                                                                           ACCEPTED
                                                                       06-15-00060-CR
                                                            SIXTH COURT OF APPEALS
                                                                  TEXARKANA, TEXAS
                                                                 8/27/2015 10:17:41 AM
                                                                      DEBBIE AUTREY
                                                                                CLERK

                     NOS. 06-15-00060-CR

                               IN THE                 FILED IN
                                               6th COURT OF APPEALS
                    SIXTH COURT OF APPEALS       TEXARKANA, TEXAS
                                               8/27/2015 10:17:41 AM
                     AT TEXARKANA, TEXAS
                                                    DEBBIE AUTREY
                   _______________________              Clerk


                         Jesse Dwayne Black,
                              Appellant,

                                 v.

                      The State of Texas,
                           Appellee.
                 _______________________________
                      On Appeal from the
               County Court, Lamar County, Texas
                Hon. M. C. Superville, Presiding
              _______________________________
                      APPELLANT’S BRIEF




Don Biard
State Bar No. 24047755
Counsel for Appellant




                ORAL ARGUMENT NOT REQUESTED
                         IDENTITY OF PARTIES AND COUNSEL
Defendant Below
Appellant in this Court

Jesse Dwayne Black

Counsel for Appellant:
     Don Biard                             (on appeal)
     State Bar No. 24047755
     38 First Northwest
     Paris, Texas 75460
     Tel: (903)785-1606
     Fax: (903)785-7580
     Email: dbiard@att.net

      Jerry Coyle                          (at trial)
      State Bar No. 04966700
      117 1st Street SE
      Paris, Texas 75460
      Tel: (903)732-0030
      Fax: (214)722-1373


Appellee in this Court

The State of Texas

Counsel for Appellee:
     Gary Young
     Lamar County Attorney’s Office
     119 N. Main Street
     Paris, Texas 75460
     Tel: (903)737-2458
     Fax: (903)737-2455


                                                           1
                                         TABLE OF CONTENTS


Identity of Parties and Counsel………………..........………………………………1

Table of Contents………………………..........…………………………………….2

Index of Authorities………………......………………………………………….....3

Issues Presented…………………………………………………………….………4

Summary of the Argument........................................................................................4

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

Procedural History………………………....…………………………………….....6

Facts…………...…………..……………………………………………………..7-9

Argument and Authorities……………………......…………………….……...10-17

Prayer……………………..……………………………………………………….18

Certificate of Service…………………......…………………………………..…...19

Certificate of Compliance With Rule 9.4(i)(3)........................................................20
                                        INDEX OF AUTHORITIES

                                                  Caselaw

Anderson v. State, 301 S.W. 3d 276, 279 (Tex. Crim. App. 2009).........................15

Armour v. State, 606 S.W.2d at 893 (Tex. Crim. App. 1980).................................15

Billie v. State, 605 S.W.2d 558 (Tex. Crim. App. 1980).........................................15

Blackshear v. State, 385 S.W. 589, 591 (Tex. Crim. App. 2012)...........................15

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)..............................10

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).............................10

Foster v. State, 497 S.W.2d 291, 292 (Tex. Crim. App. 1973)...............................15

Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010)...........................13

Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010)...............10

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)...................................10

Hudson v. State, 510 S.W.2d 583 (Tex. Crim. App. 1974).....................................11

Jackson v. Virginia, 443 U.S. 307, 319 (1979).......................................................10

Reddie v. State, 736 S.W.2d 923, 924 (Tex. App.—San Antonio 1987)................12

Tawater v. State, Tex. App. LEXIS 1015 (Tex. App. – Texarkana 2015)..............15

Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002)..............................13

White v. State, 823 S.W.2d 296, 298 (Tex. Crim. App. 1992)................................15

                                          Statutes
Tex. Code Crim. Pro. 29.06.....................................................................................16

Tex. Code Crim. Pro. 29.08.....................................................................................16

                                                                                                               3
                   SUBJECT MATTER OF ISSUES PRESENTED

I. Whether the evidence is insufficient to support the jury’s verdict because
there is insufficient evidence that Appellant was operating a motor vehicle
while intoxicated?

