                                                                                                       ACCEPTED
                                                                                                   03-14-00483-CR
                                                                                                           5033338
                                                                                        THIRD COURT OF APPEALS
                                                                                                   AUSTIN, TEXAS
April 27, 2015
      April 27, 2015
                                                                                             4/27/2015 12:00:00 AM
                                                                                                 JEFFREY D. KYLE
                                                                                                            CLERK
                                              No. 03-14-00483-CR
                       _______________________________________________________________

                                     IN THE COURT OF APPEALS FOR THE
                                          THIRD DISTRICT OF TEXAS
                                                   AUSTIN
                       _______________________________________________________________

                                              Terry Lynn Stevens
                                                                            Appellant

                                                       v.

                                               The State of Texas
                                                                            Appellee


                                           BRIEF OF APPELLANT
                                           TERRY LYNN STEVENS
                       _______________________________________________________________


                                                       TRACY D. CLUCK
                                                       Texas Bar No. 00787254
                                                       1450 West Highway 290, #855
                                                       Dripping Springs, TX 78620
                                                       Telephone: 512-264-9997
                                                       E-Fax:      509-355-1867
                                                       tracy@tracyclucklawyer.com

                                                       ATTORNEY FOR APPELLANT
                                                       TERRY LYNN STEVENS




                                      ORAL ARGUMENT REQUESTED




                                                       1
                IDENTITY OF PARTIES AND COUNSEL

      The following is a list of all parties to this appeal and the names and

addresses of those parties’ counsel:



APPELLANT/DEFENDANT                           COUNSEL FOR APPELLANT

Terry Lynn Stevens                            Tracy D. Cluck
                                              1450 West Highway 290, #855
                                              Dripping Springs, TX 78620
                                              tracy@tracyclucklawyer.com

APPELLEE/STATE                                COUNSEL FOR APPELLEE/STATE

State of Texas, District Attorney’s           Wiley B. McAfee, D.A.
Office of the 424th & 33rd                    Gary Bunyard, Asst. D.A.
Judicial District                             g.bunyard@co.llano.tx.us




Trial Court:                    The Honorable Dan Mills
                                424th Judicial District Court Judge
                                Burnet County, Texas




                                       2
                     TABLE OF CONTENTS

IDENTITY OF PARTIES AND
COUNSEL……………………………………………………..............2

TABLE OF
CONTENTS……………………………………………………………3

TABLE OF
AUTHORITIES………………………………………………………..5

ISSUES
PRESENTED……………………………………………………..........8

STATEMENT OF
FACTS…………………………………………………………………9

STATEMENT OF THE CASE……………………………………….12

SUMMARY OF THE
ARGUMENT…………………………………………………………12

ARGUMENT…………………………………………………………14

   I.    The trial court erred by overruling Appellant’s motion to
         suppress blood evidence results based on deficiencies in
         the blood-draw warrant………………………………….14

         A.    Standard of Review………………………………14

         B.    Argument………………………………………...15


   II.   The evidence with respect to the Driving While Intoxicated
         element of “operation” was insufficient to support a
         finding of guilt by the jury………………………………20

         A.    Standard of Review………………………………20

         B.    Argument…………………………………………20
                                  3
   III.   The trial court erred by allowing into evidence tapes of
          Appellant’s phone conversations from jail without
          conducting a balancing test in light of Appellant’s Rule
          403 objection……………………………………………25

          A.    Standard of Review………………………………25

          B.    Argument…………………………………………25

CONCLUSION AND PRAYER……………………………………..28

CERTIFICATE OF SERVICE……………………………………….29

CERTIFICATE OF WORD COUNT………………………………..29




                                  4
                   TABLE OF AUTHORITIES

CASES                                           Page

Clayton v. State, 235 S.W.3d 772
      (Tex.Crim.App. 2007)……………………………….20

Crider v. State, 352 S.W.3d 704
      (Tex.Crim.App. 2011)……………………………….18

Denton v. State, 911 S.W.2d 388
     (Tex.Crim.App. 1995)……………………………….21

Dornbusch v. State, 262 S.W.3d 432
     (Tex.App.—Fort Worth 2008, no pet.)………………21

Farhat v. State, 337 S.W.3d 302
     (Tex.App.—Fort Worth 2011, pet. ref’d)……………16

