                                                                               ACCEPTED
                                                                          13-13-00066-CR
                                                            THIRTEENTH COURT OF APPEALS
                                                                  CORPUS CHRISTI, TEXAS
                                                                     4/9/2015 10:02:57 AM
                                                                         DORIAN RAMIREZ
                                                                                   CLERK

                  CAUSE NO. 13-13-00066-CR

                                              FILED IN
                                      13th COURT OF APPEALS
               IN THE COURT OF APPEALS
                                   CORPUS CHRISTI/EDINBURG, TEXAS
                                       4/9/2015 10:02:57 AM
         THIRTEENTH JUDICIAL DISTRICT OFDORIAN
                                          TEXAS  E. RAMIREZ
                                               Clerk

            CORPUS CHRISTI - EDINBURG, TEXAS


                     ERIC ROEL JIMENEZ,
                          Appellant

                               v.

                      STATE OF TEXAS,
                         Appellee.


        On appeal from the 357th Judicial District Court
                  of Cameron County, Texas
         Trial Court Cause Number 2012-DCR-01135-E


                 STATE’S APPELLATE BRIEF


                             Luis V. Saenz
                             Cameron County District Attorney
ORAL ARGUMENT REQUESTED
                             René B. González
                             Assistant District Attorney
                             964 East Harrison Street, 4th Floor
                             Brownsville, Texas 78520
                             Phone: (956) 544-0849
                             Fax:(956) 544-0869

                             Attorneys for the State of Texas
                                      TABLE OF CONTENTS

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Salutation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

        State’s Response to Appellant’s First Issue.. . . . . . . . . . . . . . . . . . . 3

        State’s Response to Appellant’s Second Issue. . . . . . . . . . . . . . . . . 6

        State’s Response to Appellant’s Third Issue. . . . . . . . . . . . . . . . . . . 7

        State’s Response to Appellant’s Fourth Issue. . . . . . . . . . . . . . . . . 10

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13




                                                      -i-
                               INDEX OF AUTHORITIES

Cases

Adelman v. State,
     828 S.W.2d 418 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . . . . . . 8

Aschbacher v. State,
     61 S.W.3d 532 (Tex. App.--San Antonio 2001, pet. ref’d). . . . . . . . 11

Bartlett v. State,
      270 S.W.3d 147 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . . 5

Carter v. State,
     No. 05-02-00504-CR, 2003 WL 1544216
     (Tex. App.--Dallas Mar. 26, 2003, no pet.). . . . . . . . . . . . . . . . . . . . . 9

Castillo v. State,
      913 S.W.2d 529 (Tex. Crim. App. 1995). . . . . . . . . . . . . . . . . . . . . 11

Clark v. State,
      878 S.W.2d 224 (Tex. App. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Cowger v. State,
    No. 12-08-00459-CR, 2010 WL 338061
    (Tex. App.--Tyler Jan. 29, 2010. pet. ref’d). . . . . . . . . . . . . . . . . . . . 5

Earley v. State,
     855 S.W.2d 260 (Tex. App.--Corpus Christi 1993).. . . . . . . . . . . . . . 3

Fielding v. State,
      719 S.W.2d 361 (Tex. App.--Dallas 1994, no pet.). . . . . . . . . . . . . . 3

Flores v. State,
      871 S.W.2d 714 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . . . 4

Gagnon v. Scarpelli,
    411 U.S. 778 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

                                               -ii-
Hareter v. State,
     435 S.W.3d 356 (Tex. App.--Amarillo 2014, no pet.). . . . . . . . . . . . . 6

Jackson v. Virginia,
     443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Leija v. State,
      No. 04-08-00679-CR, 2009 WL 331897
      (Tex. App.--San Antonio Feb.11, 2009, no pet.). . . . . . . . . . . . . . . . 5

Martin v. State,
      13 S.W.3d 133 (Tex. App.--Dallas 2000, no pet.). . . . . . . . . . . . . . 10

McCray v. State,
    861 S.W.2d 405 (Tex. App.--Dallas 1993, no pet.). . . . . . . . . . . . . . 8

Mestiza v. State,
     923 S.W.2d 720 (Tex. App.--Corpus Christi 1996, no pet.). . . . . . . . 4

