                                 NUMBER 13-15-00554-CR

                                     COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                                             Appellant,

                                                       v.

JAVIER BONIFACIO BARRERA ALANIZ,                                                                Appellee.


                   On appeal from the County Court at Law No. 8
                            of Hidalgo County, Texas.


                                 MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Rodriguez and Benavides
             Memorandum Opinion by Justice Rodriguez
        Appellee Javier Bonifacio Barrera Alaniz was charged by information with the

offense of driving while intoxicated. A jury found Alaniz guilty, and Alaniz filed a “Motion

for Mistrial, or in the Alternative, Motion for New Trial.”1 The following day, the trial court

        1 Alaniz’s initial filing was actually captioned “Motion for Judgment of Acquittal, or in the Alternative,
Motion for New Trial.” However, at the hearing, the trial court granted an oral modification, so that the
granted a mistrial on the basis that the evidence was insufficient to sustain the jury’s

finding of guilt. The State appeals the trial court’s order, contending that the trial court

abused its discretion in granting Alaniz’s motion. We reverse and remand.

                                        I.       BACKGROUND

        At trial, the State’s sole witness was Officer Crystal Gandaria of the McAllen Police

Department, who testified as follows. At approximately 1:17 A.M. on February 28, 2013,

she observed a Pontiac Grand Am turn onto a one-way street, driving in the wrong

direction. Gandaria executed a traffic stop. When Gandaria approached the driver’s

door, she observed Alaniz, who appeared to be dazed and did not respond to her first

request for his driver’s license and insurance. Upon a second request, Alaniz provided

his driver’s license, but said he would have to look for his insurance. It was at this point

that Gandaria detected a “strong odor” of alcohol beverage on Alaniz’s breath, slurred

speech, and bloodshot eyes.            She asked Alaniz to step out of the car and began

standardized field sobriety tests.

        Gandaria testified that she witnessed six signs of intoxication on Alaniz’s

“horizontal gaze nystagmus test.” Gandaria next administered the “walk-and-turn test.”

According to Gandaria, Alaniz failed to touch heel-to-toe at all times, used his arms to

balance, stopped while walking, failed to maintain balance during instruction, and stepped

off of the line—each a “clue” suggesting that Alaniz was intoxicated. Finally, during the

“one-leg stand test,” Alaniz exhibited poor balance, including swaying, hopping, and

putting his foot on the ground in an effort to maintain his steadiness. Gandaria testified


order was captioned “Motion for Mistrial, or in the Alternative, Motion for New Trial.” The State does not
protest the oral amendment or any issue related to it.
                                                    2
that according to standardized rubric for these tests, Alaniz had failed each one.

Gandaria then asked Alaniz to provide a specimen of his breath in order to test his blood

alcohol concentration (BAC). Alaniz refused. Gandaria placed Alaniz under arrest for

suspicion of driving while intoxicated.

       Alaniz was transported to the police station, where Gandaria took a video recording

of a custodial interview with Alaniz. During the interview, Gandaria again requested a

breath specimen, which Alaniz refused, stating that he believed the fact that he was

chewing gum earlier in the evening could influence the tests. Gandaria also recorded a

second set of field sobriety tests. The recording of this interview was played at trial.

Gandaria testified that while Alaniz had performed better on the second set of recorded

tests, she still believed he had failed the second set of tests.

       Alaniz cross-examined Gandaria on potential shortcomings in field sobriety tests,

breath tests, and other matters. As a part of this cross-examination, he elicited the

following testimony:

       Q.     Okay. With respect to the—after you performed these tests, if he
              had blown, hypothetically, a .04, would you have let him go?

       A.     Yes.

       Q.     You would have released him?

       A.     That’s our—that’s our procedure at the McAllen Police Department.
              They blow under the legal limit, they are released.

       Q.     So if Javier had blown a .05 or .06, you would have let him go that
              night?

       A.     We would have called a sober adult for him, to pick him up—

       Q.     Okay.

                                              3
       A.     —but yes.

       Q.     But he would not have been prosecuted?

       A.     He wouldn’t have been—he wouldn’t have been prosecuted for the
              DWI.

Alaniz also cross-examined Gandaria as to the absence of any video to corroborate her

testimony regarding her initial encounter with Alaniz, as well as the fact that Alaniz had

performed better during the later, video-taped series of sobriety tests.

       Alaniz’s then-fiancée and current wife testified as a defense witness. She testified

that Alaniz was not intoxicated, but was sleep deprived, having worked 100 hours in the

previous week at a location four hours from the couple’s home, and that Alaniz had

worked a lengthy night shift on the previous evening. At the close of the evidence, the

jury returned a verdict of guilty.