Gigliobianco v. State, 210 S.W.3d 637
      (Tex.Crim.App. 2006)……………………………..26,27

Gunter v. State, 327 S.W.3d 797
     (Tex.App.—Fort Worth 2010, no pet.)……………20,21

Guzman v. State, 955 S.W.2d 85
    (Tex.Crim.App. 1997)……………………………….14

Illinois v. Gates, 462 U.S. 213 (1983)……………………....17

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,
      61 L.Ed.2d 560 (1979)………………………………..20

Lassaint v. State, 79 S.W.3d 736
      (Tex.App.—Corpus Christi 2002, no pet.)……………20

Martinez v. State, 327 S.W.3d 727
      (Tex.Crim.App. 2010)…………………………………25



                                5
Martinez v. State, 348 S.W.3d 919
      (Tex.Crim.App. 2011)………………………………..14

Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307,
      143 L.Ed.2d 424 (1999)………………………………25

Montgomery v. State, 810 S.W.2d 372
     (Tex.Crim.App. 1990)………………………….25,26,27

Mozon v. State, 991 S.W.2d 841
     (Tex.Crim.App. 1999)…………………………….26,27

State v. Dixon, 206 S.W.3d 587
       (Tex.Crim.App. 2006)………………………………..14

State v. Jordan, 342 S.W.3d 565
       (Tex.Crim.App. 2011)……………………………..17,18

State v. Kelly, 204 S.W.3d 808
       (Tex.Crim.App. 2006)……………………………...14,15

State v. McLain, 337 S.W.3d 268
       (Tex.Crim.App. 2011)…………………………………17

State v. Robinson, 334 S.W.3d 776
       (Tex.Crim.App. 2011)………………………………....14

Taylor v. State, 268 S.W.3d 571
      (Tex.Crim.App. 2008)………………………………26,27

Tijerina v. State, 334 S.W.3d 825
       (Tex.App.—Amarillo 2011, pet. ref’d)…………15,19,20

CONSTITUTIONS

U. S. Const.
      am. IV………………………………………………...19
      am. V………………………………………………….25
      am. VI…………………………………………………25
      am. XIV……………………………………………19,25
                                  6
Tex. Const.
      art. 1, sec. 9……………………………………………19
      art. 1, sec. 10…………………………………………..25
      art. 1, sec. 15…………………………………………..25
      art. 1, sec. 19…………………………………………..25


STATUTES & RULES

Tex. Code Crim. Pro art. 18.01……..…………………….16,19

Tex. Penal Code §49.04(a)..……………………………9,11,12

Tex. Penal Code §49.09(b)…………………...13,16,20,21,23,24

Tex. R. App. P. 44.2(a)……………………………..20,25,26,28

Tex. R. Crim. Evid. R.403……………………………..13,26,27




                               7
                    ISSUES PRESENTED




1.   Whether the trial court erred by denying Appellant’s motion to

     suppress blood evidence results based on deficiencies in the

     blood-draw warrant.



2.   Whether the evidence with respect to the Driving While

     Intoxicated element of “operation” was insufficient to support a

     finding of guilt by the jury.



3.   Whether the trial court erred by allowing into evidence tapes of

     Appellant’s phone conversations from jail without conducting a

     balancing test in light of Appellant’s Rule 403 objection.




                                8
TO THE HONORABLE COURT OF APPEALS:

         Appellant Terry Lynn Stevens respectfully submits this his brief in

support of his appeal from the jury’s verdict of guilt and the sentence given

him by the jury.         The parties will be referred to by name or by their

designation in the appeals court.

        The Clerk’s Record will be cited by page number as “Tr.____ [page

#].” The Court Reporter’s Record will be cited by volume and page number

as “R—Vol. ___[volume #], pg.____[page number], and where necessary, L.

[#]     [line number].



                         STATEMENT OF THE FACTS

      Appellant was charged with Driving While Intoxicated, 3rd or more,

habitual. Tex. Penal Code §49.09(b). Tr. 4. This charge arose from events at

the entrance to an apartment complex in Burnet County, Texas on or about

May 9, 2013. R.—Vol. 3, pp. 29-47. On the evening in question, Socorro

McCrum, a resident of the apartment complex noticed two vehicles at the

gated entrance to the complex. Id. at 38-40. One of the vehicles, a white

pick-up truck, rolled backward into a fence. Id. Ms. McCrum went inside her

apartment and called police. Id. She did not give a description of the driver

because she could not see who was driving the white truck. Id. at 39, 41-42.