II. Whether the trial court erred in denying Appellant’s motion for
continuance in order to secure the testimony of a key witness?



                         SUMMARY OF THE ARGUMENT

First, there were no witnesses who saw Appellant driving the vehicle in which

he was found. Additionally, evidence was presented at trial that showed

Appellant was found in the passenger seat of the vehicle and that another

individual had been driving. Accordingly, the evidence was insufficient to

support the jury’s verdict that Appellant had been driving while intoxicated.

      Second, the trial court erred in denying Appellant’s motion for a

continuance. Appellant’s main theory at trial was that another man, Gregory

Don Winkler, was the actual driver of the vehicle. Appellant had a subpoena

issued for Winkler but was unable to locate him to serve the subpoena.

Appellant requested a continuance in order to attempt to find and serve

Winkler. The trial court denied Appellant’s motion thus depriving Appellant

of material evidence to support the primary defense theory at trial.




                                                                                4
                           STATEMENT OF THE CASE


Nature of the Case:          Plea of Not Guilty to an information charging one
                             count of Driving While Intoxicated

Trial Court:                 The Honorable M. C. Superville
                             County Judge, Lamar County, Texas

Trial Court Disposition:     A jury convicted Appellant of the charged offense
                             and the trial court sentenced Appellant to 270 days
                             in jail.




                                                                                 5
                                                             1
                                  PROCEDURAL HISTORY

On November 26, 2014, Appellant was charged by information with the Class A

misdemeanor offense of driving while intoxicated with a blood alcohol

concentration of 0.15 or more in violation of Tex. Pen. Code §49.04(d).2 On

February 12, 2015, Appellant was appointed trial counsel.3 The case proceeded to

trial on April 15, 2015.4

       Appellant pled not guilty to the charged offense but the jury found Appellant

guilty.5 Appellant elected to have the trial court assess punishment and the judge

sentenced Appellant to serve 270 days in jail.6 Appellant timely filed notice of

appeal on April 17, 2015.7




1
  All references to the Reporter’s Record are to Volume 3 of the record unless otherwise
indicated.
2
  CR, pg. 6
3
  CR, pg. 16
4
  RR, Vols. 3,4
5
  CR, pg. 48
6
  CR, pg. 48
7
  CR, pg. 4
                                                                                           6
                               FACTUAL BACKGROUND

Trial on the Merits

Mark Black got a call in the early evening of August 2, 2014 that his cousin’s truck

had been in an accident on Tudor Street in Paris, Texas. Mark drove to the scene

of the accident where he was the first person to arrive.8 Mark walked to the truck

and found his cousin, Jesse Dwayne Black, in the passenger seat of the truck.9

There was blood in the truck and Jesse had a cut on his head.10 The keys were

missing from the ignition.11

       After Mark Black arrived, Paris Police Officers Bangs and Flatt arrived on

the scene. Officer Bangs testified that upon arrival he found Jesse Black in the

passenger seat of the vehicle.12 Upon further questioning from the state, Officer

Bangs revised his testimony and stated he found Black in the driver’s seat.13

Bangs testified that he had not seen Black driving the vehicle nor was he aware of

anyone else who had witnessed Black driving.14




8
  RR, pg. 169-170
9
  RR, pg. 171
10
   RR, pg. 171
11
   RR, pg. 170
12
   RR, pg. 36
13
   RR, pg. 37
14
   RR, pg. 53
                                                                                     7
       Black was removed from the truck and transported to the hospital. At the

hospital, medical personnel took blood and urine samples.15 Black’s blood sample

showed his blood alcohol concentration at the time of the blood draw to be .264.

       Following the close of the state’s case-in-chief, the defense called several

witnesses. The defense first called Rayna Sneed, Black’s former girlfriend. She

was at home on the day of the accident when two women knocked on her door.