       Prior to sentencing, Alaniz argued a “Motion for Mistrial, or in the Alternative,

Motion for New Trial.” Alaniz contended that the evidence was legally insufficient to

support the jury’s verdict. In particular, he pointed to Gandaria’s testimony that Alaniz

would have been released and not charged if he had, hypothetically, given a breath

specimen and that specimen had returned a BAC of less than 0.08. Alaniz relied on the

statute, which defines “intoxication” as either (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

substances into the body” or (B) “having an alcohol concentration of 0.08 or more.” See

TEX. PENAL CODE. ANN. § 49.01(2)(A)–(B) (West, Westlaw through 2015 R.S.).


                                             4
According to Alaniz, Gandaria was admitting that without a positive test showing “alcohol

concentration of 0.08 or more” under subsection B, there was not sufficient evidence to

show that Alaniz’s “mental or physical faculties” were impaired by intoxicants under

subsection A.     See id.    Since there was no breath test, Alaniz reasoned that the

evidence was insufficient to support a judgment of conviction beyond a reasonable doubt.

The trial court agreed with Alaniz and granted a mistrial. The State filed this interlocutory

appeal of the trial court’s order.

                    II.     JURISDICTION ON APPEAL AND INVITED ERROR

       As an initial matter, we address our jurisdiction to hear this appeal. Alaniz styled

his filing “Motion for Mistrial, or in the Alternative, Motion for New Trial.” At the hearing

the following day, the trial court granted a mistrial. On appeal, the State acknowledges

that the Texas Code of Criminal Procedure provides no authority for the State to appeal

an order granting a mistrial. State v. Boyd, 202 S.W.3d 393, 400 (Tex. App.—Dallas

2006, pet. ref’d); see State v. Garza, 774 S.W.2d 724, 726 (Tex. App.—Corpus Christi

1989, pet. ref’d). However, according to the State, this order is the functional equivalent

of an order granting a new trial, and we should therefore treat the order as one granting

a new trial. The State contends that because an order granting a new trial is subject to

interlocutory appeal, we nonetheless have jurisdiction to consider this appeal.

       Alaniz responds that, whatever the functional equivalence of the motion, the State

may not challenge this issue on appeal because the State invited the trial court to grant

a mistrial rather than a new trial.     Alaniz points out that at the hearing, the State

repeatedly asserted that Alaniz’s motion should be considered a motion for mistrial and


                                             5
that any resulting relief should be in the form of a mistrial. Alaniz directs our attention to

the following statements by the State during the hearing:

       THE STATE:            That’s correct. Under Article 44.01 of the Texas
                             Code of Criminal Procedure, defense counsel’s
                             motion for new trial is actually a motion for a mistrial
                             because the sentencing has not been had—it has not
                             taken place. And, of course, the State is going to
                             oppose that, and is asking the Court to respect the
                             jury’s finding of guilt.

Later, the State argued against Alaniz’s motion, noting that the trial court had previously

taken up the same issues when considering Alaniz’s motion for directed verdict:

       THE STATE:            Your Honor, this matter was already taken up before
                             this Honorable Court. This Honorable Court already
                             made a ruling with regards to the motion for mistrial
                             that defense counsel is making, with regards to the
                             exact, same issues.

Finally, at the conclusion of the hearing, the following exchange took place:

       THE COURT:            Motion for new trial is granted. We’ll retry the case.
                             [The State will] appeal, and we’ll go forward. Let’s set
                             up a status case.

       THE STATE:            I believe it’s a mistrial that’s granted, not a motion for
                             new trial, under Article 44.01.

       THE COURT:            Do you want it to be a mistrial?

       ALANIZ:               What did you grant?

       THE COURT:            Well, I thought we had already clarified the issue and
                             allowed you to do the oral amendment, and, therefore,
                             I was granting a new trial. But, do you want a
                             mistrial?

       ALANIZ:               Well, it’s the same result.

       THE COURT:            Same result.


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        ALANIZ:               I don’t know what the difference is, personally.

        THE COURT:            Well, [State]—off the record.

        (Discussion off the record at the bench.)

        THE COURT:            All right. Motion for mistrial is granted.

Alaniz points out that the trial court granted a mistrial after requesting the State’s input as

to whether the order should be a mistrial or a new trial. Alaniz argues that because the

State declared three times that the order should be a mistrial, the State invited any error

and cannot complain on appeal. We consider the arguments of Alaniz and the State in

turn.

A.      Functional Equivalence to New Trial

        The State has a right to appeal an order of the court granting a new trial. State v.

