                                                                     May 29, 2015
                                   PD-0197-15




                      IN THE COURT OF CRIMINAL APPEALS

                                 AUSTIN, TEXAS

                      JESSICA NICOLE NANCE, APPELLANT

                                       V.


                        THE STATE OF TEXAS, APPELLEE

           MOTION FOR REHEARING IN CAUSE NUMBER CR 1101695

                     IN THE COUNTY COURT AT LAW NO. 1

                           OF HUNT COUNTY, TEXAS

                           MOTION FOR REHEARING




TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

       Comes Now the Appellant and submits this Motion for Rehearing pursuant
to the provisions ofthe Texas Rules ofAppellate Procedure in Support of her
request for the judgment of conviction to be overturned in Cause CR 1101695.




                                                  RECEIVED IN
                                                 COURT OF CRIMINAL APPEALS
                                                       MAY 29 2015
                                 IDENTITY OF PARTIES AND COUNSEL


 Pursuant to Texas Rule of Appellate Procedure 38.1, the undersigned counsel of record certifies that the
 following persons have an interest in the outcome of this case. These representations are made so that
 the Justices of this Honorable Court can evaluate whether they are disqualified to serve or should recuse
 themselves from participation in the decision of this case.

APPELLATE:


Jessica Nicole Nance


PO. Box 211362


Bedford, Texas 76095




APPELLATE ATTORNEY:


Jason A. Duff


2615 Lee Street


P.O. Box 11 Greenville, Texas 75403




Appellee:

The State of Texas by and through

Joel D. Littlefield


Jeffery Kovach




Hunt County Attorney

4th Floor Hunt County Courthouse

2500 Lee Street


Greenville, Texas 75401
                            TABLE OF CONTENTS


 Identity of the Parties and Counsel

Table of Contents

Index of Authorities

Statement of the Case

Issues Presented

Statement of the Facts

Summary of the Argument

Prayer for Relief

Certificate of compliance of typeface and word count
Certificate of Service
                              INDEX OF AUTHORITIES


CASES




Brooks v. State, 323 S.W.3d 893

(Tex.Crim.App. 2010)

Clayton v. State, 235 S.W.3d 772

(Tex.Crim.App. 2007)

Gilliand v. State, 2011WL 3862861

(Tex.App.—Texarkana 2011)

Hartsfield v. State, 305 S.W.3d 859

(Tex.App.—Texarkana 2010)

Hooper v. State, 214 S.W.3d 9

(Tex.App.—Texarkana 2007)

Jackson v. Virginia, 433 U.S. 307 (1979)

Johnson v. State, 517 S.W.2d 536

(Tex.Crim.App.1975)

Gonzales v. State, 369 S.W.3d 851,854 (Tex. Crim. App. 2012)

Haynes v. State, 475 S.W.2d 739, 741 (Tex. Crim. App. 1971)

Kentucky v. King, 131 S.Ct. 1849,1856 (2011)

Mincey v. Arizona, 437 U.S. 385, 390 (1978) (quoting Katz v. United States, 389
U.S. 347, 357 (1967))
  Gonzales, 369 S.W.3d at 854

  Bray v. State, 597 S.W.2d 763, 765 n.l (Tex. Crim. App. [Panel Op.] 1980) (quoting
  McDonald v. United States, 335 U.S. 451,455 (1948))
  Johnson v. United States, 333 U.S. 10,17 (1948)
 Jones v. United States, 357 U.S. 493,499 (1958).
  McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).
 Hudson v. State, 588 S.W.2d 348, 351 (Tex. Crim. App. 1979) (quoting United
 States v. Chadwick, 433 U.S. 1, 9(1977), abrogated on other grounds by California
 v. Acevedo, 500 U.S. 565,568-80 (1991) (internal quotation marks omitted)).
 United States v. Martinez-Fuerte, 428 U.S. 543, 565 (1976); see also Beck v. Ohio,
 379 U.S. 89, 96 (1964)

 Clay v. State, 391 S.W.3d 94,100 n.21 (Tex. Crim. App. 2013)
 (quoting Wayne R. LaFave, 2Search and Seizure: ATreatise on the Fourth
 Amendment § 4.3(b), at 511 (4th ed. 2004))).
State v. Robinson, 334 S.W.3d 776, 778-79 (Tex. Crim. App. 2011) (footnotes
omitted)

Robinson, 334 S.W.3d at 780 (Cochran, J., concurring); Ford v. State, 158 S.W.3d
488, 492 (Tex. Crim. App. 2005).

Robinson, 334 S.W.3d at 779; Amador v. State, 221 S.W.3d 666, 672-73 (Tex.
Crim. App. 2007).

Bray, 597 S.W.2d at 765 n.l (quoting McDonald, 335 U.S. at 456).
Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007).
Crane v. State, 786 S.W.2d 338, 346 (Tex. Crim. App. 1990)
STATUTES and RULES
Texas Penal Code 49.04

Rule 44.2(a) of the Texas Rules of Appellate Procedure

See TEX. R. APP. P. 44.2(a)

Hernandez v. State, 60S.W.3d 106 (Tex. Crim. App. 2001)

Snowden v. State, 353 S.W.3d 815, 821 (Tex. Crim. App. 2011).