The women informed Ms. Sneed that Black had been in an accident and gave her

the keys to his truck.16 Ms. Sneed walked to the scene of the accident and handed

the keys to a police officer who was already there.17

       Jesse Black also testified in his own defense.18 Black testified that on the

day of the accident he had been drinking with Gregory Don Winkler, Danny

Winkler, and some other friends.19 That evening, Black asked Gregory Don

Winkler if he would drive him home in his truck.20 Black testified that the two left

in Black’s truck with Winkler driving. While driving down Tudor street, Winkler

left the road and crashed the truck into a tree.21 Winkler told Black he was going

to get help and left the scene.22


15
   RR, pg. 118
16
   RR, pg. 165
17
   RR, pg. 166
18
   RR, pg. 186
19
   RR, pg. 180
20
   RR, pg 189
21
   RR, pg. 190
22
   RR, pg. 190
                                                                                      8
Motion for Continuance

Prior to the introduction of evidence, the defense made a motion for continuance.23

On the day of jury selection, the defense had learned of Gregory Don Winkler.24

The defense believed that Winkler was the actual driver of Black’s truck during the

accident.25 A subpoena had been issued for Winkler’s testimony but a defense

investigator had been unable to serve Winkler.26

       The defense investigator, Ray Ball, testified on the motion. Ball testified

that he had tried several residencies in the Paris area but had been unable to locate

Winkler. Ball found a potential address for Winkler in Hooks, Texas the evening

prior to trial. However, given the late hour he decided not to travel to Hooks to

investigate that address.27 Following Ball’s testimony, the trial court denied the

motion for continuance.28

      Prior to the close of the defense case, Appellant renewed his motion for

continuance in order to find Winkler.29 The trial court again denied the motion but

      did allow Ball to testify in front of the jury regarding his efforts to locate

                                       Winkler.30


23
   RR, pg. 11
24
   RR, pg. 12
25
   RR, pg. 11
26
   RR, pg. 11
27
   RR, pg. 23
28
   RR, pg. 24
29
   RR, pg. 218
30
   RR, pg. 218, 229
                                                                                        9
                             ARGUMENT AND AUTHORITIES

Issue No. 1 Restated: The evidence is insufficient to support the jury’s verdict

because there is insufficient evidence that Appellant was the driver of the

truck.

                                   Standard of Review

         In evaluating the sufficiency of the evidence, this court must review all the

evidence in the light most favorable to the trial court’s judgment to determine

whether any rational jury could have found the essential elements of the crime

beyond a reasonable doubt.31 This court must conduct a rigorous sufficiency

review focusing on the quality of the evidence presented while giving deference to

the responsibility of the jury to fairly resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.32

                                          Analysis

       No one saw Jesse Black driving the truck that he was found in after the

crash. Mark Black testified that he was the first person to arrive at the scene of the

accident. When he got there, Jesse Black was sitting in the passenger side of the




31
   Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010,
pet. ref’d).
32
   Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring); Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007)).
                                                                                             10
truck.33 There was blood on the passenger side of the truck and the passenger side

sun visor had been damaged.34

       Officers arrived on scene minutes after they received the call regarding the

accident.35 They were not the first people on the scene and it is unclear how much

time elapsed between the time of the wreck and the time police were called.

However, there was enough time for someone to walk Black’s keys to his former

girlfriend’s house,36 for someone to call his cousin, and for his cousin to drive to

the scene and spend several minutes there before police arrived.

       Jesse Black testified himself that he was not driving. He testified that his

friend Gregory Don Winkler had been the driver but had left after the accident.37

       The Court of Criminal Appeals has reversed DWI convictions under facts

more concrete than present here. In Hudson v. State, police officers arrived to find

the defendant sitting in the driver’s seat of his car parked on the right shoulder of a

highway. The car had a flat tire and a warped wheel resting in the roadside ditch.

