Berdan, Barclay Edward Ii ( 2015 )


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  •                                                                              PD-0252-15
    COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    APRIL 9, 2015                                              Transmitted 4/6/2015 3:06:11 PM
    Accepted 4/9/2015 9:07:11 AM
    ABEL ACOSTA
    IN THE TEXAS                                                  CLERK
    COURT OF CRIMINAL APPEALS
    NO. PD-0252-15
    (Court of Appeals No. 02-14-00039-CR)
    BARCLAY EDWARD BERDAN,
    Petitioner
    vs.
    THE STATE OF TEXAS,
    State
    APPELLANT'S 1sT AMENDED PETITION FOR DISCRETIONARY
    REVIEW
    OF THE SECOND COURT OF APPEALS' OPINION AND JUDGMENT IN
    CAUSE NO. 02-14-00039-CR ON APPEAL FROM COUNTY CRIMINAL
    COURT NO. 9 OF TARRANT COUNTY, HON. BRENT A. CARR
    PRESIDING.
    Tim Choy
    State Bar No. 24056721
    204 W. Central Ave.
    Fort Worth, TX 76164
    Ph: (817) 625-5582
    Fax: (817) 625-5881
    Email: tim@timchoylaw.com
    COUNSEL FOR PETITIONER
    IDENTITY OF PARTIES AND COUNSEL
    The Parties to the trial Court's Judgment are:
    Barclay Edward Berdan, II                        Defendant/Petitioner
    A resident of the City of Fort Worth
    c/o Tim Choy, Attorney At Law
    204 West Central Ave.
    Fort Worth, Texas 79601
    Counsel are:
    Tim Choy                                         Defense Counsel
    Attorney At Law
    204 West Central Ave.
    Fort Worth, Texas 79601
    The State of Texas                               Prosecution
    Hon. Debra Windsor,
    Chief of Appeals
    Tarrant CountyOffice of
    the Tarrant County District Attorney
    401 West Belknap Street
    Fort Worth, Texas, 76196
    Hon. Brent A. Carr.                              Judge Presiding
    County Criminal Court 9
    gth Floor, Justice Center
    401 West Belknap Street
    Fort Worth, Texas, 76196
    Hon. David L. Richards
    Tex. State Bar No. 16945500                      Former Defense Counsel
    3001 West 5111 Ste. 800
    Fort Worth, Texas 76107
    2
    Hon. Lisa McMinn                                                                  State ofTexas
    Office of the State Prosecutor
    Supreme Court Bldg.
    Austin, Texas
    TABLE OF CONTENTS
    Identity of Parties and Counsel.. ............................................................. ........... 2
    Table of Contents ... ...... .. ... .. .. ....... .. . .. ... . .. . .. ... .. ... ..... . .... . .. . . . .. ........ 3
    Index of Authorities ............................................................................................ 4
    Statement Regarding Oral Argument. ... .......................................... ................... 5
    Statement of The Case... ............ ......................................................................... 5
    Statement of Procedural History ..................... ............ ........... ............................ 6
    Question Presented for Review ..................................... ..................................... 6
    Whether the Court of Appeals was conect in its analysis and determination
    that the evidence was legally sufficient to support Mr. Berdan's conviction for the
    offense of Driving While Intoxicated?
    Reason for Review, Arguments and Authorities .............................................. 6
    The Court of Appeals has decided a significant issue of Texas law that has
    not been, but should be, decided by this Court, to-wit: whether a breath test refusal,
    coupled with a field-sobriety test refusal, is sufficient to support a conviction for
    Driving While Intoxicated, where the defendant admits to drinking alcohol?
    Prayer................ ............ .................................................. ............... .................. 7
    Certificate of Service ......................................................................................... 8
    Court of Appeals' Opinion and Judgment. ......................................... Appendix
    3
    INDEX OF AUTHORITIES
    Texas Appellate Court Cases
    Barclay Edward Berdan, II v. State of Texas,
    No. 02-14-00039-CR, Jan. 22, 2015 (Memorandum Opinion on Rehearing)
    (Unpublished) ........................... .............................................. ........................... 6
    Jackson v. Virginia,
    
