                                                                                         ACCEPTED
                                                                                     03-15-00246-CR
                                                                                             6625461
                                                                          THIRD COURT OF APPEALS
                                                                                     AUSTIN, TEXAS
                                                                                8/24/2015 3:10:10 PM
                                                                                   JEFFREY D. KYLE
                                                                                              CLERK
                             03-15-00246-CR
                 ______________________________________
                                                           FILED IN
                                                     3rd COURT OF APPEALS
                  IN THE COURT OF APPEALS FOR THE AUSTIN, TEXAS
                  THIRD COURT OF APPEALS DISTRICT8/24/2015 3:10:10 PM
                          OF TEXAS AT AUSTIN           JEFFREY D. KYLE
                    _______________________________________Clerk

                            MARK MCMURPHY,

                                   Appellant,

                                      VS.

                           THE STATE OF TEXAS

                                Appellee,
               _________________________________________

          From the 207th Judicial District Court of Comal County, Texas

              _________________________________________

                          APPELLANT’S BRIEF
               _________________________________________


                                     Respectfully submitted,

                                     Law Offices of Gary F Churak
                                     Gary F. Churak
                                     State Bar No. 04245500
                                     14310 Northbrook Ste. 210
                                     San Antonio, Texas 78232
                                     Tel: (210) 491-4443
                                     Fax: (210) 491-4446



Appellant request Oral argument
                                       1
    CERTIFICATE OF PARTIES, INTERESTED PERSONS, AND COUNSEL

      In order that the members of this Court may determine disqualification and

recusal under the Texas Rules of Appellate Procedure 15 and 15a, Appellee

certifies that the following is a complete list of all parties, attorneys, and other

persons who have an interest in the outcome of this proceeding:

Name of Party         Designation (Appeal/Trial Court)         Counsel
Mark McMurphy         Appellant/Defendant                      Jodi Sawyer
                                                               111 Soledad, Ste. 300
                                                               San Antonio, Texas
                                                               Trial Counsel

                                                                James Todd Dunham
                                                                1140 S. Laredo
                                                                San Antonio, Texas
                                                                Trial Counsel

                                                                Gary F. Churak
                                                                14310 Northbrook,
                                                                Ste. 210
                                                                San Antonio, Texas
                                                                Appellate Counsel

State of Texas            Appellee/State                         Daniel Palmitier
                                                                 Ast. District Attorney
                                                                 Comal County Texas
                                                                 150 N. Seguin
                                                                 New Braunfels, Texas
                                                                 Trial Counsel

                                                                 Jacqueline H. Doyer
                                                                 Ast. District Attorney
                                                                 Comal County Texas
                                                                 150 N. Seguin
                                                                 New Braunfels, Texas
                                                                 Trial Counsel
                                            2
           REQUEST FOR ORAL ARGUMENT

Appellant requests oral argument.


             NOTATIONS AS TO CITATION FORMS

Appellant uses the following citation forms:

1. The Reporter record will be referred to as the volume number, then “R”

   and the page number. (E.g.: 3R12 refers to page 12 of the 3rd volume of the

   reporter’s record.)

2. The clerk’s record will be referred to as “C”, followed by the bate stamped

   page number.




                                    3
                                         TABLE OF CONTENTS

                                                                                      PAGE
CERTIFICATE OF PARTIES, INTERESTED
PERSONS, AND COUNSEL . . . . . . . . . . . . . . . . . . .                             2

REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    2

NOTATIONS AS TO CITATION FORMS . . . . . . . . . . . . . . . . . . . . . . . . .. . 3

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . .                           4,5

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . .                            5,6

PRELIMINARY STATEMENT-NATURE OF THE CASE . . . . . . . . . .                          8

POINTS OF ERROR . . . . . . . . . . . . . . . .. . . . . . . .                         8

        Point of Error No.1

        Whether the evidence against Appellant was legally and factually insufficient

to support the verdict

        Point of Error No.2

        The Trial Court erred in denying Defendant’s Motion to Suppress



STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . .                 8,9

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . .                               8

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . .                              9

                                                   4
       POINT OF ERROR NO.1 . . . . . .. . . . . . . . . . . . . . .                        9

       POINT OF EROR NO.2 . . . . . . . . . . . . . . . . . . . .                         14

PRAYER AND CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . .                  15

