                                                                             ACCEPTED
                                                                         02-17-00381-CR
                                                              SECOND COURT OF APPEALS
                                                                    FORT WORTH, TEXAS
                                                                       5/24/2018 4:17 PM
                                                                          DEBRA SPISAK
                                                                                  CLERK

          IN THE COURT OF APPEALS FOR THE
       SECOND DISTRICT OF TEXAS AT FORT WORTH
                                                        RECEIVED IN
                                                   2nd COURT OF APPEALS
HECTOR JIMENEZ,                 §                   FORT WORTH, TEXAS
  APPELLANT                     §                  5/24/2018 4:17:28 PM
                                §                       DEBRA SPISAK
                                                           Clerk
    v.                          §             No. 02-17-00381-CR
                                §
THE STATE OF TEXAS,             §
  APPELLEE                      §
       ___________________________________________________

                   STATE’S AMENDED BRIEF
        ___________________________________________________
           FROM COUNTY CRIMINAL COURT NO.1
                 DENTON COUNTY, TEXAS
           TRIAL CAUSE NUMBER CR-2016-05099-A
      THE HONORABLE JIM CROUCH, JUDGE, PRESIDING

                              PAUL JOHNSON
                              Criminal District Attorney
                              Denton County, Texas

                              CATHERINE LUFT
                              Assistant Criminal District Attorney
Oral argument is requested    Chief, Appellate Division
only if Appellant is          State Bar No.24013067
requesting argument.          1450 East McKinney, Suite 3100
                              Denton, Texas 76209
                              (940) 349-2600
                              FAX (940) 349-2751
                              catherine.luft@dentoncounty.com

                              BARRETT DORAN
                              ALI HORTON
                              Assistant Criminal District Attorneys
                                 TABLE OF CONTENTS


INDEX OF AUTHORITIES ......................................................................ii
STATEMENT OF THE CASE .................................................................. 1
STATEMENT OF FACTS ......................................................................... 2
SUMMARY OF THE STATE’S ARGUMENTS ........................................ 6
STATE’S RESPONSE TO APPELLANT’S ISSUE ONE
(SUFFICIENCY) ....................................................................................... 7
   Appellant’s Contention ......................................................................... 7
   State’s Reply ......................................................................................... 7
   Argument And Authorities ................................................................... 7
       Standard of Review .......................................................................... 7
       Pertinent Law................................................................................... 8
       The evidence was sufficient to support
       Appellant’s conviction for DWI ........................................................ 8
STATE’S RESPONSE TO APPELLANT’S ISSUE TWO
(HEARING ON MOTION FOR NEW TRIAL) ....................................... 11
   Appellant’s Contention ....................................................................... 11
   State’s Reply ....................................................................................... 11
   Argument And Authorities ................................................................. 11
       The trial court acted properly in not holding
       a hearing on Appellant’s motion for new trial
       and allowing Appellant’s motion to be overruled
       by operation of law ......................................................................... 11
CONCLUSION AND PRAYER ............................................................... 14
CERTIFICATE OF COMPLIANCE ........................................................ 14
CERTIFICATE OF SERVICE................................................................. 15



                                                     i
                          INDEX OF AUTHORITIES


Statutes, Codes, and Rules                                                         Page
Tex. Penal Code Ann. § 1.07(a) (40) (West Supp. 2017) ......................... 10

Tex. Penal Code Ann. § 49.04(a) (West Supp. 2017) ................................ 8

Tex. Transp. Code Ann. § 724.061 (West 2011) ........................................ 9

Cases
Annis v. State
 578 S.W.2d 406 (Tex. Crim. App. [Panel Op.] 1979) .............................. 9

Bartlett v. State
 270 S.W.3d 147 (Tex. Crim. App. 2008) ................................................. 9

Denton v. State
 911 S.W.2d 388 (Tex. Crim. App. 1995) ............................................... 10

Hailey v. State
 87 S.W.3d 118 (Tex. Crim. App. 2002) ................................................. 12

Jackson v. Virginia
 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) ........................... 7