    443 U.S. 307
    ,319,
    99 S. Ct. 2781
    ,2789 (1979); Dobbs v. State, 
    134 S.W.3d 166
    , 170 (Tex. Crim. App. 2014) ................................. ........................... .......... 6
    Huffman v. State,
    No. 02-13-00175-Cr, 
    1014 WL 3696132
    , (Tex. FortWorth July 24, 2014,
    no pet.) ......... ............... ....... .................... ..... .. .. .... .... ..... ... .. .. ............ 7
    RULE
    TEX. R. APP. P. 66.3(b ) .. ..... .. ... ......... .. ........ .. .... ..... .............................. 5
    4
    TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
    APPEALS:
    COMES NOW BARCLAY EDWARD BERDAN, II, by and through his
    attorney of record, Tim Choy, and pursuant to Rule 68, Texas Rules of Appellate
    Procedure, files this PETITION FOR DISCRETIONARY REVIEW, and for such
    Petitioner would show this Court as follows:
    STATEMENT REGARDING ORAL ARGUMENT
    This petition involves a novel question of state law concerning whether a
    defendant's conviction may be deemed legally sufficient where the primary
    evidence against him is a refusal to perform a standard field sobriety tests and a
    refusal to provide a breath sample.        For that reason, Petitioner believes oral
    argument would assist the Court in arriving at its decision.
    STATEMENT OF THE CASE
    Appellant was convicted of the offense of Driving While Intoxicated
    following a one-vehicle accident occurring near a five-street intersection in Fort
    Worth.
    5
    STATEMENT OF PROCEDURAL HISTORY
    Petitioner seeks review of the Court of Appeals Judgment and Opinion in
    Barclay Edward Berdan, II v. State of Texas, No. 02-14-00039-CR, Jan. 22, 2015 (
    Memorandum Opinion on Rehearing) (Unpublished). This Court granted Petitioner
    one extension of time in which to file this p.d.r., which it ordered due no later than
    today, March 25, 2015.
    QUESTION PRESENTED FOR REVIEW
    Whether the Court of Appeals was correct in its analysis and legal
    sufficiency determination when it held that failure to comply with requests to
    perform field sobriety tests and breath tests can be the primary factors
    supporting the verdict?
    REASON FOR REVIEW
    The Court of Appeals has decided a significant issue of Texas law that has
    not been, but should be, decided by this Court.
    DISCUSSION
    Mr. Berdan respectfully disagrees with the Fort Worth Court of Appeals'
    focus and emphasis on his field sobriety test refusal and breath test refusal in its
    determination and resolution of his legal sufficiency challenge.
    The Court correctly set forth the standard of review set forth in Jackson v.
    Virginia,
    443 U.S. 307
    ,319, 
    99 S. Ct. 2781
    , 2789 (1979)(requiring review of
    evidence in light most favorable to the State).    The mistake Mr. Berdan suggests
    was made by the Court of Appeals was its stated reliance on his failure to comply
    6
    with the investigating officer's request that he perform standard field sobriety tests,
    and a later request by law enforcement that he provide a specimen of his breath.
    Slip. Op. p. 3.   While it is true that the trier of fact (here, the jury) can take the
    refusals as indicators of guilt, see Huffman v. State, No. 02-13-00175-Cr, 
    1014 WL 3696132
    , (Tex. FortWorth July 24, 2014), to Petitioner's knowledge no case
    authority exists stating how strong those indicators can be. Here, although Mr.
    Berdan admitted having two drinks, and admitted driving the vehicle involved in a
    one car accident while executing a left hand turn at night on one of the most
    confusing intersections in the City of Fort Worth, there is scant evidence of guilt,
    unless heavy reliance is placed on his decision not to comply with field sobriety and
    breath test requests.   Accepting this case for discretionary review would allow this
    Court to consider how much weight such refusals should have.
    PRAYER FOR RELIEF
    Petitioner prays that for the above reasons this Court grant discretionary
    revie, and order further briefing and oral argument on the issue presented.         He
    further requests reversal of the lower court's decision and remand of his case for
    new trial.
    7
    Respectfully Submitted,
    204 West Central Avenue
    Fort Worth, Texas 76164
    Phone: 817/625-5582
    CERTIFICATE OF COMPLIANCE
    The undersigned attorney certifies that this petition contains 1.097 words and
    complies in all other respects, including 14 point font, with T.R.A.P., Rule
    9.04(i)(3).
    CERTIFICATE OF SERVICE
    The undersigned, TIM CHOY, certifies that he has sent a
    copy of this document (in that it has been e-filed) with the appellate division of the
    Tarrant County District Attorney's Office, Hon. Debra Windsor, and with the Hon.
    Lisa McMinn, Office. of the State Prosecutng Attorney, Austin, Texas, this 61h day
    of April, 2015.
    8
    APPENDIX
    COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-14-00039-CR
    BARCLAY EDWARD BERDAN II                                              APPELLANT
    v.
