                                                                      ACCEPTED
                                                                  03-14-00560-CR
                                                                          5574630
                                                       THIRD COURT OF APPEALS
                                                                  AUSTIN, TEXAS
                                                             6/8/2015 12:00:00 AM
                                                                JEFFREY D. KYLE
                                                                           CLERK

     CAUSE NO. 03-14-00560-CR
                                        FILED IN
       IN THE COURT OF APPEALS,  3rd COURT OF APPEALS
   THIRD SUPREME JUDICIAL DISTRICT AUSTIN, TEXAS
          _____________________  6/8/2015 3:11:02 PM
                                            JEFFREY D. KYLE
                                                 Clerk


    CHRISTOPHER NEWBERRY
            Appellant
              VS.
      THE STATE OF TEXAS
            ____________________


Cause No. C1CR-14-209349, Travis County, Texas,
      County Court at Law #5, Honorable,
         Nancy Hohengarten, presiding




       BRIEF FOR APPELLANT



                       Christopher P. Morgan
                       State Bar No. 14435325
                       3009 N. IH 35
                       Austin, Texas 78722
                       (512) 472-9717 FAX: 472-9798
                       chrismorganlaw@cs.com
                       ATTORNEY FOR APPELLANT




                                                         1
NAME OF PARTIES/ATTORNEYS

CHRISTOPHER NEWBERRY     Appellant

CHERYL HINDERA           Attorney for Appellant at trial
SBOT NO. 24007367
4425 SOUTH MOPAC, #107
AUSTIN, TEXAS 78735

CHRISTOPHER P. MORGAN    Attorney for Appellant on appeal
SBOT 14435325
3009 N. IH 35
Austin, Texas 78722

J. MICHAEL OHUERI        Assistant County Attorney at trial
SBOT NO. 24072529
P. O. BOX 1748
AUSTIN, TEXAS 78767

JENNIFER COLLITY         Assistant County Attorney at trial
SBOT NO. 24062974
P. O. BOX 1748
AUSTIN, TEXAS 78767




                                                              2
TABLE OF CONTENTS                                 PAGE

NAME OF PARTIES/ATTORNEYS                         2

TABLE OF CONTENTS                                 3

INDEX OF AUTHORITIES                              5

STATEMENT OF THE CASE                             8

POINTS OF ERROR                                   8

ARGUMENT AND AUTHORITIES                          9

POINT OF ERROR NO. ONE: THE EVIDENCE IS
INSUFFICIENT.                                     9
    A. Evidence.                                  9
          1. Ebony Knox.                          9

          2. SX-5 (the 911 calls).                9

          3. APD Officer Joseph Poswalk.          10

          4. Justin Giddings.                     14

          5. SX-8 (police videos).                18

          6. Appellant Christopher Newberry.      19

    B. Arguments.                                 25
          1. No direct evidence.                  26

          2. Appellant did not admit driving or
             driving while intoxicated.           28

          3. Murray v. State.                     34

          4. Insufficient to prove driving or
             operating.                           36


                                                         3
          5. Insufficient to prove, if driving, that he
             was intoxicated when doing so.                  38

POINT OF ERROR NO. TWO: THE TRIAL COURT
REVERSIBLY ERRED BY DENYING APPELLANT’S
MOTION FOR MISTRIAL.                                         40
    A. Record.                                               40

    B. Argument.                                             49
          1. By eliciting this evidence the State violated
             appellant’s rights to due process, fair trial
             and the presumption of innocence.               49

          2. The trial court erred by denying the motion
             for mistrial.                                   51
                 a. Severity of the misconduct.              52
                 b. Curative measures.                       52
                 c. Conviction was not a certainty.          55

          3. The error was not harmless beyond a
             reasonable doubt.                               55

PRAYER FOR RELIEF                                            56

CERTIFICATE OF SERVICE                                       56

CERTIFICATE OF WORD COUNT                                    56




                                                                  4
INDEX OF AUTHORITIES                                         PAGE

      Cases
Archie v. State, 340 S.W.3d 734(Tex.Crim.App.2011)           53
Arocha v. State, No. 12-14-00042-CR(Tex.App.-Fort Worth,
      December 11, 2014)[unpublished].                       31, 32, 33
Avants v. State, 170 Tex.Crim. 308, 340 S.W.2d 817(1960)     36
Ballard v. State, 757 S.W.2d 389(Tex. App.-Hou[1st]1988)
      pet. ref’d                                             30, 32, 40
Barton v. State, 882 S.W.2d 456(Tex.App.-Dallas 1994) no
      pet.                                                   40
Brooks v. State, 323 S.W.3d 893(Tex.Crim.App.2010)           25
Brown v. State, 877 S.W.2d 869(Tex.App.-San Antonio1994)
no pet.                                                      49, 50, 51,
                                                              52, 55, 56
Bucek v. State, 724 S.W.2d 129(Tex.App.-Fort Worth1987)
       no pet.                                               31, 33
Chaloupka v. State, 20 S.W.3d 172(Tex.App.-Texarkana
       2000), pet. ref’d                                     39
Coble v. State, 330 S.W.3d 253(Tex.Crim.App.2010)            51
Deck v. Missouri, 544 U.S. 622, 630, 125 S.Ct. 2007 (2005)   50
Emerson v. State, 880 S.W.2d 759(Tex.Crim.App.1994)          36
Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691 (1976)      50
Feinberg v. State, No. 05-06-01367-CR(Tex.App.-Dallas,
       November 20, 2007)[unpublished]                       40
Folk v. State, 797 S.W.2d 141(Tex.App.-Austin1990) pet.
       ref’d                                                 31, 32, 33
Geick v. State, 349 S.W.3d 542(Tex.Crim.App.2011)            26
Hacker v. State, 389 S.W.2d 860(Tex.Crim. App.2013)          30
Hamilton v. State, No. 14-08-00175-CR(Tex.App.-Hou[14th]
       2010)[unpublished]                                    51, 53, 54
Hanson v. State, 781 S.W.2d 445, 446(Tex.App.-Fort Worth
       1989), abated 790 S.W.2d 656(Tex.Crim.App.1990)       31, 33
Hawkins v. State, 135 S.W.2d 72(Tex.Crim.App.2004)           56
Hearne v. State, 80 S.W.3d 677(Tex.App.-Hou[1st]2002)
       no pet.                                               37
Holloway v. State, 446 S.W.3d 847(Tex.App.-Texarkana
       2014) no pet.                                         50, 52
Hooper v. State, 214 S.W. 3d 9(Tex.Crim.App.2007)            26


                                                                           5
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781(1979)        25
Keenan v. State, 700 S.W.2d 12(Tex.App.-Amarillo1985)
      no pet.                                                 36
Kuciemba v. State, 310 S.W.3d 460(Tex.Crim.App.2010)          37, 38
Madden v. State, No. 02-08-007-CR(Tex.App.-Fort
      Worth2009)[unpublished]                                 53
Malik v. State, 953 S.W.2d 234(Tex.Crim.App.1997)             26
Mendoza v. State, 1 S.W.3d 829(Tex.App.-Corpus Christi
      1999) pet. ref’d                                        56
Milam v. State, 976 S.W.2d 788(Tex.App.-Hou[1st]1998)
      pet. ref’d                                              39
Murray v. State, No. PD-1230-14(Tex.Crim.App., April
      15, 2015).                                              26, 34
Murray v. State, 440 S.W.3d 927(Tex.App.-Amarillo2014),
      rev’d, No. PD-1230-14(Tex.Crim.App., April 15, 2015)    34
Oliver v. State, 999 S.W.2d 596(Tex.App.-Hou[14th] 1999)
      pet. ref’d                                              49, 52, 54
                                                               55
Onyekachi v. State, No. 05-12-00519-CR(Tex.App.-Dallas
      2013)[unpublished]                                      31, 33
Pierce v. State, 234 S.W.3d 265(Tex. App.-Waco2007) pet.
      ref’d                                                   50, 52, 53
Randle v. State, 826 S.W.2d 943(Tex.Crim.App.1992)            50, 52, 55
                                                               56
Rodriguez v. State, No. 01-08-01038-CR(Tex.App.-Hou
       [1st]September 29, 2009)[unpublished]                  40
Scillitani v. State,315 S.W.3d 542(Tex.Crim.App.2010)         39
Scillitani v. State, 297 S.W.3d 498(Tex.App.-Hou[14th]
       2009), rev’d, 315 S.W.3d 542(Tex. Crim.App.2010)       33
Sharper v. State, 22 S.W.3d 557(Tex. App.-Texarkana2000)
       no pet.                                                50, 53
State v. Pringle, No. 12-12-00286-CR(Tex.App.-Tyler, June
       23, 2013)[unpublished]                                 50
Threet v. State, 157 Tex.Cr.R. 497, 250 S.W.2d 200(1952)      31
Wiseman v. State, 223 S.W.3d 45(Tex.App.-Hou[1st]2006)
       pet. ref’d.                                            52, 55, 56
Wright v. State, 932 S.W.2d 572(Tex.App.-Tyler1995) no pet.   37, 39
Youens v. State, 988 S.W.2d 404(Tex.App.-Hou[1st]1999)
       no pet.                                                39


                                                                           6
Zavala v. State, 89 S.W.3d 134(Tex.App.-Corpus Christi
      2002) no pet.                                      33

      Statutes, Rules & Publications
Tex.CodeCrim.Proc., Art. 2.03(b)                         49
      Art. 38.03                                         50
      Art. 37.07, Secs. 4                                54

Tex.PenalCode, Sec. 49.04(a) & (b)                       8

Tex.R.App.Proc., Rule 44.2(a)                            55

Texas DWI Detection and Standardized Field Sobriety
Test Program: Student Manual (Revised 01/ 2002)          35




                                                              7
                  CAUSE NO. 03-14-00560-CR
   IN THE COURT OF APPEALS, THIRD SUPREME JUDICIAL
                           DISTRICT
                    _____________________
                 CHRISTOPHER NEWBERRY
                           Appellant
                              VS.
                    THE STATE OF TEXAS
                     ____________________
 Cause No. C1CR-14-209349, Travis County, Texas, County Court #5,
             Honorable, Nancy Hohengarten, presiding
                     ____________________
                   BRIEF FOR APPELLANT
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

COMES NOW, CHRISTOPHER NEWBERRY, appellant, and submits his

brief in Travis County Cause No. C1CR-14-209349, and shows:

                    STATEMENT OF THE CASE
      On or about August 7, 2014, on plea of not guilty, a jury convicted

appellant of driving while intoxicated, a class B misdemeanor. Tex.Penal

Code, Sec. 49.04(a) & (b). The court assessed sentence of 120 days Travis

County jail, no fine. Motion for New Trial apparently was timely filed.

