                                                                                                       ACCEPTED
                                                                                                  06-14-00105-CR
                                                                                        SIXTH COURT OF APPEALS
                                                                                             TEXARKANA, TEXAS
                                                                                              4/6/2015 1:46:42 PM
                                                                                                  DEBBIE AUTREY
                                                                                                           CLERK

                                    NO. 06-14-00105-CR

          ____________________________________________________________
                                                                               FILED IN
                                                                        6th COURT OF APPEALS
                               IN THE COURT OF APPEALS                    TEXARKANA, TEXAS
                                                                        4/6/2015 1:46:42 PM
                                      SIXTH DISTRICT                        DEBBIE AUTREY
                                                                                Clerk

                                 AT TEXARKANA, TEXAS

          ____________________________________________________________

                                TIMOTHY BATES, Appellant

                                             VS.

                          THE STATE OF TEXAS, Appellee
          ____________________________________________________________

                         APPEAL IN CAUSE NUMBER CR1301437

                         IN THE COUNTY COURT AT LAW NO. 2

                                OF HUNT COUNTY, TEXAS

          ____________________________________________________________

                                      STATE’S BRIEF

          ____________________________________________________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

       Comes now The State of Texas, and submits this brief pursuant to the provisions of the

Texas Rules of Appellate Procedure in support of her request that the conviction be affirmed in

Cause No. 06-14-00105.




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TABLE OF CONTENTS

TABLE OF CONTENTS.................................................................................................................2

INDEX OF AUTHORITIES............................................................................................................3

STATEMENT OF THE CASE........................................................................................................4

STATEMENT OF THE FACTS .....................................................................................................4

SUMMARY OF THE ARGUMENT ..............................................................................................5

ARGUMENT............................................................................................................................... 5-6

          State’s Response to Point of Error Number One........................................................ 5-6
          The evidence is legally and factually sufficient to sustain Appellant’s conviction
          of driving while intoxicated.

CONCLUSION AND PRAYER .................................................................................................... 7

CERTIFICATE OF SERVICE ....................................................................................................... 8




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                                             INDEX OF AUTHORITIES

STATE CASES:

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 ........................................................................5,6

Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120
S.Ct. 2008, 146 L.Ed.2d 958 (2000) ...............................................................................................5

Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.Crim.App.2007).........................................................5


STATUTORY AUTHORITY

TEXAS PENAL CODE ANN., §49.01 ..........................................................................................6

TEXAS PENAL CODE ANN., §49.04 ...........................................................................................6




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                                STATEMENT OF THE CASE

       Appellant was tried and convicted by a jury of Driving While Intoxicated in the Hunt

County Court at Law #2 on May 13, 2014. The Court assessed punishment at 180 days in the

Hunt County jail, probated for twelve months with a fine of $400 plus court costs, as well as 50

hours of community service.

                                  STATEMENT OF FACTS

       The State accepts as true Appellant’s Statement of Facts with the following

supplementation.

       Phillip Erickson, a clerk at the Kwik-Check Convenience Store in Greenville, TX, was

accosted by the Appellant on the evening of September 1, 2013 at approximately 1 a.m.

(Reporter’s Record, herein R.R., Vol. 2, pp. 24, 25). After a conversation with the Appellant at

the counter, Mr. Erickson decided to call the non-emergency line of the Greenville Police

Department to report that he believed Appellant to be intoxicated. (R.R. Vol. 2, p. 30). This was

not something that Mr. Erickson did often. Id. Mr. Erickson was scared due to Appellant’s

intoxication and behavior. Id. at 32-33. He attributed Appellant’s behavior to intoxication, not to

nervousness. Id. at 44.

       Officer Brandon West of the Greenville Police Department initiated a stop based on the

report from the clerk. Id. at 52. Officer West testified that once the stop was initiated and

Appellant was removed from the vehicle, he brought a Snickers candy bar with him, which

struck Officer West as odd. Id. at 53. Officer West had to give the instructions for the HGN

several times before Appellant was able to comply. Id. at 54. Officer West testified that he

observed six out of the six total “clues” on the horizontal gaze nystagmus test. Id. at 60.

Appellant told Officer West during the stop that he had taken prescription medication earlier that

evening. Id. at 74. An arrest was made based on the totality of the circumstances of Officer



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West’s investigation. Id at 79.