Powers v. State,
    737 S.W.2d 53 (Tex. App.--San Antonio 1987, pet. ref’d). . . . . . . . 11

Resendez v. State,
    160 S.W.3d 181 (Tex. App.--Corpus Christi 2005, no pet.). . . . . . . . 4

Sharp v. State,
     707 S.W.2d 611 (Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . . . . . . 8

Stahle v. State,
      970 S.W.2d 682 (Tex. App.--Dallas 1998, pet. ref’d). . . . . . . . . . . . . 8

Turner v. State,
     805 S.W.2d 423 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . 8

Vargas v. State,
     271 S.W.3d 338 (Tex. App.--San Antonio 2008, no pet.). . . . . . . . . . 5



                                               -iii-
Statutes

Tex. Code Crim. Proc. arts. 38.07.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Tex. Code Crim. Proc. arts. 38.14.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Tex. Code Crim. Proc. arts. 38.15.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tex. Code Crim. Proc. arts. 38.18.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tex. Code Crim. Proc. arts. 38.22.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Tex. Pen. Code § 32.34(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tex. Pen. Code § 49.01(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tex. Penal Code § 49.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Rules

Tex. R. App. P. 33.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Tex. R. App. P. 38.1(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5




                                                  -iv-
                       CAUSE NO. 13-13-00066-CR
                 ____________________________________

                      IN THE COURT OF APPEALS

                THIRTEENTH JUDICIAL DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG, TEXAS
                 ____________________________________

                     ERIC ROEL JIMENEZ, Appellant

                                     v.

                       STATE OF TEXAS, Appellee
                 ____________________________________

                       STATE’S APPELLATE BRIEF
                 ____________________________________

TO THE HONORABLE COURT OF APPEALS:

       COMES NOW, Appellee, the STATE OF TEXAS, by and through the

Cameron County District Attorney, the Honorable Luis V. Saenz, and,

pursuant to Rule 38.2 of the Texas Rules of Appellate Procedure, files this,

its Appellate Brief in the above-styled and -numbered cause of action, and

in support thereof, would show this Honorable Court as follows:




State’s Brief                                                         Page 1
                         SUMMARY OF ARGUMENT

       Appellant raises four issues on appeal. (1) In his first issue,

Appellant complains that the trial judge impermissibly commented on the

weight of the evidence. The State responds by asserting that Appellant

has failed to preserve this issue for appellate review, and further the

comment by the trial judge was not a comment on the weight of the

evidence. (2) In his second issue, Appellant argues that the jury was given

an incorrect definition of intoxication. The State responds by asserting that

the definition given by the trial court to the jury is correct. (3) In his third

issue, Appellant contends the evidence is legally insufficient to show he

operated a “motor vehicle.” The State responds by asserting that the

evidence clearly shows that Appellant was operating a “motor vehicle,” as

that term is defined by the Texas Penal Code. (4) In his fourth issue on

appeal, Appellant argues that the trial court included an instruction in the

charge to the jury that constituted an impermissible comment on the weight

of the evidence. The State responds by asserting that the instruction of

which Appellant complains was a proper statement of the law, and

therefore is not erroneous.




State’s Brief                                                                Page 2
                        ARGUMENT & AUTHORITIES

State’s Response to Appellant’s First Issue

       In his first issue, Appellant complains that the trial judge

impermissibly commented on the weight of the evidence. The State

responds by asserting that Appellant has failed to preserve this issue for

appellate review, and further the comment by the trial judge was not a

comment on the weight of the evidence.

       Due process requires a neutral and detached hearing body or officer.

Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). The Texas Constitution

requires no less. Earley v. State, 855 S.W.2d 260, 262 (Tex. App.--Corpus

Christi 1993), pet. dism’d, improvidently granted, 872 S.W.2d 758 (Tex.

Crim. App. 1994). This Court should presume the trial court was neutral

and detached absent a clear showing to the contrary. See id.; Fielding v.

State, 719 S.W.2d 361, 366 (Tex. App.--Dallas 1986, pet. ref’d). The trial

court improperly comments on the weight of the evidence if it makes a

statement that implies approval of the State’s argument, indicates disbelief

in the defense’s position, or diminishes the credibility of the defense’s

approach to the case. Clark v. State, 878 S.W.2d 224, 226 (Tex. App.

