                         1505-15
   N0.      PD-1505-15
                                                                    ORIGINAL
                     IN       THE


    COURT      OF    CRIMINAL         APPEALS
                                                            RECEIVED
                    OF    TEXAS                           COURT OF CRIMINAL APPEALS
                                                               DEC 28 2015

           ALFRED         LEE       RICE,                   Abel Acosta, Clerk
                                       Petitioner,


                          V


         THE    STATE         OF    TEXAS,
                                            Appellee




PETITION FOR DISCRETIONARY REVIEW       FILED IN
                                 COURT OF CRIMINAL APPEALS



     on appeal from the liTH                                   AbeJAcoste,Clerk
     COURT      OF    APPEALS,

     EASTLAND,           TEXAS

     CAUSE      NUMBER         #    11-13-00302-CR




                              ALFRED        LEE    RICE

                              TDCJ-ID        NO.    #   1888258

                              ALLEN     B.    POLUNSKY       UNIT

                              3872    FM     350    SOUTH

                              LIVINGSTON,           TEXAS-77351




    ORAL    ARGUMENTS               REQUESTED
                     IDENTITY OF JUDGE       AND   COUNSEL'S




TRIAL    JUDGE:                HONORABLE       GEORGE      D.    GILLES

                               142nd       DISTRICT      COURT

                               MIDLAND       COUNTY,      TEXAS




DISTRICT    ATTORNEY:          TERESA       CLINGMAN

                               500    N.    LORRAINE

                               MIDLAND       COUNTY      79701




TRIAL    COUNSEL:              MARK    DETTMAN

                               415    W.    WALL   ST.

                               MIDLAND,       TEXAS      79701



APPEAL    COUNSEL:             WAYNE       FROST

                               203    W.    WALL   ST.    Suite    #   205

                               MIDLAND,       TEXAS      79701
                                      TABLE   OF    CONTENTS


IDENTITY OF JUDGE AND COUNSELS . . . . ,                                                      _i

TABLE    OF    CONTENTS                                                                      ii

INDEX    OF    AUTHORITIES                                           .                       iii

STATEMENT REGARDING ORAL ARGUMENT                                . . . . ,                   _1

STATEMENT       OF    THE   CASE                                 .                           1,2


STATEMENT OF PROCEDUAL HISTORY                                                               _2

GROUNDS       FOR    REVIEW:


   GROUND NUMBER ONE                                                                     .    2_

    DID THE 11TH COURT OF APPEALS DECISION OF PETITIONER CLAIM THAT
THERE WAS INSUFFICIENT LEGAL EVIDENCE IN CONFLICTING WITH DECISIONS
OF THE COURT OF CRIMINAL APPEALS ON THE SAME            ISSUE.


   GROUND       NUMBER      TWO                                                                   6


   WHETHER THE 11TH COURT OF APPEALS DECIDED AN IMPORTANT QUESTION
OF STATE AND FEDERAL LAW IN A WAY THAT CONFLICT'S WITH                     APPLICABLE
DECISIONS OF THE COURT OF CRIMINAL PROCEDURE AND THE U.S.                    SUPREME COURT


   GROUND       NUMBER      THREE                                                                 8


   WHETHER THE 11TH COURT OF APPEALS DECIDED AN IMPORTANT QUESTION
OF STATE AND FEDERAL LAW ON          PETITIONER'S CLAIM THAT THE STATE             IM
PROPERLY ENGAGED IN BOLSTERING IN A WAY THAT WITH DECISIONS BY THIS COURT


   GROUND       NUMBER      FOUR                                     .'. . . . .              10


   RESTATING          GROUND      NUMBER   THREE


CONCLUSION /          PRAYER                                                                  12

INMATE    DECLARATION                                                                         13


CERTIFICATE          OF   SERVICE                                                             13




                                                   11
                                       INDEX OF      AUTHORITIES
CASES:


BERGER         V.    UNITED      STATES:
295 U.S.            78 (1935)                                                      .      11

CANTU      V.       STATE:
939 S.W. 2d 627,                 633 (Tex. Crim. App. 1994)...                             11

COFFEY         V.    STATE:
435 S.W.            3d 834 (Tex. App.         Texarkane 2014)                                 8

COOK      V.    STATE,
844 S.W.            2d 687,      727 (Tex.    Crim. App.         1998)                    \2

ESTER      V.       TEXAS:
381 U.S. 532, 540, 94 S. Ct. 1628, 1631, 14 L. ed. 2d 543 (1965)                          10

IN   RE    WINSHIP:
397 U.S. 358,               364 (1970)                                                 4,6,9,

JACKSON         V.       VIRGINIA:
443 U.S.            307,    99 S.    Ct.   2781,    61    L.   Ed 2d 560 (1979)

MATA      V.    STATE:
46 S.W. 3d 902 (Tex. Crim. App. 2001)....                                              3,4,6,

MOSLEY         V.    STATE:
348 S.W.            3d 435 (Tex.       App.   Austin 2011)

MINNESOTA            V.    CARTER:
529 U.S.            83, 119 S. Ct. 469,            142 L. Ed 2d 378 (1998)               5,6

MISSOURI            V.    McNEELY:
133 S. Ct.               1552 (2013)                                                          7

MUMPHERY            V.    STATE:
155 S.W.            3d 651 (Tex.       App. Texarkana 2005)

STATE      V.       WEBER:
347 S.W.            3d 381 (Tex.       App.   San Antonio (2008)

ROUSSEAU            V.    State:
855 S.W.            2d 666, 681       (Tex.   Crim. App.        1993)..

TEMPLE         V.    STATE:
342 S.W. 3d 572 (Tex. App. Houston [14TH Dist]                            2010)           n

TODD      V.    STATE:
598 S.W. 2d 286 (Tex. Crim. App. 1980)                                                     12

UNITED         STATES       V.   KOJAYAN:
8 F. 3d 1315,               1323 (9TH Cir.         1993)                          ..      11

                                                         iii
                            INDEX   OF   AUTHORITIES   CONT.