Kelly v. State
 824 S.W.2d 568 (Tex. Crim. App. 1992) ............................................... 13

King v. State
 29 S.W.3d 556 (Tex. Crim. App. 2000) ..................................... 11, 12, 13

Kirsch v. State
 306 S.W.3d 738 (Tex. Crim. App. 2010) ................................................. 8

Murray v. State
 457 S.W.3d 446 (Tex. Crim. App. 2015) ................................................. 7


                                            ii
Reyes v. State
 849 S.W.2d 812 (Tex. Crim. App. 1993) ............................................... 12

York v. State
 342 S.W.3d 528 (Tex. Crim. App. 2011) ............................................... 10




                                           iii
                IN THE COURT OF APPEALS FOR THE
             SECOND DISTRICT OF TEXAS AT FORT WORTH


HECTOR JIMENEZ,                                     §
  APPELLANT                                         §
                                                    §
        v.                                          §                     No. 02-17-00381-CR
                                                    §
THE STATE OF TEXAS,                                 §
  APPELLEE                                          §


             ___________________________________________________

                        STATE’S AMENDED BRIEF
             ___________________________________________________


TO THE HONORABLE COURT OF APPEALS:


                             STATEMENT OF THE CASE

The Charge ............................................... Driving While Intoxicated, 2nd
                                                                               (C.R. at 7)
                                                                  Tex. Penal Code § 49.04

The Plea ..................................................................................... Not Guilty
                                                                 (2 R.R. at 5, 101; C.R. at 100)

The Verdict (Jury) ............................................................................ Guilty
                                                         (3 R.R. at 111; C.R. at 98, 100)

The Punishment (Judge) ......................................... 365 Days, County Jail
                                                         (3 R.R. at 149; C.R. at 100)




                                                   1
                       STATEMENT OF FACTS

     At some time close to 1:00 a.m. in April of 2016, Appellant walked

into a RaceTrac store and started talking to Alexis Melson, a RaceTrac

employee, about food (2 R.R. at 108).       Appellant was very friendly,

although he “kind of smelled like alcohol” (2 R.R. at 108). Melson told

Appellant that the store would not have food until 6:00 a.m., and

Appellant walked away (2 R.R. at 108). Appellant then walked back to

Melson, leaned on the counter, told her that she had beautiful eyes, and

asked for her phone number (2 R.R. at 108-09, 113-14). Melson did not

give him her phone number and, feeling as though Appellant had acted

inappropriately during this second conversation, Melson went to her

manager and told him how Appellant had approached her (2 R.R. at 109).

     After talking to Melson, Appellant went outside the store,

approached two girls who were walking in, walked and talked with them,

and then approached another girl and started talking to her (2 R.R.

at 109). He followed the girl inside the store as she went in to pay for her

gas, followed her around the store, followed her out to her car and then,

after she had gotten inside her car, Appellant started banging on the

girl’s window (3 R.R. at 109-10, 162).



                                     2
     Seeing what was going on outside, Melson told her manager about

Appellant’s actions and then went outside to confront Appellant so that

the girl could leave the store (2 R.R. at 110). Then Melson, concerned for

the safety of other people at the store, told her manager to call the police,

and her manager did so (2 R.R. at 110-11). Appellant drove away from

the RaceTrac in a northbound direction (2 R.R. at 111, 162).

     Emery Flowers, a 911 telecommunicator, received a call about a

man approaching a woman at a gas station, and Officers Antonio Barletta

and James Robey were subsequently dispatched to the scene (2 R.R.

at 119-20, 127, 162; State’s Exhibit 1). Dispatch had told Officer Barletta

that Appellant was driving a gold Geo Prism and had given the officer

the car’s license plate number (2 R.R. at 163).

     Officer Barletta caught up with Appellant not too far from the

RaceTrac, witnessed Appellant fail to signal twice, activated his overhead

lights, and then followed Appellant’s vehicle into a Quick Trip

parking lot (2 R.R. at 128, 162-64; 3 R.R. at 40-43; State’s Exhibit 2).