1994) (Tex. App.--Dallas 1994, no pet.).


State’s Brief                                                           Page 3
       The State would first note that the trial record demonstrates

Appellant’s counsel failed to object specifically to the judge’s comment.

(R.R. Vol. 3, p. 170). In order to preserve an error for appellate review, a

party must make an objection to the court and the court must explicitly or

implicitly make an adverse ruling or refuse to rule on that objection. Tex.

R. App. P. 33.1; see Flores v. State, 871 S.W.2d 714, 723 (Tex. Crim. App.

1993). Thus, Appellant has waived this complaint by not objecting to the

trial judge’s comment. See Resendez v. State, 160 S.W.3d 181, 189-90

(Tex. App.--Corpus Christi 2005, no pet.) (holding that without a specific

objection, a defendant waives his complaint that a judge has conveyed his

opinion about the case to the jury); see also Mestiza v. State, 923 S.W.2d

720, 724 (Tex. App.--Corpus Christi 1996, no pet.) (“[a] timely proper

objection is necessary to preserve error concerning a trial judge’s

comment”).

       Further, it is clear from the record that the comment made in

connection with this incident does not convey the judge’s opinion about the

case. (R.R. Vol. 3, pp. 170).1 The trial judge’s comment sprang from an

       1
         The State would note that Appellant does not provide the correct cite to the
record in his appellate brief. Appellant consistently states that this comment appears in
the reporter’s record at volume 1, pages 4-5. (See Appellant’s Brief, pp. 13, 16, 18-19).
Because Appellant fails to support his argument with proper cites to the record, this

State’s Brief                                                                     Page 4
objection to the prosecutor making a reference to Appellant’s failure to take

a breath test. The law clearly allows the State to introduce this type of

evidence and make reasonable inferences from the evidence. “A person’s

refusal of a request by an officer to submit to the taking of a specimen of

breath or blood ... may be introduced into evidence at the person’s trial.”

Tex. Transp. Code § 724.061.2 The trial judge’s statement which Appellant

challenges is not a comment on the weight of the evidence. It did not

express or imply approval of the State’s position. Rather the comment

merely affirmed that the prosecutor’s argument was an argument from the


Court may chose to overrule Appellant’s issue due to inadequate briefing. See Tex. R.
App. P. 38.1(i); (“The brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.”)
       2
          In the past, trial judges often instructed juries in DWI trials using language
similar to that in the statute. This practice is now prohibited by the holding of the Texas
Court of Criminal Appeals “that a jury instruction informing the jury that it may consider
evidence of a refusal to take a breath [or blood] test constitutes an impermissible
comment on the weight of the evidence.” Bartlett v. State, 270 S.W.3d 147, 154 (Tex.
Crim. App. 2008). The evidence, however, is still admissible, and the jury may consider
it. See Tex. Transp. Code § 724.061. Although a judge may no longer instruct the jury
on the refusal to provide a blood or breath specimen, a comment by the prosecutor on
the refusal is permissible. Leija v. State, No. 04-08-00679-CR, 2009 WL 331897, at *3
(Tex. App.--San Antonio Feb.11, 2009, no pet.) (mem. op., not designated for
publication) (concluding that a prosecutor may still comment on a refusal to submit to a
breath or blood test in light of Bartlett); Vargas v. State, 271 S.W.3d 338, 341 (Tex.
App.--San Antonio 2008, no pet.) (same). Further, the State may summarize evidence
as part of its jury argument, which includes the failure to submit to a breath or blood test
and that such failure is evidence of intoxication. Leija, 2009 WL 331897, at *3; Vargas,
271 S.W.3d at 341. Thus, the State’s argument, insofar as it constitutes a comment on
Appellant’s refusal to submit to a breath test or a summary of the evidence, is proper.
Cowger v. State, No. 12-08-00459-CR, 2010 WL 338061, at *3 (Tex. App.--Tyler Jan.
29, 2010, pet. ref’d) (mem. op., not designated for publication).