Officers saw Hudson toss several empty beer cans and bottles from the car and he

began cursing.38




33
   RR, pg. 171
34
   Def. Ex #2-#7
35
   RR, pg. 36
36
   RR, pg. 165
37
   RR, pg. 190
38
   Hudson v. State, 510 S.W.2d 583 (Tex. Crim. App. 1974)
                                                                                       11
       In finding the evidence was insufficient to support Hudson’s conviction, the

court said, “[T]here was no testimony whatsoever as to how long [the car] had

been where it was found....no testimony regarding how the car came to be where it

was, and who was driving. In short, there is no evidence which shows that

appellant actually drove the car, an essential element of the offense.”39

       In Reddie v. State, the defendant was found slumped over the wheel of his

car with the motor idling. He also smelled strongly of alcohol.40 The court

reversed the conviction, finding, “No evidence was introduced to show how or

when appellant arrived at the scene, that is, whether he drove the automobile he

was found sitting in, whether some other person drove him there...”41

       Similarly in our case, there was no testimony as to how long it had been

since Black’s truck was involved in the accident and the only testimony regarding

who was driving showed Black was not the driver.

       There is insufficient proof that Black was the driver of the truck. As the

court wrote in Hudson, “In the absence of such proof, the evidence is insufficient

to support the conviction.”42




39
   Id.
40
   Reddie v. State, 736 S.W.2d 923, 924 (Tex. App.—San Antonio 1987, pet. ref’d).
41
   Id.
42
   Id.
                                                                                     12
Issue No. 2 Restated: The trial court erred in denying the defense motion for

continuance because a continuance was necessary to locate a key witness for

the defense.

                                   Standard of Review

       This court reviews a trial court's ruling to grant or deny a motion for a

continuance for an abuse of discretion.43 Establishing reversible error predicated

on the denial of a motion for continuance requires showing that the trial court

abused its discretion in denying the motion and that the lack of continuance

harmed the defendant.44

                                          Analysis

       The primary defense theory at trial was that Jesse Black was merely a

passenger in the truck, not the driver. Black’s opening statement focused

almost exclusively upon the idea that the evidence would be insufficient to

prove that Black was the driver.45 Black testified himself that he was not the

driver. He testified that his friend, Gregory Don Winkler, was the driver and

had left the scene after the crash.46

       This theory was not without evidentiary support. There was blood on

the passenger side of the vehicle and here was damage to the passenger side

43
   Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002).
44
   Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010).
45
   RR, pg. 32
46
   RR, pg. 190
                                                                                     13
visor. At a minimum, this would indicate that there was a passenger in the

truck who had fled the scene before the police arrived and who could be a

material witness at trial.

       However, there was also evidence that Black had blood on his head.

Black’s cousin testified that he was the first person to arrive and found Black

sitting in the passenger seat of the truck. Even the first police officer to

testify initially testified that he found Black sitting in the passenger side of

the truck. In short, this was not a defense theory founded solely on Black’s

testimony.

       On the day of trial, Black’s trial counsel made a motion for

continuance in order to have an opportunity to locate Gregory Don Winkler

and secure his testimony at trial.47 Black’s counsel informed the trial court

at length of the importance of Winkler’s testimony and the defense efforts to

locate him.48 The defense also presented testimony which detailed the

efforts to locate Winkler and the probability of being able to find him soon.49

       In Foster v. State, Foster’s attorney learned of the existence of a key

witness just two days before trial. A subpoena was not issued until the day

of trial. Foster requested a motion for continuance on the day of trial in


47
   RR, pg. 11
48
   RR, pg. 11-13
49
   RR, pg. 21
                                                                                   14
order to allow time to find this witness. The trial court denied Foster’s

request.50

       The Court of Criminal Appeals held the trial court had erred in

denying the continuance and reversed the conviction. The court found that

Foster’s counsel had made only one motion for continuance and had shown

due diligence in seeking the motion.51

       Here, as in Foster, the defense exercised due diligence in attempting

to locate and serve Winkler. Black’s attorney only learned of Winkler’s

importance on the day of jury selection.52 A subpoena was quickly

requested and issued and the defense investigator spent several days

attempting to find Winkler. As in Foster, Black exercised due diligence in

attempting to locate their key witness.