WOOD   V.   STATE:
13 S.W. 3d 100, 102 (Tex App. Texarkana 2000 pet.                    Ref'd)   10



TEXAS CONSTITUTION ART. 1, Sect. 9                             ...      j_.    7

TRANSPORTATION CODE          724.012                                           7

ABA MODEL RULE OF PROFESSIONAL CONDUCT 3-8                                    3J.

ABA    MODEL   RULE   OF   PROFESSIONAL    CONDUCT 4-4,1                      11




                                             ill -
                               NO.



                                                    IN    THE


                                    COURT     OF    CRIMINAL         APPEALS


                                                   OF    TEXAS




                                           ALFRED        LEE       RICE,
                                                                      Petitioner,

                                                         V.


                                        THE    STATE          OF    TEXAS,
                                                                           Appellee,




                            PETITION         FOR    DISCRETIONARY               REVIEW

                                                               r



TO    THE    HONORABLE         COURT    OF    APPEALS:


       Petitioner           respectfully             presents             his     Petition for Discre

tionary Review              (PDR)       seeking          relief for a decision by the 11TH

Court        of     Appeals         that      contrary             to decisions by this Court on

the    same       issue.


                            STATEMENT         REGARDING            ORAL    ARGUMENT


      Petitioner respectfully                      ask    that        Oral        Arguments be held in

this        proceeding         in      order        to    amplify           the issues presented in

this petition.

                                       STATEMENT         OF    THE    CASE


      The facts          are    as      laid out in petition were that on or about

November           16,     2012,       petitioner             was     driving       his automobile on

Lamesa        Rd. in Midland County, Texas. Also, there was a passenger

                                                         1.
in the car by the                   name    of     Benita        Harmon, who died as a result

from        injuries          that       occurred       from         an accident when petitioner

struck        an     automobile            at    Walnut       Lane and       Lamesa Rd.,        when a    car

driven by Ivan Hearnes ;(RR 7:102). Hearne was injured, but                                              sur

 vived (RR 7:25-26).                 Petitioner             allegedly         had       a     blood-alcohol

 level        of     .271       according         to a blood-draw taken at the hospital

 without his consent.                 It alleged that petitioner was traveling                             78

 miles       per      hour in a 35 mile per hour zone (RR 7:37, 184). Peti

 tioner had the right of way,                      his head-lights were on,                     and he    had

 the        right of way regardless of his speed. The accident was actu

 ally       cause        by     Hearnes,        because there's no evidence of anything

 that blocked his view of petitioner's vehicle.

                                           PROCEDUAL          HISTORY


       Petitioner was               charged with "Aggravated Assault with a Deadly

Weapon,"           in Count One of a Four Count indictment,                                 and "Intoxica

 tion Manslaughter in Count Four,                           the court assessed punishment at

 50     years        confinement,           and        60-years        in     Count Two. Petitioner

 appealed to the 11TH Court of Appeals,                               Cause         #       11-13-00302-CR.

 The conviction was affirmed on, Ul_iOLD^A JbU>J^-/)5- No rehearing
 was sought, on the \Q                      day of December. Petitioner                            forwards
 this        Petition          for Discretionary Review to                    the Court of Criminal

 Appeals in Austin,                 Texas by First Class U.S.                     Mail.

                                     GROUND      FOR    RELIEF       NO.    ONE


 DID    THE       11TH   COURT      OF   APPEALS       DECISION       OF    PETITIONER         CLAIM   THAT
THERE       WAS    INSUFFICIENT          LEGAL    EVIDENCE       IN    CONFLICT         WITH    DECISIONS
OF    THE    COURT    OF      CRIMINAL     APPEALS       ON    THE    SAME    ISSUE.


       Petitioner             was    arrested          for DWI based on contents of (BAC)

results that was illegally taken,                           he was released two weeks later,

                                                       2.
but later arrested and charged with Aggravated Assault with                                                                a

Deadly              Weapon,              and     Intoxication             Manslaughter              using      the same

(BAC)       test results.

      Petitioner argued on appeal that,                                       the law states that to                  ob

tain        a        conviction for DWI,                      there must be proof that at the time

of     the accident,                      was petitioner intoxicated, the State abandoned

the     "intentional                       and knowing" portions of Count One,                              the aggra

vated assault with a deadly weapon.

      The           11TH           Court        of     Appeals          overlooked           an unassigned fact,

"Actus          Non          Facit       Reum    Nisi     Mens     Sit    Rea,"        an     act       does   not   make


the     actor                 guilty           unless the mind be guilty;                     that is unless the

intent          be       criminal,             the    intent,      and    the    act       must    both   concur       to

 constitute                       the     crime,          (citing        Lord     Keyon,           CJ. 7. Term 514;

 English Common Law).

        The              appellant              counsel          failed        to challenge that issue,                but

 focused                 on        the     fact that there was no proof to show that peti

 tioner             was       intoxicated            at    the    time    of    the    accident.


       There was no evidence to                                  prove        that at the time of the acci

 dent,          whether petitioner was at                           .08 or below,             nor whether it           was

 greater.                    In Mata V. State,                46 S.W.         3d 902 (Tex. Crim. App.                2001),

 the Texas Court of Criminal Appeals explained "retrograde . extra

 polation                    is     the        computation          back in time of the blood alcohol

 level that is,                         the estimation of the level at                        the time of driving

 based          on       a    test       result        from      some    later    time."          Id.   908.   The   court


 stated that a particular absorption rate depends on a variety                                                             of

 factors,                    including           inter        alia,       food        in     the stomach, gender,

 weight,                 age        amount           consumed,          and     period        of consumption.          Id.

        .       -    .                                              3.
at    909-10.


