                                                                                      ACCEPTED
                                                                                  03-14-00483-CR
                                                                                          6244366
                                                                       THIRD COURT OF APPEALS
                                                                                  AUSTIN, TEXAS
                                                                             7/27/2015 8:07:24 PM
                                                                                JEFFREY D. KYLE
                       CAUSE NO. 03-14-00483-CR                                            CLERK

________________________________________________________________________

                  IN THE COURT OF APPEALS FOR THE              FILED IN
                       THIRD DISTRICT OF TEXAS          3rd COURT   OF APPEALS
                                                            AUSTIN, TEXAS
                                AUSTIN
                                                        7/27/2015 8:07:24 PM
________________________________________________________________________
                                                            JEFFREY D. KYLE
                                                                 Clerk
                         TERRY LYNN STEVENS,
                               Appellant

                                    V.

                         THE STATE OF TEXAS,
                                Appellee
________________________________________________________________________

                   ON APPEAL FROM CAUSE NO. 41839
     424th JUDICIAL DISTRICT COURT OF BURNET COUNTY, TEXAS
________________________________________________________________________

                         BRIEF FOR APPELLEE
                     ______________________________

                                  OFFICE OF THE DISTRICT ATTORNEY
                                  33RD AND 424TH JUDICIAL DISTRICTS
                                  Wiley B. McAfee, District Attorney
                                  P.O. Box 725
                                  Llano, TX 78643
                                  Telephone: 325-247-5755
                                  Facsimile: 325-247-5274

                                  By: R. Blake Ewing
                                      Assistant District Attorney
                                      State Bar No. 24076376
                                      asstda2@burnetcountytexas.org

                                         Gary W. Bunyard
                                         Assistant District Attorney
                                         State Bar No. 03353500
                                         g.bunyard@co.llano.tx.us
                                         ATTORNEYS FOR APPELLEE

                               July 27, 2015

                     ORAL ARGUMENT REQUESTED
              IDENTITY OF THE PARTIES AND COUNSEL

Trial Court

Honorable Dan H. Mills (Retired)
424th Judicial District
Burnet County Courthouse Annex (North)
1701 E. Polk St., Suite 74
Burnet, TX 78611


Attorney for State/Appellee

R. Blake Ewing (Trial and Appellate Counsel)
Assistant District Attorney
1701 E. Polk, Suite 24
Burnet, TX 78611
512-756-5449
State Bar No. 24076376

Gary W. Bunyard (Appellate Counsel)
Assistant District Attorney
P.O. Box 725
Llano, TX 78643
325-247-5755
State Bar No. 03353500

Richard Crowther (Trial Counsel)
Assistant District Attorney
1701 E. Polk, Suite 24
Burnet, TX 78611
512-756-5449
State Bar No. 05174200




                                   - ii -
Attorney for Appellant

Tracy D. Cluck (Appellate Counsel)
1450 West Highway 290, #855
Dripping Springs, TX 78620
512-264-9997
State Bar No. 00787254

Michelle Moore (Trial Counsel)
1008 N. Water
Burnet, TX 78611
512-234-3074
State Bar No. 14362150

Michael Watson (Trial Counsel)
1008 N. Water
Burnet, TX 78611
512-234-3074
State Bar No. 24060804


Appellant

Terry Lynn Stevens
TDCJ# 01942880
SID# 05052947
TDCJ, Alfred Hughes Unit
Rt. 2 Box 4400
Gatesville, TX 76597




                                     - iii -
                                           TABLE OF CONTENTS


IDENTITY OF THE PARTIES AND COUNSEL ..................................................................... ii

TABLE OF AUTHORITIES........................................................................................................ v

STATEMENT OF THE CASE .................................................................................................... 2

STATEMENT ON ORAL ARGUMENT .................................................................................... 2

REPLY TO ISSUE PRESENTED ............................................................................................... 3

EXPLANATION OF CITATION OF RECORDS..................................................................... 3

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

SUMMARY OF THE ARGUMENT – REPLY TO ISSUE NO. 1 ........................................... 8

ARGUMENT ON REPLY TO ISSUE NO. 1 ............................................................................. 9

          I. The trial court properly denied Appellant’s motion to suppress evidence of blood
             test results based on alleged deficiencies in the warrant affidavit………………. 9

          II. If the trial court did err in admitting the evidence of blood results, any such
              error was harmless in light of the overwhelming evidence of Appellant’s
              intoxication…………………………………………………………………………. 17

SUMMARY OF THE ARGUMENT – REPLY TO ISSUE NO. 2 ......................................... 27

ARGUMENT ON REPLY TO ISSUE NO. 2 ........................................................................... 28

SUMMARY OF THE ARGUMENT – REPLY TO ISSUE NO. 3 ......................................... 34

ARGUMENT ON REPLY TO ISSUE NO. 3 ........................................................................... 35

PRAYER FOR RELIEF ............................................................................................................. 39

CERTIFICATE OF WORD COUNT ....................................................................................... 39

CERTIFICATE OF SERVICE .................................................................................................. 40



                                                             - iv -
                                TABLE OF AUTHORITIES


Cases
Annis v. State, 578 S.W.2d 406 (Tex. Crim. App. 1979)....................................................18

Ashford v. State, 658 S.W.2d 216 (Tex. App. Texarkana 1983)…...………………….….22

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007)……………………...……28, 29

Cotton v. State, 686 S.W.2d 140 (Tex. Crim. App. 1985)………………………………..19

Crain v. State, 315 S.W.3d 43 (Tex. Crim. App. 2010)……....……………………..……..9

Denton v. State, 911 S.W.2d 388 (Tex. Crim. App. 1995)……...………………….…….29

Flores v. State, 319 S.W.3d 697 (Tex. Crim. App. 2010)……………………......…….…11

Gilbert v. State, 808 S.W.2d 467 (Tex. Crim. App. 1991)..................................................35

Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989)………...…………………...….18

Hernandez v. State, 60 S.W.3d 106 (Tex. Crim. App. 2001)..............................................17

Hitt v. State, 53 S.W.3d 697 (Tex.App.—Austin 2001).………………………………….36

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007)……….....................................…29

Hyde v. State, 846 S.W.2d 503 (Tex. App.—Corpus Christi 1993, pet. ref’d)…………...20

Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983)……..….9, 10, 11

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)……..…28

Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App. 1990)…………………………....…11

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991)...………..………………35

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998)…………………….…….....…17

Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999)………………………………..35

Poole v. State, 974 S.W.2d 892 (Tex.App.—Austin 1992)……………………………....36



                                                  -v-
Rabbani v. State, 847 S.W.2d 555 (Tex. Crim. App. 1992),
      cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 731 (1993)…….………26

Rodriguez v. State, 232 S.W.3d 55 (Tex. Crim. App. 2007)……………………………...10

State v. Jordan, 342 S.W.3d 565 (Tex. Crim. App. 2011)…………………….....……….11

State v. McLain, 337 S.W.3d 268 (Tex. Crim. App. 2011)…………………………….9, 10

State v. Webre, 347 S.W.3d 381 (Tex. App.—Austin 2011, no pet.)………………..…9, 10

Stovall v. State, 440 S.W.3d 661 (Tex. App.—Austin 2011, no pet.)…………..….9, 15, 16

Swearingen v. State, 143 S.W.3d 808 (Tex. Crim. App. 2004)…………….….9, 10, 13, 26

United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)……...…10

Villareal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009)……………………………...28

Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000)…………………………...…18

Yates v. State, 941 S.W.2d 357 (Tex.App.—Waco 1997, pet. ref’d)………………....36, 38

Zill v. State, 355 S.W.3d 778 (Tex. App.—Houston [1st Dist.] 2011, no pet.………....…21




Statutes and Constitutions
Tex. Evid. R. 403…………………………………………………………………...……..35

Tex. Penal Code Sec. 1.07(a)(40)…………………………………………………………33

Tex. Penal Code Sec. 12.42………………………………………………………………...2

Tex. Penal Code Sec. 49.04…………………………………………………………...…..29

Tex. Penal Code Sec. 49.09………………………………………………………………...2

Tex. R. App. P. 44.2(a)………………………………………………………………..…..17

Tex. Transp. Code Ann. § 724.061……………………………………………..…….15, 22

U.S. Const. amend IV…………………………………………………………..…………10



                                       - vi -
Treatises
W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment
§ 11.7(c) at 452 (4th ed. 2004 & Supp. 2009-2010))……………………….……………..11




                                - vii -
                         CAUSE NO. 03-14-00483-CR

                         ________________________


                  IN THE COURT OF APPEALS FOR THE
                       THIRD DISTRICT OF TEXAS
                               AUSTIN

                         ________________________


                          TERRY LYNN STEVENS,
                                Appellant

                                     V.

                          THE STATE OF TEXAS,
                                Appellee

                         ________________________


                   ON APPEAL FROM CAUSE NO. 41839
      424th JUDICIAL DISTRICT COURT OF BURNET COUNTY, TEXAS

                         ________________________


                          BRIEF FOR APPELLEE

                         ________________________


TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      COMES NOW the Appellee, the State of Texas, and files this brief
pursuant to the provisions of the Texas Rules of Appellate Procedure in reply
to the brief by the Appellant, and in support thereof would show the Court as
follows:




                                    -1-
                      STATEMENT OF THE CASE

      The Appellant’s statement of the case is largely accurate, but

incorrectly describes the contents of the indictment. The indictment contains

allegations of four prior convictions against the Appellant: two convictions

for offenses relating to the operation of a motor vehicle while intoxicated,

making the indicted offense a third degree felony under Sec. 49.09(b)(2) of

the Texas Penal Code, and two other sequential felony convictions for

driving while intoxicated, enhancing the charged offense to a habitual range

of punishment under Sec. 12.42(d) of the Penal Code. Tex. Pen. Code

§§12.42, 49.09.




                  STATEMENT ON ORAL ARGUMENT

      The undersigned requests oral argument.          While the undersigned

believes that the issues raised by Appellant and addressed herein are

straightforward and do not present any novel or complex questions on which

oral argument would be beneficial to the Court, Appellant has requested oral

argument and the undersigned is willing to participate if the Court believes

that oral argument will assist the Court in any way.




                                     -2-
                      REPLY TO ISSUES PRESENTED

Reply to Issue One:

The trial court properly denied Appellant’s motion to suppress evidence of
blood test results based on alleged deficiencies in the supporting affidavit.
Even if the trial court did err in allowing the blood evidence to be admitted,
any such error was harmless in light of the overwhelming evidence of the
Appellant’s guilt.

Reply to Issue Two:

The evidence that Appellant operated a motor vehicle was legally sufficient
to support a finding of guilt by the jury.

Reply to Issue Three:

The trial court applied the necessary balancing test under Rule 403 and
properly admitted recordings of Appellant’s jail phone calls.




            EXPLANATION OF CITATION OF RECORDS

      The Clerk’s Record will be cited by page number as “C.R. _____

[page number].” The Court Reporter’s Record will be cited by volume and

page number as “R.R. Vol. _____ [volume number], p. ______ [page

number]” and, where necessary, “l. _____ [line number].”




                                    -3-
                         STATEMENT OF FACTS

      Appellant’s statement of the facts is inaccurate or incomplete with

respect to certain details relevant to the issues presented.

      The charge at issue arose from events occurring at the gated entrance

to the Ridgemont Village apartment complex in Burnet County, Texas on the

evening of May 9, 2013. R.R. Vol. 3, pp. 29-47. Socorro McCrum, a

resident of the complex, was standing outside her apartment and saw a white

pickup truck drive in from a public street and pull up to the “code box”

controlling the gate at the entrance of the complex. Id. at 38-39, 44. A short

time later, another car pulled in behind the white pickup truck. Id. at 38.

Once the gate opened, the second vehicle to arrive drove around the white

pickup truck and entered the complex. Id. at 40. The white pickup truck

then rolled backward into a fence. Id. McCrum called the police and stayed

in her apartment until Officer Justin Boucher of the Marble Falls Police

Department arrived. Id. McCrum was not able to see or describe the person

driving the white pickup truck. Id. at 41. She did not see anyone enter or

exit the vehicle until police arrived, and did not see any other persons in the

area. Id.

      Officer Boucher was dispatched to the Ridgemont Village complex at

9:34 p.m. in response to a report that a white pickup truck had backed into a


                                      -4-
fence. Id. at 49. Boucher arrived at the apartment complex at 9:39 p.m. Id.

at 50. Boucher saw a white pickup truck backed up against a fence column

outside the complex’s gate.     Id. at 52.   The truck’s brake lights were

illuminated when Boucher first observed it. Id. at 51, 80. As Boucher

approached the truck, Appellant opened the driver’s side door and stepped

out. Id. at 54. Boucher noticed immediately that Appellant was “unstable on

his feet” and was “staggering.” Id. at 54-55. When asked to step away from

the vehicle, Appellant “ran into the side mirror” of the truck. Id. at 55.

