                                                                                                 ACCEPTED
                                                                                            06-14-00105-CR
                                                                                  SIXTH COURT OF APPEALS
                                                                                       TEXARKANA, TEXAS
                                                                                       2/2/2015 12:54:47 PM
                                                                                            DEBBIE AUTREY
                                                                                                     CLERK

                               CASE NO. 6-14-00105CR

                                         In The                           FILED IN
                                                                   6th COURT OF APPEALS
                                                                     TEXARKANA, TEXAS
                           COURT OF APPEALS
                                                                   2/5/2015 10:28:00 AM
                        SIXTH DISTRICT OF TEXAS
                                                                       DEBBIE AUTREY
                            AT TEXARKANA                                   Clerk
________________________________________________________________________

                         TIMOTHY PAUL BATES, Appellant

                                          VS.

                          THE STATE OF TEXAS, Appellee

                 On Appeal from the County Court at Law No. 2
                            of Hunt County, Texas
                             Trial Court Cause No.
                 Honorable F. Duncan Thomas, Judge Presiding
________________________________________________________________________
                           APPELLANT'S BRIEF
________________________________________________________________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      Comes now the Appellant and submits this brief pursuant to the provisions of the

Texas Rules of Appellate Procedure I support of his request for the judgment of

conviction to be overturned in Cause No. 6-14-00105CR.

                             No Oral Arguments Requested
                      IDENTITY OF PARTIES AND COUNSEL

       So the members of the Court can determine disqualification and recusal under
Texas Rules of Appellate Procedure 15 and 15a, Appellant certifies that the following is a
complete list of the parties, attorneys, the trial court judge, and any other person who has
any interest in the outcome of this matter

Appellant:
Timothy Pal Bates
105 Hilltop
Anna, TX 75409

Appellant's Attorney:
Jessica Edwards
P.O. Box 9318
Greenville, TX 75404

Appellant's Attorney at Trial:
Deric Walpole
5900 South Lake Forrest Drive, Suite 410
McKinney, TX 75070

Appelle:
The State of Texas by and through
Joel Littlefield
Hunt County Attorney
4th Floor Hunt County Courthouse
2507 Lee Street
Greenville, TX 75401

Appellee's Attorney at Trial:
Joseph O'Neil
Assistant County Attorney's
4th Floor Hunt County Courthouse
2507 Lee Street
Greenville, TX 75401




                                             2
                            TABLE OF CONTENTS


Identity of Parties and Counsel……………………………………………………..2

Table of Contents………………………………………………………………….3

Index of Authorities……………………………………………………………….4

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

Issue Presented……………………………… ……………………………………5

Statement of the Facts……………………………………………………………..5

Summary of the Argument………………………………………………………..9

     Point of Error One:………………………………………………………9
     The evidence is legally insufficient to prove beyond a reasonable doubt
     That Appellant operated a motor vehicle in a public place in Hunt
     County Texas, while intoxicated.

The Law………………………………………………………………….………10

Argument…………………………………………………………………………11

Prayer for Relief………………………………………………………………….17

Certificate of compliance of typeface and Word Count…………………………18

Certificate of Service……………………………………………………………..18




                                        3
                          LIST OF AUTHORITIES

Federal Case Authority                                                 Page(s)

Jackson v. Virginia, 443 U.S. 307………………………………………………………10


State Cae Authority

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)………………………………10

Laster v. State, 275 S.W. 3D 512 (Tex. Crim. App. 2009)………………………………10

Vodochodsky v. State, 158 S.W.3d 502 (Tex. Crim. App. 2005)………………………..10

Washington v. State, 127 S.W.3d 197 (Tex. App. Houston [1st Dist. ] 2003, pet.
Dism'd)……………………………………………………..………………………....….10


Statutes and Rules

Texas Penal Code

      Section 49.01……………………………………………………………………..11




                                         4
                                STATEMENT OF THE CASE

       This is an appeal of judgment and sentence in a criminal case from the County

Court at Law No.2, in Hunt County, Texas. Appellant was convicted by a jury of Driving

While Intoxicated on May 13, 2014 in CR1301437.

       Punishment was assessed by the Court and Appellant was sentenced to 180 days in

the county jail, probated for twelve months, and a fine of $400. Notice of appeal was

given on June 12, 2014.

                                 ISSUES PRESENTED

Issue One:    The evidence is legally insufficient to prove beyond a reasonable doubt that
              Appellant committed the offense of Driving While Intoxicated.