                                        9
Ms. McCrum stayed inside her apartment until Ofc. Boucher of the Marble

Falls P.D. arrived five minutes later. Id. at 41, 43-44, 50. During this time

she did not observe the pick-up or its occupants. Id.



   Ofc. Boucher drove into the complex looking for the right gate. Id. at 50-

51. He noticed a white Ford truck parked in the lot but could not see who was

inside the truck. Id. at 51. He parked facing the front of the truck and

observed Appellant exit the driver’s side and stand next to the door. Id. at 54.

Ofc. Boucher did not observe any operation of the vehicle by Appellant nor

did Ms. McCrum. Id. at 80. After conducting field sobriety tests, Ofc.

Boucher arrested Appellant for the offense of Driving While Intoxicated and

began the process of obtaining a blood-draw warrant. Id. at 57, 73. Ofc.

Boucher submitted an affidavit seeking a blood draw warrant to Meadow

Lakes Judge Don Adams. R.—Vol. 3, p. 73. The affidavit did not contain

any facts regarding the operation of a motor vehicle, but rather only

conclusions. R.—Vol. 6, p. 104. A blood draw was obtained from Appellant

pursuant to the warrant. R.—Vol. 3, p. 73.



   At trial, Appellant objected to the admission of blood test results and

moved to suppress them based in the deficiencies in the affidavit. R.—Vol. 3,


                                      10
pp. 78-79. This was denied by the trial court and evidence of Appellant’s

blood alcohol level in excess of the statutory maximum of .08 was allowed

into evidence. Id. The jury was charged on both the loss of normal use and

blood alcohol of .08 or more as bases for finding guilt. Tr. 27.



   Appellant’s phone calls at the Burnet County Jail were recorded. R.—Vol.

4, pp.12-17. During those phone calls he may have made certain admissions

(which are not in the record provided to appellate counsel) regarding the

operation of the vehicle (among other admissions). See R.—Vol. 4, pp.5-6.

Appellant objected to the admission of this evidence under Rule 403 of the

Texas Rules of Criminal Evidence, but this objection was overruled by the

trial court without conducting a balancing test. R.—Vol.4, pp. 5-7, 17-18.

Appellant did not testify at the guilt/innocence phase of his trial, but he did

testify at the punishment phase of his trial making admissions regarding the

operation of the motor vehicle and the enhancement paragraphs of the

indictment. R.—Vol. 5, pp. 45-66.



   The jury found Appellant guilty of the offense of Driving While

Intoxicated, 3rd or more habitual, as set out in the indictment. Tex. Penal

Code §49.09(b); R.—Vol. 4, p. 49; Tr. 33. After a punishment trial, the jury


                                       11
assessed a sentence of Life. R.—Vol. 5, p. 85; Tr. 42. This appeal follows.

Tr. 47-52.



                       STATEMENT OF THE CASE

      Appellant was charged by indictment with one count of Driving While

Intoxicated 3rd or More. Tr. 4.; Tex. Pen. Code §49.09(b). The State alleged

three prior driving while intoxicated offenses, including two prior felony

driving while intoxicated offenses, in the indictment (habitual). Tr. 4.



      After a jury trial, Appellant was convicted by the jury. R.—Vol. 4, p.

49; Tr. 33. The jury, after finding both prior felony enhancements “True”,

assessed the following punishment: Life in the Institutional Division of the

Texas Department of Criminal Justice. R.—Vol. 5, p. 85; Tr. 42. A judgment

of guilt was entered by the trial court consistent with the jury’s punishment

verdict. R.—Vol. 5, p.87; Tr. 45. This appeal follows. Tr. 47-49, 50, 52.



                 SUMMARY OF THE ARGUMENT

       Appellant asserts three points of error. In his first point of error,

Appellant argues that the trial court erred by denying his motion to suppress

blood results based on deficiencies in the affidavit filed in support of the


                                       12
blood-draw warrant. Appellant contends that the affidavit fails to set forth

sufficient facts for a magistrate to find that Appellant operated a motor vehicle

in a public place—an essential element of the crime of Driving While

Intoxicated. Tex. Penal Code §49.04(a).       Therefore, Appellant’s conviction

should be reversed and he should be granted a new trial.



