                                                                                    PD-0751-15
                                                                  COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                      NO. PD-0751-15              Transmitted 7/31/2015 3:50:45 PM
                                                                    Accepted 7/31/2015 4:23:25 PM
                                         IN THE                                     ABEL ACOSTA
                                                                                            CLERK

                    COURT OF CRIMINAL APPEALS
                                       OF TEXAS
              ____________________________________________________

                         MIGUEL RAMIREZ, Appellant

                                           v.

                     THE STATE OF TEXAS, Appellee


                        APPELLANT’S
             PETITION FOR DISCRETIONARY REVIEW

                                 No. 02-14-00386-CR
                                        In the
                    Second District Court of Appeals at Fort Worth
              ____________________________________________________

                   On appeal from Cause Number CR-2013-01449-B
                          In County Criminal Court No. 2
                               of Denton County, Texas
                    Honorable Virgil Valenkamp, Judge Presiding
           ____________________________________________________

ROBERTO R. ALONZO
ALONZO LAW FIRM, P.C.
Attorneys at Law
400 South Zang Boulevard, Suite 810
                                                        July 31, 2015
Dallas, Texas 75208
Tel. (214) 941-8200
Fax (214) 941-8228
Email: alonzopc2003@yahoo.com

Attorney for Appellant

          APPELLANT RESPECTFULLY REQUESTS ORAL ARGUMENT



                                            1
                     IDENTITIES OF JUDGE, PARTIES AND COUNSEL

       Pursuant to the provisions of Rule 68.4(a), Texas Rules of Appellate Procedure, a

complete list of the names of the trial judge, all parties and counsel are as follows:


Trial Judge:                                   Hon. Virgil Valenkamp, County Criminal Court No.
                                               2, Denton County, Texas

Parties:                                       Miguel Ramirez, Appellant
                                               State of Texas, Appellee

Attorneys for the Appellant:                   Rick Coen, Trial Counsel
                                               Cohen & Cohen
                                               12830 Hillcrest Rd., Suite 111
                                               Dallas, TX 75230

                                               Roberto R. Alonzo., Counsel on appeal,
                                               400 S. Zang Blvd., Ste 810
                                               Dallas, TX 75208

Attorneys for the State:                       Hon. Paul Johnson
                                               Criminal District Attorney
                                               1450 E. McKinney St.
                                               Denton, Denton County, TX 76202

                                               Jesse Davis and Britney Tomberlin,
                                               Asst. Criminal District Attorneys, Trial Counsel

                                               Catherine Luft, Asst. Criminal District Attorney,
                                               State’s Counsel on Appeal




                                                  2
                                                   TABLE OF CONTENTS


IDENTITY OF JUDGE, PARTIES, AND COUNSEL ................................................ 2

INDEX OF AUTHORITIES............................................................................................ 4

STATEMENT REGARDING ORAL ARGUMENT.................................................... 5

STATEMENT OF THE CASE........................................................................................ 6

STATEMENT OF PROCEDURAL HISTORY............................................................ 7

QUESTION PRESENTED FOR REVIEW .................................................................. 7


                                      QUESTION PRESENTED FOR REVIEW

          WHETHER THE COURT OF APPEALS APPLIED THE CORRECT
          LEGAL STANDARD REGARDING THE TRIAL COURT’S DENIAL OF
          THE REQUESTED JURY CHARGE INSTRUCTION PURSUANT TO
          ARTICLE 38.23, TEXAS RULES OF CRIMINAL PROCEDURE (3RR:
          176). 1



ARGUMENT AND AUTHORITIES ………………………………………………...                                                                                    7

PRAYER FOR RELIEF..................................................................................................               11

CERTIFICATE OF SERVICE....................................................................................... 12

CERTIFICATE OF COMPLIANCE ............................................................................ 12

APPENDIX.......................................................................................................................   13

Ramirez v. State, No. 02-14-00386-CR (Tex. App. – Fort Worth, delivered April 30, 2015)
(Mem. Op.) (not designated for publication).




1
  The Reporter’s Record is cited as “RR” preceded by the volume number and followed by the page number; the
Clerk’s Record is cited as “CR” followed by the page number; Defendant’s Exhibits are cited as “DX” followed by
the exhibit number.