                               STATEMENT OF FACTS


       On September 1, 2013, at approximately 1:30 a.m., Appellant walked into the

Kwik-Check Convenience Store in Greenville, Texas . (R.R. 2, p. 24-25). The clerk on

duty that night, Phillip Erickson, said that when Appellant walked in the store he “just

seemed a little wired. That's how I describe it. Nothing, honestly too unusual for that

time of night.” (R.R. 2, p. 25-26). Mr. Erikson testified that Appellant approached Mr.

Erikson and asked if he could buy alcohol, but Mr. Erickson could not sell alcohol to

Appellant because of the time of night. (R.R. 2, .26) Mr. Erikson could not smell any

odor of alcohol coming from Appellant during their encounter that evening. (R.R. 2, p.

26).

                                                5
          Throughout his testimony, Phillip Erickson described Appellant as being as acting

“odd” (R.R. 2, p. 29) and “weird” (R.R. 2, p. 30), but testified that he didn't notice

anything typically associated with being intoxicated such as glassy eyes, slurred speech

or other symptoms of intoxication. (R.R. 2 p. 34). Instead, Mr. Erickson testified he

believed Appellant was intoxicated because his body movements were “fidgety.” (R.R. 2,

p. 34).

          The jury then heard from Greenville Police Officer Brandon West. Officer West

testified that when he responded to the call for service on September 1, 2013, the only

information he had was a person was attempting to buy beer after hours. (R.R. 2, p. 51).

Officer West testified that he followed Appellant for about one block and that Appellant

pulled over immediately and appropriately when Officer West activated his emergency

lights.(R.R.2, p. 105). Officer West did not observe any bad driving by Appellant during

the time he was following Appellant’s vehicle and Appellant did not commit any traffic

violations. (R.R. 2, p. 103-104). When Officer West was speaking to Appellant at the

window of his vehicle, Officer West leaned into Appellant’s vehicle to try to smell

alcohol, but there was no odor of alcohol coming from Appellant or his vehicle. (R.R. 2,

p. 52).

          After asking Appellant to step out of his vehicle, Officer West initially performed

the horizontal gaze nystagmus test improperly on Appellant. (R.R. 2, p. 55). When

Officer West administered the test properly, he testified he observed six out of six

                                                   6
possible clues of intoxication. (R.R. 2, p. 60). Before Officer West conducted any tests

on Appellant that required the use of his legs, Appellant explained to the Officer that he

had trouble with his legs. (R.R. 2, p. 73). Appellant even showed Officer West scars on

Appellant’s right leg as evidence of his leg issues and told Officer West that he had just

been to the doctor for said issues. (R.R. 2, p. 72-73). Officer West testified that he was

aware that the NHTSA standards advise that persons with knee and back problems may

have difficulty performing the standardized field sobriety tests. (R.R. 2, p. 94). Officer

West chose to administer standardized field sobriety tests to Appellant, despite knowing

Appellant had physical limitations with legs. (R.R. 2,p. 65). Officer West administered

the one leg stand test on Appellant, in which he testified he observed two out of four

possible clues of intoxication. (R.R. 2, p. 65). Officer West next had Appellant perform

the walk and turn test, where he testified Appellant displayed three out of six possible

clues of intoxication. (R.R. 2, p. 70). However, Officer West later corrected his

testimony to reflect the fact that the walk and turn test has eight possible clues of

intoxication. (R.R. 2, p 133). Officer West then had Appellant perform two non-physical

tests to check for mental impairment and Appellant performed those tests “perfect,

flawlessly” according to Officer West. (R.R. 2, p. 106-107). Officer West admitted

during his testimony that Appellant passed the two tests that did not require the use of

Appellant’s damaged legs. (R.R. 2, p. 107).

                                              7
       When asked by the prosecuting attorney to describe Appellant's demeanor through

the interaction, Officer West described Appellant as being arrogant and cocky. (R.R. 2, p.

71-72). Officer West testified that Appellant used foul language and was disrespectful to

him throughout the interaction. (R.R. 2, p. 101). However, Officer West never observed

Appellant to slur his speech, (R.R. 2, p.101) nor did he observe anything unusual about

Appellant’s eyes (R.R. 2, p. 117). Officer West described Appellant as being fairly

articulate throughout the encounter. (R.R. 2, p. 101).

