [MIO 13]

 5   {11}   Defendant admits that the contentions raised in the motion to amend were not

 6 preserved below, [MIO 12] and does not set forth any basis for a belief that he may

 7 raise this challenge to the jury’s impartiality for the first time on appeal. Because the

 8 record does not establish the basis for his claims, we cannot address this matter for the

 9 first time in a direct appeal. We again direct Defendant to habeas proceedings, if he

10 wishes to pursue the arguments in his motion to amend.

11   {12}   For the reasons stated in this opinion and in our notice, we affirm the district

12 court’s judgment and sentence.

13   {13}   IT IS SO ORDERED.


14                                                  _______________________________
15                                                  M. MONICA ZAMORA, Judge

16 WE CONCUR:


17 ___________________________________
18 RODERICK T. KENNEDY, Chief Judge


                                                6
1 __________________________________
2 J. MILES HANISEE, Judge




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