      The     State        lacked     this vital information which was necessary

to get an accurate extrapolation result.                              Considering time of                the

accident,          and the period of time it took before the illegal blood

draw.       Such information was vital,                     yet•the State failed to present

evidence that proved petitioner was intoxicated at the time                                               of

the     accident           as     required        by     due       process.       See In Re Winship,

397 U.S.       358,       364 (1970).

      The smell           of     alcohol on petitioner's breath,                        slurred speach,

or bloodshot eyes only demonstrated a clue of intoxication.                                         Look

ing at the facts of this case show that applicant was just trapp

ed inside of his car. also,                      he was not consciously aware of thing

at    that    moment       because    of    the    accident.         And    he    was    confused   as      a

result,       which       didn't    mean    he    lost      the    normal    use    of    his   faculties

as a result of being intoxicated.

      The 11TH Court of Appeals erred by not agreeing that the                                        cul

pable mental state related to the conduct elements involved                                               in

this particular offense was not proven because as alcohol is con

sumed,        it passes from the stomach and intestines into the blood,

a process referred to as absorption.                              When the alcohol reaches the

brain        and     nervous system,             the characteristic signs of intoxica

tion begin to show.                Mata V. State,            46 S.W.       3d at 909.

      Alcohol       concentration          raises      at    least    more       than a    hour and         a

half after the last drink.                   In other words a person could possible

be     as     much        as a    .06 less       than a      .09,    two hours and          ten minutes

earlier,           but     had     a retrograde extrapolation determination been

considered           in        this case, alone with the requirements to measure

                                                            4-
the absorption rate,                the results would have shown that petitioner

may     have       had      a     drink, but was not intoxicated when the driver

pulled out in front of him, because looking at all the facts,                                  it

clearly        show        that     the        driver     of     the other vehicle more than

likely       was doing something that distracted him from seeing peti

tioner       approaching            the        intersection,          or   possibly sleep. Both

vehicles are equiped with                       what's        known    as the black box,    which

keeps data to show what occurred (10) seconds before the accident.

This was vital to show if the driver actually stopped at the stop

-sign or to actually determine the speeds both drivers were                                   go

ing.     The       accident         was        caused     when the driver pulled into the

intersection when petitioner was approaching with his head lights

on.    Even though the 11TH Court of Appeals agreed that petitioner's

(BAC)        level        was consistent with someone being intoxicated while

at the hospital,                it does not support a finding that the (BAC)                   at

the time of the accident was consistent enough to show what                                   his

(BAC)        was     at     the     time        of the accident. Article 6701,          1-5 § 1

(Vernons).

       Petitioner           argued        on appeal also about voluntariness of the

blood        draw,        bringing        it     to the attention of the llTH Court of

Appeals        that        he     never        signed     a DIC-24 card,       nor give consent

for    the    blood       draw.


      The llTH Court of Appeals decision should be reversed based on

the fact that it fail to                       meet     the due process requirements that

mandatory          by under the Fourteenth Amendment of the United States

Constitution,             requiring proof beyond a reasonable doubt,                   it    con

flicts with the Supreme Court's decision in Minnesota V.                                Carter,

                                                         5.
529 U.S.              83.     Also       the Texas Court of Criminal Appeals decision

in Mata V. State,                  46 S.W 3d 902.                 A careless driver cannot pull in

front of a speeding car, cause an accident, and not be considered

guilty just because the driver of the other vehicle smelled                                                               like

alcohol,              because           even        if        petitioner              had been going the speed

limit,       the fact still would remain the same,                                           which is,          the driver

was distracted, and pulled out in front of the petitioner causing

the accident,                and the           llTH           Court        of     Appeals           decision          should

be    reversed.


                                         GROUND          FOR    RELIEF          NO-    TWO


WHETHER           THE        llTH       COURT       OF    APPEALS          DECIDED       AN    IMPORTANT            QUESTION
OF    STATE       AND       FEDERAL       LAW       IN    A    WAY    THAT       CONFLICT 'S         WITH       APPLICABLE
DECISION          S    OF    THE    CODE       OF    CRIMINAL             PROCEDURE          AND    THE    U    S    SUPREME
COURT.


      The Court of             Appeals erred their                          review of petitioner's claim

where        he        challenged the admission of test results of an illegal

blood draw,             in which he argues the blood specimans were illegally

drawn.


       The        Fourth           Amendment             prohibits               unreasonable              searches and

seizures.              Minnesota           V.       Carter,          525    U.S.       83,    88,    119       S.   Ct.   469,

142 L. Ed. 2d 373 (1998). The Supreme Court has also agreed                                                               that

it's    a    violation             of    the    Fourth,          and       Fifth       Amendment.

      Petitioner never agreeded to giving a blood speciman, nor sign

the DIC-24              warning.           Petitioner                 argued           that his conviction was

based solely upon the lack of evidence resulting in the denial of

due process as required by the United States Constitution in both

the     Sixth           and        Fourteenth.                See In Re Winship,                   397 U.S. 358,           364

(1970).

                                                                     6.
      The Court           of    Appeals was asked whether the blood draw lawful

or nor, citing Missouri V. McNeely, 133 S. Ct- 1552 (2013), where

the     court stated that                "... where officers can reasonably obtain

a search warrant for a blood draw without significantly undermin

ing     the       efficacy of the search,                  the 4TH Amendment mandates they

do so." The officers had sufficient opportunities to obtain                                      a

search        warrant          prior     to       obtaining petitioner's blood,           because

prior        to    him being transported by EMS to the hospital, officers

suspected          he was intoxicated, and had ample time to seek a warr

ant while he was being transported to the medical facility.

       The records show that the defense counsel did object to State

presenting the blood test results (RR 7:200). The objection                                   was

based on the fact that,                  applicant never consented to a blood draw,

there was          no      warrant.        Also,         there     was nothing suggesting the

"efficacy"           of        obtaining      a     search       warrant would undermine the

blood.


      Drawing blood from a suspect is search and seizure within                                the

scope        of    the Fourth Amendment to the United States Constitution,

and     Article           1,     Section      9     of    the    Texas   Constitution.   V.T.CA.

Transportation Code 724-012 (b)(1).