       Appellant admitted to Officer West that he had taken a pain killer about two hours

before the traffic stop. (R.R. 2, p. 74). Appellant also told Officer West that he was on

anti-anxiety medication (R.R. 2, p. 75), however Officer West never asked Appellant if or

when he had taken any medication on the day in question. (R.R. p. 123-124.). ). Officer

West said he had no evidence or reason to believe that Appellant took his prescription

medication other than the way it was prescribed. (R.R. 2, p. 122). Officer West did not

know if, when or how much medication Appellant had taken at the time of his arrest.

(R.R. 2, p. 123).

       Officer West explained to the jury that a drug recognition expert was someone

with specific training in determining whether or not someone is impaired due to the

introduction of drugs into their system. (R.R. 2, p. 115) Brandon West is not a drug

recognition expert. (R.R. 2, p. 93, 116).



                                                 8
       Officer West testified that he was familiar with and trained in the NHTSA field

sobriety testing protocol. (R.R. 2, p. 111). The Officer went on to testify that the

accuracy studies in the NHTSA manual that demonstrate how accurate the HGN test is

are based on alcohol studies, not prescription medication studies. (R.R. 2, p. 111).

Officer West testified that there are no studies to show how accurate the HGN test is at

predicting intoxication by prescription medications in the NHTSA manual. (R.R. 2, p.

111-112). Officer West further testified that there are prescription drugs that case

nystagmus and that nystagamus caused by these prescription drugs is not necessarily a

sign of intoxication. (R.R. 2, p. 112). Officer West testified that if a person exhibited

nystagmus in a situation where no alcohol was present, there is a reasonable possibility

that said person was not impaired. (R.R. 2, p. 112).

                          SUMMARY OF THE ARGUMENT

       Point of Error No. 1:

       The evidence is legally insufficient to prove beyond a reasonable doubt that
Appellant operated a motor vehicle in a public place in Hunt County, Texas, while
intoxicated.


                          POINT OF ERROR NUMBER ONE


       The evidence presented at trial could not have led a rational jury to find beyond a

reasonable doubt that Appellant operated a vehicle in Hunt County, Texas while

intoxicated. The State failed to prove that Appellant was intoxicated. Concluding so,

                                              9
based on the evidence presented at trial, would have been speculation or suspicion by the

factfinder. Thus, the evidence is legally insufficient to uphold the conviction in this case.

                                          The Law

       In a criminal case, an appellant may raise legal sufficiency for the first time on

appeal. Washington v. State, 127 S.W.3d 197 (Tex. App. Houston [1st Dist. ] 2003, pet.

Dism'd). When reviewing legal sufficiency of the evidence, a court must look at all of the

evidence in the light most favorable to the verdict to determine whether any rational trier

of fact could have found the essential elements of the offense were proven beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319; Vodochodsky v. State, 158

S.W.3d 502 (Tex. Crim. App. 2005). While giving the proper deference to the

factfinder's role, this court must safeguard against the rare occurrence when a factfinder

does not act rationally. Laster v. State, 275 S.W. 3D 512 (Tex. Crim. App. 2009).

       “Legal sufficiency of the evidence is a test of adequacy, not mere quantity.

Sufficient evidence is ‘such evidence, in character, weight, or amount, as will legally

justify the judicial or official action demanded.’ In criminal cases, only that evidence

which is sufficient in character, weight, and amount to justify a factfinder in concluding

that every element of the offense has been proven beyond a reasonable doubt is adequate

to support a conviction. There is no higher burden of proof in any trial, criminal or civil,

and there is no higher standard of appellate review than the standard mandated by

Jackson.” Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim. App. 2010).

                                             10
                                           Argument

         According to Texas Penal Code Section 49.01, 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 substance into the body; or
                        (B) having an alcohol concentration of 0.08 or more.

       The State failed to present sufficient evidence for a reasonable jury to conclude

that Appellant was intoxicated under any of the legal definitions of intoxication. The

only evidence presented at trial to attempt to prove intoxication was three standardized

field sobriety tests that were administered to improper candidate for such tests.

       It is undisputed from the record that Appellant did not commit any traffic offenses

on the night of September 1, 2013 when he was arrested by Officer Brandon West.

Neither of the State’s witnesses observed any erratic driving. In fact, Officer West

testified that Appellant responded immediately and appropriately when the Officer

initiated the traffic stop. (R.R. 2, p. 105). The State’s only two witnesses did not observe

any signs typically associated with intoxications such as slurred speech, glassy eyes or

unsteady gate. Neither did either of the State’s witnesses smell alcohol on or about

Appellants person.