Officer Barletta made contact with Appellant and saw that Appellant

matched a description of the male who had been at the RaceTrac (2 R.R.

at 165). Officer Barletta also detected a strong odor of alcohol coming



                                     3
from Appellant’s breath (2 R.R. at 165-66). Appellant’s speech was “real

slurred,” he had red, watery eyes, and he was inconsistent about from

which direction he had come (2 R.R. at 166-67). When Officer Barletta

asked Appellant what the liquid was in a Styrofoam cup in Appellant’s

center console, Appellant replied that it was “nothing” (2 R.R. at 168).1

Officer Barletta had Appellant get out of his vehicle and, when asked if

he’d had any alcohol, Appellant replied that he’d had two beers (2 R.R.

at 169; 3 R.R. at 11, 64-65).

      Officer Barletta performed the horizontal gaze nystagmus (“HGN”)

test on Appellant, and Appellant exhibited six of six clues (2 R.R.

at 170-82; 3 R.R. at 15-16, 46-51, 54-59). 2 Officer Barletta asked

Appellant about taking the walk-and-turn and one-leg stand tests, and

Appellant said no because he had hip or ankle injuries (2 R.R. at 132,

169-70, 182-84). Based on Appellant’s HGN test, his not being able to

follow simple instructions, his slurred speech, his swaying, his dry


1
       When Officer Barletta later inventoried Appellant’s car, he discovered
that the liquid smelled like alcohol mixed with a soda (3 R.R. at 10-11).
2      Although Appellant told Officer Barletta that he’d had his head crushed
in a vice recently, the officer did not see any markings on Appellant’s head that
would indicate that Appellant’s head had been crushed by a vice, nor did
Appellant’s pupil size or tracking indicate that he had suffered traumatic brain
injury (2 R.R. at 140-41, 144, 170-82; 3 R.R. at 39-40).


                                       4
mouth, the odor of alcohol emitting from his breath, his bloodshot, “glazy”

eyes, and the fact that he had caused a disturbance in a public place,

Officer Barletta decided to arrest Appellant, so he placed Appellant in

handcuffs and put him in the back seat of a patrol car (2 R.R. at 184-85;

3 R.R. at 8-9, 15, 17-19, 21-22, 32-33, 57, 65; see also 2 R.R. at 130-31,

139, 146-47, 154). After Appellant was placed under arrest, his mood

changed; he became very violent, made threats, banged his head on the

window, kicked the window, and did not consent to giving a sample of his

breath or blood (2 R.R. at 132; 3 R.R. at 9-10, 16-18, 21, 59; State’s

Exhibits 2, 3). Specifically, Appellant said things to the officers such as

“I hope y’alls’ children fuckin’ die of a suffering death,” “hey fucking

cocksuckers, fuck you,” “I hope your kids choke on a dick,” “I hope they

cut your kids’ heads off,” “my posse’s gonna kill your fucking ass,” and

“when I get out of jail, I’ll fucking kill you myself, bitch,” among other

choice phrases (State’s Exhibits 2, 3). 3




3
     Officer Barletta testified that he added a charge of retaliation because of
what Appellant said to him after Appellant was arrested (3 R.R. at 20-21).


                                       5
            SUMMARY OF THE STATE’S ARGUMENTS

State’s Reply To Appellant’s Issue One

     The evidence was sufficient to support Appellant’s conviction for

Driving While Intoxicated (“DWI”) as it showed that Appellant was

intoxicated while operating a motor vehicle in a public place.

State’s Reply To Appellant’s Issue Two

     The trial court acted properly in not holding a hearing on

Appellant’s motion for new trial as none of the bare assertions in

Appellant’s motion established facts entitling him to a new trial.




                                    6
      STATE’S RESPONSE TO APPELLANT’S ISSUE ONE
                            (SUFFICIENCY)

Appellant’s Contention

     The evidence was legally insufficient to support Appellant’s

conviction for Driving While Intoxicated (“DWI”), and this Court should

reverse the conviction and order an acquittal or a new trial.

State’s Reply

     The evidence was legally sufficient to support Appellant’s

conviction for DWI and Appellant’s first issue should be overruled.