Boucher detected the strong odor of an alcoholic beverage and asked

Appellant how much he had had to drink that evening, to which Appellant

replied “a couple beers.” Id. at 56; R.R. Vol. 6, State’s Exhibit 7. When

asked the same question again a short time later, Appellant said “about three

beers.”    Id.   Boucher asked Appellant whether he had ever been this

intoxicated before, to which Appellant replied “No I haven’t.” Id.

      Boucher conducted field sobriety tests on Appellant and observed

numerous signs of intoxication. R.R. Vol. 3, p. 57-64, 81-90; R.R. Vol. 6, p.

104-105.    After attempting unsuccessfully to complete one of the tests,

Appellant said to Boucher “Hell, why don’t you just arrest me?” R.R. Vol.

3, p. 64; R.R. Vol. 6, State’s Exhibit 7. After Appellant was taken into




                                    -5-
custody, an opened alcoholic beverage was found in the white truck. R.R.

Vol. 3, p. 65.

      Boucher transported Appellant to the Marble Falls Police Department,

where he read to Appellant the DIC-24 statutory warning and requested a

specimen of Appellant’s blood. Id. at 71. Appellant refused. Id. Boucher

submitted an affidavit for a search warrant to Judge Don Adams and

obtained a warrant for Appellant’s blood. Id. at 73. A specimen was taken

and submitted to the Texas Department of Public Safety crime lab for

analysis.    Id. at 73-80, 117-118.        The blood contained an alcohol

concentration of 0.25 grams per 100 milliliters. Id. at 118.

      At trial, Appellant objected to the admission of the blood test results

and moved for the court to suppress them, alleging deficiencies in the

affidavit. Id. at 78-79, 106-107. The trial court found “under the totality of

the circumstances that the search warrant affidavit is sufficient” and

overruled Appellant’s objection that the affidavit was conclusory. Id. at 107.

      Appellant also objected under Rule 403 to the admission of recorded

jail phone calls containing statements by Appellant that he had been “out

pulling [his] truck in” and “couldn’t get the gate open.” R.R. Vol. 4, p. 5-7,

12-21; R.R. Vol. 6, State’s Exhibits 13, 14.       Appellant argued that the

evidence contained on the recordings was cumulative. R.R. Vol. 4, p. 5-6.


                                     -6-
The trial court overruled Appellant’s objection, finding that the recordings

were not cumulative and were relevant to the question of whether the

Appellant was driving the vehicle. Id. at 6-7.

      At the conclusion of evidence the trial court instructed the jury on both

meanings of intoxication, i.e., not having the normal use of mental or

physical faculties by reason of the introduction of a substance into the body,

or having an alcohol concentration of 0.08 or more. Id. at 26. The jury

found Appellant guilty of felony Driving While Intoxicated as alleged in the

indictment. Id. at 49. Appellant testified at the punishment phase of trial

and admitted to each element of the indicted offense. R.R. Vol. 5, p. 57-58.

The State presented evidence that Appellant had been convicted of driving

while intoxicated on six prior occasions, four of which were felony offenses.

Id. at 9-23. The jury assessed a sentence of life. Id. at 85.




                                      -7-
    SUMMARY OF THE ARGUMENT – REPLY TO ISSUE NO. 1

      The trial court properly denied Appellant’s motion to suppress

evidence of blood test results. The affidavit supporting the warrant to obtain

Appellant’s blood contained sufficient facts and circumstances from which

the magistrate could have found a substantial basis for concluding that a

search would uncover evidence of wrongdoing. Even if the trial court did err

in allowing the blood evidence to be admitted, any such error was harmless

in light of the other overwhelming evidence of the Appellant’s guilt.




                                    -8-
               ARGUMENT ON REPLY TO ISSUE NO. 1

I.    The trial court properly denied Appellant’s motion to

      suppress evidence of blood test results based on alleged

      deficiencies in the warrant affidavit.

      A. Standard of Review

      A trial court’s ruling on a motion to suppress is reviewed on appeal for

abuse of discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App.

2010).   Normally, appellate courts apply this standard in a bifurcated

fashion, giving almost total deference to the trial court’s determinations of

fact, including witness credibility and demeanor, while reviewing de novo its

applications of law. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App.

2011); Crain, 315 S.W.3d at 48.

      However, a court’s after-the-fact scrutiny of the sufficiency of an

affidavit should not take the form of de novo review. Swearingen v. State,

143 S.W.3d 808, 810 (Tex. Crim. App. 2004) (quoting Illinois v. Gates, 462

U.S. 213, 234-237, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983)). Rather, in the

case of a motion to suppress based on a magistrate’s decision to issue a

search warrant, both trial and appellate courts apply a unique and highly

deferential standard of review. Stovall v. State, 440 S.W.3d 661, 666 (Tex.

App.—Austin 2011, no pet.) (citing McLain, 337 S.W.3d at 271); State v.


                                    -9-
Webre, 347 S.W.3d 381, 384 (Tex. App.—Austin 2011, no pet.). So long as

the magistrate had a substantial basis for concluding that a search would

uncover evidence of wrongdoing, the Fourth Amendment requires no more.

U.S. Const. amend. IV; Swearingen v. State, 143 S.W.3d 808, 810 (quoting

Gates, 462 U.S. at 234-237).

      The deference paid to the magistrate’s determination of probable cause

is based on the Fourth Amendment’s strong preference for searches

conducted pursuant to a warrant. Id.; see also United States v. Ventresca,

380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (“[Affidavits for

search warrants] are normally drafted by nonlawyers in the midst and haste

of a criminal investigation. Technical requirements of elaborate specificity

once exacted under common law pleadings have no proper place in this area.

A grudging or negative attitude by reviewing courts toward warrants will

tend to discourage police officers from submitting their evidence to a judicial

officer before acting.”)