      In his second point of error, Appellant argues that the evidence adduced

at trial was not sufficient to support the jury’s finding of guilt for the offense

of Driving While Intoxicated because there was not sufficient evidence to find

that Appellant operated a motor vehicle in a public place—an essential

element of the offense. Id. Appellant contends that neither of the state’s

witnesses provided testimony, either alone or in combination, from which a

reasonable inference could be made that Appellant operated a motor vehicle.

Therefore, Appellant’s conviction should be reversed and he should be

granted a new trial.



      In his final point of error, Appellant argues that the trial court, in the

face of a timely and specific objection, admitted extremely prejudicial

evidence without conducting a balancing test as required under Rule 403 of

the Texas Rules of Criminal Evidence. As a result, Appellant contends he


                                       13
was deprived of due process and a fair trial. Therefore, his conviction should

be reversed and he should be granted a new trial.



                             ARGUMENT

   I. The trial court erred by overruling Appellant’s motion to
      suppress blood evidence results based on deficiencies in the
      blood-draw warrant.


      A. Standard of Review

      “In review of a trial court’s ruling on a motion to suppress, an appellate

court must apply a standard of abuse of discretion and overturn the trial

court’s ruling only if it is outside the zone of reasonable disagreement.”

Martinez v. State, 348 S.W.3d 919, 922 (Tex.Crim.App. 2011)(citing State v.

Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006)). Appellate courts are to

apply a bifurcated standard of review, giving almost total deference to a trial

court’s determination of historic facts and mixed questions of law and fact that

rely upon the credibility of a witness, but applying a de novo standard of

review to pure questions of law and mixed questions that do not depend on

credibility determinations. Id. (citing Guzman v. State, 955 S.W.2d 85, 87-89

(Tex.Crim.App. 1997)). When reviewing a trial court’s ruling on a motion to

suppress, the appellate tribunal views the evidence in the light most favorable

to the ruling.   State v. Robinson, 334 S.W.3d 776, 778 (Tex.Crim.App.
                                      14
2011)(citing State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006)). An

appellate court, in reviewing the harm from a trial court’s erroneous denial of

a motion to suppress, evaluates “the entire record in a neutral, impartial, and

even-handed manner, not in the light most favorable to the prosecution” . . .

and must reverse the conviction unless, beyond a reasonable doubt, the error

did not contribute to the conviction. Tijerina v. State, 334 S.W.3d 825, 835

(Tex.App.—Amarillo 2011, pet. ref’d).



      B. Argument


   The trial court erred by denying Appellant’s motion to suppress blood test

results. At trial, Appellant contends that the affidavit supporting the warrant

to obtain his blood was deficient. R.—Vol. 3, p. 106-07; Vol. 6, p. 104-05.

At trial Appellant objected to the introduction of blood evidence and its

results. Id. The trial court heard this objection and supporting arguments

outside the presence of the jury and considered Appellant’s objection as a

motion to suppress, which it overruled based on the “totality of the

circumstances.” Id.



      “No search warrant shall issue for any purpose in this state unless

sufficient facts are first presented to satisfy the issuing magistrate that
                                      15
probable cause does in fact exist for its issuance.” Tex. Code Crim. Proc. art.

18.01(b).     “A sworn affidavit setting forth substantial facts establishing

probable cause shall be filed in every instance in which a search warrant is

requested.”    Id.   The sworn affidavit must set forth “sufficient facts to

establish probable cause: (1) that a specific offense has been committed, (2)

that the specifically described property or items that are to be searched for or

seized constitute evidence of that offense or evidence that a particular person

committed that offense, and (3) that the property or items constituting

evidence to be searched for or seized are located at or on the particular person,

place or thing to be searched.” Id.



   The affidavit supporting the issuance of a search warrant must contain

sufficient facts to establish probable cause that Appellant committed the

offense of driving while intoxicated and that evidence of intoxication would

be found in his blood. See Farhat v. State, 337 S.W.3d 302, 307 (Tex.App.—

Fort Worth 2011, pet. ref’d).      The facts essential to a determination of

probable cause include whether Appellant was operating a motor vehicle in a

public place. See Tex. Penal Code §49.04(a).