State’s Brief                                                                       Page 5
evidence, and merely allowed the jury to consider the State’s argument

based on the evidence. The comment did not decide whether Appellant’s

actions constituted an admission of guilt by appellant, or did not constitute

such an admission. Hareter v. State, 435 S.W.3d 356, 359-60 (Tex. App.--

Amarillo 2014, no pet.).

       Accordingly, this Court should overrule Appellant’s first issue.



State’s Response to Appellant’s Second Issue

       In his second issue, Appellant argues that the jury was given an

incorrect definition of intoxication. The State responds by asserting that

the definition given by the trial court to the jury is correct.

       Section 49.01 of the Texas Penal Code provides, in part, as follows:

       Sec. 49.01. DEFINITIONS. In this chapter:

       (1) “Alcohol concentration” means the number of grams of
       alcohol per:
             (A) 210 liters of breath;
             (B) 100 milliliters of blood; or
             (C) 67 milliliters of urine.

       (2) “Intoxicated” means:
              (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

State’s Brief                                                             Page 6
                (B) having an alcohol concentration of 0.08 or more.

Tex. Penal Code § 49.01. The Court’s charge to the jury tracked this

statutory language (C.R. p. 52).

       Appellant argues that this definition of intoxication is wrong because

the legislature forgot to put a percentage sign after the 0.08 in section

49.01(2)(B). (Appellant’s Brief, p. 25). However, in light of the fact that the

legislature now defines “alcohol concentration” in section 49.01(1)(B), as

the number of grams of alcohol per 100 milliliters of blood, the calculations

are correct.3 It is not the legislature that has miscalculated the proper

alcohol concentration; instead, it is Appellant’s counsel that has failed to

“do the math” correctly.

       Appellant’s second issue should be overruled.



State’s Response to Appellant’s Third Issue

       In his third issue, Appellant contends the evidence is legally

insufficient to show he operated a “motor vehicle.” The State responds by

asserting that the evidence clearly shows that Appellant was operating a

“motor vehicle,” as that term is defined by the Texas Penal Code.

       3
         In his brief, Appellant uses a measurement that is based on the amount of
alcohol per 1,000 milliliters of blood. (Appellant’s Brief, p. 27).

State’s Brief                                                                  Page 7
          When this Court reviews the legal sufficiency of the evidence, it must

view the evidence in the light most favorable to the prosecution. Jackson

v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423,

427 (Tex. Crim. App. 1991). The inquiry is whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable

doubt. Turner, 805 S.W.2d at 427. The jury is the sole judge of the

credibility of the witnesses and the weight to be given their testimony.

Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). As such,

the jury may choose to believe or disbelieve all or any part of any witness’s

testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986);

McCray v. State, 861 S.W.2d 405, 407 (Tex. App.--Dallas 1993, no pet.).

A jury is also permitted to make reasonable inferences from the evidence.

See Stahle v. State, 970 S.W.2d 682, 86-87 (Tex. App.--Dallas 1998, pet.

ref’d).

          Appellant apparently asserts the evidence is legally insufficient to

support his conviction because the vehicle he was driving was not a “motor

vehicle.” Section 49.01 of the penal code, concerning driving while

intoxicated offenses, provides “motor vehicle” has the meaning assigned

by section 32.34(a) of the penal code. See Tex. Pen. Code § 49.01(3).


State’s Brief                                                               Page 8
Section 32.34(a), in turn, defines motor vehicle as “a device in, on, or by

which a person or property is or may be transported or drawn on a

highway, except a device used exclusively on stationary rails or tracks.”

See Tex. Pen. Code § 32.34(a)(2). At trial, the State presented evidence

that appellant was driving a maroon, two-door Saturn Vue (R.R. Vol. 3, p.

34), which was described as a car (R.R. Vol. 3, pp. 24, 29, 30), a vehicle

(R.R. Vol. 3, pp. 24, 27, 28) and a motor vehicle (R.R. Vol. 3, p. 62).

Testimony was also offered that the vehicle was driven on a roadway (R.R.