       The        records        established that petitioner was in the hospital

following the automobile collision when his blood was drawn with

out his           affirmative          consent,          and not being under arrest at         the

time     his blood was drawn.                 Mosely V. State,            348 S.W.   3d ,435 (Tex.

App.    Austin 2011).

      The Court of Appeals in this case failed to consider decisions

made by their sister court's on this issue, and concede to                                     the

                                                          7.
fact that        the     officers          could           not     constitutionally do a blood

draw     absent        consent,      or a warrant.                The implied consent law pro

vides a framework for driving-while-intoxicated defendants absent

a    search    warrant      which    was       not    followed         here,    there     was   no   exi

gent circumstances,               there was no arrest at the time,                        and officers

lacked        probable       cause        to     do        a blood draw,         content (BAC)       test

without petitioner consent.                     Coffey V. State,               435 S-W.    3d 834 (Tex.

App. Texarkana 2014); State V. Weber,                              347 S-W. 3d 381 (Tex.             App.

San Antonio          2008).        The question of whether police employed rea

sonable        means,       and reasonable procedures in taking petitioner's

blood,    the    answer      would    be       no,    because       their      actions    cannot       be

justified requiring the court to reverse the llTH Court of Appeals

decision,        base       on     several fact's including the fact that peti

tioner was not officially charged with aggravated assault with                                             a

deadly weapon,          or intoxication manslaughter,                          he was arrested         on

driving        while     intoxicated,                and        released       two-weeks later. The

penalty        for     refusing (BAC) testing at that time did not require

or     give     officers          authority to do a blood draw without consent,

it     would     have       resulted           in suspension of his driver's license,

or possible jail time.

                                 GROUND    FOR       RELIEF      NO.   THREE


WHETHER        THE     llTH COURT OF APPEALS DECIDED AN IMPORTANT QUESTION
OF  STATE  AND  FEDERAL                   LAW ON PETITIONER'S CLAIM THAT THE STATE
IMPROPERLY  ENGAGED  IN                   BOLSTERING  IN  A WAY THAT CONFLICT WITH
DECISIONS       BY   THIS    COURT.


      Petitioner presented facts to the llTH Court of Appeals suffi

ciently pointing out the claim he made that during closing remarks

the     prosecutor          began     improperly                 bolstering       by     testifying as

                                                           8.
a    fact-witness-.


      The records show that in one instance the prosecutor told                             the

jury     that,     "when       you have all the evidence in front of you the

presumption        of     innocence goes away as all the evidence continue

to pile up." (RR 9:107), petitioner also argued that the prosecu

tor     argued a rhetorical question of whether petitioner was using

and/or exhibiting a deadly weapon,                      then answered his own question

for the jury stated "absolutely"                   (RR 9:108).

      Petitioner        provided      case law established by this Court which

states that a prosecutor may not bolster their case during summa

tions,     which        is fundamental law,             also a prosecutor may not give

personal        opinions       because       jurors may assume or infer that such

opinion     is     based on information hot known to them,                     but is known

to the prosecutor.

       Before     a trial begin,         most jury members are taunted                because

of     the shows on       television such as             law and    order;   CSI;   and   tends

to think that because a person has been arrested and charged with

a crime they did something.,              but in the real world that's not                  the

case.    In this case the prosecutor took advantage of that by impro

perly     bolstering,          leading       the    jury       to   believe petitioner is

guilty     absent        the    proof     required by the U.S.           Supreme Court in

In Re Winship,          397 U.S.     358 (1970). See also Jackson V. Virginia,

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

      The law states that bolstering occurs when one party introduce

evidence for purpose of adding credence or weight to earlier unim-

peached offered by the same party.                      Mumphrey V. State,      155 S.W.     3d

651 (Tex.       App. Texarkana 2005); Rousseau V. State, 855 S.W.                            2d

                                                   9.
666,   681 (Tex. Crim. App. 1993). See also Wood V. State,                                        13     S.W.

100, 102 (Tex. App. Texarkana 2000 pet- Ref'd).

                                     GROUND      FOR    RELIEF    NO.   FOUR


RESTATE           GROUND           NUMBER       THREE:    WHETHER THE        llTH COURT OF         APPEALS
DECIDED                AN      IMPORTANT QUESTION OF LAW IN A WAY THAT CONFLICTS
WITH    BOTH       STATE       AND    U.S.      SUPREME       COURT DECISIONS

      Petitioner continues to point                            out the error by the prosecutor

during closin'g argument which cannot be said to had been harmless,

because petitioner presented the llTH Court of Appeals with                                               re

cords,        and           references showing the misconduct by the prosecutor.

      The records shows the prosecutor improperly told the jury that

petitioner was "absolutely" guilty of reckless driving,                                          "no doubt

about it"          (RR 9:108-109),               he also stated "you're gonna find                        him

guilty        of Count 1." (RR 9:108-109), and "you sure as heck better

find        him        guilty        of     regular       manslaughter,           because he did it."

(RR 9:118) .

      Petitioner pointed out those statements in the previous ground

because the error not only bolstering,                                but improper,           because      it

highly        prejudicial.                The     prosecutor took the position as a fact

witness           by        clearly       crossing        the     lines of        the four acceptable

parameters              of     acceptable             closing     argument         stating as a fact,

"He's guilty."                (RR 9:118) .

       In     Ester           V.    Texas,      381    U.S.    532,   540,   94    S.   Ct.    1628,    1631,

14 L. Ed 2d 543 (1965),                      the U.S.         Supreme Court stated "a prosecu

tor     should              refrain       from        arguments which would divert the jury

from its duty to decide the case on the evidence," which was                                                   a

requirement ignored in                       this case. Also ignored by the llTH Court

of     Appeals. The solemn purpose of endeavoring to ascertain truth

                                                          10.
...    is the sine qua non of a fair trial.

      The summation           of        the     case by the prosecutor cut to the very

heart of the Due Process Clause by diverting the jury's attention

from the ultimate question of guilt/innocence which was the                                     cen

tral    concern.