CERTIFICATE OF COMPLIANCE…………………………………….                                                   16

CERTIFICATE OF SERVICE . . . . .. . . . . . . . . . . . . . . .                            16




                                INDEX OF AUTHORITIES

CASES:
                                                                                           PAGE

Adelman v. State 828 S.W. 2d 418 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . .           10

Barfield v. State 63 S.W.3d 446 (Tex. Crim. App. 2001. . . . . . . . . .. . . . . . . .        10

Cates v. State 120 S.W. 3rd 352 (Tex. Crim. App. 2003)………………………… 10

Gardner v. State, 699 S.W. 2d 831, 835 Tex. App. 1985) . . . . . . . . . .. . . . . . .         10

Garza v. State, 215 S.W 2d 642 (Tex. Crim. App. 1986. . . . . . . . . . . .. . . . . . .        10

Gearhart v. State, 122 S.W.3d 459 (Tex. App—Corpus Christi, pet ref’d). . . . 10,13

Goodman v. State, 66 S.W. 3d 283 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . .10

Gold v. State, 736 S.W.2d 685 (Tex. Civ. App. 1992); . . . . . . . . . . . . . . . . . .         10

Franks v. Delaware 438 U.S. 154 (1978)………………….………………………… 16

Holloway v. State, 695 S.W.2d 112 (Tex. App.—Fort Worth, 1985, no pet) . . . . . 10

Houston v. State, 63 S.W.2d 455 (Tex. Crim.App. 1984) . . . . . . . . . . . . . . . . . . 10

                                                5
Jackson v Virginia, 443 U.S. 307 (1979. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Johnson v. State, 23 S.W. 3d 1 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . 11,12

Jones v. State 338 S.W. 3rd 725 (Tex. App.-Houston [1st dist] 2011…………..…                            16

Ramsey v. State 579 S.W. 2nd 920 (Tex. Crim. App. 1979)……………………….. 16

Richardson v. State,973 S.W.2d 384 (Tex. App.--Dallas 1998, no pet).. . . . . . . . 13

Rojas v. State, 986 S.W. 2d 241 (Tex. Crim. App. 1998) . . . . . . . . . . . .. . . . . .            12

Scneider v State 943 S.W.2d 194 (Tex. App--Beaumont 1997, no pet);................. 13

Smith v. State. 961 S.W.2d 501 (Tex.App--San Antonio 1997. reh. den.) . . . 11,13

Swearington v. State, 101 S.W. 3d 89 (Tex. Crim. App. 2003) . . . . . . . . . . . . .                 12

Wallace v. State. 955S.W. 2d 148 (Tex. App--Beaumont 1997. no pet) . . .. . . .                       13

Zulicani v. State, 97 S.W. 2d 589 (Tex. Crim App. 2003)………………………. 12




                                                   6
                          03-15-00246-CR
              ______________________________________

               IN THE COURT OF APPEALS FOR THE
               THIRD COURT OF APPEALS DISTRICT
                       OF TEXAS AT AUSTIN
                 _______________________________________

                         MARK MCMURPHY,

                                Appellant,

                                   VS.

                        THE STATE OF TEXAS

                             Appellee,
            _________________________________________

       From the 207th Judicial District Court of Comal County, Texas

                      _________________________________________


                         APPELLANT’S BRIEF

                       _________________________________________


TO THE HONORABLE COURT OF APPEALS:




                                    7
      PRELIMINARY STATEMENT OF THE NATURE OF THE CASE

       Appellant was indicted on February 12, 2014 for DWI with two or more prior

convictions (C-6-8). After a jury trial, the Appellant was found guilty of the offense

of assault on a public servant on January 15, 2015 (4R116) and sentenced by the jury

to sixty years TDC. (5R74)