Notice of Appeal was filed prematurely on August 28, 2014, and Amended

Notice of Appeal was filed October 14, 2015 (correcting defendant’s name

in the body of the Notice). The reporter's record was filed December 16,

2014. After extensions of time to file, the brief was filed June 8, 2015.

                   POINTS OF ERROR
POINT OF ERROR NO. ONE: THE EVIDENCE IS INSUFFICIENT.



                                                                            8
POINT OF ERROR NO. TWO: THE TRIAL COURT REVERSIBLY
ERRED BY DENYING APPELLANT’S MOTION FOR MISTRIAL.

               ARGUMENT AND AUTHORITIES
POINT OF ERROR NO. ONE: THE EVIDENCE IS INSUFFICIENT.
    The information alleged in relevant part that appellant “on or about

June 9, 2014, did then and there operate a motor vehicle in a public place in

Travis County, Texas, while intoxicated.” RR3-2-3. Appellant pleaded not

guilty. RR3-3.

        A. Evidence.
              1. Ebony Knox.
        Knox testified she was custodian of records for the Austin Police

Department (‘APD’). RR3-8-9. The State then introduced copies of record-

ings of three 911 calls as State’s Exhibit (‘SX’) 5, which she described as

“callers stating that there was a drunk driver,” “described… the vehicle that

he was driving,” and “the street was Mesa.” RR3-9-11. On cross she added

that the calls came in between “1600 to about 1735” hours, 4 to 5:35 p.m.;

the first around 4:23, the second “around the same time, a couple minutes

difference, maybe. And then the third… about an hour later.” RR3-12-13.1

             2. SX-5 (the 911 calls).
        SX-5 was played for the jury at RR3-11. All three 911 calls were

from females.2 None identify or describe the driver, or contain anything

1
 / The State originally said there were 2 calls on it, Knox testified it was 3. RR3-10-11. It
also elicited that the ‘factors’ used to connect the calls to one incident are “[w]hat's in the
call, the description of the vehicle, the location of the -- and the location.” RR3-11.


                                                                                              9
identifying appellant as the driver. The first two put the car turning onto

Mesa and into Summit Assisted Living. The first stated she was “pretty sure

there was a drunk driver in front of” her, in a Maroon jeep, license plate

BMT5040, and described the driving as inter alia “swerving”, “almost hit-

ting the curb” twice and “he hit the guardrail, ran off the road four times”.

       The third was from a receptionist at Summit Assisted Living on Mesa,

saying inter alia a brown jeep was parked over the sidewalk and “someone

just told us he looks like he’s on drugs or drunk… he’s still in the vehicle”.

She went to look for herself, and on returning said she was told “he is not in

the vehicle and the person who reported this just said he was out stumbling

around, so he may have gone behind our building.” There is no indication

she saw if anyone was in the Jeep, or asleep in it.

            3. APD Officer Joseph Poswalk.
       APD officers Poswalk and McBride were the first to arrive at 5715

Mesa Drive in Austin, “[s]ometime around 6:00 p.m.” RR3-25, 29.3 That

was in response to “a suspicious person call, of a jeep parked over a side-

walk at, I believe, a retirement home at this address, with the driver still

2
  / There was no other information identifying the first two callers and the second refused
to give her name.
3
  / By time of trial, Poswalk had been an peace officer a “little over two and a half years”,
including 8 months at the academy. RR3-14-15. Poswalk’s in-car video shows a time-
stamp for that of 7:02 pm (19:02); McBride’s shows a time-stamp of about 5:45 pm, but
there is nothing showing how accurate those were.


                                                                                           10
inside.” RR3-23. “[T]here was a jeep parked,” in the first parking space in

the parking lot “like the call said, over the sidewalk.” RR3-23-24. He

testified this was a public place. RR3-29.

          The State then introduced and published four photos as SX-1 to 4. RR

3-24-25. They show a Jeep, plate number BMT5040, parked in a marked

space with the front half over a sidewalk. SX-1 also shows the retirement

building, separated from the sidewalk by a hedge and lawn, and much of the

rest of the lot and other parked vehicles. SX-2-4 also shows a road a good

distance to the east, separated from the parking lot by a large lawn-type

area, and part of the driveway. See also, RR3-23.4

          McBride walked “up to the driver's side door”, Poswalk walked “to

the passenger side door.” RR25-26. McBride said there “was someone in-

side”, and “knocked on the window until the defendant woke up.” RR3-26.

Appellant “was very wet, either sweaty, or what. He was drooling on him-

self and he had his keys in his lap.” RR3-26. He thought the passenger side

window was “rolled down slightly.” Id. See also, SX-2.

          They did not see appellant driving, and the keys for the Jeep were on

appellant’s lap. RR3-33.


4
    / Google Earth satellite photo actually shows that road is a driveway coming off Mesa.


                                                                                             11
       They “had him step out” of the jeep “and sit on the curb.” RR3-27.

Appellant did not have “trouble getting out... But taking the small walk to

the curb, he had impaired balance.” Id. He

       “did appear impaired, like — he definitely wasn't all there. His
       speech was very — you couldn't even make it out. It kind of came
       and went. Like he'd speak clearly and then he'd kind of mumble.”

Id.

       Poswalk then related “a message” he received “from another officer”

while driving to Mesa, about

       “a call previously, before I had gotten to work, … of a purple or
       brown jeep heading, I believe, westbound on 2222, that had struck a
       guardrail or wall. This officer had tried to find it and never did. So
       when this call came out, he sent me a message, Hey, you know, this is
       more than likely the vehicle from earlier.”

RR3-27. He added that, at some point, McBride contacted “the person that

had called … to see if he could come and identify the driver.” RR3-28. The

State asked if they confirmed “this was, in fact, the vehicle”, and Poswalk

said they had him “drive by” and “take a look at the defendant, … So when

he drove by, he immediately said, Yeah, that's him.” Id.5

       After reviewing SX-1-4, Poswalk testified that there “was some”

damage to the Jeep “on the back right bumper. … there looks like a scratch

5
 / On cross, Poswalk identified this person as Robin Brown, a male, “Somehow he ended
up being — we had his number from dispatch as a witness.” RR3-31. It is clear from the
recordings that all 911 callers were in fact female, so he was not one.


                                                                                    12
on the right front bumper. But” couldn’t tell whether the damage was there

prior or not” or had anything to do with “graz[ing]” a guardrail. RR3-31-

32.6

       They decided to have appellant perform standardized field sobriety

tests (SFSTs) and waited for officers Giddings and Adams “to come up and

take the investigation from there.” RR3-28.7 Poswalk remained there after

they arrived, but did not participate in “conducting the SFSTs”. RR3-30.

Nor did he testify that appellant was intoxicated.8

       After appellant was arrested, a search of the jeep produced “two open

beer cans” inside in the center console, and “a small cooler with, I think,

6
  / “A. Yeah. It depends. He was going westbound. So it would have been that right side, if
he was in the right lane, which, again, I don't know. In that area, there are quite a few
guardrails and cement walls, as well. Whether he had grazed or — you know, I couldn't
tell you. It's possible that that damage came from the wall. It's possible that it was there
prior. I couldn't tell you whether that was definitively guardrail damage or something
else.” RR3-32-33.
7
  / “Officer Adams, who [was] the field training officer for Officer Giddings,” contacted
them and asked if Giddings could do the SFSTs. RR3-28-29. Poswalk did not recall how
long they took, it was more than a couple of minutes. RR3-29.
8
  / He did testify that officers get training at the academy on detection of intoxication and a
3 month field training period with another officer after graduation. RR3-15-16. That in-
cludes training and certification on the SFSTs (horizontal gaze nystagmus test (HGN),
walk-and-turn and one-leg stand). RR3-16-17. The defense did not object when the State
moved “to qualify him as an expert in conducting the standardized field sobriety tests”
(‘SFST’). RR3-17. He said inter alia the HGN has 6 possible clues (3 in each eye), and
“four or more clues” on the HGN means “it's 80 percent or more chance that they're
intox-icated, above the legal limit.” RR3-20. He added that “from my experience, you
don't see too much vertical gaze nystagmus just from alcohol. Usually, there's something
else in the system that can trigger the vertical gaze nystagmus.” RR3-20. He also said
officers look for “2 or more” clues on the walk-and-turn, and “[t]wo of four” on the one-
leg stand indicate intoxication RR3-22-23.


                                                                                            13
three more cold beers inside of it.” RR3-30. “[S]ome of them had a little bit

left in them. I think there was one that was completely empty.” RR3-33. He

also “had his tools in there. He said he was a subcontractor, so there was a

lot of tools” and some clothes. Id. He had said he was at work that day. Id. 9

             4. Justin Giddings.
       Giddings graduated the academy on March 22, 2014, about 2 and a

half months before this incident. RR3-34-35. He was called to do the

SFSTs. RR3-36.10 His video shows he arrived about 6:15 p.m. See, SX-

8(#181547). See also, RR3-40.

       Giddings thought appellant’s clothes “were sort of disorderly”, but

agreed it was “possible, if you're working construction, to be disheveled

like” that. RR3-38, 63. When he spoke with him, Giddings “smelled a faint

odor of alcohol”, “speech was slurry and kind of mumbled”, and “eyes were

glassy and watery. And his pupils were very restricted”. RR3-38.

