                                                                                 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
                                                             FILED 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                          §

         APPEALED FROM CAUSE NUMBER CR-2016-05099-A
               IN COUNTY CRIMINAL COURT NO.1
                  IN DENTON COUNTY, TEXAS
         THE HONORABLE JIM CROUCH, JUDGE, PRESIDING


          MOTION FOR LEAVE TO FILE AMENDED BRIEF

TO THE HONORABLE JUDGES OF SAID COURT:
     COMES NOW the State of Texas, by and through the Criminal

District Attorney of Denton County, Texas, and respectfully requests

leave to file the State’s Amended Brief in the above styled and numbered

cause.    In support of this motion, the State would show the Court

the following:

                                   I.

     This cause is an appeal from a conviction of Driving While

Intoxicated.




                                   1
                                          II.

     The Texas Rules of Appellate Procedure provide that a brief may be

amended whenever justice requires. Tex. R. App. P. 38.7. The State’s

filing of an amended brief will not delay this case because submission via

briefs has not been scheduled. The purpose of the State’s filing of an

amended brief is as follows:

     At the time the State filed its original brief in this case, the

prevailing law dictated that evidence was legally insufficient to prove a

Class A misdemeanor DWI if the prior DWI was proved up during the

punishment     phase    of     trial    instead     of   in   the    guilt-innocence

phase.   See    Oliva     v.     State,       525   S.W.3d      286,    293    (Tex.

App.—Houston      [14th        Dist.]     2017),     rev’d,    No.     PD-17-0398,

2017 Tex. Crim. App. LEXIS 650 (Tex. Crim. App. July 26, 2017);

Carrasco v. State, No. 02-17-00142-CR, 2018 Tex. App. LEXIS 122,

at **6-11 (Tex. App.—Fort Worth January 4, 2018 no pet.)

(not designated for publication); Goodroe v. State, No. 06-16-00205-CR,

2017 Tex. App. LEXIS 8354, at **9-10 (Tex. App.—Texarkana

July 31, 2017 no pet.) (not designated for publication); see also Tex.

Penal Code § 49.09(a). As such, in its original brief, the State conceded



                                          2
that the evidence was insufficient because the prior was proved up during

the punishment phase in this case. Since the State filed its original brief,

however, the Court of Criminal Appeals has issued an opinion in

Oliva v. State, No. PD-17-0398, 2017 Tex. Crim. App. LEXIS 650

(Tex. Crim. App. July 26, 2017, no cert. h.). In Oliva, the Court of

Criminal Appeals has held that the existence of a single prior conviction

for misdemeanor DWI is a punishment issue that should be litigated at

the punishment phase of trial, as was done in the instant case. See id.

Accordingly, as to Appellant’s Issue One, the State now simply argues

that the evidence was sufficient to support Appellant’s conviction for DWI

and, thus, Appellant’s first issue should be overruled.

     The State requests the opportunity to amend the State’s brief in

order to provide the Court with recently published case law relevant to

the issue in the case.

                                     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

                                     3
                                     1450 East McKinney, Suite 3100
                                     Denton, Texas 76209
                                     (940) 349-2600
                                     FAX (940) 349-2751
                                     catherine.luft@dentoncounty.com

                 CERTIFICATE OF CONFERENCE

     I hereby certify that Carlton Hughes, Attorney for Appellant, has

no objection to the State’s motion for leave to file an amended brief.



                                     /s/ Catherine Luft
                                     CATHERINE LUFT



                 CERTIFICATE OF COMPLIANCE

     The State certifies that the State’s Motion for Leave to File

Amended Brief in the instant cause contained a word count of 427, said

count being generated by the computer program Microsoft Word that was

used to prepare the document.

                                     /s/ Catherine Luft
                                     CATHERINE LUFT




                                     4
                     CERTIFICATE OF SERVICE

     A true copy of the State’s Motion for Leave to File 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




                                     5