      The llTH Court of Appeals as part of                            the Department of Justice

has an obligation to prevent such prosecutorial misconduct.                                     See,

United     States        V.        Kojayan,           8 F. 3d 1315,        1323 (9th Cir. 1993).

See also,       Berger V. United States,                       295 U.S.    78 (1935). Their      job

is not to just win,                 but to win fairly,                staying within the rules.

Berger,    295 U.S.       at 88.

      The HTh      Court           of     Appeals        decided        on a matter of law in a

manner     that's contrary to decisions by the United States Supreme

Court on the same issue.                      The prosecutor in           this case acted       with

flagrant        misbehavior,              presenting           substantial       prejudice to the

outcome     of     the        case violating Model Rule 3.8,                     and 4-4,1 of the

American Bar        Association                 Model      Rules       of professional Conduct,

depriving        petitioner's                 Sixth     and      Fourteenth      Amendment rights

guaranteed by the United States Constitution.

      The prosecutor's improper arguments which were precipitated by

overzealous prosecution deprived petitioner of substantial rights.

Temple V. State,              342        S.W.    3d 572 (Tex.          App.   Houston [14TH Dist]

2010).    In light of the records as a whole, the arguments by                                   the

prosecutor was extreme,                   and manifestly improper,               violative of         a

mandatory        statute,           the       argument         was     willful and a calculated

effort     on     the part of             the State to deprive petitioner of a fair

and     impartial        trial.         Cantu V. State,              939 S.W.   2d 627,   633 (Tex.

                                                        1.1.
Crim. App.           1999);           Cooks        V.        State,     894 S.W.    2d 697, 727 (Tex.

Crim.     App.        1992);           Todd        V-        State, 598 S.W.       2d 286 (Tex. Crim.

App.    1980).

Reversal        is        required in this case as a result of the misconduct

by the prosecutor.

                                                        PRAYER


      Petitioner pray that the Court sustain the petition base                                          on

the fact that the llTH Court of                               Appeals decision was wrong because

its clear the blood draw was done prior to charges being formally

filed,    and    absent          consent       or       a    warrant-    There was    no   DIC-24     card

signed     agreeing              to        allow        (BCA) testing., which violated peti

tioners        Fourth        Amendment              protection.          Also,   there's no evidence

that show's petitioner                       was        at    fault for the accident,         but there

is evidence that proved he T-Boned a vehicle that pulled out                                            in

front of him. Regardless of his speed,                                  the only evidence counsel's

were not seeking was,                      what distracted the driver causing him                       to

pull in front of petitioner's vehicle.                                  His phone records,      or phone

were examined to determine whether or not he was texting or talk

ing when he pulled away from a stop sign in front of petitioner's

vehicle.


      The prosecutor sought to win only,                              not seek justice which           was

shown     by     the        improper argument's conveying his personal belief

that petitioner was guilty to bolster the credibility of his case.

The    facts    are       clear       in    this    case       that   one,   intoxicated     or not,    it

didn't cause the driver to pull out in front of his vehicle,                                            or

cause     him        to     be        distracted,              this   case   should   be   reversed    and

remanded with an order for acquittal.

                                                               12.
                                                C&kaA &a. Q&aTM^
                                               Alfred      Lee    Rice   #   188825J




                               INMATE   DECLARATION


I, Alfred L. Rice    , an inmate of the Texas Department of Criminal

Justice,   presently      at     the Allen Polunsky Unit,                declare on this

the /_£2___ day of      December       2015,     that       all claims presented in
this petitioner are true and correct.




                                                 Alfred      Lee    Rice     #   1888258




                          CERTIFICATE      OF    SERVICE



   I   certify   that     a true and correct copy of this Petition for

Discretionary    Review        (PDR)    was sent by First Class Mail to the

HTh Court of Appeals on this the |Q                     day of December 2015.



                                                                  ^&W?<«^
                                               Alfred      Lee    Rice   #   1888258




                                               Alfred      Lee    Rice   #   1888258

                                               Allen B.      Polunsky Unit
                                               3872   FM    350    South

                                               Livingston,         Texas 77351




                                           13.
Opinion filed October 30, 2015




                                              In The



        eietentj) Court of gapeate
                                   No. 11-13-00302-CR



                          ALFRED LEE RICE, Appellant
                                               V.

                       THE STATE OF TEXAS, Appellee


                      On Appeal from the 142nd District Court
                             Midland County, Texas
                             Trial Court Cause No. CR41089




                        MEMORANDUM                     OPINION

      The jury convicted Alfred Lee Rice of two offenses: aggravated assault with
a deadly weapon and intoxication manslaughter.1           The trial court found two
enhancement allegations for prior felony convictions to be "true" and assessed
punishment at confinement for fifty years for the aggravated assault conviction and
confinement for sixty years for the intoxication manslaughter conviction. The trial

      'Each offense had a different victim.
court ordered both terms of confinement to run concurrently and sentenced
Appellant. Appellant raises four issues on appeal. We affirm.
                                     I. The Charged Offenses
        The grand jury indicted Appellant for aggravated assault with a deadly
weapon, a motor vehicle. The grand jury alleged that Appellant recklessly caused
bodily injury to "Ivan Hearn[e]"2 when Appellant operated a motor vehicle that
struck Hearne. The grand jury also alleged that Appellant used and exhibited a
deadly weapon, a motor vehicle, during the commission of the offense. A person
commits the offense of aggravated assault with a deadly weapon when he recklessly
causes bodily injury to another person and, in doing so, uses or exhibits a deadly
weapon. Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2014), § 22.02(a)(2)
(West 2011).
        The grand jury also indicted Appellant for intoxication manslaughter. The
grand jury alleged that Appellant, while he was intoxicated, operated a motor vehicle
occupied by Benita Harmon and that Appellant, by reason of his intoxication, caused
the death of Harmon when his vehicle collided with Hearne's vehicle. A person
commits the offense of intoxication manslaughter if the person operates a motor
vehicle in a public place while intoxicated and, by reason of that intoxication, causes
the death of another by accident or mistake. Id. § 49.08(a).
                                        II. Evidence at Trial

        Appellant drove his vehicle, a Buick Roadmaster, northbound on Lamesa
Road in Midland late one November night, and did so at a high rate of speed that
was well in excess of the posted 35-mile-per-hour speed limit. Around the same
time, Hearne drove his vehicle westbound on Walnut Street where he came to a stop




         2We note that the indictmentalleged injury against "Ivan Hearn." At trial, however, Ivan testified
that he spelled his last name "Hearne." We will use the latter spelling throughout the rest of the opinion.

