                                                                               ACCEPTED
                                                                          06-13-00110-CR
                                                                SIXTH COURT OF APPEALS
                                                                     TEXARKANA, TEXAS
                                                                     1/27/2015 3:16:49 PM
                                                                          DEBBIE AUTREY
                                                                                   CLERK

                         NO. 06-13-00110-CR

                                IN THE                    FILED IN
                                                   6th COURT OF APPEALS
                    SIXTH COURT OF APPEALS           TEXARKANA, TEXAS
                                                   1/27/2015 3:16:49 PM
                     AT TEXARKANA, TEXAS
                                                       DEBBIE AUTREY
                   _______________________                 Clerk


                         Michael Earitt White,
                             Appellant,

                                  v.

                      The State of Texas,
                            Appellee.
                 _______________________________
                      On Appeal from the
            County Court at Law, Lamar County, Texas
                   Hon. Bill Harris, Presiding
              _______________________________
                 APPELLANT’S BRIEF IN REPLY




Don Biard
State Bar No. 24047755
Counsel for Appellant




                ORAL ARGUMENT NOT REQUESTED
                         IDENTITY OF PARTIES AND COUNSEL
Defendant Below
Appellant in this Court

Michael Earitt White

Counsel for Appellant:
     Don Biard                             (on appeal)
     State Bar No. 24047755
     38 First Northwest
     Paris, Texas 75460
     Tel: (903)785-1606
     Fax: (903)785-7580
     Email: dbiard@att.net

      Jo Nita Moody                        (at trial)
      State Bar No. 16340800
      41 West Side Square
      Cooper, Texas 75432
      Tel: (903)395-2400


Appellee in this Court

The State of Texas

Counsel for Appellee:
     Gary Young
     Lamar County Attorney’s Office
     119 N. Main Street
     Paris, Texas 75460
     Tel: (903)737-2458
     Fax: (903)737-2455



                                                           1
                                      TABLE OF CONTENTS


Identity of Parties and Counsel………………..........………………………………1

Table of Contents………………………..........…………………………………….2

Index of Authorities………………......………………………………………….....3

Issues Presented…………………………………………………………….………4

Statement of the Case………………………………….…………………………...5

Procedural History………………………....…………………………………….....6

Argument and Authorities……………………......…………………….…….......7-9

Prayer……………………..……………………………………………………….10

Certificate of Service…………………......…………………………………..…...11

Certificate of Compliance With Rule 9.4(i)(3)........................................................12




                                                                                                     2
                                             INDEX OF AUTHORITIES

                                                         Caselaw

Republic Underwriters Ins. Co. v. Mex-Tex., Inc., 150 S.W.3d 423, 427 (Tex.
2004)..........................................................................................................................7

Rogers v. Stevens, 697 S.W.2d 75 (Tex. App. – Fort Worth 1985)..........................7

Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000).............................................7

Washington v. State, 127 S.W. 3d 197, 203 (Tex. App. – Houston [1st Dist.] 2003,
pet. dism’d)................................................................................................................8


                                                         Statutes


Texas Transportation Code §521.457........................................................................7
                    SUBJECT MATTER OF ISSUE PRESENTED

I. Appellant’s point of error is adequately briefed.

II. A claim of insufficient evidence may be raised for the first time on appeal.

III. Appellant was not required to request a jury instruction on an
affirmative defense at trial to challenge the sufficiency of the evidence on
appeal.




                                                                                   4
                           STATEMENT OF THE CASE


Nature of the Case:          Plea of Not Guilty to One Charge of Driving
                             While License Suspended

Trial Court:                 The Honorable Bill Harris
                             County Court at Law, Lamar County, Texas

Trial Court Disposition:     A jury convicted Appellant and sentenced
                             Appellant to a 90 day jail term and a $1,000.00
                             fine




                                                                               5
                      PROCEDURAL AND FACTUAL HISTORY

Appellant adopts herein the procedural and factual background set forth in

Appellant’s Original Brief.




                                                                             6
                                    ARGUMENT AND AUTHORITIES

Issue No. 1 in Reply Restated: Appellant has adequately brief the point of

error by citing to relevant primary authority.