                                                                     3
                                           INDEX OF AUTHORITIES
                                                                                                         PAGE
Cases
Akins v. State, 202 S.W.3d 879 (Tex. App.—Fort Worth 2006, pet. ref’d).... 9

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)…………....…… 8

Givens v. State, 949 S.W.2d 449 (Tex. App.—Fort Worth 1997, pet. ref’d).. 9

Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007) ............................ 9

Ramirez v. State, No. 02-14-00386-CR (Tex. App. – Fort Worth, delivered
 April 30, 2015) (Mem. Op.) (not designated for publication) ...................... 7

Renteria v. State, 206 S.W.3d 689 (Tex. Crim. App. 2006) ........................... 8

STATUTES AND RULES:

TEX.CODE CRIM.PRO. ART. 38.23(a) ............................................................... 7,9

TEX.CODE CRIM.PRO. ART. 14.01(a) ............................................................... 9

TEX.R.APP.PRO. 21.8(c) ................................................................................. 7

TEX.R.APP.PRO. 47.1 ..................................................................................... 8,11




                                                        4
                      STATEMENT REGARDING ORAL ARGUMENT

        The Second District Court of Appeals has not properly applied the legal standard for the

inclusion of a jury instruction requested pursuant to Article 38.23 of the Texas Rules of Criminal

Procedure and oral argument will help to develop the application of the law to the unique facts of

this case.




                                                5
                                        NO. PD-0751-15

                         IN THE COURT OF CRIMINAL APPEALS

                                           OF TEXAS


                               MIGUEL RAMIREZ, Appellant

                                                v.

                              THE STATE OF TEXAS, Appellee



              APPELLANT’S PETITION FOR DISCRETIONARY REVIEW




TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

       NOW COMES, Miguel Ramirez, Appellant in this cause, by and through his attorney,

Roberto R. Alonzo, and pursuant to the provision of Texas Rules of Appellate Procedure 66, et

seq., urges this Court to grant discretionary review, and in support will show as follows:



                                 STATEMENT OF THE CASE

       Appellant was charged by information for Driving While Intoxicated (CR: 6). A jury trial

was held and Appellant’s trial counsel entered a plea of not guilty on behalf of Appellant (2RR:

11). The jury returned a verdict of guilty as charged in the information (CR: 91) (3RR: 204).

Appellant waived jury punishment and after a trial on punishment, the trial court sentenced

Appellant to 120 days confinement but suspended the confinement and placed Appellant on

community supervision for 16 months with a fine $600 (CR: 84) (3RR: 208).




                                                6
       Appellant timely filed his Notice of Appeal (CR: 102). Appellant also timely filed his

Motion for New Trial; however, the motion was denied by operation of law (CR: 95, 98). See,

Rule 21.8(c), TEX. R. APP. PRO.



                         STATEMENT OF PROCEDURAL HISTORY

       On April 30, 2015, The Second District Court of Appeals affirmed Appellant’s

conviction in its opinion in Ramirez v. State, No. 02-14-00386-CR, (Tex.App. – Fort Worth,

delivered April 30, 2015) (Mem. Op.) (not designated for publication). No Motion for Rehearing

was filed.

       This Court granted Appellant’s motion for extension of time to file his Petition for

Discretionary Review by July 31, 2015. This petition is timely filed.



                                QUESTION PRESENTED FOR REVIEW

       WHETHER THE COURT OF APPEALS APPLIED THE CORRECT
       LEGAL STANDARD REGARDING THE TRIAL COURT’S DENIAL OF
       THE REQUESTED JURY CHARGE INSTRUCTION PURSUANT TO
       ARTICLE 38.23, TEXAS RULES OF CRIMINAL PROCEDURE (3RR:
       176).



                               ARGUMENT AND AUTHORITIES


       The Court of Appeals opinion correctly sets out the facts in its opinion. See, Ramirez v.

State, No. 02-14-00386-CR (Tex. App. – Fort Worth, delivered April 30, 2015) (Mem. Op.) (not

designated for publication).




                                                7
       At the conclusion of the trial on the merits, Appellant requested an instruction be

included in the jury charge regarding unlawfully obtained evidence due to the lack of probable

cause for the arrest of Appellant (3RR: 166; DX - 1). See, TEX.CODE CRIM.PRO. ART. 38.23(a).