                                       16
   Probable cause exists if, under the totality of the circumstances set forth in

the affidavit before magistrate, there is a “fair probability” that contraband or

evidence of a crime will be found in a particular place at the time the warrant

is issued. See Illinois v. Gates, 462 U.S. 213, 238 (1983); State v. Jordan, 342

S.W.3d 565 (Tex.Crim.App. 2011).            “The magistrate may interpret the

affidavit in a non-technical, common-sense manner and may draw reasonable

inferences from the facts and circumstances contained within its four corners.”

Jordan, 342 S.W.3d at 369.     However, there must be a substantial basis for

concluding that probable cause existed for an appellate court to uphold the

magistrate’s probable cause determination. State v. McLain, 337 S.W.3d 268,

271 (Tex.Crim.App. 2011).



      In the case at bar, the affidavit supporting the blood-draw warrant is

merely conclusory with respect to the essential fact of operation of a motor

vehicle in a public place. The affiant, in a conclusory statement, claims that

he has a “belief” that Appellant was operating a motor vehicle in a public

place. R.—Vol. 6, p. 104. However, the affidavit does not contain any facts,

from personal observation or from the statements of others to the affiant, to

support that belief. Nor are there any facts from which a reasonable inference

can be drawn that Appellant, Terry Lynn Stevens, was in fact “operating” a


                                       17
motor vehicle in a public place or any other place. Id. The affiant states that

he “made contact” with Appellant based on a dispatch call to “92 Gateway

North” regarding a vehicle stopped at the entry gate that rolled backwards into

a fence. Id. These are the only facts contained in the affidavit with respect to

the essential fact determination made by the magistrate regarding whether

Appellant was operating a motor vehicle in a public place. Id. There are no

facts to support whether the vehicle in question was in a public rather than

private drive, no facts to support whether Appellant was “operating” the

vehicle in question (or in any manner connected to this or any other motor

vehicle), and no facts to establish when exactly the incident in question

happened. Id. The affiant, from the facts in the affidavit, could have been

dispatched to take a report about an incident that happened at some point

much earlier in time. This is an important issue in itself since there is a

temporal element in blood-draw warrants as well—whether there is a

likelihood that evidence of intoxication can be found in the blood at all at the

time it is to be drawn is another essential fact that the magistrate must

determine from the affidavit before a warrant may be issued. See Crider v.

State, 352 S.W.3d 704, 709-12 (Tex.Crim.App. 2011); Jordan, 342 S.W.3d at

571-72 (Tex.Crim.App. 2011). The affidavit is insufficient in this respect as

well.


                                      18
   Affiant asserts no personal observations or statement from witnesses that

anyone ever saw Appellant operate a motor vehicle in a public place. Affiant

makes states no facts from which it can be inferred that Appellant was

operating a vehicle, or that a vehicle had been operated at all by anyone, much

less that Appellant was operating a motor vehicle in a public place.

Reasonable inferences cannot be drawn by a magistrate regarding the essential

elements of the offense of driving while intoxicated from the absence of facts

in an affidavit regardless of the conclusory statements by a police officer or

the apparent intoxication of Appellant when the officer made contact with

him. U. S. Const. am. IV, XIV; Tex. Const. art. 1, sec. 9; Tex. Code Crim.

Pro. 18.01.



    Appellant’s motion to suppress evidence should have been granted by the

trial court and the failure to do so was error.        The unlawfully obtained

evidence, which was admitted at trial over the objections of Appellant, was

powerful, persuasive evidence of guilt based on having an alcohol

concentration of .08 or more. Since the jury was charged with finding guilt

per se if Appellants blood alcohol level was .08 or higher, it follows that it

contributed substantially in the juror’s deliberations in arriving at their verdict

Tr. 27. Therefore, this court should reverse Appellant’s conviction. See


                                        19
Tijerena v. State, 334 S.W.3d 825, 835 (Tex.App.—Amarillo 2011, pet.

ref’d); Tex. R. App. Pro 44.2(a).



   II.      The evidence with respect to the Driving While
            Intoxicated element of “operation” was insufficient to
            support a finding of guilt by the jury.


            A. Standard of Review

         In determining the legal sufficiency of the evidence, the appellate court

must inquire as to “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Lassaint v. State,

79 S.W.3d 736 (Tex.App.—Corpus Christi 2002, no pet.)(citing Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); Clayton

v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007); Gunter v. State, 327

S.W.3d 797, 799 (Tex.App.—Fort Worth 2010, no pet.).