       Phillip Erickson, the clerk on duty at Kwik-Check that evening was not able to

articulate any signs of intoxication when describing Appellant’s behavior on the night in

question. Mr. Erickson described Appellant as odd, weird, wiry and fidgety. Based on

                                               11
those characteristics, Mr. Erickson concluded Appellant concluded that Appellant was

intoxicated. However it is equally rational, if not more rational, that Appellant is an odd,

fidgety individual.

       Officer Brandon White testified that he determined Appellant was intoxicated

based on the field sobriety tests administered to Appellant. However, the record is clear

that the field sobriety tests administered that evening were not reliable based on Officer

White’s failure to follow the standards outlined by NHTSA and his failure to thoroughly

investigate this case.

       Officer White testified that he was aware that the NHTSA standards advise that

persons with knee and back problems may have difficulty in performing the standardized

field sobriety tests. (R.R. 2, p. 94). Officer West also testified that, before he conducted

any tests on Appellant that required the use of his legs, Appellant explained to the Officer

that he had trouble with his legs. (R.R. 2, p. 73). Appellant even showed Officer West

scars on Appellant’s right leg as evidence of his leg issues and told Officer West that he

had just been to the doctor for said issues. (R.R. 2, p. 72-73). Nevertheless, Officer

White conducted the tests that NHTSA advises will be compromised in such situations.

       At trial, the jury learned that, not only was what Appellant told Officer White on

the day his arrest true, but Appellant had documented medical issues that would severely

compromise his performance on the walk and turn and the one leg stand. Appellant has

severe physical issues, primarily with his legs and back that were in the medical records

                                             12
admitted at trial. Among other issues, Appellant has had bone grafts in his leg, plates in

his legs, and arthritis in both knees, back pain, Cervical Pain Syndrome, Degenerative

Joint Disease, and had been treated for a fractured tibia, and wrist and elbow sprain.

(C.R. 1, p. 6-232).

       Under the circumstances and given the medical issues he faced on September 1,

2013, Appellant actually performed rather well on the walk and turn and the one leg

stand. According to Officer White, Appellant showed on two our of a possible four clues

on the one leg stand (R.R. 2, p. 65), and three out of a possible eight clues on the walk

and turn. (R.R. 2, p. 70).

       Given the documented medical issues and Officer White’s own testimony at the

protocols for administering the field sobriety tests warn that persons with this type of

medical issues will have difficulty performing these tests, it is not rational for a jury to

conclude that Appellant’s performance on the walk and turn and the one leg stand was

due to intoxication. It is far more rational and reasonable to conclude that Appellant’s

performance was due to the physical limitation presented by the problems with his legs

and back.

        Officer White had Appellant perform two field sobriety tests that looked solely

for mental impairment and did not require the use of Appellant’s much damaged legs. On

those two tests, Officer White testified that Appellant performed flawlessly. (R.R. 2, p.



                                                  13
108-107). The only rational conclusion to reach based on the evidence is that Appellant

mental faculties were not impaired at the time of his arrest on September 1, 2013.

       As the results of the walk and turn and one leg stand are not trustworthy due to

Appellant’s physical condition and the results of the alphabet and finger touch tests were

flawless, the only other evidence of intoxication presented at trial was the horizontal gaze

nystagmus test. While Officer West testified that he observed six of a possible six clues

for intoxication on the HGN tests, those results are not trustworthy as Officer White

failed to properly screen Appellant for the hgn test.

       According to the State’s own witness, Officer White, there are no known studies

that correlate the results of hgn to intoxication with any drug other than alcohol. (R.R. 2,

p. 111). As there is absolutely no proof that Appellant had any alcohol in his system at

the time of his arrest, it is irrational to conclude that what Officer White observed during

the hgn tests is evidence that Appellant was intoxicated. Officer White testified that his

own training has taught him that there are certain prescription drugs that can cause

nystagmus to occur, and that nystagmus in the absence of the presence of alcohol does

not indicate that a person is intoxicated. (R.R. p. 112). Officer West testified that if a

person exhibited nystagmus in a situation where no alcohol was present, there is a

reasonable possibility that said person was not impaired. (R.R. 2, p. 112). That is

precisely the situation presented on September 1, 2013 with Appellant. Officer West

observed nystagmus in situation where, by his own admission, no alcohol was present.

                                              14
 Based on Officer West’s own testimony, it is a reasonable possibility that Appellant was

not impaired.

       Officer West did no investigation, either pre or post arrest, to determine whether or

not the prescription medications that Appellant was taking could have caused the

nystagmus observed in Appellant’s eyes without Appellant being impaired. At the time

of conducting the test, Officer West knew that Appellant had taken a pain killer

approximately two hours before the traffic stop, and was on an anti-anxiety medication.