      When     an    appellate   court   reviews   an   issuing   magistrate’s

determination, that court should not analyze the affidavit in a hyper-technical

manner but in a commonsensical and realistic manner, recognizing that the

magistrate may draw reasonable inferences. McLain, 337 S.W.3d at 271;

Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007).              The


                                     - 10 -
magistrate should not be bound by standards such as proof beyond a

reasonable doubt or by a preponderance of the evidence; the magistrate’s

sole concern should be probability. Johnson v. State, 803 S.W.2d 272, 288

(Tex. Crim. App. 1990) (citing Gates, 462 U.S. at 238-39). While that

probability cannot be based on mere conclusory statements of an affiant’s

belief, reviewing courts, when in doubt, should defer to all reasonable

inferences that the magistrate could have made from the facts and

circumstances contained within the four corners of the affidavit. Rodriguez,

232 S.W.3d at 61; State v. Jordan, 342 S.W.3d 565, 569 (Tex. Crim. App.

2011).   The magistrate’s decision should carry the day in doubtful or

marginal cases, even if the reviewing court might reach a different result

upon de novo review. Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim.

App. 2010) (citing W. LaFave, Search and Seizure: A Treatise on the Fourth

Amendment § 11.7(c) at 452 (4th ed. 2004 & Supp. 2009-2010)).

      B. Argument

      In his first point of error Appellant argues that the trial court erred by

admitting evidence of blood test results over his objection.          At trial,

Appellant objected to the admission of blood evidence and blood test results,

alleging that the affidavit supporting the warrant to obtain his blood was

deficient.   R.R. Vol. 3, p. 78, 107.        The trial court heard Appellant’s


                                    - 11 -
argument outside the presence of the jury, treating Appellant’s objection as a

motion to suppress. Id. at 107. Appellant’s counsel argued, in reference to

the affidavit, as follows:

      Paragraph Four is conclusory, no facts given to support that

      conclusion. Paragraph Five, there’s [sic] no facts that Terry

      Lynn Stevens was, in fact, the driver or even operated the

      motor vehicle in accordance with the law. So based on that,

      there is no evidence that Terry Lynn Stevens was driving or

      operating that vehicle inside the four corners of that affidavit

      and, therefore, the blood should be suppressed.

Id.   The trial court overruled Appellant’s objection, finding “under the

totality of the circumstances that the search warrant affidavit is sufficient….”

Id.

      Appellant now argues that “there are no facts to support whether the

vehicle in question was in a public rather than private drive, no facts to

support whether Appellant was ‘operating’ the vehicle in question (or in any

manner connected to this or any other motor vehicle), and no facts to

establish when exactly the incident in question happened.”         Appellant’s

Brief, p. 18 (emphasis and parenthetical in original).




                                     - 12 -
      Assuming, without conceding, that Appellant’s trial objection

preserved error as to each of the arguments he now advances on appeal, the

trial court correctly overruled Appellant’s objection. The affidavit, when

analyzed in a non-technical, common-sense manner, does contain sufficient

facts and circumstances from which the magistrate could have found a

substantial basis for concluding that a search would uncover evidence of

wrongdoing. See Swearingen, 143 S.W.3d at 810.

      The affidavit states that Officer Boucher made contact with Appellant

at approximately 9:39 p.m. on May 9, 2013. R.R. Vol. 6, p.104. It further

states that “the reason for the contact” with Appellant was that Boucher

“responded to 92 Gateway North in reference to a vehicle that was stopped at

a gate code entry point trying to enter a gate code to enter the property. The

complainant advised that the vehicle then slowly rolled backwards and

struck a fence.” Id.   The statement that the suspect vehicle was attempting

to gain entry to property by entering a “gate code” supports the reasonable

inference that the suspect vehicle was being operated in a public place.

      It is common knowledge that the purpose of encoded gates is to

restrict access to private property, and so the magistrate could have

reasonably inferred that the vehicle attempting to gain entry to the gated

property was in a public place while stopped at the gate code entry point.


                                    - 13 -
The fact that the vehicle was “trying to enter the property” and “rolled

backwards and struck a fence” also supports the inference that the vehicle in

question was being operated by some person. Thus a commonsensical,

realistic reading of the affidavit supports the conclusion that the suspect

vehicle was being operated in a public place.

      While it is true that the affiant made no direct statements identifying

Appellant as the person operating the vehicle, the reviewing magistrate could

have inferred from the facts and circumstances set forth in the affidavit that

the Appellant was reasonably likely to have been operating the vehicle. The

affidavit’s description of the vehicle’s movements (i.e., slowly rolling

backward and striking a fence after being stopped at a gate code entry point

trying to enter the property) indicate that the person operating the vehicle –

whoever that may have been – was intoxicated or otherwise impaired. The

magistrate could then have inferred that there was a reasonable probability

that Appellant was the person who had been operating the vehicle, based on

the fact that Boucher made contact with Appellant as a result of the reported

accident and observed numerous signs of intoxication in Appellant while

responding to the complaint. Id.

      The affidavit stated that Appellant staggered and was unsteady when

walking; he swayed and used support when balancing; his speech was


                                    - 14 -
slurred and incoherent; his eyes were bloodshot; Boucher detected the strong

odor of an alcoholic beverage while talking with him; he performed poorly

on field sobriety tests. Id. Finally, Appellant refused to voluntarily provide

a blood sample. Id. See Stovall, 440 S.W.3d at 668, n.7 (citing Tex. Transp.

Code Ann. § 724.061) (“The magistrate could also have inferred that Stovall

had driven while intoxicated from his refusal to submit to a breath test.”)

         In other words, that facts in the affidavit describing Appellant’s

intoxication are circumstantial evidence that Appellant was the person who

had been operating the erratically driven vehicle also described in the

affidavit, and the magistrate could have concluded that the nexus between

those facts provided a substantial basis to support a finding of probable

cause.

         Appellant also argues that the affidavit contains no facts to establish

when exactly the incident in question happened, and that Officer Boucher

could have been dispatched to take a report about an incident that happened

at some point much earlier in time.            A common-sense analysis of the

affidavit makes this scenario implausible and supports the conclusion that

the reported auto accident had occurred shortly before Boucher’s response.

         It is common knowledge that complainants who have witnessed auto

accidents generally call authorities immediately to report the incident. It is


                                      - 15 -
also common knowledge that authorities generally respond promptly to

complaints relating to auto accidents. See Stovall, 440 S.W.3d at 667-68

(discussing common knowledge relating to the promptness of police dispatch

for auto accidents). Furthermore, Boucher responded to the witnessed

accident at 9:39 p.m. R.R. Vol. 6, p. 104. It is particularly unlikely that a

person witnessing an auto accident would wait until such a late hour of the

night to call authorities, or that a law enforcement agency would delay

response until such an hour.