       He asked appellant “a standard list” of questions, “standard to my-

self”. RR3-38-39. In reply, appellant estimated the time as “six o’clock,


9
 / McBride was not present during trial as he “no longer at the department” and had
“moved out of state.” RR3-31.
10
   / He was a certified SFST practitioner. Id. His training consisted of “a 40-hour week
dedicated to SFSTs” at the academy, “lectures. We read from the manual. And we also did
a hands-on application at the end of the week.” Id. At the time of this stop, he was “about
two full months” into 3 month field training, Adams was his training supervisor. RR3-37,
42. See also, RR3-63-64.


                                                                                        14
when it was more around 6:30”, and later “began saying he thought it was

4:00 to 4:30, closer to that time.” RR3-40-41. He said “he was heading

home”, gave the address only as “In Austin”, “said he was coming from

work”, “left at 2:00” and “came straight from work and did not stop any-

where”, but “that's when the time started changing a little.” RR3-39, 41.

His last meal was a “breakfast sandwich… that morning”, he denied drink-

ing alcohol, and “said he had about two gallons… of water that day while

working.” RR3-40-41.

          Giddings had him do the SFSTs (HGN, walk-turn, 1-leg).RR3-37, 45.

It “didn't seem like” appellant had done them before. RR3-64. He said he

saw all three clues in each eye on the HGN, “vertical nystagmus” and

“swaying”, “[s]ix out of eight” clues on the walk-and-turn, and “[f]our out

of four” on the one-leg. RR3-47, 52.11

          No alcoholic beverages where found on appellant, but Adams and

Poswalk did find “two open and a couple of closed… taller sized beer cans”,

“probably 24 ounces” in the Jeep. RR3-42-43. SX-6, 7 and 8 were introduc-

ed at RR-43-45. SX-6 is a photo of the parked jeep, SX-7 is a ‘screen cap-

ture’ from the police video showing officers with 5 beers cans, SX-8 is a

copy of the police video recordings.

11
     / He explained the tests and related the instructions he gave appellant at RR3-46-53.


                                                                                             15
        Once his investigation was finished, Giddings made a “judgment call”

appellant “was driving while intoxicated.” RR3-52-53. At that time, Adams

asked “if he would provide … a portable breath sample” (PBT). RR3-53-54.

Appellant declined. Id.12

        The State then elicited that when Giddings first approached him,

appellant “was cooperative, able to talk to” but “very quickly became very

agitated”, and by the time they asked for the PBT his attitude was “[v]ery

aggressive in a way”,

        “He kept asking, for instance — during one point, he asked if we
        wanted him to do cartwheels, as well. And it was just — it was hard
        to keep his attention. And at one point, he did admit that he has
        trouble with authority. And he apologized for it. And it was just —
        he'd be cooperative for a couple seconds and then go back and forth.”

RR3-54. He opined that, from his experience, such “sudden changes in

attitude” may be an indication of intoxication. Id.

        After he refused the PBT, appellant was handcuffed and searched

“incidental to arrest”, producing a “couple of tools and a pocketknife”. RR

3-54-55. He was placed in the back of Giddings car, who “read him the

DIC-24”, “provided a copy” and “told him he could follow along with it.”

12
  / Giddings said “that's by policy. We are required to ask them if they will give that or
not.” Id. He explained “[i]t's a preliminary breath sample. So it's not as accurate as the
Intoxilyzer that's at the jail, but it does provide a sample that is close to what the actual
blood alcohol concentration is.” Id.


                                                                                                16
RR3-55.13 Appellant listened at first, but then repeatedly interrupted, with

profanity “several times”. Id.

       Appellant did say he would provide a sample when they got to the

jail. Id. However, he refused when the intoxilyzer operator asked, and

“began to become very aggressive with the jailers”, “the jailers take him up

to do the intake process, at which time he starts getting mouthy with them,”

to the point where “he was kept in handcuffs and placed in a solitary cell, by

himself”, when RR3-55-56, 60.

       The State then published the recording from Giddings’ car on SX-8.

RR3-56-59.14 See, 5, post.

       On cross, Giddings testified he did not see appellant driving, or even

behind the wheel, when he arrived “he was sitting on the sidewalk behind

his vehicle.” RR3-61. The day “was cloudy, kind of overcast”, “maybe in

the 80s”. RR3-63. He did not physically touch any cans and did not know

if they were warm or cold, but “the other officers said they were cold to the

touch, and two of them were opened and half empty.” RR3-62.

       He also related how appellant had said ‘something like "Mesa Drive.

Oh, that's where I am"’, when they were leaving, and “[s]eems like he did
13
   / Giddings explained the DIC-24 is “basically letting the subject know their rights and
everything. And at the end, you're asking for a sample of their breath or blood.” RR3-55.
14
   / At one point while playing it the State pointed out some swaying by appellant, which
Giddings estimated was “a couple inches.” RR3-58-59.


                                                                                         17
not know where he was at the time”. RR3-65. Appellant “said he was com-

ing from work that day”, and the tools police took from his pocket could

have been used in his work. RR3-66.

            5. SX-8 (police videos).
       While the DVD introduced as SX-8 has 4 videos on it, the State only

laid the predicate for Giddings’ video (#181547):

       “Q Do you recognize that Exhibit 8.
       A Yes, sir. It is a copy of our video from that – my video from my
       patrol vehicle from this case.

RR3-44. Indeed, from his testimony, it appears no one knew the other

videos were on SX-8. His is also the only video the State published to the

jury. RR3-56-59. There was no mention during trial that there were other

videos or they were on the it.15

       There is no transcript in the record, so the following is as best as

appellate counsel can do. The numbers for each entry post are approximate

time stamps. Putting evidence on intoxication aside, the statements by

appellant that seem most relevant are thus:


15
  / Of the four videos on SX-8, only Giddings and McBride’s (#174346) contain relevant
information. McBride was not available for trial, having moved out of State. Poswalk
was not asked to authenticate SX-8 or anything on it, but only SX-1-4. RR3-14-33. It is
not clear he could have done so. His video (#190311) is less than 2 minutes long and
only has the audio at the beginning of McBride’s where the officers talk about the keys
not being in the ignition. Officer Witt’s (#174806) seems merely a poorer quality
recording of some of the audio also on McBride’s.


                                                                                     18
           -@18:19:30 “O: How did you end up here?
           A: Um, driving?

           O: So you were driving but what brought you to end up at this
           location?
           A: I have no a/c in my vehicle, hot, this day I’m working a lot… I
           really, really don’t know. I’m being honest with you.”

           -@18:48:55 “A: No one seen me drive. I did not drive either…
           Somebody drove me, dropped me off.”

           The State rested after Giddings’ testimony. Id. Appellant’s motion for

directed verdict was denied. RR3-67.

                6. Appellant Christopher Newberry.
           Appellant admitted he is the person in the video and was “intoxicat-

ed” at that time. RR3-80. See also, RR3-85. He testified he resided in

Austin on June 9, 2014. RR3-71. He “had very little sleep” that night,

because he was up until 3:00 a.m., working on his Jeep. RR3-69. He had it

inspected at 8:00 a.m., then drove to the construction and recycling business

he worked at near Lakeway, “started about 9:00-ish, probably”. RR3-70-

75.16 It is “hard physical labor”, done outside. RR3-69. It “was very hot

and humid that day. It was in the high 90s.” RR3-71. Two gallons of water

was a normal amount for him to drink during work. RR3-71. He “was ex-

tremely tired the whole day.” RR3-70.

           He thought he stopped work “probably about 3:30”, but was “really

16
     / “[I]t's still in Austin, but it's literally like two blocks from Lakeway.” RR3-72.


                                                                                            19
foggy” about that because he “started drinking at noon” since he had plann-

ed to sleep in a cabin the company had there rather than drive home. RR3-

70, 71.17 He had a 24-ounce beer and said he “wasn't drinking a lot; …

Almost as much as my body actually, I'd say, goes through alcohol wise, you

know, with water also.” RR3-73-75.

       About two o’clock, a coworker, Juan, “got a call”, “he said that a girl-

friend called him… and that he wanted to go into Austin… but he doesn’t

have a vehicle.” RR3-74. See also, RR3-70.18 The call “was probably about

one an hour” after he started drinking. RR3-75. Juan had also been drink-

ing, but appellant decided to let him drive. RR3-75-76. He was not sure

what time they left. RR3-76. On redirect, he estimated 3:30, but it could

have been 3 or 4. RR3-108.

       He insisted Juan was driving, not him. RR3-77. He testified that on

the video the officer

       “asked, ‘Where were you going?’ I told him where I was going. He
       asked later on, ‘How did you get here?’ And I didn't know how to
       answer the question. I hesitated, and I said driving. That's like


17
   / “It was because I'd been up all night and I agreed with Ann that I was going to crash
and burn that day, just finish what I was doing, load up the trucks, and just go to sleep. I
wasn't planning on leaving Lakeway.” RR3-74.
18
   / Appellant described Juan as “an illegal alien, but he's worked for Ann for over five
years. And he got deported. He's been back for about six months.” RR3-74. He did not
know Juan’s last name. Id.


                                                                                           20
       asking a bird how does it go south? Flying. I didn't say I was
       driving. I was not driving the vehicle.”

Id. He said he did not drive because he “was intoxicated. And []had a CDL

and clean driving record for over 14 years. I do not drive intoxicated. I was

not going to drive intoxicated.” Id.19.

       Juan was supposed to drive him to his house, and then “was going to

either take a bus or his girlfriend was going to come get him.” RR3-79-80.

       “He's well trusted. He's worked for Ann for over five years. She has
       two company vehicles; he drives both of them. He 's just not legally
       able to drive. So it really doesn't matter whether he gets a DWI or
       not. He just gets deported. He always comes back.”

RR3-77-78.

       Appellant said he was sitting on “the passenger side” and went to

sleep at some point. RR3-78. He started on a beer before that, but did not

drink much: “Not really. I opened one. And it sat in the console because

I went to sleep. … Juan was drinking. That's why there was two.” RR3-81.

He did not recall the drive to Mesa or know how they got there, as he was

asleep. RR3-78.