                     STATEMENT OF POINTS OF ERROR

POINT OF ERROR NO.1

      Whether the evidence against Appellant was legally and factually insufficient

to support the verdict

POINT OF ERROR NO.2

      The Trial Court erred in denying Defendant’s Motion to Suppress

                         STATEMENT OF THE FACTS

      Appellant was accused of DWI two or more previous convictions on or

about October 3, 2013. (C-6-8) (3R187). Officer Pelata of the Garden Ridge

Police Department was dispatched to the EZ Mart located at 19501 FM 3009,

Garden Ridge, Texas for an alleges intoxicated person. (3R-146). Officer Pelata

pulled into the EZ Mart parking lot and saw Defendant McMurphy talking to

Porter an employee of EZ mart. (3R147). Officer Pelata administered field

sobriety tests to McMurphy. (3R-194-195). Officer Pelata advised another officer

on the scene that he could not put McMurphy behind the wheel so he could arrest

                                           8
him for PI. (3R35) Officer Pelata arrested McMurphy for DWI without evidence

that he was behind the wheel. (3R187). Officer Pelata did not talk to any other

witnesses before administering Field Sobriety test to McMurphy. (3R192-193)

Officer Pelata arrested McMurphy for DWI without talking to any other witnesses

beside McMurphy. (3R47) McMurphy refused a blood test and Officer Pelata

drew up a search warrant for a blood draw and faxed it to the Judge. (3R189)

Officer Pelata in his affidavit for search warrant that he spoke to Porter and another

young lady before he arrested McMurphy for DWI. (3R192) Officer Pelata further

swore under oath in his Affidavit for Search Warrant that he qualified McMurphy

for the field sobriety test when he did not. (3R194-195)



                          SUMMARY OF THE ARGUMENT

      1. The evidence against Appellant was legally and factually insufficient to

support the verdict.

      2. The Court erred in failing to grant Defendant’s Motion to Suppress.

                                    ARGUMENT

                            ISSUE NO. 1 (RESTATED)

   Whether the evidence against Appellant was legally and factually insufficient to

   support the verdict.

   A. Legal insufficiency

                                          9
      In Jackson v Virginia, 443 U.S. 307 (1979) the United States Supreme Court

   established the test of legal sufficiency as to whether any rational trier of fact

   could find guilt beyond a reasonable doubt. Moreover, the sufficiency issue

   must always be addressed by the appellate court even though the case is

   reversed on other grounds because an insufficiency ruling by the appellate court

   would prevent retrial of the case. Garza v. State, 215 S.W 2d 642 (Tex. Crim.

   App. 1986;

      In reviewing a legal insufficiency of evidence claim, the court looks at the

evidence in the light most favorable to the verdict of judgment. Houston v. State,

63 S.W.2d 455 (Tex. Crim.App. 1984) The legal sufficiency of evidence review is

limited by certain evidentiary consideration. The evidence introduced at trial and

penalty phases may be considered in resolving the legal sufficiency issue but only

the trial evidence may be considered in this review. Barfield v. State 63 S.W.3d 446

(Tex. Crim. App. 2001); Also, the evidence is sufficient if the state has

affirmatively proven each of the essential elements of the offense beyond a

reasonable doubt. Adelman v. State 828 S.W. 2d 418 (Tex. Crim. App. 1992); This

means that the State cannot prove its case merely by disbelieving the defendant’s

contrary assertions. Gold v. State, 736 S.W.2d 685 (Tex. Civ. App. 1992); Nor,

does the sufficiency determination involve a credibility determination or a

“balancing” of competing quantitative items of evidence. Holloway v. State, 695

                                          10
S.W.2d 112 (Tex. App.—Fort Worth, 1985, no pet); Smith v. State, 789 S.W.2d 419

(Tex. App—Houston [1st Dist.], 1990, pet ref’d); Furthermore, although the

appellate court can generally consider inadmissible evidence introduced at trial in

considering the legal sufficiency issue, inadmissible hearsay may not be considered

in this review if it was objected to at trial. Gardner v. State, 699 S.W. 2d 831, 835

Tex. App. 1985)

      If a judgment is reversed for legal insufficiency following a jury trial, the

appellate court reforms the conviction to reflect conviction of a lesser included

offense if: (1) the evidence is sufficient to convict for that lesser offense, and (2) a

jury charge on the lesser offense was either submitted or requested but denied.

Gearhart v. State, 122 S.W.3d 459 (Tex. App—Corpus Christi, pet ref’d);

Otherwise, the judgment of conviction is vacated for legal insufficiency and a

judgment of acquittal is ordered. Id at 466;

   B. Factual Insufficiency

Appellate courts are constitutionally empowered to review the judgment of a trial

court to determine the factual sufficiency of the evidence used to establish the

elements of the charged offense. Johnson v. State, 23 S.W. 3d 1 (Tex. Crim. App.