                                                    2
sign at the intersection of Walnut Street and Lamesa Road.3 After Hearne came to
a complete stop, a vehicle passed by him as it traveled southbound on Lamesa Road.
After the vehicle passed, Hearne looked both ways again and saw no traffic traveling
from either direction on Lamesa Road.

      Hearne began to cross Lamesa Road to continue westbound on Walnut Street,
but he never got through the intersection. As Hearne pulled into the intersection, he
looked to his left and saw headlights very close. The front of Appellant's vehicle
collided with the driver's side of Hearne's vehicle. Hearne next remembered a man

awakening him while Hearne was still in his vehicle. The man told Hearne that
Hearne had been hit by a vehicle that "had to have been going about 100 when [it]
hit [him]." Hearne believed that he did not see the vehicle because it was traveling
so fast.   Harmon, a passenger in Appellant's vehicle, sustained injuries in the
collision and died shortly afterward.
       Chad Simpson, a sergeant with the Midland Police Department, responded in
less than a minute to the scene of the collision. Another Midland police officer, Juan
Gutierrez, also responded to the scene. Sergeant Simpson testified that, as he neared
Appellant's vehicle, he smelled an odor of alcohol; he also noted that, when he spoke
to Appellant, Appellant's speech was slow and "very slurred." Appellant admitted
to Sergeant Simpson that he had been drinking. Appellant and Hearne both were
taken via ambulance to the hospital, but neither had suffered life-threatening injuries
in the collision. Officer Gutierrez testified that he smelled alcohol on Appellant's
breath when he rode in the ambulance with Appellant.
       Once Appellant was at the hospital, Clark Owen, an officer with the Midland
Police Department, interviewed him. Officer Owen testified that Appellant had a
strong odor of alcohol on his breath, that his speech was slurred, and that he appeared


       3There was no stop sign on Lamesa Road and no stop light at the intersection.
                                                   3
intoxicated. Appellant admitted to Officer Owen that he had been drinking, but
Appellant claimed that he had not consumed enough to get him drunk.                                  While
officers interviewed Appellant at the hospital, Tami Hamill, a nurse, drew six vials
of Appellant's blood.
        Hamill testified that the first vial she filled was for the Midland Police

Department. After she filled the first vial, she handed it directly to Officer Gutierrez.
The first vial was sent to Marissa Silva, a chemist with the Texas Department of
Public Safety laboratory in Midland. Silva performed a "whole blood" test on the
blood and testified that Appellant's blood alcohol content was 0.258 grams of
alcohol per 100 milliliters of blood present.
        Hamill testified that she drew blood into the other five vials as ordered by
emergency room physicians. These five vials were sent to hospital personnel, who
conducted several tests including a "serum test" on the blood. The results of that
test indicated that Appellant's blood alcohol level was 0.27.4
        Richard Moore, an officer with the Midland Police Department and an expert
in traffic collision reconstruction, conducted an investigation ofthe collision. Based
on his investigation and expertise, Officer Moore created a "to-scale" diagram of the
scene of the collision. After Officer Moore had completed his calculations on speed
as part of his reconstruction of the collision, he concluded that, when the two
vehicles collided, the speed of Appellant's vehicle was at least 78.01 miles per hour,
while the speed of Hearne's vehicle was 17.17 miles per hour. Officer Moore further
testified that the posted speed limit on Lamesa Road was 35 miles per hour and that
the posted speed limit on Walnut Street was 30 miles per hour.

         4The slightly different results from the blood analyses, as described by Hamill and found in the
medical records of Appellant and as completed by Silva, are attributable to the different types of tests that
were performed. Silva testified that she would expect a serum test, as used by the hospital, to reflect a
slightly higher, but insignificantly different, amount of alcohol present than the "whole blood" test that
Silva used to test Appellant's blood.
         At trial, outside the presence ofthe jury, Officer Gutierrez testified that, before
Appellant's blood was drawn, he read Appellant the statutory warnings on the DIC-
24 form5 that outlined the consequences of a refusal to submit to a breathalyzer test
or to give a blood specimen. The record does not explicitly indicate that Appellant
refused, but Officer Gutierrez testified that he relied on the mandatory blood draw
statute6 that directed a draw of Appellant's blood. Officer Gutierrez further testified
that, even though he could have done so, he did not obtain a warrant for the blood
draw.      Instead, Officer Gutierrez chose to rely solely on the implied consent
provision of the Transportation Code.
                                        III. Issues Presented

         Appellant asserts that there was insufficient evidence to prove that Appellant
was intoxicated at the time of the collision and that, as such, the evidence was

insufficient to support his conviction for intoxication manslaughter. Second, he
asserts that the trial court erred when it admitted evidence of an illegal blood draw
conducted without a warrant or an applicable exception to the warrant requirement.
In his third and fourth issues, he asserts that the State engaged in improper bolstering
during closing argument and made other improper comments during its closing
argument.

                                     IV. Standards ofReview
         We review the sufficiency of the evidence under the standard of review set
out in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893,
912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—
Eastland 2010, pet. refd). Under the Jackson standard, we examine all of the


        5A DIC-24 form is a Department of Public Safety form that provides the warnings outlined in
Section 724.015 of the Texas Transportation Code. See TEX. TRANSP. CODE ANN. § 724.015 (West Supp.
2014).

         6See id. § 724.012(b) (West 2011).
evidence in the light most favorable to the verdict and determine whether, based on
that evidence and any reasonable inferences from it, any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010).
         We review the admission or exclusion of evidence for an abuse of discretion.