Argument and Authorities

Standard of Review

     In reviewing legal sufficiency in a criminal case, an appellate court

views all the evidence in the light most favorable to the prosecution and

determines whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560

(1979). When the record supports conflicting inferences, appellate courts

presume the factfinder resolved the conflicts in favor of the verdict, and

defer to that determination. Murray v. State, 457 S.W.3d 446, 449

(Tex. Crim. App. 2015).

                                    7
Pertinent Law

        A person commits a DWI if that person is intoxicated

while     operating     a    motor    vehicle     in   a   public   place.   Tex.

Penal Code Ann. § 49.04(a) (West Supp. 2017).

The Evidence was sufficient to support Appellant’s conviction
for DWI.

        The evidence was sufficient to support Appellant’s conviction

for DWI as it showed that Appellant was intoxicated while operating a

motor vehicle in a public place. See Tex. Penal Code § 49.04(a). For

example, Appellant’s intoxication was proved by evidence that he caused

a disturbance in a public place, smelled like alcohol, failed to signal twice,

was inconsistent about from which direction he had been coming, said

he’d had two beers, said “nothing” was in his Styrofoam cup (which

smelled like alcohol and soda), was not able to follow simple instructions,

had slurred speech and a dry mouth, had bloodshot and watery or “glazy”

eyes, swayed, and exhibited six of six clues on the HGN test (2 R.R.

at 108-10, 130-31, 139, 146-47, 154, 162, 164, 166-82, 184-85; 3 R.R.

at 8-11, 15-19, 21-22, 32-33, 46-51, 54-59, 64-65). See Kirsch v. State,

306     S.W.3d   738,       745   (Tex.   Crim.    App.    2010)    (evidence   of

intoxication includes erratic driving, stumbling, swaying, slurring or


                                          8
mumbling words, and bloodshot or glassy eyes). Additionally, Appellant

refused to give samples of his breath or blood (3 R.R. at 9-10).

See Tex. Transp. Code Ann. § 724.061 (West 2011); Bartlett v. State,

270 S.W.3d 147, 153 (Tex. Crim. App. 2008) (jury may consider refusal to

provide breath or blood probative evidence of intoxication as it

establishes consciousness of guilt). And the arresting officer testified that

he believed that Appellant had lost the normal use of his mental or

physical faculties due to alcohol (3 R.R. at 19). See Annis v. State,

578 S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.] 1979) (police officer’s

opinion regarding defendant’s behavior and opinion that the defendant

was intoxicated provided sufficient support to uphold a jury verdict).

     The evidence was also sufficient to show that Appellant was

operating a motor vehicle at the time. Specifically, a RaceTrac employee

pointed the officer in the direction Appellant had gone in his vehicle after

leaving the store, and in less than two minutes the officer located a

vehicle nearby that matched the description given, and saw the vehicle

as Appellant was driving it down the road (3 R.R. at 162-64; State’s

Exhibit 2). After seeing the vehicle fail to signal twice, the officer

activated his lights and followed the vehicle into the Quick Trip parking



                                     9
lot (2 R.R. at 162-64; 3 R.R. at 40-43; State’s Exhibit 2). Additionally, the

officer’s dash cam, which recorded the operation of Appellant’s vehicle

and the subsequent stop, was admitted into evidence (see State’s

Exhibit 2). See also Denton v. State, 911 S.W.2d 388, 389 (Tex. Crim. App.

1995) (driving a vehicle necessarily involves operation).

     And the evidence was sufficient to show that Appellant was in a

public place, as demonstrated by both Officer Barletta’s testimony

and the video of the stop (3 R.R. at 19; State’s Exhibit 2). See Tex.

Penal Code Ann. § 1.07(a) (40) (West Supp. 2017) (“‘Public place’ means

any place to which the public or a substantial group of the public has

access and includes, but is not limited to, streets, highways, and the

common areas of schools, hospitals, apartment houses, office buildings,

transport facilities, and shops”); York v. State, 342 S.W.3d 528, 537

(Tex. Crim. App. 2011) (parking lot and sidewalk around gas station is

public place).