Doyle, 140 S.W.3d 890, 892 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing TEX. CODE

CRIM. PROC. ANN. art. 44.01(a)(3) (West, Westlaw through 2015 R.S.)). A new trial is the

rehearing of a criminal action after the court has, on the defendant’s motion, set aside a

verdict of guilt. Doyle, 140 S.W.3d at 892 (citing TEX. R. APP. P. 21.1). An order for new

trial ordinarily comes only after sentence is imposed in a completed trial. Ocon v. State,

284 S.W.3d 880, 883 n.1 (Tex. Crim. App. 2009) (quoting Rodriguez v. State, 852 S.W.2d

516, 518 (Tex. Crim. App. 1993) (en banc)).           By comparison, an order of mistrial

ordinarily occurs before completion of the trial and the rendition of judgment. Id. This

Court has allowed the State to appeal a post-verdict grant of a mistrial, holding that “a

post-verdict mistrial ruling which returns the case to the posture in which it had been in

before trial is functionally indistinguishable from an order granting a new trial.” Garza,


                                              7
774 S.W.2d at 726. When an order is the functional equivalent of an order granting a

new trial, the reviewing court may look past the label assigned to the order and treat it as

an order granting a new trial. State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim. App.

1996); Doyle, 140 S.W.3d at 892.

       Here, as in Garza, the trial court granted appellant’s oral motion for mistrial after

the jury had returned a guilty verdict but before the punishment phase began.              See

Garza, 774 S.W.2d at 725. We conclude that the trial court’s order granting a mistrial is

functionally indistinguishable from a grant of a new trial. We will “look past the label

assigned to the order by the trial court and treat the order as a motion for new trial” and

we therefore exercise our jurisdiction to review the State’s appeal of that order. See TEX.

CODE CRIM. PROC. ANN. art. 44.01(a)(3); Savage, 933 S.W.2d at 499; Doyle, 140 S.W.3d

at 892. Accordingly, we treat the order in question as an order as granting a new trial,

for which the State has the right to appeal.

B.     Invited Error

       Alaniz argues that regardless of any functional equivalence, we should not

exercise our jurisdiction to consider the State’s appeal because the Stated invited the

error of which it now complains. During the hearing on Alaniz’s motion, the State took

the position that the motion and any resulting order should be in the form of a mistrial

rather than a new trial. According to Alaniz, the State is therefore estopped from invoking

the appellate jurisdiction of an order of new trial.

       If a party affirmatively seeks action by the trial court, that party cannot later contend

that the action was error. Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999)


                                               8
(en banc). In other words, a party is estopped from seeking appellate relief based on

error that it induced or caused. Woodall v. State, 336 S.W.3d 634, 644 (Tex. Crim. App.

2011). Related civil cases have held that in order for this doctrine to apply, the party who

allegedly invited the error must have deliberately and “unequivocally taken a position in

the trial court that is clearly adverse to its position on appeal.”2 In re Dep’t of Family &

Protective Servs., 273 S.W.3d 637, 646 (Tex. 2009) (orig. proceeding) (quoting Tittizer v.

Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005) (per curiam)).

        But whatever role the State’s position played in shaping the trial court’s action, it

did not qualify as invited error. We base our conclusion on three principal reasons.

First, at least to an extent, the State did not “affirmatively seek action by the trial court” so

as to truly “invite” error. See Prystash, 3 S.W.3d at 531. Instead, the State consistently

resisted the actions which were proposed by Alaniz—mistrial or new trial—and urged the

trial court to uphold the jury’s verdict.         The State argued against Alaniz’s proposed

ground for these actions, insufficient evidence, by observing that the jury had heard

extensive testimony from Officer Gandaria and even seen video indicating intoxication.

The trial court granted the mistrial despite the State’s arguments, not because of them.

See Meza v. State, 153 S.W.3d 238, 245 (Tex. App.—El Paso 2004, no pet.) (finding



        2 In multiple opinions, the Texas Court of Criminal Appeals has looked to civil cases for guidance
on the issue of invited error, and we take the same approach here. See, e.g., Woodall v. State, 336 S.W.3d
634, 646 n.15 (Tex. Crim. App. 2011) (citing Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 365
(Tex. 1987); Wackenhut Corrections Corp. v. de la Rosa, 305 S.W.3d 594, 624 (Tex. App.—Corpus Christi
2009, no pet.)); Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (en banc) (citing M., K. & T.
Ry. v. Eyer et al., 70 S.W. 529, 529–30 (Tex. 1902); Railroad Co. v. Sein, 33 S.W. 215, 216 (Tex. 1895));
see also Ex parte Williams, 65 S.W.3d 656, 659 (Tex. Crim. App. 2001) (Keller, P.J., concurring) (citing
Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000); Am. Gen. Fire and Cas. Co. v. Vandewater,
907 S.W.2d 491, 492 (Tex. 1995) (per curiam); Drake v. Trinity Universal Ins. Co., 600 S.W.2d 768, 772
(Tex. 1980)).
                                                    9
Meza did not affirmatively seek action so as to invite error, but had instead passively

responded to actions initiated and advanced by the trial court); see also Neasbitt v.