2000); This factual review requires the court to assess the evidence neutrally, not

through the prism of the “light most favorable to the prosecution.” The judgment

of the trial court is reversed only if it is so contrary to the overwhelming weight of

                                           11
the evidence as to be clearly wrong and unjust. A clearly wrong and unjust finding

of guilt is one that is ‘manifestly unjust” or “shocks the conscience” or “clearly

demonstrates bias”. Rojas v. State, 986 S.W. 2d 241 (Tex. Crim. App. 1998) The

factual sufficiency review determines the correctness of the fact finder’s weighing

of the evidence. Clevis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) The court

reviews that evidence that tend to prove a disputed material fact and compare it

with the evidence that tends to disprove it. There is no doubt that the appellate

court must give deference to the judgment of the trial court; however, the appellate

court is authorized to disagree with the fact finder’s determination in order to stop

“manifest injustice.” Johnson v. State, 23 S.W.3d 9 (Tex. Crime. App. 2002). The

judgment of the trial court is reversed only if the proof of guilt is so obviously

weak as to undermine confidence in the fact finder’s determination, or proof of

guilt, although adequate if taken alone, is greatly outweighed by contrary proof.

Swearington v. State, 101 S.W. 3d 89 (Tex. Crim. App. 2003) In resolving this issue

the “manifestly unjust” standard of proof applies if the accused did not have the

burden of proof at trial. Otherwise, the “against the great weight and

preponderance” standard applies.” Zulicani v. State, 97 S.W. 2d 589 (Tex. Crim

App. 2003)

      In addition, the reviewing court may consider an alternative reasonable

hypothesis when reviewing factual sufficiency of the evidence to support a

                                          12
conviction based on circumstantial evidence. Several courts of appeals have held

that a reviewing court may consider the existence of all alternative reasonable

hypotheses in conducting such review. Stone v State. 823 S.W.2d 375 (Tex App.--

Austin 1992. pet. ref d); Scneider v State 943 S.W.2d 194 (Tex. App--Beaumont

1997, no pet); Wallace v. State. 955S.W. 2d 148 (Tex. App--Beaumont 1997. no

pet); Smith v. State. 961 S.W.2d 501 (Tex.App--San Antonio 1997. reh. den.)

Richardson v. State, 973 S.W.2d 384 (Tex. App.--Dallas 1998, no pet).

      In Goodman v. State, 66 S.W. 3d 283 (Tex. Crim. App. 2001) the Court of

Criminal Appeals remanded a lower court’s reversal of a child abuse conviction on

factual sufficiency grounds even though the Court recognized that the lower court

listed five alternative reasons for causation or explanation for the child’s injuries.

The Goodman court ruled that listing the reasons without explaining the nature and

extent of those theories in regards to the standard of proof was not enough to

support the lower court to make that analysis. When a case is reversed for factual

sufficiency, the judgment of the trial court is vacated and the case remanded to that

trial court for retrial. Gearhart v. State 122 S.W.3d 459 (Tex. APP.--Corpus Christ

2003).

      In the present case the charge of the court instructed the jury as follows:




                                          13
                 “Now, if you find from the evidence beyond a
                  reasonable doubt that on or about the 3rd day of October
                  2013 in Comal County, Texas, the defendant, Mark Gordon
                  McMurphy, operated a motor vehicle in a public place, to
                  wit, on a public road or highway while intoxicated”

      As to the legal sufficiency and as a result of the foregoing no rational trier of

fact could find guilt beyond a reasonable doubt that the Appellate operated a motor

vehicle in a public place as defined in the charge when the only evidence submitted

was that McMurphy was arrested in the EZ Mart parking lot while outside of his

vehicle. There was no evidence that McMurphy operated a motor vehicle on a

public road or highway.

      This Court must undertake to review the sufficiency issue despite the

existence of other grounds for reversal because an insufficiency ruling by this

Court would require retrial of the case. In reviewing this legal insufficiency of

evidence claim, this court must look at the evidence in the light most favorable to

the verdict of judgment. The evidence is sufficient if the state has affirmatively

proven each of the essential elements of the offense beyond a reasonable doubt.

The evidence is not sufficient merely because the State merely disbelieves the

Appellant’s assertions. This Court cannot resolve the legal sufficiency issue by a

determination of credibility or by “balancing” the competing quantitative items of

evidence.