End Notes:


1Adams, R., &Victor, M. (1993). Principles of Neurology, Sth edition. McGraw-Hill, Inc.: New York

2       Burns, M.,& Anderson, H.( 1995). A Coloradovalidation study of the standardized field sobriety
(SFST) battery. Final Report. Colorado Department of Transportation.

3       Burns, At, & Dioquino, T.( 1997). A Florida validation study of standardized field sobriety test
(S.F.S.T. battery. Florida Department of Transportation.

4       De Myer, W. Neuroanatomy. Williams &Wilkins, Baltimore.

5 DWI detection and standardized field sobriety testing Student manual.(1995). NHTSA, U.S.
Department of Transportation.

6       DWI detection and standardized field sobriety testing Instructor manual. (1995). NHTSA, U.S.
Department of Transportation.

7      Elliot. C, & Murray. A. (1998). Repeatability of body sway measurements; day-to-day variation
measured by)sway magnetometry. Physiol. Meas.19,159-164.

8       Lee, D..& Lishman, J. (1975). Vision -the most efficient source of proprioceptive information for
balance control. Symposium international de posturegraphie, 83-93.

9       Mills, K., & Bisgrove, E. (1983). Body sway and divided attention performance under the
influence of alcohol: Dose-response differences between males and females. Alcohol Clincial and
Experimental Research, 7(4), 393-397.

10 Nardone, A., Tarantola, J., Giordano, A., & Schieppati, M. (1997). Fatigue effects on body balance.
Electroencephalography and clinical Neurophysiology, 105,309-320.
STATEMENT OF THE CASE


         This is an appeal of the judgment and sentence in acriminal case for the County Court at Law
 Number 1 in Hunt County, Texas. Appellant Plead Guilty to the crime of Driving while Intoxicated
Second. (RR Vol. 3p.8) Appellant filed in the trial court an election to punishment to be made by the
trial court on August 12th, 2013. The court ordered a pre-sentence investigation. Appellant was
assessed asentence of imprisonment for Two Hundred Fifty (250) days in the Hunt County Jail, $0.00
fine, and $433.00 in court costs on October 14th, 2013 by the trial court. Motion for New Trial was
timely filed on November 4th, 2013 in the trial court and has yet to be heard. The court reporter's
record was filed on April 26th, 2013. Appeal was affirmed on November 10th, 2014. Motion for
rehearing was filed on November 12th, 2014. Motion was granted on November 25th, 2014. Motion for
rehearing was overruled on 1/6/15. Petition for discretionary review was filed on 4/17/15. PDR was
refused on 5/13/2015.
                                           ISSUES PRESENTED

Point of Error One:


                  Defendant's Fourth Amendment rights were violated when the officers failed to obtain a
search warrant.

Point of Error Two:


                  Trial court erred in the admissibility, utilization and refutation oftheState's evidence
        concerning field-sobriety test.

Point of error Three:


                  Trial court erred in allowing Trooper Goodwin to testify that there is a certain level of
intoxication that can be determined bythe HGN .
                                   Statement of the facts

        Appellant pled guilty to Driving While Intoxicated, Second . (RR Vol. 3 p.8). The trial
court admonished Appellant of the charge and the range of punishment. (RR Vol. 3 p.8-15). The
trial court then admonished the Appellant that the State was seeking to enhance his
punishment range from a Class B misdemeanor to a Class A misdemeanor. (RR Vol. 3 p. 8-15).
The court informed Appellant that she had the rightto have a presentence investigation and
ordered it done. (CR Vol. 1 p. 195). Duringthe sentencing hearing the State moved to admit
Exhibits 1-6 which included the roadside videos, intoxilizer videos and her test results and
records obtained from criminal records from Dallas County. Without objection from the
Defense the trial court admitted them. (RR Vol. 3 p. 25). Both sides presented arguments and
the Court came back with a sentence of two hundred and fifty days in jail. (RR Vol. 5p. 113-125).
                                  SUMMARY OF THE ARGUMENT


       Jessica Nicole Nance appeals from herconviction, on an open plea ofguilty, ofdriving
while Intoxicated (DWI) second offense. Following a hearing on punishment, the trial court
sentenced Nance to 250days injail. Nance's appointed appellant counsel filed an Anders brief
in the matter detailing the procedural history ofthe case, summarizing and analyzing thetrial
evidence, and stating that he found no meritorious issues to raise on appeal. Nance availed
herselfof the opportunity to file a pro se response. Nance contendsthat she received
ineffective assistance ofcounsel with respect to each ofthe following issues: (1) Defendant's
Fourth Amendment rights were violatedwhen the officers failed to obtain a search warrant.
(2) Trial court erred In the admissibility, utilization and refutation of the State's evidence
concerning field-sobriety test. (3) Trial court erred in allowing Trooper Goodwin to testify that
there isacertain level of intoxication that can be determined bythe HGN .