Warren, 22 S.W.3d 107, 112–13 (Tex. App.—Fort Worth 2000, no pet.) (rejecting claim

that invited error barred the defendant from appealing the applicability of a statute, given

that plaintiff was the main proponent of its applicability and the trial court had found it

applicable mainly at the plaintiff’s behest, not the defendant’s).

       Second, even to the limited extent that the State invited the trial court’s ruling, we

cannot say the resulting ruling was error, which is often listed as a defining characteristic

of invited error. See, e.g., Prystash, 3 S.W.3d at 531 (holding that invited error “is part

of the definition of what can constitute error” for purposes of appellate reversal); see also

Invited Error, BLACK’S LAW DICTIONARY (10th ed. 2014) (including “erroneous ruling” as a

defining characteristic of invited error). Instead, cases dealing with similar orders have

not noted any error, but have simply disregarded the label and reviewed the substance

of the order—just as we do here. For instance, in Garza, this Court reviewed an order

of mistrial granted after the jury had returned a verdict of guilt, as we do here. 774

S.W.2d at 726. The Garza Court did not declare the label of mistrial to be an error, but

simply evaluated the motion for its substance without concern over the order’s label. See

id.   The Garza court recognized that under the circumstances, the mistrial was

“functionally indistinguishable” from an order of new trial. See id. Thus, regardless of

whether or not the trial court here could grant the mistrial based on the merits, the trial

court could certainly label its order a mistrial without committing reversible error; it is

simply that because this form of mistrial is so akin to a new trial, the rules make way for


                                             10
the State’s appeal regardless of the label assigned. See Savage, 933 S.W.2d at 499;

Doyle, 140 S.W.3d at 892.

       Third, the State’s position on appeal is not “clearly adverse” to its position in the

trial court. See Dep’t of Family & Protective Servs., 273 S.W.3d at 646. In the trial court,

the State argued that any order should be in the form of a mistrial. On appeal, the State

does not reverse course and contend that the trial court erred in labeling its order a

mistrial. Instead, the State contends that regardless of the label assigned to the order,

this Court should look to the substance of the relief granted and allow this interlocutory

appeal. See Savage, 933 S.W.2d at 499; Doyle, 140 S.W.3d at 892. Thus, we cannot

say that the State’s position on appeal is “clearly adverse” to its position in the trial court.

See Dep’t of Family & Protective Servs., 273 S.W.3d at 646.

       In summary, the State only partly “invited” what cannot truly be called an “error.”

See Prystash, 3 S.W.3d at 531; Savage, 933 S.W.2d at 499. On appeal, the State

addresses this issue in a fashion that is not “clearly adverse” to its position in the trial

court. See Dep’t of Family & Protective Servs., 273 S.W.3d at 646. We therefore find

no merit in Alaniz’s invited error argument.

                            III.    ORDER GRANTING NEW TRIAL

       By its sole issue on appeal, the State contends that the trial court reversibly erred

by granting Alaniz’s motion.       According to the State, the evidence was sufficient to

support the jury’s verdict, and the trial court therefore abused its discretion in granting

relief, which we treat as an order for a new trial for purposes of our review. The State

contends that the trial court based its decision on a single piece of evidence: Gandaria’s


                                               11
statement that if Alaniz had submitted a breath specimen which had returned a BAC of

less than 0.08, he would have been released without charges. The State asserts that

this testimony, by itself, does not render the evidence insufficient. We agree with the

State.

A.       Standard of Review and Applicable Law

         Texas courts have consistently held that a trial court has authority to grant a new

trial “in the interest of justice” and that the trial court’s decision to grant or deny a

defendant’s motion for new trial is reviewed for an abuse of discretion. See State v.

Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App. 2007).              But that discretion is not

unbounded. Id. at 907. A trial court does not have authority to grant a new trial unless

the first proceeding was not in accordance with the law. Id.

