                                                                                         ACCEPTED
                                                                                    13-14-00059-CR
                                                                    THIRTEENTH COURT OF APPEALS
                                                                           CORPUS CHRISTI, TEXAS
                                                                              10/19/2015 8:18:16 PM
                                                                                   Dorian E. Ramirez
                                                                                              CLERK

                            No. 13–14–00059–CR

                        COURT OF APPEALS          FILED IN
                                          13th COURT OF APPEALS
              FOR THE THIRTEENTH JUDICIAL DISTRICT
                                       CORPUS  CHRISTI/EDINBURG, TEXAS
                CORPUS CHRISTI/ EDINBURG, TEXAS
                                          10/19/2015 8:18:16 PM
                                                      DORIAN E. RAMIREZ
                                                           Clerk


MONICA GALVAN,                        §
Appellant,                            §   Appeal from the
                                      §   347th Judicial District Court
versus                                §   of Nueces County, Texas
                                      §   Cause No. 11–CR–3519–H
THE STATE OF TEXAS,                   §
Appellee.                             §



                        POST SUBMISSION BRIEF


TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS,
THIRTEENTH JUDICIAL DISTRICT:

      Appellant, MONICA GALVAN, by and through undersigned counsel,

respectfully submits this, her post submission brief, and would show unto this

Honorable Court the following:

      During the oral arguments held before this Honorable Court, Justice

Benavidez posed the interesting question, as best remembered by undersigned

counsel, that if there is evidence that Mrs. Manka, formerly Ms. Galvan, had

alcoholic beverages, although not enough to become intoxicated, and there was

evidence that she had engaged in an argument in the vehicle moments before the

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accident, is that not reckless.    Undersigned counsel answered that he “would

certainly argue no.”

      As indicated during argument the operative word of the binding case law

from the court of criminal appeals, is “consciously.” The State was required to

prove that Mrs. Manka was aware of a substantial and unjustifiable risk and

consciously disregarded that risk. As the Court of Criminal Appeals stated,

      Recklessness requires the defendant to actually foresee the risk
      involved and to consciously decide to ignore it. Such a “devil may
      care” or “not giving a damn” attitude toward the risk distinguishes the
      culpable mental state of criminal recklessness from that of criminal
      negligence, which assesses blame for the failure to foresee the risk
      that an objectively reasonable person would have foreseen.
      Williams v. State, 235 S.W.3d 742, 751–52 (Tex. Crim. App. 2007)
      (emphasis added) (internal citations omitted).

      In the case at hand, the State failed to bring any evidence that Mrs. Manka

actually did foresee the risk and consciously decide to ignore it.

      Further, the acts performed by Mrs. Manka, themselves, did “not pose a

‘substantial and unjustifiable risk,’” therefore, “the evidence [was] not legally

sufficient to submit the case to a jury or to sustain a conviction.” Williams, 235

S.W.3d at 768–69. There is testimony that Mrs. Manka had been at a lounge that

night and had two to three drinks and possibly a mixer shot at the lounge that night.

3R54–55, 4R20. Mrs. Manka then ate at Whataburger. 4R21. She was acquitted

of intoxication assault. 6R51–52. There is no evidence that she was driving over

the speed limit or disregarding traffic laws. The events that transpired on the night
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of the accident do not amount to a substantial and unjustifiable risk and are not of

the magnitude of facts in the cases cited by Mrs. Manka, in her Briefs, in which

courts of appeals have upheld a conviction attained by the State using a culpable

mental state of recklessness.1 Mrs. Manka and the passengers in her vehicle were

involved in what can only be described as a tragic accident.

        An “examination of the events and circumstances from the viewpoint of

[Mrs. Manka] at the time the events occurred, without reviewing the matter in

hindsight” reveals that she was not consciously disregarding a substantial and

unjustifiable risk. As such, her conviction should be reversed.

                                                   Respectfully submitted:

                                                   DANTE ELI DOMINGUEZ
                                                   Bar No. 24086677
1
  See e.g. Elliot v. State, No. 13–13–00220–CR, 2015WL1869472 (Tex. App.—Corpus Christi, April 23,
2015) (driver admitted to being drunk, continued driving after hitting pedestrian, told friend she was too
drunk to stop at the scene and fled to avoid arrest, went to auto glass shop the next morning to replace
windshield, and used bleach to clean car); Rodriguez v. State, 834 S.W.2d 488 (Tex. App.—Corpus
Christi, 1992, no writ hist.) (driver admitted to driving around curve, which was marked with warning
signs, too quickly and colliding with other motorist head-on, with .14 BAC); Aliff v. State, 627 S.W.2d
166 (Tex. Crim. App. 1982) (driving over 100mph and colliding with car while passing a vehicle on the
shoulder of the roadway); Rubio v. State, 203 S.W.3d 448 (Tex. App.—2007 pet ref’d) (driving 47mph
through intersection where speed limit was 35mph and having .17 BAC); Arellano v. State, 54 S.W.3d
391 (Tex. App.—Waco 2001, pet. ref’d) (driving 25 to 30mph over the speed limit and ignoring signs
warning of the stop sign ahead, before slamming on breaks and colliding with another car); Newman v.
State, 49 S.W.3d 577, 580 (Tex. App.—Beaumont 2001, pet. ref’d) (speeding, passing another motorists
on a two lane highway, continuing to drive in the wrong lane, and striking another motorist at the crest of
a hill); Gill v. State, 981 S.W.2d 517 (Tex. App.—Beaumont 1998, pet. ref’d) (“speeding is not
necessarily reckless conduct. Speeding while intoxicated, however, is reckless conduct.”); LaSalle v.
State, 973 S.W.2d 467, 474 (Tex. App.—Beaumont 1998, pet. ref’d) (speeding and disregarding multiple
stop signs before crashing); Trapanier v. State, 940 S.W.2d 827 (Tex. App.—Austin, 1997, pet ref’d.)
(rapidly accelerating from stoplight, cutting through multiple lanes of traffic, passing delivery truck on
shoulder of road before colliding with bicyclist); Porter v. State, 969 S.W.2d 60 (Tex. App.—Austin
1998, pet ref’d) (driver admitted being “very much fatigued” when driving with cocktail of controlled
substances in his system and hiding a syringe and spoon in his sock); Banister v. State, 761 S.W.2d 849
(Tex. App.—Beaumont 1988, no writ) (driving illegally, against traffic on a densely foggy morning).
                                                    3
                                         Law Office of Dante Eli Dominguez
                                         310 S. St. Mary’s St.
                                         Suite 1215
                                         San Antonio, Texas 78205
                                         Phone: (210) 227-9399
                                         Facsimile: (210) 229-1445
                                         E-mail: ddominguez.law@gmail.com

                                         By:__________/s/_________________
                                                DANTE ELI DOMINGUEZ

                                         Attorney for Appellant,
                                         MONICA GALVAN

                      CERTIFICATE OF COMPLIANCE
     I hereby certify that this document complies with the typeface requirements of

Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no

smaller than 14-point for text and 12-point for footnotes.


                                         By:___________/s/________________
                                                DANTE ELI DOMINGUEZ

                          CERTIFICATE OF SERVICE

I hereby certify that a copy of the above foregoing Appellant’s Brief has been

served electronically, in compliance with Tex. R. App. P. 9.5(b)(1) to Mark

Skurka, District Attorney, 901 Leopard Street, Room 206, Corpus Christi, Texas,

on this the 19th day of October, 2015.

                                         By:__________/s/_________________
                                                DANTE ELI DOMINGUEZ



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