    THE STATE OF TEXAS                                                          STATE
    FROM COUNTY CRIMINAL COURT NO . 9 OF TARRANT COUNTY
    TRIAL COURT NO. 1327699
    EN BANC MEMORANDUM OPINION 1
    ON MOTIONS FOR REHEARING
    After reviewing appellant Barclay Edward Berdan ll's motion for rehearing
    and motion for rehearing en bane, we deny the motions, withdraw our November
    6, 2014 memorandum opinion and judgment, and substitute the following in their
    place .
    1
    See Tex. R. App. P. 47.4.
    I. BACKGROUND
    Berdan went drinking with a friend in the West 7th Street area of Fort
    Worth. While driving home, Berdan hit a light post in an intersection causing
    the back of his truck to swing out, blocking a lane of traffic. Fort Worth Police
    Officer Brian White saw the accident happen and approached the truck. White
    testified that Berdan willingly stepped out of his car, and as Berdan got out, he
    stumbled backward. Berdan had bloodshot eyes, and White could smell alcohol
    on Berdan's breath.    Berdan admitted that he "had a couple of drinks" at a
    nearby bar.   After the initial observations of intoxication, White decided to
    conduct a fie ld-sobriety evaluation. 2 White twice asked Berdan to perform the
    tests , but Berdan refused each time , without giving a reason.    Believing that
    Berdan had lost the normal use of his mental and physical faculties due to the
    introduction of alcohol into his body, White arrested Berdan and took him to the
    City of Fort Worth jail. 3 In the parking lot of the jail , White read Berdan the
    required statutory warnings and asked Berdan to provide a breath sample. See
    Tex. Transp. Code Ann . § 724.015 (West Supp. 2014).       He refused.   Berdan
    would not sign the form indicating that he was refusing to provide a sample. A
    2
    There are three different tests that the Fort Worth Police Department
    performs: the horizontal-gaze nystagmus, the walk and turn, and the one-leg
    stand. [3 RR 77]
    3
    Before White took Berdan to the jail, MedStar EMS arrived to treat
    Berdan. He had no injuries that would have prevented him from performing the
    tests. The medical personnel noted , however, that Berdan smelled of alcohol
    and that Berdan had admitted to drinking alcohol.
    2
    jury convicted Berdan of driving while intoxicated , and the trial court assessed
    his punishment at ninety days' confinement, probated for twenty-four months,
    with a $600 fine. See Tex. Penal Code Ann . § 49.04 (West Supp. 2014).
    II. SUFFICIENCY OF THE EVIDENCE
    Berdan argues that the evidence was insufficient to show that he was intoxicated.
    In our due-process review of the sufficiency of the evidence to support a conviction, we
    view all of the evidence in the light most favorable to the verdict to determine whether any
    rational trier of fact could have found the essential elements of the crime beyond a
    reasonable doubt. Jackson v. Virginia , 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    , 2789 (1979);
    Dobbs v. State, 
    434 S.W.3d 166
    , 170 (Tex. Crim. App. 2014).
    Intoxication is statutorily defined as "not having the normal use of mental or physical
    faculties by reason of the introduction of alcohol . . . or any other substance into the body."
    Tex. Penal Code Ann. § 49.01 (2)(A) (West 2011 ). A person's refusal of a request by an
    officer to submit to the taking of a specimen of breath or blood, whether the refusal was
    express or the result of an intentional failure to give the specimen, may be introduced into
    evidence at the person's trial and be considered as evidence of guilt. Tex. Transp. Code
    Ann.§ 724.061 (West2011); Huffman v. State, No. 02-13-00175-CR, 
    2014 WL 3696132
    ,
    at *2 (Tex. App.-Fort Worth July 24, 2014, no pet.) (mem. op., not designated for
    publication).
    Berdan was driving erratically such that he drove his car into a light post. Berdan
    was stumbling when he got out of the car and had bloodshot eyes. He admitted he had
    been drinking. White testified that Berdan had lost the normal use of his physical and
    3
    mental faculties due to alcohol consumption and that Berdan refused to provide a breath
    sample. This evidence allowed the jury to draw the reasonable inference that Berdan was
    intoxicated at the time he was driving; thus, the evidence was sufficient to support his
    conviction for driving while intoxicated. See Kirsch v. State, 
    306 S.W.3d 738
    , 745 (Tex.
    Crim. App. 2010); Kiffe v. State, 361 S.W .3d 104, 108 (Tex. App.-Houston [1st Dist.]
    2011, pet. refd); Coggins v. State, 
    160 S.W.3d 177
    , 180 (Tex. App.-Texarkana 2005, no
    pet.). We overrule Berdan's sole issue.
    Ill. CONCLUSION
    Having overruled Berdan's issue, we affirm the trial court's judgment. See Tex. R.
    App. P. 43.2(a).
    /s/ Lee Gabriel
    LEE GABRIEL
    JUSTICE
    EN BANC
    DO NOT PUBLISH
    Tex. R. App. P. 47.2(b)
    DELIVERED: January 22, 2015
    4
    

Document Info

Docket Number: PD-0252-15

Filed Date: 4/9/2015

Precedential Status: Precedential

Modified Date: 9/28/2016