Eugenio Espinoza Martinez v. State ( 2012 )


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  •                             NUMBER 13-11-00115-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    THE STATE OF TEXAS,                                                        Appellant,
    v.
    DANIEL ZALMAN,                                                              Appellee.
    On appeal from the County Court
    of Wharton County, Texas.
    MEMORANDUM OPINION
    Before Justices Rodriguez, Benavides, and Perkes
    Memorandum Opinion by Justice Benavides
    The appellant, the State of Texas, contends the trial court erred when it granted a
    motion for new trial in a driving while intoxicated case.   See TEX. PENAL CODE ANN. §
    49.04 (West 2011). By two issues, the State argues that the trial court abused its
    discretion when:   (1) the visiting judge granted a new trial based on untimely arguments
    not raised in appellee, Daniel Zalman’s, initial motion for a new trial and (2) when it
    granted Zalman’s motion for new trial “in the interest of justice.” We affirm.
    I.      BACKGROUND
    A jury found Zalman guilty of driving while intoxicated on December 8, 2010.
    See 
    id. He was
    sentenced to 180 days in county jail but the sentence was probated for
    twelve months pursuant to an agreement between the parties.                  On January 4, 2011,
    Zalman filed a motion for new trial on grounds that “the verdict in this cause [was]
    contrary to the law and the evidence.”            The motion was neither supported by an
    affidavit, nor citations to any specific portions of the trial court record.
    The trial judge who originally heard Zalman’s case, the Honorable Judge John
    Murrile, retired at the end of 2010.           The Honorable Judge Philip Spenrath, who
    subsequently assumed the bench, then recused himself from the matter. 1                          The
    presiding judge of the administrative judicial district, the Honorable Olen Underwood,
    therefore appointed a visiting judge, the Honorable Susan Lowery, to hear the motion.
    Although an initial hearing date was set, Zalman’s attorney visited Judge Lowery in her
    home courtroom in Wharton County to obtain a new hearing date. While discussing the
    re-setting of the hearing, Judge Lowery requested that the parties file a “memorandum of
    law” on the motion for new trial to help familiarize herself with the case.             No attorney
    from the State was present, and apparently the State was never notified of this request.
    Zalman’s “Memorandum of Law in Support of Court Granting Defendant’s Motion
    for New Trial” was filed on February 17, 2011, one day before the hearing.                It set forth
    four bases, previously argued in both pre-trial and trial motions, regarding why the
    1
    The record showed that appellee, Daniel Zalman, was a contributor to Judge Spenrath’s judicial
    campaign.
    2
    motion for new trial was “contrary to the law and evidence.” First, Zalman argued that
    police officers did not have a reasonable suspicion to initially pull Zalman over. 2
    Second, Zalman argued that the “blood warrant” for his arrest was improper because it
    was not signed by a licensed attorney.                    Third, Zalman contended that the
    circumstances under which his blood specimen was taken were unhygienic and
    unsanitary, as he alleged there were cockroaches and a cricket in the room. One
    cockroach, he claimed, even crawled up his arm during the blood draw.                Fourth, Zalman
    argued that his search warrant affidavit was flawed because it lacked a date or time.
    The State vehemently protested the filing of the Memorandum of Law at the
    hearing on February 18, 2011 and argued that it was an untimely-filed amended motion
    for new trial.    The State contended that “the motion present[ed] . . . new grounds
    outside the 30-day time period for motion[s] for new trial.” The trial court explained that
    it had requested memorandum from both sides for its own purposes, apologized that the
    State had not received notice of this request, and offered the State time to respond to
    Zalman’s memorandum. The State refused.                  The hearing proceeded, during which
    Zalman’s attorneys referred to portions of the trial testimony offered into evidence which
    supported their request for a new trial and the four bases elaborated upon in Zalman’s
    memorandum. After the hearing, Judge Lowery stated:
    I do not have before me the search warrant or any of the evidentiary
    2
    According to testimony, Zalman momentarily fell asleep while at a Whataburger drive-thru at 2
    a.m. Two off-duty security guards, who were police officers, were informed by a Whataburger employee
    that the drive-thru line was not moving. The security guards called local police to investigate, but no
    criminal activity was reported. When the security guards approached the vehicle, Zalman’s wife, who was
    apparently texting on her cell phone while sitting in the passenger seat, nudged him awake. Zalman
    awoke and proceeded through the line to pay for their food order. As Zalman was leaving the drive-thru,
    police officers arrived and pulled him over. Zalman was subsequently arrested on suspicion of driving
    while intoxicated.
    3
    matters or seen a DVD. In fact, the first time I saw the transcripts was
    when I walked in the courtroom a moment ago. However, listening to
    what I’m hearing—and both of you have done an outstanding job—in the
    interest of justice, I will order a new trial in this case and let these matters
    be sorted out by a different judge at a different time.
    After granting the motion for new trial, the State requested Findings of Fact and
    Conclusions of Law.       The trial court complied.    In the case’s “Procedural History,” the
    trial court noted that it heard “no evidence from witnesses, nor was [it] provided with a
    transcript of the pre-trial matters and the trial until the time of hearing.”      The court
    explained instead that it “heard only the arguments of counsel and portions of the prior
    records that were read by counsel during their arguments.”          The court also noted that
    Zalman’s motion to suppress the results of his blood test was the subject of different
    pre-trial rulings.   The trial court’s “Findings of Fact” follow:
    1.      Visiting Judge Susan Lowery was appointed to hear the Motion for
    New Trial.