       “I do not recall anything. I mean, I crashed hard. I went to sleep.
       The next thing I remember, actually, is waking up. He was not — he
       was not in the driver's side. I was pouring sweat. Keys were in the
       ignition and the window was up on his side. And the door's kind of

19
 / He explained that is a “Commercial Driver's License”, and he had “[f]ourteen years
with a clean record.” Id. See also, RR3-109-110


                                                                                        21
       messed up on the driver's side of the jeep. I never got out of the jeep.
       That's what also made me wonder about the 9-1-1 video. Someone
       stumbling around drunk. That had to be Juan because I never got out
       of the jeep. I moved into the driver's side. The reason I say that I
       never got out of the vehicle is because the door's — it's on the video.
       I told the officer that the door gets stuck. So anyway, I got to the
       driver's side without getting out of the vehicle to roll the window
       down and that's when I clipped the keys--”

RR3-79. As for “the guardrail stuff, I have no idea. I was asleep anyway so

I have no idea about any of it.” Id. 20

       He testified he had no idea how long the Jeep was parked “because I

fell asleep and I didn't know how long I was asleep.” RR3-80-81. Asked

where Juan went, he replied: “I only know from later, is that he went and

visited someone there in the complex.” RR3-81-82.21

       Asked why there was cool beer in the car after two hours, he said:

“As the officer stated, there was a cooler with ice in it in the vehicle.” RR3-

82. He had “no idea” if the beers in the console were cool: “I have no idea.

I quit drinking for a while. I was sleeping.” RR3-83.

       He agreed that he was in the driver’s seat and had the keys in his lap

when the officers woke him. Id. He explained he had


20
   / He explained that the passenger door is stuck because of problems with its handle and
not for some other reason. Id.
21
   / While the State objected, it was after the answer, they did not request an instruction to
disregard or strike and the court did not do so sua sponte. RR-82. He also twice tried to
say that Ann and Juan told him Juan drove there and left him in the jeep, but the State’s
hearsay objections were sustained. RR3-78, 80.


                                                                                            22
      “climbed over the seat to roll the window down. There's a lot of
      defects in the jeep. … You have to literally push against the glass and
      roll it down. And I had to be in the driver's side seat to roll the
      window down.”

Id.

      He said the damage to the Jeep “happened months ago.” RR3-84.

      “It was a cement pylon or bridge I backed into at the river, almost two
      months ago. And as you can see in the picture, this taillight's been
      replaced. It's not the same as the other. It's quite obvious it's a very
      old accident.” Id.

He did not repair the bumper because he “didn't feel it was necessary.” Id.

      On cross, the State elicited that there were a lot of details he did not

remember, and he had to “speak with other people… such a Juan” to refresh

his recollection. RR3-85-86. He added that “the only reason” he “could say

as to why I was there was by finding out why Juan drove there, and he was

there to visit someone there.” RR3-85. When the State expressed skeptic-

ism that he crossed to the driver’s seat, he replied: “I was covered with

sweat, as you can see in the video. I was dying of sweat.” RR3-86.

      It then opened the line of questioning addressed in Point of Error No.

Two, post. Ultimately, it was allowed to prove he had a prior felony bribery

conviction. RR3-99-100.

      Appellant conceded he did not mention Juan or Ann to the officers.




                                                                                 23
RR3-100.22 He said he told them he “didn't know how I got there,” and

added: “All I know, I was driven there. That's the answer. How did I get to

where I was, I don't know because I didn't--” Id. He agreed memory loss is

consistent with intoxication “on occasion”, but added “with sleeping too”.

RR3-101. He also agreed “dislocation” is consistent with intoxication. Id.

          He acknowledged that when the officers asked how he got there, he

only said “driving”. Id. He did not think that would have been a good op-

portunity to mention Juan or Ann. RR3-102.23 He admitted it had been

“[c]lose to” 60 days since the incident, he had had that time to think about

whether to testify, what he would say and what might be favorable and un-

favorable. RR3-102-104. He agreed it would be “pretty favorable” if the

jury believe he was not driving. RR3-104-105.

          He testified he did not understand Giddings was going to conduct a

DWI investigation when he first came to him,

          “not at that time. I thought that I was — he actually asked — I wanted
          to see if he had the ability to drive. I didn't know if I was going to be
          charged with a PI or not.
                 …
          He did not state that I was being charged with a DWI at the beginning
          of that.”

RR3-105. He was aware he suspected he was intoxicated. RR3-105-106.

22
     / When he asked if they wanted to know the reason, the prosecutor replied ‘no’. Id
23
     / The State again said “no” when he asked if they wanted to know why. Id.


                                                                                          24
He conceded he had an opportunity to give what he thought was a favorable

or unfavorable answer when Giddings asked if he had consumed any alco-

hol and he told him he had not. RR3-106-107.

              On re-direct, he testified he was in condition to safely drive at noon

that day and “probably could have” at two o’clock, “but it would have been

beyond the legal limit, which is pretty -- .08 is one beer.” RR3-107. He ag-

reed he was in no condition to drive when the officers arrived, but was

asleep, not driving and had no intent to operate a vehicle at that time. RR3-

108. He did not mention Juan to the officers

              “Because I didn't want him — for one thing, I didn't want him getting
              charged with a DWI if he was around. It came up in the 9-1-1 video
              that someone was drunk and stumbling. As the jury can see, I was
              intoxicated, but I was not inebriated to the point of falling down
              drunk, is the way the lady called it in on the third and last 9-1-1 call.
              That was probably Juan. He would go to jail if I would have said
              anything.”
                     …
              And I wasn't considering myself — I thought the law, at the time, was
              if you're in your vehicle with the keys out of the ignition, you get a
              PI, not a DWI.”

RR3-108-109.24

              B. Arguments.
              Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781(1979), provides the

standard for sufficiency. See, Brooks v. State, 323 S.W.3d 893, 894-95(Tex.

24
     / Both   sides then rested and closed. RR3-110.


                                                                                       25
Crim.App.2010). The evidence is viewed in the light most favorable to the

verdict to determine if a rational trier of fact could find each essential ele-

ment beyond a reasonable doubt. Jackson, 99 S.Ct. at 2789; Brooks, 323 S.

W.3d at 899.25 The factfinder resolves conflicts in testimony, weighs the

evidence and draws reasonable conclusions from basic facts. Murray v.

State, No. PD-1230-14(Tex.Crim.App., April 15, 2015). Appellate courts

“determine [if] the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light

most favorable to the verdict.” Id. The fact finder’s resolution of conflicts

in the evidence must be rational and inferences drawn reasonable. Hooper v.

State, 214 S.W.3d 9, 15-16(Tex.Crim.App.2007). A conclusion reached by

speculation may not be completely unreasonable, but is not sufficient to

support a reasonable finding beyond reasonable doubt. Id. That there is

only ‘some evidence’ supporting guilty inferences on each element is not

sufficient. Jackson expressly rejected the ‘no evidence’ test. Brooks, 323

S.W.3d at 916-17 (Cochran concurring).

               1. No direct evidence.
25
  / Sufficiency is measured on a hypothetically correct jury charge. Malik v. State, 953
S.W.2d 234, 240(Tex.Crim.App.1997). That is one accurately setting out the law, author-
ized by the charging instrument, not unnecessarily increasing the State’s burden of proof
or restricting theories of liability, and adequately describes the particular offense tried.
Geick v. State, 349 S.W.3d 542(Tex.Crim.App.2011).


                                                                                          26
       The first two 911 calls were at about 4:23 p.m. At that time, appel-

lant’s jeep was seen being driven recklessly, then turning onto Mesa and at

the Summit, where it was later found parked. Neither caller identified or de-

scribed the driver. At least one speculated about a ‘drunk driver’, but neith-

er actually had any basis to attribute a cause to the driving. As defense

counsel argued, the second caller used “they” a number of times in her

description, suggesting she might have seen multiple occupants. RR3-114.

       The third 911 call came in around 5:30 p.m., over an hour after the

jeep was last seen moving.26 The woman reported another person told her it

was parked where and in the manner officers found it. Almost immediately,

after she went out to look for herself, she related that she did not get close

to the vehicle but did not see anyone in it, and “the person who reported

this” said he was “stumbling around” but she did not see anyone so they

might have “gone behind” the building.

       Poswalk and McBride arrived around 6 p.m., or about 1 hour and 40

minutes after the jeep was seen moving. The engine was not running and

there is no evidence it was hot or operated during that time. No occupants

can be seen in the jeep on the video, let alone in the driver’s seat. Nothing

26
  / Knox said it was “about an hour” after the second 911 call, Poswalk said he and
McBride arrived at Summit about 6 p.m., “probably 20 minutes or so” after dispatch
called them. RR3-12-13, 23-24.


                                                                                      27
indicates the officers saw anyone in it until they were standing near it, when

McBride indicated there “was someone inside”. Appellant was in the driv-

er’s seat, asleep, with the keys in his lap, apparently slumped over in such a

way he could not be seen until they got close.

      There is no direct evidence he had been driving at any time since 9:00

a.m. or when he might have been intoxicated. While Poswalk testified he

contacted a caller, who “drove by” and “said, Yeah, that’s him”, it is obvious

he was mistaken or overstated that. All three callers were female, the person

Poswalk spoke to was male. Neither caller who saw the driving saw the

driver, the third caller never saw any driving or operating, and that call

shows thejeep was parked when first reported there. Further, Poswalk relat-

ed he asked the person to drive by and confirm “this was, in fact, the vehi-

cle”, so he was identifying the jeep, not the person.

           2. Appellant did not admit driving, or driving while
           intoxicated.
      Appellant testified he was not the driver, but a passenger while Juan

drove from Lakeway to the Summit, where Juan “went and visited some-

one” while he continued sleeping in the jeep. At one point, he woke from

the heat and moved into the driver’s seat to try and lower that window. It

was June. He testified it was hot and humid, he thought in the 90s;



                                                                               28
Giddings said it was in the 80s.27 He and the officers testified he was sweat-

ing heavily. SX-6 seems to show that window down a bit, SX-2 and 3 show

the passenger window partly rolled down.