         The state asserts in its brief that Appellant has failed to adequately brief his

point of error. Courts have long recognized that there are some cases in which the

appropriate authorities are very limited.1 Admittedly, there is very limited case law

regarding the underlying offense in this case. However, this is understandable

given the offense. It is ordinarily a Class C misdemeanor offense and numerous

published appellate opinions on such offenses are not the norm.2

         Further, legal authority is sometimes of limited value when an argument

consists primarily of reviewing pertinent portions of the record and urging the

court of appeals that there is no evidence supporting a particular finding by the

trier of fact.3

         However, here, Appellant has provided the court with numerous citations to

primary authority – the controlling statutes. And, Appellant has given the court “a

relevant jurisprudential framework for evaluating” Appellant’s point of error.4




1
  Republic Underwriters Ins. Co. v. Mex-Tex., Inc., 150 S.W.3d 423, 427 (Tex. 2004).
2
  Tex. Transp. Code §521.457(e)
3
  Rogers v. Stevens, 697 S.W.2d 75 (Tex. App. – Fort Worth 1985).
4
  Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000).

                                                                                            7
Issue No. 2 in Reply Restated: In a criminal case, the appellant may raise

legal sufficiency for the first time on appeal.

        In its brief, the state asserts that Appellant has failed to preserve his point of

error because “this argument did not comport to the argument made in the trial

court.”5 However, it is well settled that a criminal appellant may raise a claim of

insufficient evidence for the first time on appeal.6 There is no requirement that a

criminal Appellant make this argument to the trial court or assert it in a motion for

new trial. The state has not provided any authority to the contrary nor asserted any

argument why the rule should be different in this case.

Issue No. 3 in Reply Restated: Appellant was not required to request a jury

instruction on an affirmative defense.

        The state asserts in its brief that “it was incumbent upon White to prove that

his suspension period could not have lawfully begun under Tex. Transp. Code

Ann. §521.292(a), §521.295(a)-(b), §521.297(a) (West 2013) by requesting an

issue in the jury charge and to prove such an affirmative defense by a

preponderance of the evidence.”7

        As noted in Appellant’s brief, Appellant’s point of error does not concern

the affirmative defense provided in Tex. Transp. Code §521.457(d). That


5
  State’s Brief, pg. 11
6                                                                  st
  Washington v. State, 127 S.W. 3d 197, 203 (Tex. App. – Houston [1 Dist.] 2003, pet. dism’d).
7
  State’s Brief, pg. 17

                                                                                                 8
provision provides for an affirmative defense to prosecution if it can be shown that

the defendant did not receive actual notice of his license suspension.

           Again, that is not what is being argued on appeal. Appellant asserts on

appeal that the evidence is insufficient to support his conviction because the

evidence at trial did not show that his license was suspended at the time he was

driving. As shown in Appellant’s brief, that is an essential element of the charged

offense and one which the state was required to prove beyond a reasonable doubt.8



                                       CONCLUSION

There is no evidence to show that Michael Earl White was driving during a time

when his license was lawfully suspended. Accordingly, the conviction should be

reversed.




8
    Appellant’s Brief, pg. 11

                                                                                      9
                                     PRAYER

Appellant asks this court to reverse the conviction and render a judgment of

acquittal.




                                             Respectfully Submitted,


                                             /s/ Don Biard
                                             ____________________________
                                             Don Biard
                                             State Bar No. 24047755
                                             38 First Northwest
                                             Paris, Texas 75460
                                             Tel: (903)785-1606
                                             Fax: (903)785-7580
                                             Email: dbiard@att.net
                                             Counsel for Appellant




                                                                               10
                         CERTIFICATE OF SERVICE

I certify that on January 27, 2015 a copy of the foregoing Appellant’s Brief was
served to the following parties by hand delivery and regular mail.



                                                 /s/ Don Biard
                                                 ___________________________
                                                 Don Biard


Attorney for Appellee:
Gary Young
Lamar County Attorney’s Office




                                                                                   11
   CERTIFICATE OF COMPLIANCE PURSUANT TO TEXAS RULE OF APPELLATE
                         PROCEDURE 9.4(i)(3)



TO THE HONORABLE COURT OF APPEALS:

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

Counsel for Appellant files this certification that Appellant’s brief is a computer-

generated document that contains 1,227 words. Counsel further certifies that he

relied on the word count of the computer program used to prepare this document.

                                Respectfully submitted,


                                ___/s/Don Biard___________________________
                                DON BIARD
                                State Bar No. 24047755
                                McLaughlin, Hutchison & Biard
                                38 First Northwest
                                Paris, Texas 75460
                                Tel: (903)785-1606
                                Fax: (903)785-7580
                                Attorney for Appellant




                                                                                  12