The trial court denied the request (3RR: 176). Appellant asserted in the Court of Appeals below

that he was harmed by the denial of this properly requested charge. See, Almanza v. State, 686

S.W.2d 157, 171 (Tex.Crim.App. 1985).

       The Court of Appeals, citing only Renteria v. State as authority, concluded there was no

factual dispute about how evidence was obtained in Appellant’s case. Mem. Op. at 5; see,

Renteria v. State, 206 S.W.3d 689, 704 (Tex. Crim. App. 2006). The Court of Appeals found

there was no conflicting evidence regarding the odor of alcohol on Appellant, the traffic

violation, the officer observed Appellant commit, or Appellant leaving his car in ‘drive’ after he

was stopped. Mem. Op. at 4 – 5. However, Appellant’s express complaint on appeal was that the

arrest of Appellant was based upon the standard field sobriety tests (SFST) performed by

Appellant and that the poor performance was due to the lack of instructions in English as

Appellant is a Spanish speaker.

       The Court of Appeals further states that a fact issue did not exist concerning the SFST

language problem although the in-car video recording demonstrated the difficulty which

Appellant had concerning understanding the officer’s comments and instructions. Mem. Op. at 4;

and see, State’s Exhibit 4 (video). It was this dispute of whether Appellant could understand the

officer’s instructions in English that Appellant sought to have the jury decided. In its opinion, the

Court of Appeals has failed to address the issue raised which was necessary for a final

disposition of Appellant’s appeal in accordance with Rule 47.1, Texas Rules of Appellate

Procedure. TEX. R. APP. PRO. 47.1.




                                                 8
       The proper legal standard regarding a 38.23 instruction that should have been applied in

the Court of Appeals opinion is that Appellant was entitled such an instruction if (1) the evidence

heard by the jury raised an issue of fact, (2) the evidence on the fact was affirmatively contested,

and (3) the contested factual issue was material to the lawfulness of the conduct challenged. See,

Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008); TEX. CODE CRIM. PRO. ART.

38.23. The Court of Appeals does not cite any authority regarding the legal standard applicable,

but only cites Renteria for the proposition that no factual dispute existed. Mem. Op. at 5;

Renteria, 206 S.W.3d at 704.

       Appellant has a statutory right for a jury to be charged in accordance with Art. 38.23(a).

Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). A Texas peace officer may arrest

a person without a warrant for any offense committed in his presence or within his view. See,

TEX.CODE CRIM.PRO. ART. 14.01(a). While the authority to arrest without a warrant in Texas is

governed by statute, the warrantless arrest must meet the applicable probable cause requirement.

Akins v. State, 202 S.W.3d 879, 888 (Tex. App.—Fort Worth 2006, pet. ref’d). The State has the

burden to prove probable cause to arrest existed to justify a warrantless arrest. Givens v. State,

949 S.W.2d 449, 451 (Tex.App.—Fort Worth 1997, pet. ref’d).

        At the charge conference in our case, the 38.23 instruction was requested orally and in

writing by Appellant (3RR: 166; DX – 1). The trial court’s charge submitted to the jury did not

contain the requested 38.23 instruction (CR: 87—90).

       Appellant urged the factual dispute at trial requiring the 38.23 instruction was that

Appellant could not understand the English instructions for the Standard Field Sobriety Tests

(SFSTs) as stated by the police officer at the scene of the DWI arrest so that the result of the

SFSTs could not be relied upon to establish probable cause for a lawful arrest for DWI (3RR:




                                                 9
166—67). Appellant further urged that the police officer’s testimony regarding intoxication and

the evidence presented on the in-car video are in conflict regarding whether the Appellant could

understand the English only instruction for the SFSTs (3RR: 171). See, State’s Exhibit 4 (video).

       The factual dispute complained of by Appellant under this issue is shown in the record,

but the issue is not analyzed in the Court of Appeals’ opinion. The police officer’s testified that

the three tests shown on the video were the standardized field sobriety testing used nationwide

(3RR: 6). The instructions regarding the three tests were given in English; however, the video

recording of the tests shows that Appellant could not understand English and so could not

understand the instructions given by the officer. See, State’s Exhibit 4 (video). The officer

formed his opinion that Appellant was intoxicated for the arrest of DWI (3RR: 12—13). The

officer used the SFSTs to as an aid to determine probable cause and whether to make the

warrantless arrest (3RR: 13—15). The SFST test known as the horizontal gaze nystagmus was

not used to determine probable cause to arrest since the Appellant did not follow instructions

(3RR: 33). The officer admitted that understanding instructions for the walk and turn test and the

one leg stand test require a basic understanding of English (3RR: 43—44). The one-leg test was

actually performed in a way that the office had never seen before (3RR: 47). This was evidence

the Appellant could not understand the English instructions given by the officer.