(R.R. 2, p. 74-75). Officer West never asked Appellant what medications he was on. He

never asked Appellant when he took the medications or how much he took. At trial, the

jury learned that Appellant had been prescribed hydrocodone, amphetamine salt,

Clonopin and Xanax at the time of the arrest. (R.R. 2, p. 75). However, the State offered

no evidence whatsoever that Appellant was abusing these medications. In fact, Officer

West testified he had no reason to believe Appellant took his prescription medication

other than the way it was prescribed. (R.R. 2, p. 122).

       There is no way to know, based on Officer White’s poor investigation, whether or

not the prescription drugs Appellant was taking caused the nystagmus observed in

Appellant’s eyes. Instead, the State tried to conclude that because Appellant had legally

obtained prescriptions, he must be intoxicated. Such a leap is not reasonable nor is it

rational. It is much more reasonable to conclude that Appellant was arrested on

September 1, 2013 because he was rude and disrespectful to both law enforcement and to

                                                15
Phillip Erickson. When asked to describe Appellant’s demeanor on the day in question,

interestingly, Officer White responded, not that appellant was acting drunk, disoriented,

sleepy, or any number of other descriptors that are associated with intoxication, but

instead replied that Appellant was arrogant and cocky. A review of the video introduced

into evidence in this case would support Officer White’s description. Appellant was,

indeed, arrogant and cocky during his interactions with Officer White. He also used foul

language, was disrespectful, and was an all-around unlikeable guy. That same review of

the video, however, does not show any signs of intoxication that cannot be ruled out by

Appellant’s physical issues. It is reasonable to conclude that Officer White’s interaction

with Appellant that morning were colored by Appellant’s obnoxious attitude. It is also

reasonable to believe that the jury despised Appellant for that same behavior. However,

it is not a crime to be an obnoxious, dislikable person, nor is it evidence of intoxication.

       It is clear from the evidence presented at trial that Appellant’s mental faculties

were not impaired. There was no erratic or bad driving in this case. According to both

State’s witnesses, Appellant was not slurring his speech, was articulate in his

conversations, did not have red or glassy or bloodshot eyes, did not have constricted

pupils that are characteristic of intoxication from narcotics like hydrocodone, was not

stumbling when walking, and was able to perform the field sobriety tests that look for

mental impairment perfectly. The evidence presented by the State that Appellant was

                                                 16
physically impaired is not trustworthy due to the documented physical limitations

Appellant suffers from. The evidence presented by the HGN test is equally

untrustworthy as Officer White did not investigate whether or not the nystagmus present

was caused by the medication Appellant had taken and not by intoxication.

      Given the evidence presented at trial, a rational trier of fact could not have found

Appellant was intoxicated while operating a motor vehicle in Hunt County, Texas.

Therefore, Appellant’s conviction should be overturned and in all things reversed and

rendered.

                                PRAYER FOR RELIEF

      For the reasons stated hereinabove, it is respectfully submitted that, upon appellate

review, the Court of Appeals should reverse the judgment in this case and set aside

Appellant’s conviction and sentence.



                                         Respectfully submitted,


                                          _/s/Jessica Edwards_
                                         JESSICA EDWARDS
                                         Attorney for Appellant
                                         State Bar Number - 24000994
                                         P.O. Box 9318
                                         Greenville, Texas 75404
                                         Telephone Number - (903) 513-0150
                                         Facsimile Number - (903) 200-1359
                                         jessicaedwardslaw@gmail.com

                                            17
         CERTIFICATE COMPLIANCE OF TYPEFACE AND WORD COUNT

       In accordance with Texas Rules of Appellate Procedure 9.4(e) and (i), the
undersigned attorney of record certifies that Appellant’s Brief contains 13-point typeface
 and contains 3,701 words and was prepared on Microsoft Word 2010.


                                          /s/ Jessica Edwards___________________
                                          Jessica Edwards
                                          Attorney for Appellant



                                CERTIFICATE OF SERVICE

             I hereby certify that a true and correct copy of the above and foregoing
instrument was forwarded to Hunt County Attorney Joel Littlefield, 4th Floor Hunt
County Courthouse, Greenville, TX 75401, on this the 2nd day of February, 2015, by
hand delivery.


                                          /s/ Jessica Edwards___________________
                                          Jessica Edward
                                          Attorney for Appellant




                                            18