Vol. 3, p. 62), which would exclude the possibility of it being operated on

stationary rails or tracks. Additionally, photographs of the motor vehicle at

the scene of the accident were received into evidence as State’s Exhibit 8

through 16. Based on the exhibits and the testimony of all the witnesses,

there was sufficient evidence for the jury to infer and conclude that the

vehicle was self-propelled, had a motor, and was driven on a roadway, not

on stationary rails or tracks. Accordingly, this Court should conclude the

evidence is legally sufficient to show the vehicle was capable of carrying a

person or property on a highway and was not used exclusively on

stationary rails and tracks. Consequently, the vehicle was a motor vehicle

for purposes of the penal code. See Carter v. State, No. 05-02-00504-CR,


State’s Brief                                                             Page 9
2003 WL 1544216, at *1-2 (Tex. App.--Dallas Mar. 26, 2003, no pet.)

(mem. op.) (not designated for publication) (holding that evidence was

sufficient to prove a bulldozer was a motor vehicle under the definition of

section 32.34 of the penal code).

       Therefore, Appellant’s third issue should be overruled.



State’s Response to Appellant’s Fourth Issue

       In his fourth issue on appeal, Appellant argues that the trial court

included an instruction in the charge to the jury that constituted an

impermissible comment on the weight of the evidence. The State

responds by asserting that the instruction of which Appellant complains

was a proper statement of the law, and therefore is not erroneous.

       Only in cases of treason, perjury, and aggravated perjury are two

witnesses required. Martin v. State, 13 S.W.3d 133, 140 (Tex. App.--

Dallas 2000, no pet.) (citing Tex. Code Crim. Proc. arts. 38.15, 38.18).

Corroborating circumstances are required only when a conviction is based

on the testimony of an accomplice, in certain circumstances when a

defendant’s oral statement resulting from custodial interrogation is

admitted into evidence, and in certain circumstances in sexual assault and


State’s Brief                                                           Page 10
aggravated sexual assault cases. Id. at 140-41 (citing Tex. Code Crim.

Proc. arts. 38.07, 38.14, art. 38.22, § 3(c)). In all other cases, the

testimony of a single witness, without corroboration, is sufficient for

conviction if the jury may believe it beyond a reasonable doubt. See

Castillo v. State, 913 S.W.2d 529, 532-33 (Tex. Crim. App. 1995).

         Appellant complains that the trial court instructed the jury that the law

provides “that a person may be convicted on the testimony of one witness

where guilt, each element of the criminal offense, is proven beyond a

reasonable doubt.” (C.R. 53). As noted above, this is a correct statement

of the law. “Generally, ‘a correct statement of the law by the trial court,

even during trial, is not reversible’ as a comment on the weight of the

evidence.” Aschbacher v. State, 61 S.W.3d 532, 538 (Tex. App.--San

Antonio 2001, pet. ref’d) (quoting Powers v. State, 737 S.W.2d 53, 54 (Tex.

App.--San Antonio 1987, pet. ref’d). Because the trial court’s instruction

was a correct statement of the law, the instruction is cannot be reversible

error.

         Therefore, Appellant’s fourth issue should be overruled.




State’s Brief                                                             Page 11
                                    PRAYER

       WHEREFORE, PREMISES CONSIDERED, the State of Texas prays

that this Court will overrule Appellant’s issues on appeal, and affirm both

the judgment of conviction and the sentence herein.

                                     Respectfully Submitted,

                                     LUIS V. SAENZ
                                     Cameron County District Attorney
                                     964 East Harrison Street, 4th Floor
                                     Brownsville, Texas 78520
                                     Phone: (956) 544-0849
                                     Fax: (956) 544-0869



                              By:    /s/ René B. González
                                     René B. González
                                     Assistant District Attorney
                                     State Bar No. 08131380
                                     rgonzalez1@co.cameron.tx.us

                                     Attorneys for the State of Texas




State’s Brief                                                         Page 12
                      CERTIFICATE OF COMPLIANCE

       I certify that this document contains 2,579 words (excluding the

cover, table of contents and table of authorities). The body text is in 14

point font, and the footnote text is in 12 point font.



                                     /s/ René B. González
                                     René B. González


                         CERTIFICATE OF SERVICE

       I certify that a copy of the foregoing State’s Appellate Brief was e-

mailed to Mr. Larry Warner, Attorney at Law, 3109 Banyan Drive,

Harlingen, Texas 78550, at Office@larrywarner.com on the 9th day of

April, 2015.



                                     /s/ René B. González
                                     René B. González




State’s Brief                                                           Page 13