       Near the end of Giddings’ video, appellant appears to say:

       “No one seen me drive. I did not drive either… Somebody drove me,
       dropped me off.” @18:48:55.

Therefore, the State’s argument that his testimony was the first time he

mentioned being a passenger is incorrect. It is true he said this when in the

police car and not to the officers, but there is nothing indicating he knew it

was being recorded and, as the saying goes, the truth is often said in private.

See e.g, Luke 12:3.28

       Giddings testified appellant told him he was “heading home” from

Lakeway, “left at 2:00 p.m.” and “came straight from work and did not stop

anywhere”. But that is not a statement that he was driving, as opposed to

someone else, only about the direction and path taken by the car. The only

possible statement otherwise appears to be thus:


27
   / If McBride’s video is considered (though appellant argues it was and should not be) at
about 17:48, appellant is heard to say “Oh god its hot!”, about 18:06:30 an officer agrees
to let him get water from the jeep saying, “It’s hot out like you said, wouldn’t want you to
get dehydrated.”
28
   / Or to move to the more profane, he testified he did not want to accuse Juan (“I didn’t
want him getting charged with a DWI if he was around. … He would go to jail if I would
have said anything”), and believed he himself faced only a public intoxication because he
was not driving. RR3-108-109.


                                                                                          29
       -@18:19:30 “O: How did you end up here?
       A: Um, driving?

       O: So you were driving but what brought you to end up at this
       location?
       A: I have no a/c in my vehicle, hot, this day I’m working a lot… I
       really, really don’t know. I’m being honest with you.”

But that is vague and ambiguous. It is merely a statement of the means by

which he “end[ed] up there”, i.e. by conveyance in a motor vehicle. It no

more necessarily means he was the driver than someone saying they flew

means they were the pilot. When the officer then asked again how he ended

up at that specific location, he replied “really, really, don’t know. I’m being

honest with you.” That seems to contradict the inference the State tried to

draw. The officer easily could have but apparently did not follow up to make

the meaning plain. It is much less clear than his other extrajudicial state-

ment: “I did not drive either… Somebody drove me…” Cf., Ballard v. State,

757 S.W.2d 389, 390-391 & n.1(Tex. App.-Hou[1st]1988) pet. ref’d.29

       In addition, that extrajudicial statement does not appear to be cor-

roborated. A defendant’s extrajudicial confession is not sufficient without

other evidence that tends to establish the offense’s corpus delicti. Hacker v.


29
  / Appellant also testified that he did not mean it to be a statement that he was driving: “I
didn’t say I was driving. I was not driving the vehicle.” RR3-77. In addition, if
McBride’s video is considered (though appellant argues it was and should not be) at about
17:57:20, the officer comments that appellant got sweaty from “driving around in the
heat” but he twice replies “No.’


                                                                                           30
State, 389 S.W.2d 860, 865(Tex.Crim.App.2013). The corpus delicti of

DWI is 1) driving a motor vehicle, 2) in a public place, 3) while intoxicated.

A corroborated confession “may only be used in aid of evidence supporting

an element of the corpus delicti. It may not be used to supply that element

of the corpus delicti.” Hanson v. State, 781 S.W.2d 445, 446(Tex.App.-Fort

Worth1989), abated 790 S.W.2d 656(Tex. Crim.App.1990). When the proof

in a DWI case is 1) a vehicle was driven/operated and 2) defendant was in-

toxicated, proof of the corpus delicti is incomplete without also showing 3)

the defendant was the one who drove/operated it.

      Thus, “the evidence is insufficient to establish the ‘corpus delicti’ of

driving while intoxicated when the only evidence that the” defendant “was

driving was his own extrajudicial confession.” Bucek v. State, 724 S.W.2d

129, 130(Tex.App.-Fort Worth1987) no pet. See also, Onyekachi v. State,

No. 05-12-00519-CR(Tex.App.-Dallas2013)[unpublished]; Folk v. State,

797 S.W.2d 141, 143-144(Tex.App.-Austin1990) pet. ref’d; Hanson, 781

S.W.2d at 446; Threet v. State, 157 Tex.Cr.R. 497, 250 S.W.2d 200, 200

(1952). A court “must reverse a DWI conviction when the evidence fails to

corroborate an extrajudicial confession that the defendant was driving.”

Arocha v. State, No. 12-14-00042-CR(Tex.App.-Fort Worth, December 11,

2014)[unpublished].


                                                                              31
      This Court appears to say the contrary in Folk, 797 S.W.2d at 144.

But, it also appears to be the only appellate court so holding. Appellant

argues that holding was unnecessary and erroneous. It was unnecessary

because the officer in Folk independently confirmed the details of the

accident, thus corroborating the statement. See, Arocha and Bucek, supra.

It also seems erroneous if it means an extrajudicial statement defendant was

the driver need not be corroborated when it is the essential link between

proof a vehicle was driven and the defendant was intoxicated to prove

defendant thereby committed DWI. There is no proof of the corpus delicti

in that case unless driving by the defendant is proved.

      There seems to be no other evidence appellant was driving or operat-

ing the jeep when it was last seen moving almost 2 hours earlier. The callers

did not see or describe the driver. Despite Poswalk’s loose language, who-

ever drove by after they detained appellant could not have identified him as

the driver. That person was male, but those who saw the driving were

female. The only person it could have been was the one the third caller

referenced, but they did not see the car until it was already parked there over

an hour. Nothing connected any observed damage to the driving, as

Poswalk said.



                                                                            32
       Hanson held corroboration was absent where the evidence showed

police investigated an accident where a car stuck a utility pole, they found

defendant on the shoulder of the road beside it, and she told them she was

driving and admitted drinking 3 beers. The court reversed because “[t]he

State did not introduce any other evidence to show” she “drove the car.” Id.,

at 447.

       The evidence corroborating extrajudicial statements in other cases

does not appear to be present. See e.g., Arocha, supra; Bucek 724 S.W.2d at

130; also, Onyekachi, supra; cf., Scillitani v. State, 297 S.W.3d 498, 501

(Tex.App.-Hou[14th]2009), rev’d, 315 S.W.3d 542(Tex.Crim.App.2010).30

       In Folk, supra, this Court states that the car “was registered to the

person with whom” defendant “lived is some evidence corroborating” his

“admission that he was driving the car on the night in question.” 797 S.W.2d

at 144. Appellant did testify he owned the Jeep. But, he would argue that

alone should not constitute corroboration. Zavala v. State, 89 S.W.3d 134,

137 & n.5(Tex.App.-Corpus Christi2002) no pet., citing Folk held the

evidence defendant was buying and took possession of the car, along with

“the condition of the vehicle” was sufficient corroboration.


30
  / Holding a false denial of drinking alcohol by defendant did “not constitute
independent evidence”.


                                                                                  33
            3. Murray v. State.
      There are a long line of cases dealing with sufficiency for DWI on

facts like these. Those finding sufficient evidence appear to have more than

is present in this case.

      A recent case is Murray v. State, No. PD-1230-14(Tex.Crim.App.,

April 15, 2015). The Court stated: “The sole question for our review is

whether ‘a driver who is passed out behind the wheel of a running vehicle

[is] ‘operating’ it for purposes of DWI?” Slip at 2. It did not answer that,

but did find the evidence sufficient for operating. Slip at 2 n.1 & Meyer, J,

dissenting. That defendant was found alone, asleep in the seat of his pick-

up, parked partly on an improved shoulder and partly in a driveway, with

the engine running, the transmission in park and the radio on. He was “very

intoxicated” and admitted having drunk “a little.” There was no one else in

the vehicle, no evidence of anyone else in the area, and no alcoholic

substances or containers were found in the vicinity.

      The court of appeals held the evidence insufficient to prove he “oper-

ated his vehicle while intoxicated.” Murray v. State, 440 S.W.3d 927, 929

(Tex.App.-Amarillo2014). The Court of Criminal Appeals disagreed:

      “Based on Appellant’s admission that he had been drinking, [the
      officer’s] testimony that Appellant appeared ‘very intoxicated’ and the
      fact that no alcoholic beverages were found in the vicinity, a
      factfinder could have reasonably inferred that Appellant consumed


                                                                                34
       alcoholic beverages to the point of intoxication somewhere other than
       where he was found. Furthermore, because Appellant was the only
       person found in the area, a factfinder could have also reasonably
       inferred that Appellant drove his vehicle to the location at which he
       was found after drinking to intoxication.”

       Murray does not resolve appellant’s case because, first, that vehicle’s

engine operating when defendant was found intoxicated in it, while the jeep

was not being operated in any way when appellant was seen in it or for over

an hour and a-half before that. Thus, unlike Murray, there is no basis to in-

fer it was driven or operated recently, and thus from his later presence in it

that he must have been the one recently driving it, or from his being intoxi-

cated at 6:00 p.m. that he must have driven it while intoxicated almost 2

hours earlier.

       Second, in Murray the Court repeatedly noted “no alcoholic beverag-

es were found in the vicinity”, while in appellant’s case the officers found 2

empty 24-ounce beers in the center console and 3 unopened beers in a cool-

er in the jeep. Two 24-ounce beers are equivalent to 4 ‘regular’ sized, and

enough to cause intoxication when drunk in an hour and a-half. See, Texas

DWI Detection and Standardized Field Sobriety Test Program: Student

Manual (Revised 01/ 2002) at II-13, 16.31 There is no basis to infer from his

31
 / A 12-ounce beer, 4-ounce glass of wine and shot of whiskey “are all the same”, have
about one-half ounce of ethanol. A 175-pound man who drinks four 12-ounce beers on an
empty stomach will have a blood alcohol content “above 0.08”, “it doesn’t take very


                                                                                   35
being found intoxicated in the jeep that he must have driven it there after

drinking to intoxication.32

       Third, in Murray the defendant was found on the shoulder of a rural

highway, with no one else in the vicinity. In contrast, appellant was found

in a busy, full parking lot by a large residential home, and testified Juan had

told him he drove there and went to visit someone. Rather, than being no

one else around, the video shows many others even in the hour or so the

officers were there. Arguably there is some evidence supporting inferences

there was another person in or near the car near the time of the third call, as

defense counsel argued.