                               SUMMARY OF THE ARGUMENT

       The evidence is legally sufficient to sustain conviction. The jury was able to base its

decision to convict on numerous pieces of evidence, including the testimony of a lay witness, a

police officer’s testimony, video evidence, and the defendant’s own statements. The court must

defer to the jury’s decision to convict after weighing all the evidence.

            ARGUMENT: STATE’S RESPONSE TO POINT OF ERROR ONE

Legal Sufficiency of Evidence

       When reviewing the sufficiency of the evidence, the court views the evidence in the light

most favorable to the verdict to determine whether any rational fact finder could have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

99 S.Ct. 2781. This standard gives full play to the responsibility of the trier of fact to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts. Id., at 319. Thus, when performing a legal sufficiency review, the court

may not re-evaluate the weight and credibility of the evidence and substitute its judgment for that

of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529

U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). Instead, the court should “determine

whether the necessary inferences are reasonable based upon the combined and cumulative force

of all the evidence when viewed in the light most favorable to the verdict.” Hooper v. State, 214

S.W.3d 9, 16–17 (Tex.Crim.App.2007). the court should presume that the factfinder resolved

any conflicting inferences in favor of the conviction and defer to that resolution. Jackson, 443

U.S. at 326, 99 S.Ct. at 2793; Clayton, 235 S.W.3d at 778.




                                                  5
Driving While Intoxicated

       The law states that a person is guilty of driving while intoxicated if they (1) operate a

motor vehicle (2) in a public place (3) while intoxicated. TEXAS PENAL CODE ANN., §49.04

Intoxication is defined as (a) not having the normal use of mental or physical faculties by reason

of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of

two or more of those substances, or any other substance into the body; or (b) having an alcohol

concentration of 0.08 or more. TEX. PENAL CODE ANN. § 49.01.

Analysis

       Based on the evidence presented to the jury, a rational jury could have convicted based

on the evidence presented. There was testimony of Appellant’s odd behavior from both the store

clerk and the officer who made the stop. There was evidence of the results of the standardized

field sobriety tests, which indicated intoxication. The jury was able to watch a dashcam video of

the incident and observe Appellant as he appeared on that evening. After viewing all of this

evidence, the jury came to the conclusion that Appellant was guilty of driving while intoxicated

beyond a reasonable doubt. The jury was allowed to accept or reject some or all of the testimony

given by both of state’s witnesses. Instead, they chose to resolve the case in favor of the

prosecution. The court should not overturn the conviction because it is not irrational for a jury to

find beyond a reasonable doubt that Appellant was guilty of driving while intoxicated based on

the evidence before them, as is the standard put forth by the Jackson court.




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                                CONCLUSION AND PRAYER

       It is for the reasons contained herein, that the State would respectfully pray that this Court

of Appeals for the Sixth District affirm the conviction for driving while intoxicated.

                                              Respectfully submitted,
                                              JOEL D. LITTLEFIELD
                                              Hunt County Attorney
                                              P.O. Box 1097
                                              Greenville, TX 75403-1097
                                              (903) 408-4112 - telephone
                                              (903) 408-4297 - fax


                                              By:/s/Joseph T. O’Neill_______
                                                 Joseph T. O’Neill
                                                 Assistant County Attorney
                                                 State Bar No. 24076953

                             CERTIFICATE OF WORD COUNT

I certify that this document brief/petition was prepared with Microsoft Word 2012, and that,

according to that program’s word-count function, the sections covered by TRAP 9.4(i)(1) contain

940 words.

                                                      Sincerely,

                                                      /S/_JOSEPH T O’NEILL__
                                                      JOSEPH T. O’NEILL
                                                      Assistant County Attorney of Hunt County
                                                      State Bar Number – 24076953
                                                      Hunt County Courthouse
                                                      P.O. Box 1097
                                                      Greenville, Texas 75403-324
                                                      (903) 408-4112
                                                      (903) 408-4297 Fax




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                                CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the above and foregoing instrument was
forwarded to counsel for Appellant, Jessica Edwards, on this the 6th day of April, 2015 via email.


                                             /s/Joseph T. O’Neill_______
                                             Joseph T. O’Neill
                                             Assistant County Attorney




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