            B. Argument


   The evidence at trial with respect to the Driving While Intoxicated element

of “operation” was insufficient to support the jury’s finding of guilt. Tex.

Penal Code §49.04(a).        A person commits the offense of Driving While


                                         20
Intoxicated when he or she “is intoxicated while operating a motor vehicle in

a public place.” Id.; Gunter, 327 S.W.3d at 800. The penal code does not

define the term “operating.”     See id.; Gunter, 327 S.W.3d at 800 (citing

Denton v. State, 911 S.W.2d 388, 389 (Tex.Crim.App. 1995). “’However, the

Court of Criminal Appeals has held that, to find operation of a motor vehicle,

the ‘totality of the circumstances must demonstrate that the defendant took

action to affect the functioning of his vehicle that would enable the vehicle’s

use.’” Id. (citing Dornbusch v. State, 262 S.W.3d 432, 436 (Tex.App.—Fort

Worth 2008, no pet.))(quoting Denton, 911 S.W.2d at 390). Therefore, “any

action that is more than mere preparation toward operating the vehicle”

qualifies as “operating” for purposes of the Driving While Intoxicated statute.

Gunter at 800 (quoting Dornbush at 436).



   In the case at bar, the state called two witnesses to establish that Appellant

was operating a motor vehicle in a public place while intoxicated: McCrum

and Ofc. Boucher. McCrum is the complaining witness who called police

regarding a suspicious vehicle at her apartment complex gate. R.—Vol. 3, p.

38-46. Ofc. Boucher is the police officer who responded to that call from

dispatch. R.Vol.—3, p. 47-103. According to McCrum, she observed a

“white truck” outside her apartment complex gate that rolled backwards into a


                                       21
fence. R.—Vol. 3, p. 39. She testified that she “could not see the people in

the vehicles.” Id. at 39, L. 1-2. McCrum described the vehicle to the 911

dispatcher only as a “white truck” with no other identifiers, such as make,

model, year, license plate number, or identifying marks or damage. Id. at 39,

43.



      After initially observing the vehicle, McCrum testified that she went into

her apartment to call the police and did not go back outside until sometime

after the police arrived. Id. at 41, 43-44. She testified that she could not

recognize the driver and could not see well enough to identify a person

operating the vehicle. Id. at 41-42. McCrum also testified that she did not,

and could not, identify the driver to the 911 operator because she could not

see who was driving the vehicle. Id. at 41-42. Moreover, the vehicle was out

of her sight for three to five minutes before the police arrived and she went

back outside1. Id. at 43-44. Therefore, the state failed to establish through

Witness McCrum that Appellant was operating a motor vehicle in a public

1
 Ofc. Boucher testified that he arrived on scene five minutes after he was dispatched. R.—
Vol. 3, p. 50.
2
  The state did not offer any evidence or elicit any testimony regarding exactly what
dispatch told Ofc. Boucher. The best evidence of this is probably the affidavit of Ofc.
Boucher in support of the request for a blood-draw warrant—which makes no mention of
any communication regarding operation of a motor vehicle by Appellant. It is of no
moment in the case at bar though since this would only go to probable cause to arrest and
not the sufficiency of the evidence to support a conviction. Moreover, Witness McCrum
testified that she did not tell the 911 dispatcher that Appellant was operating the vehicle in
                                               22
place.   Moreover, the state failed to establish, through the testimony of

Witness McCrum, facts from which it could be reasonably inferred that

Appellant operated a motor vehicle in a public place—an essential element of

the crime of Driving While Intoxicated. Tex. Penal Code §49.04(a).



   Ofc. Boucher testified at trial that upon arrival at the apartment complex he

saw a white Ford truck parked in the front lot. R.—Vol.3, p. 50. However, he

could see if anyone was in the vehicle. Id. at 51. After driving into the

complex to see which gate was at issue, he parked facing the front of the only

white truck he saw. Id. Ofc. Boucher testified that he parked his vehicle and

observed Appellant exit a white Ford truck and stand next to the driver’s door.

Id. at 54. However, Ofc. Boucher testified that he never saw Apellant drive

the vehicle, that at the time he made contact Appellant was not in operation of

the vehicle, that he did not see Appellant use his car keys, that he did not see

Appellant operate the gear shift of the vehicle, and that he did not see the

vehicle move. Id. at 80. Ofc. Boucher further testified that at the time he

made contact with Appellant the vehicle was on private property and parked.