            4. Insufficient to prove driving or operating.
       Avants v. State, 170 Tex.Crim. 308, 340 S.W.2d 817(1960), found

insufficient “to show that the appellant drove the automobile” evidence

when the officer

       “first saw the appellant, she was slumped down in the front seat of an
       automobile… that had been involved in an accident with another
       automobile on a public street; and that she was alone in the
       automobile with the doors close and its right front badly damaged.”

       Keenan v. State, 700 S.W.2d 12, 14(Tex.App.-Amarillo1985) no pet.,


much alcohol to impair someone: ‘a couple of beers’ can do it.” This Court can take jud-
icial notice of this. See and cf., Emerson v. State, 880 S.W.2d 759(Tex.Crim.App.1994).
32
   / Giddings also testified “the other officers said they were cold to the touch”, Poswalk
said the 3 in the cooler were cold.


                                                                                         36
distinguished Avants: “in that case there was no testimony that the defen-

dant was alone in the vehicle prior to the collision.” There is likewise no

evidence appellant “was alone in the vehicle prior to the collision.” Nor are

the other facts on which Keenan relied present (witness saw defendant in

drivers seat on road with “exhaust coming from the tailpipe” “a couple of

minutes” before collision).

      In Kuciemba v. State, 310 S.W.3d 460, 462(Tex.Crim.App.2010), the

defendant admitted driving at the time of the accident and the court noted

he was found behind the wheel at the scene, still bleeding “support[ing] an

inference that the accident had occurred a short time previously.” Id. at 463.

      Hearne v. State, 80 S.W.3d 677, 680(Tex.App.-Hou[1st]2002), states:

“that the truck was in a moving lane of traffic, the engine was running,”

defendant “was in the driver’s seat, the truck was registered to” defendant,

“and no other person was nearby, the fact finder could reasonably infer that

appellant was ‘operating’ his truck.”

      Wright v. State, 932 S.W.2d 572(Tex.App.-Tyler1995) no pet., found

sufficient evidence defendant was the driver where a witness watched the

car being driven until police arrived and saw the driver was the only occu-

pant and person to get out after it stopped, and police saw him in the

driver’s seat of the stopped car with his foot on the brake. Id., 574-575.


                                                                               37
            5. Insufficient to prove, if driving, that he was intoxicated
            when doing so.
       Kuciemba reaffirmed that “there must be a temporal link between the

a (sic) defendant’s intoxication and his driving”, but it can be supported by

circumstantial evidence. 310 S.W.3d at 462. Thus, it is not sufficient merely

that he is found intoxicated and in his car, even if the evidence on driving

was sufficient.33

       Kuciemba was found intoxicated in the driver’s seat of a truck

involved in a one-car rollover. He told police he had fallen asleep. The

evidence was held sufficient because 1)

       “[b]eing intoxicated at the scene of a traffic accident in which the
       actor was a driver is some circumstantial evidence that the actor’s
       intoxication cause the accident, and the inference of causation is even
       stronger when the accident is a one-car collision with an inanimate
       object”

2) no alcoholic beverages or containers were found in the truck or at the

scene, 3) lack of skid marks indicated a failure to brake which was some

evidence the accident was caused by intoxication, 4) he was found behind

the wheel at the scene, visibly still bleeding “support[ing] an inference that

the accident had occurred a short time previously”, and 5) a BAC “more

than twice the legal limit found in a sample taken at the scene, supports an

33
  / Unlike appellant’s case, there was no question in Kuciemba defendant had been
driving, the issue was when in relation to his being found intoxicated.


                                                                                    38
inference either that” the accident (and thus driving) was recent or “he had

been intoxicated for quite a while.” “The combination of these facts is

sufficient…” Id., at 461-463. See also, Scillitani v. State, 315 S.W.3d 542

(Tex.Crim.App.2010).

      In Chaloupka v. State, 20 S.W.3d 172(Tex.App.-Texarkana2000), pet.

ref’d, the court stated:

      “The State had to prove not that Chaloupka was intoxicated when the
      state trooper arrived, but that he had been intoxicated while driving
      on a public roadway. The trooper’s testimony alone presents no proof
      that Chaloupka was driving while intoxicated. However, it
      constitutes a part of an accumulation of evidence.”

Id., at 175. It was held sufficient because the car was followed after the

collision to a rest area only a few miles away where defendant was seen

getting out on the driver’s side. Id., at 174-175.

      Appellant did not admit driving after drinking, the jeep’s engine was

not running, and the keys were not even in the ignition. It was parked in a

parking lot, well off the road. It had been there almost 2 hours. He did no-

thing to attempt to operate it when the officers woke him. Compare also,

Youens v. State, 988 S.W.2d 404, 407-408(Tex.App.-Hou[1st]1999) no pet.;

Milam v. State, 976 S.W.2d 788, 789(Tex.App.-Hou[1st]1998) pet. ref’d;

Wright, 932 S.W.2d at 574.While he owned the Jeep, there is no logic in that



                                                                              39
making it more or less probable he was DWI. Driving someone else’s car

would not make it less probable.34

POINT OF ERROR NO. TWO: THE TRIAL COURT REVERSIBLY
ERRED BY DENYING APPELLANT’S MOTION FOR MISTRIAL.

       1. Record.
       The following occurred before the jury during State’s cross of

appellant (at RR3-86-:

       “Q Well, let's talk about what happened since this arrest. Since this
       arrest, you've been in jail, haven't you?
       A Yes, sir.

       Q Okay. And that's been on a parole hold, correct?
       A That's been for this.

               MS. HINDERA: Your Honor —
               THE COURT: Please approach.


34
  / See also, Ballard, supra, holding it insufficient where the defendant was found
slumped, unconscious and intoxicated in the driver’s seat of a car parked on the side of a
highway opposite a gas station, with the engine was running. He admitted he had
operated a motor vehicle, and had been drinking but denied being intoxicated. “There
was no testimony concerning how long the car had been parked…; how long” defendant
“had been intox-icated; how long” he “had been in the car; who had parked the car;
whether” defendant “was intoxicated before or at the time the car was parked; or the
ownership of the car.” 757 S.W.2d at 390-391.
        Some cases discount Ballard as based on the defunct ‘alternate reasonable hypo-
thesis’ construct. See e.g., Rodriguez v. State, No. 01-08-01038-CR(Tex.App.-Hou[1st]
September 29, 2009)[unpublished]; Feinberg v. State, No. 05-06-01367-CR(Tex.App.-
Dallas, November 20, 2007)[unpublished]; Barton v. State, 882 S.W.2d 456, 458(Tex.
App.-Dallas1994) no pet. But, the opinion itself does not mention the construct or appear
to use its reasoning. In addition, those cases find sufficient evidence for operating at the
time of intoxication because of facts like the engine running, often with the car in gear
and defendant’s foot on the brake, and usually in the road or on the shoulder, if not more
facts suggesting operating then or shortly before. See, Rodriguez, Feinberg, Barton, all
supra.


                                                                                         40
(At the Bench, on the record.)
            THE COURT: That's inadmissible.

           MR. OHUERI: Your Honor, it can be — we can go under the
     felony conviction, Your Honor.

             THE COURT: Not for just any reason.

             MR. OHUERI: It goes to the truthfulness, Your Honor.

             THE COURT: He hasn't been asked whether he was truthful.
     And you're not supposed to just ask if they're incarcerated. You can --
     it's only to show a pertinent trait of his character, or motive, opportun-
     ity, intent, preparation, plan, knowledge, identity, mistaken –

             MR. OHUERI: It's willing to go to his motivation to be a —

           THE COURT: No, that's not the kind of motivation — that's not
     what that's about. No, that's not what it's about.
           Now, I really can't allow you to go down that road.

             MS. HINDERA: The door was not opened, I don't believe —

            THE COURT: Well, no, it was not. It was definitely not.
            And it could be serious error. So the appropriate way to do this
     is to — well, first continue to ask him the regular questions. If you
     have evidence that he is not being truthful, and somehow it relates to
     a previous offense, I don't — I'm looking at this.

          MR. OHUERI: Your Honor, a felony conviction can be used for
     impeachment purposes.

            THE COURT: Not — not necessarily. Not necessarily. I pulled
     this out because I was afraid that's where you might be going.”

RR3-86-88.

     The jury was excused and things continued thus:



                                                                            41
     “THE COURT: So you're looking — okay. So you're looking at
which — well, I'm looking at Rule 404. Okay. You're looking at
impeachment.

      MR. OHUERI: Yes, Your Honor. Your Honor, on incidents like
this —

      THE COURT: You've got to give me the rule.

      MR. OHUERI: Yes, Your Honor. It's Rule 609(a).

       THE COURT: I'm looking at — sorry. Here we go.
       (Short pause.)
       Okay. The way you go about doing that, one, you're not sup-
posed to refer to him being in jail. That's cardinal Rule, okay. That's
why we have them dressed out. What you would do — you have to
actually ask him if he has been convicted. And at this point, I think
we ought to do it outside the presence of the jury. And you have to —
do you have a record of that conviction? Do you have the —

      MR. OHUERI: All I have right now, Your Honor, is his
criminal history.

      THE COURT: Okay. Okay. So —

       MR. OHUERI: But also, Your Honor, although this was not
stated on the record, prior to trial, at the bench, defense counsel did
mention that she wanted to get into everything, including the criminal
history. And that's why I felt there was some license with that; that
statement was made.

      THE COURT: I don't remember her saying that she wanted — I
think — I think that Ms. — she said that her client wanted to —
wanted everything out in the open. I don't recall her quite saying --

      MS. HINDERA: I think that was with regard to the —
      THE COURT: — the jury selection.

      MS. HINDERA: -- video.


                                                                     42
            THE COURT: So let's go ahead and just have a little quick
     hearing off the record -- I mean on the record, outside the presence of
     the jury. And I need you to ask those questions with regard to a felony
     conviction.”