         A motion for new trial based on insufficiency of the evidence presents a legal rather

than a factual question, and the trial court must apply the same legal test as that employed

by the appellate court. State v. Fuller, 480 S.W.3d 812, 819 (Tex. App.—Texarkana

2015, pet. ref’d); State v. Mercier, 164 S.W.3d 799, 812 (Tex. App.—Corpus Christi 2005,

pet. ref’d). “The trial court must decide, after viewing the evidence in the light most

favorable to the verdict, whether any rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt.” Fuller, 480 S.W.3d at 819; Mercier,

164 S.W.3d at 812. The court reviewing a sufficiency challenge must give deference to

the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper

v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). When the record supports conflicting


                                              12
inferences, we presume that the jury resolved the conflicts in favor of the verdict and

therefore defer to that determination. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim.

App. 2013). If the verdict is supported by sufficient evidence under this standard, it is an

abuse of discretion for the trial court to grant the motion for new trial on grounds of

insufficient evidence. Fuller, 480 S.W.3d at 819; State v. Sanders, 440 S.W.3d 94, 101

(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). The defendant ordinarily has the

burden of proof on a motion for new trial. Mercier, 164 S.W.3d at 813 (citing Patrick v.

State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995) (en banc)).

       Under a hypothetically correct jury charge, Alaniz was guilty of this offense if he

was intoxicated while operating a motor vehicle in a public place. See TEX. PENAL CODE

ANN. § 49.04 (West, Westlaw through 2015 R.S.); Foley v. State, 327 S.W.3d 907, 915

(Tex. App.—Corpus Christi 2010, pet. ref’d) (mem. op.). “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 substances into the body” or (B) “having an alcohol

concentration of 0.08 or more.” TEX. PENAL CODE ANN. § 49.01(2)(A)–(B); Crenshaw v.

State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012).

B.     Analysis

       It is worth recapitulating that portion of Gandaria’s testimony which was the basis

for Alaniz’s insufficient evidence argument. Gandaria first testified that if Alaniz had,

hypothetically, submitted a breath specimen which had returned a BAC of less than 0.08,

he would have been released without charges. She testified that this was “our procedure


                                            13
at the McAllen Police Department. They blow under the legal limit, they are released.”

Gandaria further testified that if Alaniz’s hypothetical sample had returned a BAC of .05

or .06, law enforcement would have released him and “would have called a sober adult

for him, to pick him up . . . .”

       The jury could have drawn at least two inferences from this testimony. On one

hand, the jury could have taken Gandaria’s statements at face value: that even if Alaniz

had returned a BAC of less than 0.08, Gandaria would have still considered Alaniz to be

not “sober” enough to drive, but that she would not have arrested him or pursued

prosecution—as a matter of department policy, rather than actual guilt or innocence. On

the other hand, the jury could have at least conceivably taken this testimony as an

admission that her encounter with Alaniz did not create sufficient evidence of intoxication

to support a conviction, as Alaniz argued and the trial court agreed. To reach this second

inference, the jury would have had to give little credence to Gandaria’s other testimony:

that Alaniz turned the wrong way onto a one-way street in the early morning hours; that

he had an odor of alcohol on his breath, a “dazed” expression, red eyes, and slurred

speech; that he failed several field sobriety tests and refused to provide a breath

specimen; that she considered him to be intoxicated; and that even assuming a breath

test result of .06, she would have called a “sober adult” to pick him up, and that her

decision to do so would be motivated by department policy, not by any reason related to

guilt or innocence. However, the jury did not choose to disbelieve this evidence.

       Instead, the jury weighed the evidence and found, beyond a reasonable doubt,

that Alaniz was intoxicated while operating a motor vehicle in a public place. See TEX.


                                            14
PENAL CODE ANN. § 49.04; Foley, 327 S.W.3d at 915. Given that the evidence supported

the jury’s inference, the trial court was required to defer to the jury’s resolution of

conflicting testimony and to disregard other possible inferences, just as we are on appeal.

See Temple, 390 S.W.3d at 360; Hooper, 214 S.W.3d at 13; Fuller, 480 S.W.3d at 819.

This the trial court did not do. Viewing the evidence in the light most favorable to the

verdict, we conclude that a rational trier of fact could have found the essential elements

of the offense beyond a reasonable doubt and that the evidence was sufficient to support

Alaniz’s conviction. See Fuller, 480 S.W.3d at 819; Mercier, 164 S.W.3d at 812. We

therefore conclude that the trial court abused its discretion in ordering a mistrial which

was the functional equivalent of a new trial. See Fuller, 480 S.W.3d at 819; Sanders,

440 S.W.3d at 101.

       We sustain the State’s sole issue on appeal.

                                  IV.    CONCLUSION

       We reverse the order of the trial court and remand the case for further proceedings

consistent with this opinion.



                                                               NELDA V. RODRIGUEZ
                                                               Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
10th day of November, 2016.




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