Powers v. State, 165 S.W.3d 357, 359 (Tex. Crim. App. 2005) (citing Green v. State,
934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996)). Under an abuse of discretion
standard, we will reverse a trial court's decision only if the trial court acted
arbitrarily, unreasonably, or without reference to any guiding rules or principles. See
Montgomery v. State, 810 S.W.2d 372, 390-92 (Tex. Crim. App. 1991). We will
uphold the trial court's ruling if it is within the zone of reasonable disagreement. Id.
at 391.

                               V. Discussion and Analysis
         We address Appellant's first and second issues and then collectively address
his third and fourth issues.

         A. Issue One: Sufficiency ofthe Evidence
         Appellant contends that the State adduced insufficient evidence to convict him
of intoxication manslaughter because there was insufficient evidence that he was
intoxicated at the time he operated his vehicle. Appellant asserts that he never
consented to the blood draw, and he implies that, without that evidence, he could not
have been convicted of intoxication manslaughter. The State asserts that it proved,
with sufficient evidence, a temporal link between Appellant's driving and his
intoxication.

         The State correctly notes that it must prove a temporal link between a
defendant's intoxication and his driving. Kuciemba v. State, 310 S.W.3d 460, 462
(Tex. Crim. App. 2010). But "proof of the precise time of the accident or of driving
                                            6
is not the sine qua non of driving while intoxicated." Kennemur v. State, 280 S.W.3d
305, 314 n.8 (Tex. App.—Amarillo 2008, pet. refd) (citing Zavala v. State, 89
S.W.3d 134, 139 (Tex. App.—Corpus Christi 2002, no pet.)). There must be proof
from which the jury can conclude that, at the time of the driving in question, the
defendant was intoxicated. Zavala, 89 S.W.3d at 139. Proof can be from direct or
circumstantial evidence, and the latter is as probative as the former; the standard of
review for both is the same. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App.
2004).     And a conviction can be supported solely by circumstantial evidence.
Kuciemba, 310 S.W.3d at 462 (citing Guevara, 152 S.W.3d at 49).
         Hearne testified that he stopped at the intersection, looked both ways after a
vehicle passed, and then pulled out into the intersection. Appellant drove his vehicle
at more than twice the legal speed limit and collided with Hearne's vehicle. There
were no skid marks from Appellant's vehicle at the scene of the collision that would
have indicated he braked before the collision. Harmon suffered severe injuries from
the collision, and Dr. Kyungho Scott Choi, an emergency room physician,
pronounced her dead. She had severe damage to a great blood vessel that either
came into or went out of her heart, she had no pulse, and an X-ray showed fluid in
her left chest cavity.
         Sergeant Simpson noted that Appellant's speech was slow and "very slurred,"
as did Officer Owen. Sergeant Simpson smelled an odor of alcohol on Appellant,
as did Officer Gutierrez, Officer Owen, and Doctor Choi. Appellant admitted to
Sergeant Simpson and Officer Owen that he had been drinking. Annis v. State, 578
S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.] 1979) (as a general rule, the
testimony of an officer that a person is intoxicated provides sufficient evidence to
establish the element of intoxication for the offense of driving while intoxicated);
Kijfe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet.
refd); Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—Houston [1st Dist.]
                                            7
2000, pet. refd). And there was additional evidence of intoxication. Hamill testified
that hospital personnel conducted a "serum test" and that the results indicated that
Appellant's blood alcohol level was 0.27, well above the 0.08 limit for proof of
intoxication. Silva performed a "whole blood" test and testified that Appellant's
blood alcohol content was 0.258 grams of alcohol per 100 milliliters of whole blood
present.

       A reviewing court may not reevaluate the weight and credibility of the
evidence and substitute its own judgment for that of the factfinder. Dewberry v.
State, A S.W.3d 735, 740 (Tex. Crim. App. 1999). The trier of fact is the sole judge
of the weight and credibility of the evidence. Brooks, 323 S.W.3d at 899 (citing
Jackson, 443 U.S. at 319, 326). We have reviewed the record, and the jury, as the
sole arbiter of the facts, believed the testimony of the police officers and others. We
must presume that the jury resolved any conflicting inferences in favor of the
prosecution and defer to that resolution. Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007). There was sufficient evidence for a rational jury to find beyond
a reasonable doubt that Appellant was intoxicated at the time he operated his vehicle
and collided with Hearne's vehicle. When this occurred, Appellant injured not only
Hearne and himself as a result of his intoxication, but he also injured Harmon, who
later died from those injuries. Therefore, the evidence supports Appellant's
conviction for the offense of intoxication manslaughter. We overrule Appellant's
first issue.

       B. Issue Two: Warrantless Blood Draw

       Appellant argues that "the search and taking of [his] blood was
unconstitutional and improper" and that the trial court erred when it admitted
evidence derived from that illegal search. If the warrantless mandatory blood draw
violated Appellant's rights under the Fourth Amendment, we must reverse the
judgment unless we determine beyond a reasonable doubt that the error did not
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contribute to his conviction or punishment. Tex. R. App. P. 44.2(a); see Neder v.
United States, 527 U.S. 1, 15-18 (1999); Chapman v. California, 386 U.S. 18, 23-
24 (1967); Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007) {Chapman
test codified in Rule 44.2(a)); see also Hernandez v. State, 60 S.W.3d 106, 108 (Tex.
Crim. App. 2001) (harmless error review under Rule 44.2(a)); Neal v. State, 256
S.W.3d 264, 284 (Tex. Crim. App. 2008) (harmless error analysis under Rule
44.2(a)).
      The goal of the reviewing court is to "calculate, as nearly as possible, the
probable impact of the error on the jury in light of the other evidence." Neal, 256
S.W.3d at 284 (quoting Jones v. State, 119 S.W.3d.766, 777 (Tex. Crim. App. 2003))
(internal quotation marks omitted). Some factors to review may include: (1) the
importance of the inadmissible evidence; (2) whether the inadmissible evidence was
cumulative of other admissible evidence; (3) the strength of the State's case; and
(4) the State's emphasis on the inadmissible evidence. See Clay, 240 S.W.3d at 904;
Davis v. State, 203 S.W.3d 845, 852 (Tex. Crim. App. 2006). The reviewing court
should also consider any factor that may shed light on the probable impact of the
trial court's error on the minds of average jurors. Davis, 203 S.W.3dat852. Another
factor is whether other evidence that is substantially similar to the inadmissible
evidence was admitted at trial. Meggs v. State, 438 S.W.3d 143, 147 (Tex. App.—
Houston [14th Dist.] 2014, pet. refd).
      Even if we assume, without deciding, that the blood draw done for the
Midland Police Department, without a warrant, was erroneously admitted into
evidence and that such evidence was both important and emphasized, the error is
nonetheless harmless. See Meggs, 438 S.W.3d at 147. In Meggs, DNA evidence on
the defendant's pants was similar to other DNA evidence found at the crime scene.
Id. There, our sister court held that, even if for the sake of argument there was an
error, such error was harmless beyond a reasonable doubt.         Id.   Hamill drew