Written and Sworn Motion

       In recent years, the Court of Criminal Appeals has overruled a line of

cases which held that an oral motion for continuance sufficiently preserved

the issue for appeal.53 The Court of Criminal Appeals has held that the Code


50
   Foster v. State, 497 S.W.2d 291, 292 (Tex. Crim. App. 1973)
51
   Id.
52
   RR, pg. 12
53
   Blackshear v. State, 385 S.W. 589, 591 (Tex. Crim. App. 2012); citing Anderson v. State, 301
S.W. 3d 276, 279 (Tex. Crim. App. 2009); overruling White v. State, 823 S.W.2d 296, 298 (Tex.
Crim. App. 1992); Billie v. State, 605 S.W.2d 558 (Tex. Crim. App. 1980); Armour v. State, 606
S.W.2d at 893 (Tex. Crim. App. 1980); see also Tawater v. State, Tex. App. LEXIS 1015 (Tex.
App. – Texarkana 2015).
                                                                                             15
of Criminal Procedure requires a motion for continuance to be “written and

sworn” and that no due process exception exists to allow an oral motion to

preserve the issue for appeal.54

       To be sure, the record in this case does not contain a written document

styled “Motion for Continuance”.55 However, the totality of the record in

this case should be sufficient to meet the requirements of the Code.

       Black filed a written Application for Subpoena setting forth the name

and suspected address of Gregory Don Winkler.56 Black also filed a written

Motion for Appointment of Investigator which set forth the need for an

investigator to locate and interview witnesses.57

       Additionally, sworn testimony of a person having knowledge of the

facts supporting the motion was taken in the presence of the trial judge.58

The defense investigator set forth the name of the witness and his suspected

whereabouts, his efforts to locate him, and the fact the was not absent due to

acts of the defense.59

       Taken together, Black’s written requests, coupled with the in-court

sworn testimony supporting the motion, were sufficient to effectively


54
   Blackshear at 591
55
   See Clerk’s Record generally
56
   CR, pg.34; Tex. Code Crim. Pro. 29.06(1),(2)
57
   CR, pg. 31; Tex. Code Crim. Pro. 29.06(2)
58
   RR, pg. 21; Tex. Code Crim. Pro. 29.08
59
   RR, pg. 21-22; Tex. Code Crim. Pro. 29.06
                                                                                 16
apprise the trial court of the nature and basis of the request and to meet the

requirements of the Code of Criminal Procedure.

      Considering the totality of the circumstances and the need for

Winkler’s testimony, the trial court erred in denying Black’s motion for

continuance thus depriving him of a fair trial.




                                                                                 17
                                 Conclusion

      The evidence is insufficient to support the jury’s verdict because there is

insufficient evidence that Appellant was the driver of the vehicle involved in the

accident. Further, the trial court erred in denying Appellant’s motion for

continuance thus depriving Appellant of his due process right to a fair trial.

                                       Prayer

Appellant respectfully requests this court reverse the conviction below and render a

judgment of acquittal.



                                              Respectfully Submitted,


                                              /s/ Don Biard
                                              ____________________________
                                              Don Biard
                                              State Bar No. 24047755
                                              38 First Northwest
                                              Paris, Texas 75460
                                              Tel: (903)785-1606
                                              Fax: (903)785-7580
                                              Email: dbiard@att.net
                                              Counsel for Appellant




                                                                                     18
                         CERTIFICATE OF SERVICE

I certify that on August 27, 2015 a copy of the foregoing Appellant’s Brief was
served to the following parties by electronic service.



                                                 /s/ Don Biard
                                                 ___________________________
                                                 Don Biard


Attorney for Appellee:
Gary Young
Lamar County Attorney’s Office




                                                                                  19
   CERTIFICATE OF COMPLIANCE PURSUANT TO TEXAS RULE OF APPELLATE
                         PROCEDURE 9.4(i)(3)



TO THE HONORABLE COURT OF APPEALS:

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

Counsel for Appellant files this certification that Appellant’s brief is a computer-

generated document that contains 3,222 words. Counsel further certifies that he

relied on the word count of the computer program used to prepare this document.

                                Respectfully submitted,


                                ___/s/Don Biard___________________________
                                DON BIARD
                                State Bar No. 24047755
                                McLaughlin, Hutchison & Biard
                                38 First Northwest
                                Paris, Texas 75460
                                Tel: (903)785-1606
                                Fax: (903)785-7580
                                Counsel for Appellant




                                                                                  20