RR3-88-89.

     Defense counsel then moved for a mistrial:

             “MS. HINDERA: And, Your Honor, I'd be moving for a
     mistrial at this point. I think the jury has been provided with infor-
     mation that, even if it's — if they're instructed not to consider it, then
     they are still hearing that he's incarcerated, he's been incarcerated
     since June 9, which suggests that he's not been eligible for a bond or
     bail, that he's on parole. It could be for anything from another DWI to
     murder. And I don't think that the jury will have a, I guess, an unbias-
     ed mind, at this point, going in to the verdict phase because of the
     introduction of questions that are now unanswered.

             THE COURT: Here's what I'm going to do. I'm not sure if that's
     reversible error or not. I mean, obviously, I can instruct the jury to
     disregard that information. I don't know whether — and so I'm not
     prepared to rule on your motion right this minute.
             Let's go ahead and hear this testimony and then I need to give it
     a little thought.

           MR. OHUERI: Your Honor, as to that, as far — just under Rule
     609, as far as the prejudicial and probative value, of course, yes, Your
     Honor, it is prejudicial to show that he's in jail. But the probative
     value goes to the defendant's version of the facts. He essentially open-
     ed up a new story about an individual named Juan.

            THE COURT: Well, that's all appropriate for cross-examina-
     tion. And I don't think necessarily having the conviction makes it
     more probative that his story is false. But let's go ahead and hear this
     first.

RR3-89-90.


                                                                             43
       The State then took appellant on voir dire.35

       The discussion between trial court and counsels then continued thus:

              “THE COURT: Okay. So the questions about whether he has a
       felony conviction, and, specifically, a conviction for bribery, I think
       could be relevant for impeachment. But the questions regarding his
       motivation to lie, I'm not persuaded. It's motive to commit the
       offense. It's not about motive to get up and not tell the truth on the
       stand, is my understanding, okay, of — I don't think you can impeach
       him with why he desires to go to trial on this case. You can only
       impeach him with the actual felony conviction for bribery, which is a
       crime of moral turpitude. So I can allow the testimony that he has
       been convicted of bribery, but the whole line of questioning about
       him being on parole, and that being some sort of motivation to lie, I
       don't think you can — I'm not going to allow that.

              MR. OHUERI: Your Honor, the State will respectfully disagree.
       But I think the issue of just bribery, that information coming in, is
       fine at this point. The State can move on.

             THE COURT: We can look at it again later in another, you
       know, outside this trial. But I don't think that that's admissible.

             MS. HINDERA: Your Honor, I would re-urge the mistrial
       because we can't take back from the jury the information that he's
       already — that he's been in custody and that he's on parole. And I —

               MR. OHUERI: Your Honor —

               THE COURT: I ~ Go ahead.

35
  / Eliciting that he had felony convictions in 2007 for bribery and “multiple” for burglary
of a building, most recently in 2000. RR3-91. It also elicited that he was currently on
parole for “burglary and bribery, both”, for “[a]bout four and a half more months I'll be
finished.” Id. Finally. “just for” the prosecutor’s “view and understanding”, it elicited
that the Parole Board could revoke his parole, “Q And a negative outcome in this case
could negatively affect the outcome of whether you'll have to continue the rest of your
sentence in jail, correct? A Correct.” RR3-91-92.


                                                                                         44
        MR. OHUERI: Your Honor, just with that, the prejudice comes
from knowing that he has a conviction; the prejudice doesn't come
from parole. I think any speculation from — the jury might think this
is a large legal basis that they don't have. The prejudice comes from
the conviction; that evidence is already out. And at this point, they
don't even know what the crime is. We can let them know it's a crime
of moral turpitude. Additionally, the fact that he got parole, Your
Honor, showed that he had good behavior, to the extent that they are
aware of the parole.

       THE COURT: Yeah. I don't think we need to go down that
road. Because — well, we don't really know that for sure.
       Okay. I am — as to your motion, I'm going to deny it because I
don't have time to do much else. And my ruling stands that you are
allowed to question him. I am going to tell the jury that they are to
disregard the last — the last question from the prosecutor and the
defendant's response. And then Mr. Ohueri can ask the question
again, about whether he has any — a felony conviction in 2007, I
guess it's noted, for bribery. Okay?

      MS. HINDERA: And, Your Honor, we'll be able to go into — if
you're going to allow it, that there haven't been any parole violations?
I mean, if we're going to —

      THE COURT: We're not going into parole.

       MS. HINDERA: If you're going to allow the bribery to come
in, then his good works, as Mr. Ohueri said, is something that the jury
would probably not really understand, because the typical juror's not
going to understand parole, or being on parole, and revocation of
parole. So if Mr. Newberry has been out for how many —

      THE WITNESS: Three years at this point.

        MS. HINDERA: Three years without any violations, I think
that is at least going to his –




                                                                      45
      THE COURT: Well, if you're saying — if you're not going to
object to the admission of that evidence - -

       MS. HINDERA: If you're going to let in the, you know, going
to say the bribery is allowable, then the parole -- the fact that he' s not
been revoked from parole and he's been successful for three years out
in the world, I think is relevant.

      THE COURT: If you're not going to object to that, then I don't
think we have — then there's really no objection. Because —

      MS. HINDERA: Well, I still object to the fact that he's been –

      THE COURT: Being held in jail.

      MS. HINDERA: Yes.

       THE COURT: So, specifically, your objection, then, is only as
to the fact that he is currently incarcerated.

       MS. HINDERA: Yes.
       And I think since it's already out in front of the jury, we'll have
to have some time to explain why, you know -- what the nature of
parole is and how, by virtue of this very charge, that's what's holding
him. And that until this case is resolved, which it could have been,
you know, with the 15-day offer , he's going to be held in for
another 30 to 60, to maybe even 90 days, before parole comes
out to have a hearing for him. I mean —

        THE COURT: This is why I don't want to go down this road.
It's a never-ending road. This is — and it's — none of it is relevant.
His parole status —

       MS. HINDERA: Right. And I didn't bring it up. That's why I
didn't — whenever I was questioning him with Mr. Newberry, I did
not bring it up.

      THE COURT: Exactly.



                                                                         46
       His parole status is — it's — we don't know what allegations
exist. You don't have anything from the parole officer. So we have
nothing right now. We don't know if he's been picked up on parole or
not before, and we're not going to know that. And I think it's — so I'm
going to stand on my ruling that we are not going into parole. The
only testimony is whether or not he has had a prior felony conviction
that could be used for impeachment purposes.

      MS. HINDERA: So you're allowing that in, but not allow me to
question him as to the result of that bribery conviction, his sentence?

       THE COURT: That he went to prison and he got out and that
he's out on parole? Boy.

       MR. OHUERI: Your Honor, the State's not going to object to
the limited leeway on that, as far as he was on parole when he got out.
The State's not going to object to that. The State understands and
agrees with where you're coming from in going down the rabbit trail.
But if it'll appease defense counsel, State's fine with that coming in.
And State also — I won't follow up on that, Your Honor.

         THE COURT: You won't what?

         MR. OHUERI: I won't follow up on that, as far as the parole
issue.

         MS. HINDERA: But the bribery issue is going to be out, and
it's all premised on the question regarding his being in custody and
being —

      THE COURT: Well, I'm going to tell them to disregard that.
And I understand what you're saying, that it's kind of hard to put that
back in. But I — but I — I think I need to instruct the jury to
disregard the response and let Mr. Ohueri start over.

      MS. HINDERA: Could we stipulate that he was on parole and
was successful on parole? No revocations until this —




                                                                       47
            THE COURT: I don't know how we can — we don't know that.
     I don't know that the State would stipulate to that because the State
     doesn't know that.

             MR. OHUERI: Yes, the State can’t stipulate to that.

             THE COURT: You can't stipulate to that.

             MR. OHUERI: I can't stipulate to that.

           MS. HINDERA: Maybe we need to recess for tomorrow so I
     can get the parole officer up here.

           THE COURT: Well, I'm not going to do that. I'm not doing that.
     Definitely not doing that. We've got to go forward. Yeah. No, we're
     not going down that road right now.

RR3-92-98.

     The trial court then ruled as follows:

            “THE COURT: Okay. So here's what I will say. I am still
     denying Ms. Hindera's motion for a mistrial. My ruling stands that the
     question about him being incarcerated is going to be stricken and I'm
     going to instruct the jury to disregard that question and answer.
            You are, of course, now allowed to ask the question about his
     prior bribery conviction, prior felony bribery conviction. You are not
     allowed to ask about parole.
            If Ms. Hindera wishes to raise that issue in her redirect, then
     that would open the door to your ability to further expound on his
     status on parole. …”

RR3-98-99.

     Once the jury returned the trial court instructed them thus:

     “THE COURT: Ladies and gentlemen of the jury, I'm going to ask
     that you disregard the last question and response. That would be



                                                                         48
      Mr. Ohueri's question and Mr. Newberry's response. Mr. Ohueri, you
      may proceed.”

RR3-99.

      The State’s cross then continued.

      B. Argument.
            1. By eliciting this evidence the State violated appellant’s
            rights to due process, fair trial and the presumption of
            innocence.
      The State’s action was impermissible in two ways: 1) eliciting that

appellant was incarcerated and had been “[s]ince this arrest”, and 2) that it

was because of “a parole hold” “for this” case. The trial court recognized

both were highly improper and prejudicial, and agreed with defense counsel

that the door “was definitely not” opened.

      “Among the most precious rights afforded an accused is the right to
      be tried before an impartial jury with the presumption of innocence
      fully intact and free of prejudice.”

Brown v. State, 877 S.W.2d 869, 870(Tex.App.-San Antonio1994) no pet.

State actions that inform the jury the defendant is in custody violate the

rights to due process, fair trial and the presumption of innocence because

they are “indicia of guilt”, create “jury bias” and “prejudices a jury natural-

[ly] feels from the inference that” his guilt has already been decided. See,

Oliver v. State, 999 S.W.2d 596, 598-599(Tex.App.-Hou[14th] 1999) pet.

ref’d; Brown, 877 S.W.2d at 871. See also, Tex.CodeCrim.Proc., Arts. 2.03



                                                                                49
(b) & 38.03.