                                          9
Appellant's blood at the hospital at the orders of the emergency room physicians for
the purpose of medical diagnosis and treatment.         Appellant's medical records
included the results of the serum blood test conducted by the hospital, and those
records were admitted at the beginning of the trial without objection by Appellant.
Later, Hamill testified, also without objection by Appellant, that the results of the
serum test indicated that Appellant's blood alcohol level was 0.27.
      Absent the testimony of Silva, the blood alcohol test results from Appellant's
medical records and the testimony of Hamill, which were both admitted without
objection, were properly before the jury. State v. Hardy, 963 S.W.2d 516, 527 (Tex.
Crim. App. 1997) (blood draw by private actor—hospital— does not violate Fourth
Amendment); see also Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004)
(where inadmissible evidence was admitted without objection by defendant, no
reversible error occurs). With the serum blood test evidence already before the jury
and the other evidence previously outlined, including Appellant's actions and
physical condition at the time ofthe collision as well as his post-collision statements,
we conclude that any error in the admission of Silva's testimony and other evidence
related to the first vial of blood drawn did not contribute to Appellant's conviction
because the result of the trial would have been the same. Therefore, we can say
beyond a reasonable doubt that the blood draw evidence taken for the Midland Police
Department did not contribute to Appellant's conviction.                See TEX. R.
App. P. 44.2(a); Meggs, 438 S.W.3d at 147. We overrule Appellant's second issue.
      C. Issues Three & Four: Bolstering and Improper Comments
      Appellant asserts that the State engaged in improper bolstering of its case in
its closing argument when the prosecutor remarked, "Except for one thing, and that's
that that presumption of innocence stops as soon as we started presenting evidence."
Appellant also complains that the State made additional improper comments in its
closing argument.

                                           10
      The State errs when it argues that the jury should believe a witness simply
because the prosecutor does. See Gardner v. State, 730 S.W.2d 675,698 (Tex. Crim.
App. 1987). This type of argument is improper because it attempts to bolster the
credibility of a witness through unsworn testimony by the prosecutor.             See
Menefee v. State, 614 S.W.2d 167, 168 (Tex. Crim. App. 1981). But a prosecutor
may argue his opinion concerning a witness's credibility or the truth of a witness's
testimony if the opinion is based on reasonable deductions from the evidence and
does not constitute unsworn testimony. Wolfe v. State, 917 S.W.2d 270, 281 (Tex.
Crim. App. 1996); McKay v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985). In
addition, a prosecutor may argue about the credibility of a witness if the defendant
invited such argument and the prosecutor's arguments respond to the defendant's
argument. Chapman v. State, 503 S.W.2d 237, 238 (Tex. Crim. App. 1974).
      To preserve a claim that the prosecutor has injected his or her personal opinion
into the case, the defendant must object. Valdez v. State, 2 S.W.3d 518, 521 (Tex.
App.—Houston [14th Dist.] 1999, pet. refd). Likewise, to preserve any error based
on improper jury argument, the defendant must object to the argument and pursue
the objection until an adverse ruling is made by the trial court.            Tex. R.
App. P. 33.1(a); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004);
Hinojosa v. State, 433 S.W.3d 742, 761 (Tex. App.—San Antonio 2014, pet. refd).
The objection must be "a timely, specific objection." Young v. State, 137 S.W.3d
65, 69 (Tex. Crim. App. 2004).       Appellant failed to object during the closing
arguments made by the State. Appellant has waived his complaints raised in Issues
Three and Four on appeal. See Tex. R. App. P. 33.1(a); Mendez, 138 S.W.3d at 341;
Hinojosa, 433 S.W.3d at 761. We overrule Appellant's third and fourth issues.
                                  VI. Conclusion

      We hold that there was sufficient evidence for a rational jury to find beyond a
reasonable doubt that Appellant was intoxicated at the time he operated a motor
                                         li
vehicle that collided with Hearne's vehicle and that, as a result, he injured Hearne
and killed Harmon. We also hold that, even if the evidence from the blood draw for
the first vial of blood was erroneously admitted, that error is harmless because
Appellant's medical records, which included the hospital's serum blood test, were
admitted at the beginning of trial without objection. In addition, Hamill testified,
without objection, about the results of a serum blood test, a test that was ordered by
physicians for the purpose of medical diagnosis and treatment of Appellant. We
further hold that Appellant waived his complaints about improper bolstering during
closing argument and other improper comments made by the State during closing
argument. Finally, we note that intoxication, is not an element of aggravated assault
with a deadly weapon, and Appellant has not challenged the sufficiency of the
evidence on that conviction. We overrule all of Appellant's issues on appeal.
                              VII. This Court's Ruling
      We affirm the judgments of the trial court.




                                                    MIKE WILLSON

                                                     JUSTICE



October 30, 2015

Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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