Id. at 81. Moreover, he does not know if the vehicle was “on” prior to his

arrival on the scene. Id. at 98. Ofc. Boucher additionally testified that he did

not have any facts to support his belief that Appellant was operating a motor


                                      23
vehicle in a public place other than Witness McCrum’s communications to the

911 dispatcher2. Id. at 101-02. He admitted at trial that he never spoke with

Witness McCrum and did not have any direct communications with her. Id.

Therefore, the state failed to establish through Ofc. Boucher that Appellant

was operating a motor vehicle in a public place. Moreover, the state failed to

establish, through the testimony of Ofc. Boucher, alone or in combination

with the testimony of Witness McCrum, facts from which it could be

reasonably inferred that Appellant operated a motor vehicle in a public

place—an essential element of the crime of Driving While Intoxicated. Tex.

Penal Code §49.04(a).



    The evidence at trial is not sufficient such that a rational trier of fact could

find beyond a reasonable doubt that Appellant operated a motor vehicle in a

public place3. As such, the evidence was not sufficient to sustain a conviction


2
  The state did not offer any evidence or elicit any testimony regarding exactly what
dispatch told Ofc. Boucher. The best evidence of this is probably the affidavit of Ofc.
Boucher in support of the request for a blood-draw warrant—which makes no mention of
any communication regarding operation of a motor vehicle by Appellant. It is of no
moment in the case at bar though since this would only go to probable cause to arrest and
not the sufficiency of the evidence to support a conviction. Moreover, Witness McCrum
testified that she did not tell the 911 dispatcher that Appellant was operating the vehicle in
question because she could not see. R.—Vol. 6, p. 104; R.Vol.—3, p. 41-42.
3
 Appellant did not testify at the guilt/innocence phase of his trial. He did testify at the
punishment phase of the trial and admitted to operation of the vehicle on cross-
examination. However, it is a bifurcated trial process and admissions and other evidence
adduced at the punishment phase does not obviate the state’s burden of proving each and
                                             24
in this case and Appellant’s conviction should be reversed. Tex. R. App. Pro

44.2(a).



   III.    The trial court erred by allowing into evidence tapes of
           Appellant’s phone conversations from jail without
           conducting a balancing test in light of Appellant’s Rule
           403 objection.


               A. Standard of Review

       A trial court’s decision to admit or exclude evidence is reviewed under

an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391

(Tex.Crim.App. 1990); Martinez v. State, 327 S.W.3d 727 (Tex.Crim.App.

2010).     The trial court’s decision is reversed only if it acts arbitrarily,

unreasonably, or without reference to any guiding rules or principles.


every element of its case at the guilt/innocence phase. If that were the rule, the state could
merely lay behind the log and use the relaxed and broader rules regarding what is
admissible and relevant to punishment to make cases where it otherwise could not meet its
burden. To do so would deprive criminal defendants of due process. U. S. Const. amend.
V, VI, XIV; Tex. Const. art. 1, sec. 10, 15, 19; cf. Mitchell v. United States, 526 U.S. 314,
119 S.Ct. 1307, 143 L.Ed.2d 424 (1999)(using punishment phase testimony by defendant to
establish facts necessary at guilt/innocence phase of trial undermines the vital principal that
criminal proceedings should rely on accusations proved by the government and not on
inquisitions conducted to enhance prosecutorial power).

  Additionally, the state admitted into evidence, over defense objection, tapes of
conversations of Appellant from jail. The record indicates there may have been admissions
in these tapes. However, transcripts of the tapes were not admitted into evidence and are
not in the record. Additionally, the court reporter did not transcribe the tapes into the
Reporter’s Record. Presumably the actual tapes are in the possession of the court reporter,
but Appellate counsel does not know the contents of those tapes and does not have the
ability on the record provided to him to ascertain their contents. R.—Vol. 4, pp. 5-6, 18,
20, 21; R.—Vol. 6, pp. 54-55.
                                              25
Montgomery at 380. The trial court’s ruling is upheld if it is inside the bounds

of reasonable disagreement. Montgomery at 391. An abuse of discretion of

non-constitutional dimension “is reversible only when it has a substantial and

injurious effect or influence in determining the jury’s verdict.” Taylor v.