      As to the factual sufficiency, this court must assess the evidence neutrally,

                                          14
not through the prism of the “light most favorable to the prosecution. The State’s

evidence the State relied upon is contradicted and refuted. The Appellant’s

evidence disproved the State’s case.

       The evidence used to convict the Appellant is so obviously weak as to

undermine confidence in the fact finder’s determination. Also, the evidence used to

convict the Appellant, if taken alone, is greatly outweighed by contrary proof. The

judgment of the trial court is “against the great weight and preponderance.”

       There are no alternative reasonable hypotheses that this Court can rely upon

in reviewing the factual sufficiency. Instead, the proper remedy in the present case

is to reverse and vacate the judgment of the trial court and remand the case for

retrial.

                            ISSUE NO. 2 (RESTATED)

           The Trial Court erred in denying Defendant’s Motion to Suppress



       Appellant’s Trial Counsel filed a Motion to suppress evidence including the

blood test and field sobriety tests. (C42-46) After a hearing the court denied the

Motion. (3R58) during the trial Officer Pelata proffered testimony that he obtained

the blood draw search warrant through the submission of a fraudulent Affidavit.

Specifically, Officer Pelata testified that he spoke to witnesses in the Affidavit which

he did not. (3R192-193) Further Officer Pelata stated in the blood draw search

                                           15
warrant affidavit that he qualified McMurphy for the field sobriety test when in fact

he had not. (3R194-195). Trial Counsel for McMurphy reasserted the Motion to

Suppress after that testimony was on the record and the court once again denied the

Motion. (4R49-50) Trial Counsel had no knowledge that the Affidavit contained

false facts until trial and could not assert that at the pre-trial hearing on the Motion to

Suppress. The United States Supreme Court in Franks v. Delaware, 438 U.S. 154

(1978) set forth the review standard for suppressing a search warrant on the basis of a

fraudulent affidavit. In Franks v. Delaware the court held that the Defendant must

allege deliberate falsehood or reckless disregard for the truth by the affiant. Id at 171.

In the case at hand it was established through the testimony of Officer Pelata that he

did not have evidence to place McMurphy behind the wheel. (3R35). Officer Pelata

further testified that he fraudulently stated in his affidavit that he had spoken to

witnesses who placed McMurphy behind the wheel as a basis for his blood draw

warrant. (3R186) Further Officer Pelata in his affidavit stated that he qualified

McMurphy for the field sobriety tests when in fact he did not. (3R194-195) When the

fraudulent facts are removed from Officer Pelata’s Affidavit the remaining content is

insufficient to support the issuance of the blood draw warrant. Cates v. State, 120

S.W, 3rd 352, 356 (Tex. Crim. App. 2003); Ramsey v. State, 579 S. W. 2nd 920, 922

(Tex. Crim. App. 1979); Jones v. State, 338 S.W.3rd 725, Tex. App.-Houston [1st

Dist.], 2011. As a result of the above the court erred in denying McMurphy’s Motion

                                            16
to Suppress the blood draw.

                           PRAYER AND CONCLUSION

       The evidence against Appellant was legally and factually insufficient to

support the verdict.

       The Trial Court erred in denying Defendant’s Motion to Suppress

       WHEREFORE, PREMISES CONSIDERED, Appellant respectfully requests

that this Court reverse the judgments of the trial court and render a judgment in the

Appellants favor. Alternatively, Appellant prays that this court reverse and remand

the case in its entirety to the trial court for a new trial on the guilt and innocence and

sentencing phases of the case.


                                          Respectfully submitted,

                                          Law Offices of Gary F. Churak P.C.
                                          14310 Northbrook, Ste. 210
                                          San Antonio, Texas 78232
                                          (210) 491-4443
                                          Fax (210) 491-4446


                                          By: /s/ Gary F. Churak
                                            Gary F. Churak
                                            State Bar No. 04245500
                                            Attorney for Appellant




                                            17
                       CERTIFICATE OF COMPLAINCE

       This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with
the word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it
contains 1910 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).




                         CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing instrument was
sent this 21st day of August, 2015 to Daniel Palmitier, Comal County District
Attorney, 150 N. Seguin, New Braunfels, Texas 78130pursuant to the Texas Rules
of Appellate Procedure.


                                                           /s/ Gary F. Churak
                                                           Gary F. Churak




                                         18