       Appellant contested the evidence gained as a result of his illegal arrest which includes the

blood test result (3RR: 120). Because Appellant was arrested without a warrant and without

probable cause of the commission of a crime, the blood test evidence was illegally gained. The

jury should have been allowed to determine the factual issue of whether Appellant could

understand the instructions given for the SFSTs to determine if the officer met the definition of




                                               10
probable cause for the warrantless arrest. The Court of Appeals has not applied the proper legal

analysis regarding such disputed evidence.

                                   PRAYER FOR RELIEF

       WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court grant

discretionary review and remand this case to the Court of Appeals to address the issue raised by

Appellant in accordance with Rule 47.1 of the Texas Rules of Appellate Procedure, or in the

alternative, after full briefing on the merits, issue an opinion reversing the Court of Appeals’

judgment and remand and for other proceedings consistent with this Court’s opinion.

                                             Respectfully submitted,

                                             ALONZO LAW FIRM, P.C.
                                             Attorneys at Law
                                             400 S. Zang Blvd., Ste 810
                                             Dallas, TX 75208
                                             (214) 941-8200 office tel.
                                             (214) 941-8228 fax

                                             By: /Roberto R. Alonzo/
                                             Roberto R. Alonzo
                                             State Bar No. 01109700
                                             Email: alonzopc2003@yahoo.com

                                             ATTORNEY FOR APPELLANT




                                               11
                               CERTIFICATE OF SERVICE

       I certify the foregoing Petition for Discretionary Review was served upon the State of

Texas by sending a true and correct copy to the Criminal District Attorney of Denton County and

the State Prosecuting Attorney via U.S. Mail addressed to: Hon. Paul Johnson, Criminal District

Attorney, Attn: Appellate Section, P.O. Box 2344, Denton, TX 76202; Hon. Lisa C. McMinn,

State Prosecuting Attorney, P.O. Box 13046, Austin, TX 78711-3046, on July 31, 2015.


                                            /Roberto R. Alonzo/
                                            ____________________________
                                            Roberto R. Alonzo
                                            Attorney for Appellant


                            CERTIFICATE OF COMPLIANCE

       In accordance with Rule 9.4(i) of the Texas Rules of Appellate Procedure, I certify that

the total word count for the foregoing Petition for Discretionary Review is 1,485 words as shown

by the word count function of the computer program, MS Word 2007, used to generate the

document.

                                            /Roberto R. Alonzo/
                                            _______________________________
                                            Roberto R. Alonzo
                                            Attorney for Appellant




                                              12
                    __________________________

                           APPENDIX
                    _________________________

•   Miguel Ramirez v. State, No. 02-14-00386-CR (Tex. App. – Fort Worth,
    delivered April 30, 2015) (Mem. Op.) (not designated for publication).




                                 13
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00386-CR


MIGUEL RAMIREZ                                                       APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


                                     ----------

       FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY
                TRIAL COURT NO. CR-2013-01449-B

                                     ----------

                         MEMORANDUM OPINION 1

                                     ----------

      A jury convicted Appellant Miguel Ramirez of driving while intoxicated

(DWI). The trial court sentenced him to 120 days’ confinement but suspended

imposition of the sentence, placing him on community supervision for sixteen

months. In his sole issue, Appellant contends that the trial court reversibly erred

by denying his requested article 38.23(a) jury instruction. Because Appellant has

      1
       See Tex. R. App. P. 47.4.
not raised a violation of any law in obtaining evidence of intoxication by the

administration of standardized field sobriety tests in English, we affirm the trial

court’s judgment.

      On January 12, 2013, at around 12:06 a.m., Highway Patrol Officer

Jeremiah Hale pulled over Appellant after observing the vehicle that he was

operating cross double, solid white lines separating the service road and exit

ramp and then go back into its original lane. Hale approached the vehicle from

the passenger side and could smell the odor of alcohol through the open window.