      Thus the affidavit, analyzed in a realistic manner and in light of

common knowledge and experience, sets out sufficient facts and

circumstances on its face from which the magistrate could have reasonably

inferred that Appellant was operating the vehicle just prior to the

complainant’s report and Boucher’s response to the scene of the incident.

Furthermore, since Boucher responded to the report at 9:39 p.m., observed

signs of intoxication in Appellant, and submitted the affidavit to the

magistrate at 10:30 p.m. on the same date, the magistrate had a substantial

basis to determine that evidence of intoxication would still be present in

Appellant’s blood when the warrant was issued. Id.

      For the foregoing reasons, deferring to all reasonable inferences that

the magistrate could have made in finding probable cause to issue the


                                   - 16 -
warrant, the trial court did not abuse its discretion by overruling Appellant’s

objection and admitting evidence of blood test results.

II.   If the trial court did err in admitting the evidence of blood

      results, any such error was harmless in light of the

      overwhelming evidence of Appellant’s intoxication.

      A. Standard of Review

      The harm analysis for the erroneous admission of evidence obtained in

violation of the Fourth Amendment is Texas Rule of Appellate Procedure

44.2(a)’s constitutional standard. Hernandez v. State, 60 S.W.3d 106, 108

(Tex. Crim. App. 2001); Tex. R. App. P. 44.2(a). Rule 44.2(a) requires the

reversal of a judgment of conviction unless it can be determined beyond a

reasonable doubt that the error did not contribute to the conviction. Tex. R.

App. P. 44.2(a). In applying the harmless error test, a reviewing court’s

primary question is whether there is a reasonable possibility that the error

might have contributed to the conviction. Mosley v. State, 983 S.W.2d 249,

259 (Tex. Crim. App. 1998). In answering that question, the reviewing court

should evaluate the entire record in a neutral, impartial, and even-handed

manner and calculate as much as possible the probable impact of the

erroneously admitted evidence on the jury in light of the existence of other




                                    - 17 -
evidence. Harris v. State, 790 S.W.2d 568, 586 (Tex. Crim. App. 1989);

Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000).

      B. Argument

      If this Court were to find that Appellant’s objection should have been

sustained and the evidence of Appellant’s blood test results should have been

suppressed, any error resulting from the admission of the evidence was

harmless.     Even disregarding the blood test results, the evidence of

Appellant’s intoxication was overwhelming. Officer Boucher testified that

he had special training relating to detecting signs of intoxication and that,

based on his training and experience, he was “100 percent sure that

[Appellant] was intoxicated” due to having lost the use of his mental or

physical faculties. R.R. Vol. 3, p. 48, 64, 99. See Annis v. State, 578 S.W.2d

406, 407 (Tex. Crim. App. 1979) (reasoning that an officer’s testimony that a

person was intoxicated provided sufficient evidence to establish the element

of intoxication).

      In     addition   to   Boucher’s   testimony establishing   Appellant’s

intoxication, the jury also viewed a video recording of Boucher’s interaction

with Appellant. R.R. Vol. 3, p. 66-68. The video clearly shows all the

visible signs of intoxication described by Boucher. See R.R. Vol. 6, State’s

Exhibit 7.


                                     - 18 -
      Upon making contact with appellant, Boucher “noticed immediately

that [Appellant] was unstable on his feet. He was staggering.” R.R. Vol. 3,

p. 54-55. Boucher detected the odor of an alcoholic beverage, saying “the

alcohol odor was so strong that I was able to detect it from a pretty good

distance away.” Id. at 55. When Boucher asked Appellant to step away

from the vehicle, Appellant “ran into the side mirror of his vehicle” and

appeared not to realize that he had done so. Id. at 55-56. Appellant had

“slurred, lethargic speech.”   Id. at 99.   Boucher further testified that

Appellant was “unable to maintain his balance. He was falling over.” Id.

See Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985)

(providing a nonexclusive list of signs recognized as evidence of

intoxication, including slurred speech, odor of alcohol on the person,

unsteady balance, and a staggering gait). Appellant also admitted to Boucher

that he had “a couple” beers, and later admitted to having “three” beers.

R.R. Vol. 3, p. 56; See R.R. Vol. 6, State’s Exhibit 7.       After placing

Appellant under arrest, Boucher found an 18-ounce can of Bud Ice beer in

the white truck Appellant had been operating.         R.R. Vol. 3, p. 65.

Approximately a third of the beer was left in the container. Id. When asked

where he lived, Appellant transposed two of the numbers in his street

address. Id.


                                   - 19 -
      Appellant’s actions and demeanor also demonstrated a consciousness

of guilt. During his contact with Boucher, Appellant persistently apologized

to Boucher and begged to be permitted to go home. R.R. Vol. 6, State’s

Exhibit 7; R.R. Vol. 3, p. 100. See Hyde v. State, 846 S.W.2d 503, 505 (Tex.

App.—Corpus Christi 1993, pet. ref’d) (holding that “any conduct on the

part of a person accused of a crime subsequent to its commission, which

indicates a ‘consciousness of guilt,’ may be received as a circumstance

tending to prove that he committed the act with which he is charged.”).

      Boucher also gave extensive testimony about Appellant’s poor

performance on several field sobriety tests. R.R. Vol. 3, p.56-64, 81-90.

While attempting to perform the horizontal gaze nystagmus (HGN) test,

Appellant was unable to maintain his balance and had to be asked to get back

into position numerous times. Id. at 59. Appellant was also unable to follow

the stimulus with his eyes numerous times. Id. at 81. Boucher testified that

he looks for six clues with the HGN test to determine whether a person is

intoxicated, and that he observed all six clues in Appellant. Id. at 59-60.

Boucher next attempted to perform the walk and turn test. Id. at 60-63. He

testified that while he was explaining the instructions Appellant was “unable

to maintain his balance again, falling over, unable to keep his right foot in

front of his left foot with his hands down to his side.”   Id. at 61. Boucher


                                    - 20 -
testified that out of a possible eight clues he looks for a minimum of four

clues to determine whether a person is intoxicated. Id. at 62. In Appellant

he observed “six or seven” clues. Id. See Zill v. State, 355 S.W.3d 778, 786

(Tex. App.—Houston [1st Dist.] 2011, no pet.) (“A defendant’s poor

performance on the standardized field sobriety tests is further evidence of

intoxication”).

       After several failed attempts to perform the walk and turn test,

Appellant turned to Boucher and said, “Hell, why don’t you just arrest me?”