State, 268 S.W.3d 571, 592 (Tex.Crim.App. 2008). A conviction in such

cases should be overturned unless there is fair assurance from the record as a

whole that the error did not influence the jury or had but slight effect. Id.;

Tex. R. App. P. 44.2.



             B. Argument


      The trial court erred by allowing into evidence tapes of Appellant’s

phone conversations from jail without conducting a balancing test in light of

Appellant’s Rule 403 objection.        Tex.R.Crim.Evid.     “Once a Rule 403

objection is raised [as it was in this case] a trial court has no discretion as to

whether or not to engage in the balancing process.” Mozon v. State, 991

S.W.2d 841, 846 n.6 (Tex.Crim.App. 1999); see Gigliobianco v. State, 210

S.W.3d 637, 641-42 (Tex.Crim.App. 2006). In this case the Appellant made a

timely objection under Rule 403 to the offer of admission into evidence of

tapes of Appellant’s phone calls from jail. Tex.R.Crim.Evid.; R.—Vol. 4, pp.

5-6, 17. This objection was overruled by the trial court on the basis that the
                                       26
tapes were relevant to the issue of whether Appellant was operating a vehicle

and were thus not cumulative. R.—Vol. 4, p. 6-7, 18. However, the trial

court did not conduct a balancing test under Rule 403 of the Texas Rules of

Evidence as it was required to do. Mozon, 991 S.W.2d at 846 n.6; see

Gigliobianco, 210 S.W.3d at 641-42. The extremely prejudicial nature of the

tapes is apparent from the record—the jury asked for the tapes and was given

them to play back in the jury room during deliberations. Tr. 32. Appellant

contends that the trial court was required to engage in a Rule 403 balancing

analysis in order to ensure due process and a fair trial, yet failed to do so

which was error. Tex.R.Cim.Evid.; Mozon at 846 n.6; Gigliobianco at 641-

42.



      The failure of the trial court to conduct a Rule 403 balancing test

deprived Appellant of a fair trial and was an abuse of discretion. Tex. R.

Crim. Evid.; see id. Appellant contends, that by failing to conduct a Rule 403

balancing test, the trial court admitted the evidence without any guiding rules

or principles and abused its discretion.      Id.; Tex. R. Crim. Evid.; see

Montgomery, 810 S.W.2d at 380. A conviction in such cases should be

overturned unless there is fair assurance from the record as a whole that the

error did not influence the jury or had but slight effect. Taylor, 268 S.W.3d at


                                      27
592; Tex. R. App. P. 44.2. Appellant contends that the record does not give

fair assurance that this error did not influence the jury or have only a slight

effect. Therefore, his conviction should be overturned and he should be

granted a new trial. Tex. R. App. P. 44.2.



                       CONCLUSION AND PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant Terry Lynn

Stevens, respectfully prays that this Court reverse his conviction, vacate his

sentence and remand this case to the trial court for a new trial. Appellant

further prays that the Court grant such other and further relief to which

Appellant is justly entitled.



                                      Respectfully submitted,

                                      /s/ Tracy D. Cluck
                                      __________________________
                                      TRACY D. CLUCK
                                      Texas Bar No. 00787254
                                      1450 West Highway 290, #855
                                      Dripping Springs, TX 78620
                                      Telephone: 512-264-9997
                                      E-Fax:       509-355-1867
                                      tracy@tracyclucklawyer.com

                                      ATTORNEY FOR APPELLANT
                                      TERRY LYNN STEVENS



                                      28
                       CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the foregoing Brief of Appellant,
Terry Lynn Stevens, has been served on the attorney listed below by E-Serve
and e-mail, on April 25, 2015:

424th & 33rd District Attorney’s Office
Mr. Wiley B. McAfee, Dist. Atty.
Mr. Gary Bunyard, Asst. Dist. Atty.
g.bunyard@co.llano.tx.us



                                          /s/ Tracy D. Cluck
                                          _____________________
                                          TRACY D. CLUCK




                    CERTIFICATE OF WORD COUNT

     I certify that the pertinent portion of the brief for the Appellant, Terry
Lynn Stevens, is comprised of approximately 4782 words.

                                          /s/ Tracy D. Cluck

                                          TRACY D. CLUCK




                                       29