      Thus, compelling a defendant to wear jail clothes during trial violates

these rights because it communicates that he is in custody. See, Estelle v.

Williams, 425 U.S. 501, 512-512, 96 S.Ct. 1691 (1976); Randle v. State, 826

S.W.2d 943, 945-946(Tex.Crim.App.1992). The same is true for use of re-

straints, e.g. handcuffs, shackles, etc. See, Brown, supra; Deck v. Missouri,

544 U.S. 622, 630, 125 S.Ct. 2007 (2005).

      But, these rights are also violated when the State introduces or elicits

evidence that defendant is in custody: it is not the clothing or the restraints

which violate these rights. Thus, eliciting evidence that the defendant was

in jail during trial “can invalidate” these rights. Pierce v. State, 234 S.W.3d

265, 268 (Tex. App.-Waco2007) pet. ref’d. See also, Sharper v. State, 22

S.W.3d 557, 558-559(Tex. App.-Texarkana2000) no pet., cf., State v.

Pringle, No. 12-12-00286-CR(Tex.App.-Tyler, June 23, 2013)[unpublished],

affirming suppressing video portion of statement showing defendant in jail

clothes. This would seem particularly true of telling the jury that he has

been in jail since the arrest for the alleged offense. See, Holloway v. State,

446 S.W.3d 847, 855(Tex.App.-Texarkana2014) no pet..

      The evidence elicited by the State’s first question did precisely that:

telling the jury appellant had been in custody since his arrest on this case.


                                                                                 50
The trial court was therefore correct to note in response to appellant’s

objection that “you’re not supposed to refer to him being in jail. That’s

cardinal Rule”. Just as restraints during trial, proof appellant has been

incarcerated since arrest creates

      “the prejudice a jury naturally feels from the inference that the court
      has already decided that the Defendant is not only guilty, but also
      dangerous and untrustworthy.”

Brown, 877 S.W.2d at 871.

      It is likewise very prejudicial for the State to deliberately elicit that

parole had placed a hold on him because of this case. It explicitly suggests

that a state authority, the parole board, had determined he was guilty, as well

as informing them that he was parole at the time of the incident.

            2. The trial court erred by denying the motion for mistrial.
      Denial of a mistrial is reviewed on an abuse of discretion standard.

See, Coble v. State, 330 S.W.3d 253, 292(Tex.Crim.App.2010). The test

requires balancing three factors: 1) severity of the misconduct (magnitude of

the prejudicial effect), 2) curative measures by the trial court (efficacy of

any cautionary instruction), and 3) certainty of conviction absent the mis-

conduct (strength of the evidence supporting conviction). See, Hamilton v.

State, No. 14-08-00175-CR(Tex.App.-Hou[14th]2010)[unpublished](citing

Archie v. State, 221 S.W.3d 695, 700(Tex.Crim.App.2007)).


                                                                                  51
                   a. Severity of the misconduct.
      The rights violated by this error are “bedrock”, “basic component[s]”

of and essential to a fair trial and due process of law. See, Oliver, 999 S.W.

2d at 598-99; Brown, 877 S.W.2d at 870; Randle, 826 S.W.2d at 945 & n.3;

Wiseman v. State, 223 S.W.3d 45, 50(Tex.App.-Hou[1st]2006) pet. ref’d. It

was flagrant, violating a “cardinal Rule” as the trial court put it. This was

not merely an unanswered question or passing comment. Compare,

Holloway, 446 S.W.3d at 856. It was not ambiguous and was immediately

followed by a question repeating that he was incarcerated and adding the

parole hold. Compare, Pierce, 234 S.W.3d at 265. It was not otherwise

admissible. Compare, Pierce, supra.

                 b. Curative measures.
      There was no curative instruction as to the evidence that appellant

had been in jail since his arrest. The trial court did give an instruction to

disregard but it was explicitly limited to “the last question and

response”, which was only about the parole hold.

      “THE COURT: Ladies and gentlemen of the jury, I'm going to ask
      that you disregard the last question and response. That would be
      Mr. Ohueri's question and Mr. Newberry's response. Mr. Ohueri, you
      may proceed.”

RR3-99. It did not include the question and answer before that: i.e.,




                                                                                52
       Q. Well, let’s talk about what happened since this arrest. Since this
       arrest, you’ve been in jail, haven’t you?
       A. Yes, sir.”

       When courts consider giving an instruction to disregard a sufficient

‘cure’ it is because they ordinary presume a jury follows cautionary in-

structions. See, Archie v. State, 340 S.W.3d 734, 741(Tex.Crim.App.2011).

But the corollary that juries only disregard what the court tells them to is

also true. The instruction to disregard applied only to the parole hold and

left the jury free to consider and use against appellant that he had been in-

carcerated since arrest and the natural inferences from that that he had

already been determined guilty, dangerous and untrustworthy. See and cf.,

Hamilton, supra. The trial court did not even rule on the objection before

the jury.

       This distinguishes case like Holloway, where it was only an unan-

swered question by the prosecutor and there was an extensive instructive

specifically addressing it. 446 S.W.3d at 855-56. See also, Madden v. State,

No. 02-08-007-CR(Tex.App.-Fort Worth2009[unpublished]; Pierce, 234

S.W.3d at 268; Sharper, 22 S.W.3d at 559.

       Further, the instruction given on the parole hold was not sufficient to

cure. The natural inference was that appellant had already been found guilty

by a State agency and the defense offered in this trial already disproved.


                                                                                53
That bell is simply too loud to unring. The trial court expressly refused all

attempts by the defense to explain anything about parole to minimize its

prejudicial effect. RR3-94-99. It also refused a short continuance to secure

testimony from the parole officer to do so. RR3-98. As was said in Oliver

about a curative instruction on jail clothing: “There is a point where we

‘should not be ignorant as judges of what we know as men.” 999 S.W.2d at

599. Jurors can not be expected to know the intricacies of parole (e.g., a

hold may not in fact require adjudication, the lesser burden of proof for

revocation, etc.).

       Indeed, the law recognizes that mention of parole can be so pre-

judicial that, even after a guilty verdict, the jury in an applicable case must

be instructed it may consider it only in an very narrow sense. See, Tex.Code

Crim.Proc., Art. 37.07, Secs. 4. See also, Hamilton, supra.36 In addition,

unlike in Hamilton, the State did elicit evidence suggesting he was incar-

cerated because parole had already determined that he was guilty.

       Further, the State’ s cross after the instruction started by reminding

the jury that he had felony convictions, necessarily echoing the parole infor-

36
  / “However, the State had already elicited, without objection or instruction disregard,
testimony suggesting appellant had been in custody since his arrest. There, despite the
trial court’s instruction, we cannot necessarily conclude the jury disregarded any
reference to appellant’s incarceration.”


                                                                                            54
mation. RR3-99. It twice elicited that he did not tell the officers about Juan

or Ann when he was arrested, then repeated that it had been “[a]lmost two

months” since the incident. RR3-100, 102. It then attempted to question

him on what he and his attorney had spoken about, but objection to invading

lawyer-client communications was sustained. RR3-102. It’s next question

again repeated “that 60 days” since arrest, but drew another objection. RR3-

103. The remaining two pages of cross did not mention the time or days

since arrest, but the point had been made in the preceding 4 pages.

                 c. Conviction was not a certainty.
      Appellant would argue conviction was not certain, even if the

evidence is found legally sufficient. See, Point of Error No. 1, supra.

            3. The error was not harmless beyond a reasonable doubt
      This error is of constitutional dimension, violating appellant’s rights

to due process, fair trial and the presumption of innocence. Thus, con-

viction must be reversed “unless the court determines beyond a reasonable

doubt that the error did not contribute to the conviction or punishment.” Tex.

RApp.Proc., Rule 44.2(a). See and cf., Wiseman v. State, 223 S.W.3d at 51;

Oliver, 999 S.W.2d at 600; Brown, 877 S.W.2d at 871; Randle, 826 S.W.2d

at 946 & n.13.

      It seems highly unlikely error in denying a motion for mistrial would

be harmless under Rule 44.2(a). The analysis for whether that was error is


                                                                             55
similar to that for harmless constitutional error. See, Hawkins v. State, 135

S.W.2d 72, 77(Tex.Crim.App.2004). Thus, cases finding harmless error

tend to be those where the record suggested the jury was not aware of the

complained of indicia of guilt. See, Brown, 877 S.W.2d at 871-72; Mendoza

v. State, 1 S.W.3d 829, 830(Tex.App.-Corpus Christi1999) pet. ref’d; com-

pare, Wiseman, supra. See also, Randle, 826 S.W.2d at 946 [additional

circumstances]. That is not the case here.

                          PRAYER FOR RELIEF
For the reasons stated, appellant asks the conviction and sentence be set

aside, an acquittal entered or the case be remanded for a new trial.

                                       RESPECTFULLY SUBMITTED,
                                         /s/ Christopher P. Morgan
                                       Christopher P. Morgan
                                       State Bar No. 14435325
                                       3009 N. IH 35
                                      Austin, Texas 78722
                                       (512) 472-9717 // FAX: 472-9798
                                       chrismorgalaw@cs.com
                                       ATTORNEY FOR APPELLANT

CERTIFICATE OF SERVICE: I, Christopher P. Morgan, hereby certify a
true copy of the foregoing Motion was served on the Office of the County
Attorney for Travis County, Texas on June 9, 2015, by mail to P.O. Box
1748, Austin, Texas 78767.
                                       /s/ Christopher P. Morgan
                                      Christopher P. Morgan

CERTIFICATE OF WORD COUNT: I, Christopher P. Morgan, hereby
certify the word count of this brief, excluding matters in Tex.R.App.Proc.,


                                                                                56
Rule 9.4(i)(1), is 15000 or less.
                                     /s/ Christopher P. Morgan
                                    Christopher P. Morgan




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