R.R. Vol. 3, p. 56; R.R. Vol. 6, State’s Exhibit 7. Boucher then testified that

he did not attempt to perform the “one leg stand” test, saying that “[d]ue to

[Appellant’s] high level of intoxication I felt for his safety that he did not

need to proceed with that due to him not being able to maintain his balance

and continuing to fall over.” R.R. Vol. 3, p. 63. Boucher also testified that it

is very difficult to perform field sobriety tests on a person who is extremely

intoxicated because they are “not able to follow your instructions. They’re

not able to maintain their balance or stand up on their own without falling

over, so you have to continuously repeat things one after another.” Id. at

100.   This is precisely what the jury saw on the video of Boucher’s

interaction with Appellant. See R.R. Vol. 6, State’s Exhibit 7.




                                     - 21 -
      The jury also heard evidence that Appellant refused to voluntarily

provide Boucher with a sample of his blood, choosing instead to accept the

legal consequences that accompany a refusal. R.R. Vol. 3, p. 71; R.R. Vol.

6, State’s Exhibit 8. A person’s refusal to submit a blood sample to a

requesting officer can be used as evidence against him at trial. See Tex.

Transp. Code Ann. § 724.061; Ashford v. State, 658 S.W.2d 216 (Tex. App.

Texarkana 1983). Appellant even admitted to being intoxicated. When

Boucher asked Appellant “Have you ever been this intoxicated before?”

Appellant answered, “No I haven’t.” R.R. Vol. 6, State’s Exhibit 7.

      Finally, the State admitted evidence at trial that Appellant had made

several phone calls from jail prior to trial, and played recorded audio of two

of those calls for the jury. R.R. Vol 4, p. 12-21. See R.R. Vol. 6, State’s

Exhibits 13 & 14. Both calls feature the Appellant having a conversation

with a woman named Shirley Brown. R.R. Vol. 4, p. 15-16. On one of the

calls, the following exchange takes place:

      Appellant: And, uh, you know, he pulled in, I had the door

      open, was getting out of the pickup when he pulled in. I had

      my legs out, because I couldn’t get the gate open, and I said the

      hell with it I’ll just park it here and leave it here and get you to

      come get it, or you know…


                                     - 22 -
      Brown: Yeah.

      Appellant: I was just going to walk down and grab the remote

      and bring the truck and park it behind the garage, or in front of

      the garage, but…

      Brown: Why did you get started on the liquor?

      Appellant: It was cheap. It was cheap.

      Brown: Yeah, but you know it makes you crazy.

      Appellant: I wasn’t crazy that night. I wasn’t even arguing

      with you that night.

      Brown: You were crazy.

R.R. Vol. 6, State’s Exhibit 13. This conversation clearly references the

events on the night of Appellant’s arrest for this charge. Brown’s question

about Appellant’s drinking and her statements that liquor makes him “crazy”

and that he was “crazy” on the night in question are significant additional

evidence of Appellant’s intoxication.

      In light of the overwhelming evidence detailed above, even

disregarding the blood test results the jury would have found that appellant

was intoxicated beyond a reasonable doubt by not having the normal use of

his mental or physical faculties by reason of the introduction of alcohol into

his body.


                                    - 23 -
       Furthermore, the blood draw evidence was not unduly emphasized by

the State at trial. On the contrary, the State stressed in closing argument that

it was not necessary for the jury to consider the blood evidence to find

Appellant guilty, saying:

       Some of you may be thinking, man, this seems like a pretty

       easy case, right? [ . . . ] Why are we doing all this stuff with

       scientist [sic] and blood? I mean, we could have really just

       played that video, let you see with your own eyes the defendant

       clearly intoxicated . . . and sat down and let you have the case.

R.R. Vol. 4, p. 33. The State then emphasized the evidence showing that

Appellant was intoxicated by having lost the normal use of his mental or

physical faculties, saying:

       Y’all saw that with your own eyes. You saw him get out of

       that truck. You saw him staggering around. You saw him

       bumping into the mirror. You saw him unable to even stand in

       one place when the officer was giving him the instructions on

       how to perform the test. You heard that he had failed those

       field sobriety test [sic]. So we can check off the box that he

       was intoxicated.

Id. at 36.


                                     - 24 -
      Additionally, in his closing argument, Appellant’s trial counsel

seemed to acknowledge the overwhelming evidence of Appellant’s

intoxication, even in the absence of the blood evidence. He urged the jurors

to discount the blood evidence and then said,

      Now, the State is going to say, well, if you don’t believe that,

      you’ve got the video. All right. Well, we can see intoxication.

      He was intoxicated, but the point I’m getting at with all this is

      the State has to prove and make sure all protocols are followed.

      [ . . . ] What if the issue is about blood? You don’t have the

      video [ . . . ] [a]nd then you get a not guilty on an intoxication

      assault because they didn’t follow the protocols.”

Id. at 42 (emphasis added). In response to defense counsel’s argument, the

State again argued that the critical evidence was on the video, saying, “We

all saw it. We all know it. The defense just said it, that man was intoxicated.

Clearly.” Id. at 47.

      The jury was properly instructed that the State could prove Appellant

was intoxicated by not having the normal use of his mental or physical

faculties by reason of the introduction of alcohol, or by having an alcohol

concentration of 0.08 or more.      Id. at 26; C.R. 28.     When the jury is

authorized to convict on any one of several theories or methods of


                                    - 25 -
commission of the same offense and returns a general verdict of guilt, it does

not matter that the evidence is insufficient to sustain one or more of the

theories, so long as the evidence is sufficient to sustain conviction under at

least one theory. Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App.

2003) (citing Rabbani v. State, 847 S.W.2d 555, 558-59 (Tex. Crim. App.

1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 731 (1993)).

      Reviewing the entire record in a neutral manner, the other evidence of

Appellant’s intoxication was so overwhelming that there is no reasonable

possibility that any error by the trial court in admitting the blood test results

might have contributed to Appellant’s conviction. The trial court’s denial of

Appellant’s motion to suppress was harmless in light of the overwhelming

evidence of Appellant’s intoxication. Appellant’s first point of error should

be overruled.




                                     - 26 -
    SUMMARY OF THE ARGUMENT – REPLY TO ISSUE NO. 2

      The evidence that Appellant operated a vehicle in a public place was

legally sufficient to support his conviction for driving while intoxicated.

The jury heard testimony from two eyewitnesses that, taken together,

supports the rational inference that Appellant had been operating the vehicle

in question. The State also admitted evidence of jail phone calls containing

admissions from Appellant that he had been operating a vehicle at the time

of his arrest.   From this evidence, a rational trier of fact could have

concluded beyond a reasonable doubt that the State proved that Appellant

had operated a vehicle.