While Appellant searched for his driver’s license, Hale noticed that the gear shift

was still in “drive,” and he instructed Appellant to put his vehicle in “park.” Hale

asked Appellant to exit the vehicle several times, asking once in Spanish.

Appellant exited the vehicle, and upon further inquiry, admitted to having had two

beers that evening. Hale decided to administer field sobriety tests, beginning

with the horizontal gaze nystagmus test.            Hale terminated the test when

Appellant did not follow the pen with his eye as instructed. Because Hale did not

finish administering the test, he disregarded it.

      Hale then administered the walk-and-turn test. Hale asked Appellant if he

understood the instructions, and Appellant stated that he did.            Appellant

displayed seven out of eight possible clues of intoxication.           Next, Hale

administered the one-leg-stand test.      Appellant confirmed that he understood

Hale’s instructions, but instead of holding his foot out as instructed, Appellant

placed his foot out, counted to four, put his foot back down, took a step, and


                                          2
repeated the sequence. Based on Appellant’s performance on the field sobriety

tests, Hale arrested him for DWI.

      Appellant consented to giving a blood sample and was transported to

Denton Regional Medical Center for a blood draw. The analysis of Appellant’s

blood alcohol concentration showed 0.131 grams of alcohol per 100 milliliters of

blood. The results of the analysis were admitted into evidence at trial. After the

close of evidence, Appellant requested an article 38.23(a) instruction in the jury

charge on whether there was probable cause to arrest him. Appellant’s counsel

asserted that there was a fact issue as to whether there was a language barrier

between Appellant and Hale. The request was denied.

      In his sole issue, Appellant argues that the trial court erred by denying his

requested jury charge instruction pursuant to article 38.23(a) of the Texas Code

of Criminal Procedure.     He requested the jury instruction because the field

sobriety tests were administered in English, and he alleged that there might have

been a language problem.            Appellant argues on appeal that his poor

performance on the standardized field sobriety tests could have resulted from a

language barrier rather than intoxication.

      Appellant appears to suggest that the blood test was improperly obtained

because it was the fruit of the arrest that may have been based on a language

barrier rather than on probable cause. Yet Appellant filed no motion to suppress

and did not object based on any language barriers to the admission of the blood

test results or to testimony about his poor performance on the field sobriety tests.


                                         3
      Article 38.23 provides, in pertinent part,

             No evidence obtained by an officer or other person in violation
      of any provisions of the Constitution or laws of the State of Texas, or
      of the Constitution or laws of the United States of America, shall be
      admitted in evidence against the accused on the trial of any criminal
      case.

            In any case where the legal evidence raises an issue
      hereunder, the jury shall be instructed that if it believes, or has a
      reasonable doubt, that the evidence was obtained in violation of the
      provisions of this Article, then and in such event, the jury shall
      disregard any such evidence so obtained. 2

      For a defendant to be entitled to the instruction, the evidence must raise an

issue whether the evidence was obtained in violation of a provision of the

Constitution or laws of the State of Texas or of the United States. 3 Appellant has

not raised a violation of any law regarding the police obtaining evidence of

intoxication by the administration of standardized field sobriety tests in English.

He speculated that there was a language barrier, but there is no evidence of a

language barrier in the record and no related challenge to the admission of

evidence obtained as a result of the detention and arrest. Although the trial

judge did everything possible to try to understand Appellant’s argument regarding

a reason the arrest was unlawful, Appellant was unable to point to anything

except speculation. There was no conflicting evidence regarding the odor of

alcohol on Appellant, the traffic violation the officer observed Appellant commit,

      2
       Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005).
      3
       Id.



                                          4
or Appellant’s leaving his car in “drive” after he was stopped.       Additionally,

Appellant admitted to consuming alcohol.        The article 38.23 instruction is

required only when there is a factual dispute about how the evidence was

obtained. 4 The record reflects no such dispute. Consequently, Appellant was

not entitled to an article 38.23 instruction.

      We overrule Appellant’s sole issue and affirm the trial court’s judgment.



                                                  /s/ Lee Ann Dauphinot
                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PANEL: DAUPHINOT, GABRIEL, and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 30, 2015




      4
       Renteria v. State, 206 S.W.3d 689, 704 (Tex. Crim. App. 2006).



                                           5