     Accordingly, this Court should overrule Appellant’s first issue

presented.




                                     10
       STATE’S RESPONSE TO APPELLANT’S ISSUE TWO

              (HEARING ON MOTION FOR NEW TRIAL)

Appellant’s Contention

     The trial court erred in not holding a hearing on Appellant’s motion

for new trial because the testimony at trial supported that the State’s

fingerprint expert was not aware of the theory underlying fingerprint

analysis.

State’s Reply

     The trial court’s actions were proper.

Argument and Authorities

The trial court acted properly in not holding a hearing on
Appellant’s motion for new trial and allowing Appellant’s motion
to be overruled by operation of law.

     Appellant’s motion for new trial asserted that the verdict was

contrary to the law and evidence and that the trial court had the

discretion to grant a new trial in the interests of justice (C.R. at 116-18).

It is true that a trial judge abuses his or her discretion in failing to hold

a hearing when an accused presents a motion for new trial raising

matters not determinable from the record that could entitle him to relief.

See King v. State, 29 S.W.3d 556, 568-69 (Tex. Crim. App. 2000) (citing



                                     11
Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993)). But the

motion must be supported by affidavit specifically showing the truth of

the grounds of attack. Id. Otherwise, general entitlement to a hearing

could lead to “fishing expeditions.” Id.

     Here, none of Appellant’s bare assertions in his motion established

facts entitling him to a new trial. For example, he provided no support

for his allegations that the verdict was contrary to the law and evidence

or that the trial court should grant a new trial in the interests of justice.

Nor did Appellant make any mention of the State’s fingerprint expert in

his motion (C.R. at 116-18). As such, Appellant’s allegations were

insufficient to allow the trial court to determine whether any testimony

or other evidence would have been material to any issue in the case.

See Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002) (it violates

ordinary notions of procedural default for a Court of Appeals to reverse a

trial court’s decision on a legal theory not presented to the trial court by

the complaining party).

     Moreover, in his brief on appeal, Appellant alleges that he

established during trial that the State’s fingerprint expert was not aware

of the theory underlying fingerprint analysis (Appellant’s Brief at 9). But



                                     12
during the punishment phase of trial when the State’s fingerprint expert

testified, defense counsel took him on voir dire, fully questioned him

about the science underlying fingerprint comparison, objected to the

expert’s testimony citing the Kelly factors, had his objection overruled,

and received a running objection from the court (3 R.R. at 122-27).

See Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). Appellant has

not established what he would have done differently in a new trial on

punishment. See King, 29 S.W.3d at 569.

     Accordingly, this Court should overrule Appellant’s second issue

presented.




                                   13
                   CONCLUSION AND PRAYER

     Appellant’s trial was without reversible error. The State requests

that Appellant’s conviction and sentence be affirmed.


                                    Respectfully submitted,

                                    PAUL JOHNSON
                                    Criminal District Attorney
                                    Denton County, Texas


                                    /s/ Catherine Luft
                                    CATHERINE LUFT
                                    Assistant Criminal District Attorney
                                    Chief, Appellate Division
                                    State Bar No. 24013067
                                    1450 East McKinney, Suite 3100
                                    Denton, Texas 76209
                                    (940) 349-2600
                                    FAX (940) 349-2751
                                    catherine.luft@dentoncounty.com


                 CERTIFICATE OF COMPLIANCE

     The State certifies that the State’s Amended Brief in the instant

cause contained a word count of 2248, said count being generated by

the computer program Microsoft Word that was used to prepare

the document.

                                    /s/ Catherine Luft
                                    CATHERINE LUFT

                                   14
                    CERTIFICATE OF SERVICE

     A true copy of the State’s Amended Brief has been sent by electronic

service through efile.txcourts.gov notification, to counsel for Appellant,

Carlton Hughes, 118 Lynn Avenue, Suite 304, Lewisville, Texas 75057,

at CarltonHughes@aol.com, on this, the 24th day of May 2018.


                                    /s/ Catherine Luft
                                    CATHERINE LUFT




                                   15