                                   - 27 -
               ARGUMENT ON REPLY TO ISSUE NO. 2

I.    The evidence of the driving while intoxicated element of

      “operation” was sufficient to support a finding of guilt by

      the jury.

      A. Standard of Review

      In determining the legal sufficiency of the evidence to support a

conviction, an appellate court must consider all of the record evidence in the

light most favorable to the verdict and must determine whether, based on that

evidence and reasonable inferences therefrom, any rational trier of fact could

have found the defendant guilty of all the elements of the offense beyond a

reasonable doubt. Villareal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App.

2009) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789,

61 L.Ed.2d 560 (1979)). This standard accounts for the factfinder's duty "to

resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts." Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at

319). When the record supports conflicting inferences, the appellate court

should presume that the factfinder resolved the conflicts in favor of the

prosecution and defer to that determination. Clayton, 235 S.W.3d at 778

(citing Jackson, 443 U.S. at 326). Direct and circumstantial evidence are


                                    - 28 -
treated equally: "Circumstantial evidence is as probative as direct evidence

in establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt." Clayton, 235 S.W.3d at 778 (quoting Hooper v.

State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)).

B. Argument

      A person commits driving while intoxicated if the person is

intoxicated while operating motor vehicle in a public place. Tex. Penal Code

Ann. § 49.04(a).    The Penal Code does not define the term “operate.”

Denton v. State, 911 S.W.2d 388, 389 (Tex. Crim. App. 1995). The Court of

Criminal Appeals has held that a person operates a vehicle when the totality

of the circumstances demonstrates “that the defendant took action to affect

the functioning of his vehicle in a manner that would enable the vehicle’s

use.” Id. at 390.

      In the case at bar, the State presented ample evidence to show that

Appellant operated a vehicle. Socorro McCrum testified that on the evening

of May 9, 2013 she saw a white pickup truck drive in from a public street

and pull up to the “code box” controlling the gate at the entrance to the

Ridgemont Village community, where she was a resident. R.R. Vol. 3, p. 31-

39, 44. The truck’s headlights were on. Id. at 38. The truck stayed next to

the code box for “a minute or so” until another vehicle pulled in behind the


                                    - 29 -
truck and waited for the gate to open. Id. McCrum heard a female voice

from the second car yell out the gate code, and then heard the gate open. Id.

at 40. The second vehicle then “went in reverse a little bit so that she could

go around the truck” and entered the property through the gate. Id. The

white truck’s lights went off and the truck started moving in reverse. Id.

McCrum then testified that she saw the truck’s red brake lights illuminate

and “it kind of went back with an impact and hit the fence.” Id. McCrum

went into her apartment to call the police. Id. Officer Boucher arrived four

or five minutes later. Id. at 49-50. McCrum went back outside when the

police arrived and saw them take a man out of the same truck she had earlier

seen pulling in and attempting to open the gate. Id. at 41-42. McCrum also

testified that from the moment she first saw the white truck until the police

arrived she never saw anyone else walking around the area, and never saw

anyone get into or out of the truck. Id. at 41.

      Officer Boucher was dispatched to the Ridgemont Village community

after receiving a report from dispatch that a white pickup truck had been

parked at the gate code box and then moved backward into a fence. Id. at 49.

When he arrived he saw a white pickup truck backed into a parking space, up

against a white stone fence column. Id. at 49-50, 52. It was the only vehicle

in sight matching the description given to Boucher. Id. at 51. The truck’s


                                     - 30 -
doors were closed and its brake lights were illuminated. Id. Boucher parked

his patrol unit and saw Appellant open the door and exit the driver’s side of

the truck. Id. at 54-55.

      During Boucher’s interaction with him, Appellant claimed ownership

of the white truck and was found to be in possession of the keys to the truck.

Id. at 69; R.R. Vol. 6, State’s Exhibit 7. Appellant asserted that he had not

been in his truck, that Boucher had never seen him in his truck and had never

seen him driving, but never claimed that anyone else had been driving his

truck. R.R. Vol. 3, p. 68-69. Appellant’s claim that he had not been in the

truck were inconsistent with Boucher’s own observation. Id.

      Officer Boucher directly observed the operation of the white truck’s

brake lights immediately before Appellant emerged from the driver’s seat

and was found to be intoxicated. Even if the operation of the truck’s brakes

did not itself constitute operation of the vehicle, the combined testimony of

McCrum and Boucher and the reasonable inferences therefrom could have

led a rational trier of fact to conclude that Appellant had been operating the

vehicle when it entered from the street, pulled up to the gate code box,

turned off its headlights, and moved backward into the fence. Appellant

emerged from the driver’s side of the same truck McCrum had seen pulling

up to the gate code box and rolling backward into the fence. No one else


                                    - 31 -
was seen entering or exiting the truck and Appellant did not claim that

anyone else had been operating the vehicle prior to Boucher’s arrival. Also,

it is particularly reasonable to infer Appellant’s operation of the white truck

during this time since he was found to be highly intoxicated and McCrum’s

observation of the truck’s movement is entirely consistent with its operation

by a highly intoxicated person.

      Additionally, the jury heard evidence of Appellant’s operation of the

vehicle from Appellant himself in the form of recorded jail phone calls. The

state admitted recordings of two of Appellant’s jail phone calls into evidence

and played both for the jury. R.R. Vol. 4, p. 12-21. On the first, Appellant

can be heard telling Shirley Brown that “I couldn’t get the gate open, and I

said the hell with it, I’ll just park it here and leave it here and get you to

come get it.” R.R. Vol. 6, State’s Exhibit 13. On the second phone call,

Appellant can be heard saying “I went out to get the truck to bring it in and I

couldn’t get the gate open…I got pissed off, I backed it up, parked it.” R.R.

Vol. 6, State’s Exhibit 14.

      The context of these statements makes it evident that Appellant is

describing his operation of the white truck on the evening of May 9, 2013,

when he was arrested for driving while intoxicated. Having heard these

Statements from Appellant, a rational trier of fact could certainly have


                                    - 32 -
concluded beyond a reasonable doubt that Appellant had been operating the

white truck on the night in question. And since McCrum and Boucher both

testified that the area where they saw the white truck was a place where the

public or a substantial group of the public has access, the evidence at trial

was legally sufficient to show that Appellant operated the vehicle in a public

place. R.R. Vol. 3, p. 36, 52-53. See Tex. Penal Code Sec. 1.07(a)(40). As

such, the evidence was sufficient to sustain a conviction in this case and

Appellant’s second point of error should be overruled.




                                    - 33 -
    SUMMARY OF THE ARGUMENT – REPLY TO ISSUE NO. 3

      The trial court properly admitted recordings of jail phone calls over

Appellant’s Rule 403 objection, since the probative value of the evidence

was not substantially outweighed by the danger of unfair prejudice. In

making its ruling, the trial court applied the appropriate balancing test under

Rule 403.




                                     - 34 -
               ARGUMENT ON REPLY TO ISSUE NO. 3

I.    The trial court properly overruled Appellant’s objection

      under Rule 403, since the probative value of the evidence

      was not substantially outweighed by its prejudicial effect.

      A trial court is assumed to have applied the necessary

      balancing test in overruling a Rule 403 objection, and the

      balancing test need not be performed on the record.

      A. Standard of Review

      A trial judge has broad discretion in admitting or excluding evidence.

Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999). A trial judge,

however, may exercise her discretion in excluding evidence only when its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, misleading the jury, by considerations of

undue delay, or needless presentation of cumulative evidence. Tex. Evid. R.

403; see also Gilbert v. State, 808 S.W.2d 467, 471-72 (Tex. Crim. App.

1991).   In reviewing the trial court's balancing test determination, a

reviewing court is to reverse the trial court's judgment "rarely and only after

a clear abuse of discretion." Montgomery v. State, 810 S.W.2d 372, 389

(Tex. Crim. App. 1991).




                                    - 35 -
      Rule 403 does not require that the balancing test be performed on the

record. Hitt v. State, 53 S.W.3d 697, 706 (Tex.App.—Austin 2001) (citing

Yates v. State, 941 S.W.2d 357, 367 (Tex.App.—Waco 1997, pet. ref’d). In

overruling a Rule 403 objection the trial court is assumed to have applied a

Rule 403 balancing test and determined the evidence was admissible. Id.;

Poole v. State, 974 S.W.2d 892 (Tex.App.—Austin 1992). The reviewing

court, however, cannot simply conclude "the trial judge did in fact conduct

the required balancing and did not rule arbitrarily or capriciously." Yates,

941 S.W.2d at 392. The trial court's ruling must be measured against the

relevant criteria by which a Rule 403 decision is made. Id. In other words,

the reviewing court must look at the proponent's need for the evidence in

addition to determining the relevance of the evidence. Id. at 392-93.

      B. Argument

      Appellant is wrong to assert that the trial court in the instant case did

not conduct a balancing test under Rule 403 as it was required to do, and is

therefore also incorrect to contend that the trial court admitted the evidence

without any guiding rules or principles and abused its discretion.

Appellant’s trial counsel objected outside the presence of the jury to the

introduction of the aforementioned recordings of jail calls under Rule 403,

arguing that the recordings were cumulative with respect to the issue of


                                    - 36 -
Appellant’s operation of the vehicle and prejudicial since they showed that

Appellant was in custody when the calls were recorded. R.R. Vol. 4, p. 5.

The State argued that the recordings were not cumulative, but were uniquely

probative of Appellant’s operation of the vehicle in question. Id. at 5-6. The

trial court overruled Appellant’s objection, saying:

       Because the Court thinks it is an issue that’s been made as to

       whether he was driving the vehicle, the court is going to

       overrule your objection and I find that it’s not cumulative for

       that reason because that has become an issue as to whether he

       was the driver in this matter, so your objection is overruled.

Id. at 6-7.

       In overruling Appellant’s objection, the trial court implicitly held that

the probative value of the recorded jail calls with respect to the issue of

Appellant’s operation of the vehicle in question was not substantially

outweighed by any danger of unfair prejudice relating to the Appellant’s

presence in custody at the time they were made. The contents of the jail

calls, as detailed above in the State’s reply to Appellant’s first and second

points of error, were highly and uniquely probative of the fact that Appellant

was operating the white truck on the evening of his arrest.             The other

evidence that Appellant was operating the vehicle, while substantial, was


                                     - 37 -
largely circumstantial, requiring the jury to draw inferences from the

combined testimony of McCrum and Boucher.               The jail phone calls,

however, contained admissions by Appellant that he had been operating the

white truck. And the asserted prejudicial effect, i.e., that the introduction of

jail calls shows the jury that Appellant was in custody, is not sufficient to

substantially outweigh the recordings’ probative value. The jury had already

been presented with evidence showing that Appellant was taken into custody

on the night of the offense.

      The trial court did not abuse its discretion in overruling Appellant’s

objection under Rule 403, since the probative value of the evidence was not

substantially outweighed by any danger of unfair prejudice resulting from its

admission.    The trial court is presumed to have applied the required

balancing test, and Rule 403 does not require that the balancing test be

performed on the record. See Yates, 941 S.W.2d at 367. Appellant’s third

point of error should be overruled.




                                      - 38 -
                          PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, the State prays the
Court deny Appellant’s appeal and affirm the judgment of the trial court.




                                 Respectfully submitted,


                                 OFFICE OF THE DISTRICT ATTORNEY
                                 33rd and 424th JUDICIAL DISTRICTS
                                 Wiley B. McAfee, District Attorney
                                 P.O. Box 725
                                 Llano, Texas 78643
                                 Telephone: (325) 247-5755
                                 Telecopier: (325) 247-5274

                                               /s/ R. Blake Ewing
                                 By:     _______________________________
                                         R. Blake Ewing
                                         Assistant District Attorney
                                         State Bar No. 24076376
                                         ATTORNEY FOR APPELLEE

                   CERTIFICATE OF COMPLIANCE

     This is to certify that the pertinent portion of this brief contains 7,480
words printed in Times New Roman 14-point font, according to the
Microsoft WordTM 2013 word count tool.

                                               /s/ R. Blake Ewing
                                         _______________________________
                                         R. Blake Ewing



                                       - 39 -
                      CERTIFICATE OF SERVICE

      This is to certify that a true copy of the above and foregoing
instrument, together with this proof of service hereof, has been forwarded on
the 27th day of July, 2015, to Mr. Tracy D. Cluck, Attorney for Appellant, by
email at tracy@tracyclucklawyer.com
                                              /s/ R. Blake Ewing
                                       _____________________________
                                       R. Blake Ewing
                                       Assistant District Attorney




                                   - 40 -