    2.      The visiting judge did not have the opportunity to review the clerk’s
    folder, the trial exhibits, or a record of pretrial or trial proceedings
    prior to the hearing.
    3.      This Court finds that the Whataburger manager’s report of a
    customer not quickly pulling forward at the drive-thru to receive his
    order was not a report of criminal activity.
    4.      This Court finds that the Blood Search Warrant was not signed by a
    licensed Texas attorney nor was the judge hearing the suppression
    issues a licensed attorney.
    5.      This Court finds that there are legitimate issues concerning the
    blood draw as to whether the place where the blood was taken was
    sanitary due to the infestation of insects; whether two samples were
    taken or the original sample was contaminated; and whether the
    proper medical safeguards were taken.
    6.      This Court finds that there is a legitimate concern as whether the
    4
    Search Warrant Affidavit was stale because the affidavit did not
    state the time which the witness observed Mr. Zalman and used the
    “on or about” language. This forced the magistrate to look beyond
    the four corners of the affidavit to establish sufficient facts to
    establish enough probable cause to issue a search warrant.
    7.     The Court finds that there is a legitimate concern as to the
    sufficiency and specific of the Search Warrant affidavit and that the
    Search Warrant should have been suppressed. There is no
    specific location in the Affidavit for the Search Warrant other than
    Wharton County, Texas. There is more than one Whataburger in
    Wharton County, Texas. There is no specific time given as to
    when the witness observed the Defendant or where he was when he
    observed him or when he reported such.
    8.     The Court further finds through admissions of both the State and the
    Defendant that the place where Defendant’s blood was drawn was
    infested with insects and that the video of the blood draw shows a
    bug crawling down Defendant’s sleeve.
    The trial court also filed the following related “Conclusions of Law”:
    1.     This Court has jurisdiction over the parties, the subject matter, and
    retains the power to grant a new trial in the interest of justice void
    any abuse of discretion.
    2.     This Court finds Mr. Zalman’s motion was sufficient to hold a
    hearing for a new trial by articulating that the judgment was contrary
    to law and the evidence and/or the judgment was invalid for some
    other reason.
    3.     This Court finds that the officers that initially stopped Mr. Zalman
    lacked reasonable suspicion that Mr. Zalman was committing an
    illegal activity before they stopped him. This is a violation of Mr.
    Zalman’s Fourth Amendment rights against unreasonable searches
    and seizures.
    4.     This Court finds that the Search Warrant Affidavit is alleged to have
    forced the magistrate to go beyond the four corners of the affidavit
    and therefore violated Mr. Zalman’s Fourth Amendment rights
    against unreasonable searches and seizures, and in violation of
    Chapter 18 of the Texas Code of Criminal Procedure.
    5.     This Court finds that place where the blood was taken violated his
    5
    Fourth Amendment rights against unreasonable searches and
    seizures because the insects marked the room unsanitary and void
    of any generally accepted medical practices of drawing blood in a
    sterile medical environment.
    6.       This Court finds that the Code of Criminal Procedure Art. 18.01(j)
    requires a licensed Texas attorney judge to sign the blood search
    warrant.    Judge Kubicek is not a licensed Texas attorney.
    Therefore, the search warrant fails because the State did not follow
    the proper procedure as clearly stated within the Code.
    7.       The Court finds due to the totality of the circumstances the results of
    the blood draw should be suppressed.
    8.       This Court finds that all wrongful evidence obtained against Mr.
    Zalman by the officers and presented to the jury at this first trial may
    have violated Art. 38.23 of the Code of Criminal Procedure.
    9.       This Court finds that Mr. Zalman’s first trial prejudiced his
    substantial rights that resulted in a miscarriage of justice.
    The State appealed.
    II.    STANDARD OF REVIEW AND APPLICABLE LAW
    Texas Rule of Appellate Procedure 21 deals with motions for new trials.         TEX. R.
    APP. P. 21.4.    Rule 21.4 provides that persons must file their motion for new trial and
    any amendments thereto no later than thirty days after the trial court imposes sentence
    in court. TEX. R. APP. P. 21.4. Once the thirty-day window has passed, a defendant
    may not amend his motion for new trial even with a trial court’s leave.          See State v.
    Moore, 
    225 S.W.3d 556
    , 558 (Tex. Crim. App. 2007).
    An appellate court reviews a trial court's granting or denial of a motion for new trial
    under an abuse of discretion standard.        Holden v. State, 
    201 S.W.3d 761
    , 763 (Tex.
    Crim. App. 2006); State v. Gonzalez, 
    855 S.W.2d 692
    , 696 (Tex. Crim. App. 1993).           As
    an appellate court, “we do not substitute our judgment for that of the trial court; rather, we
    6
    decide whether the trial court's decision was arbitrary or unreasonable.”       
    Holden, 201 S.W.3d at 763
    .    A trial court abuses its discretion only when no reasonable view of the
    record could support the trial court's ruling.   
    Id. “A trial
    judge does not have authority
    to grant a new trial unless the first proceeding was not in accordance with the law.”
    State v. Herndon, 
    215 S.W.3d 901
    , 907 (Tex. Crim. App. 2007). A judge “cannot grant a
    new trial on mere sympathy, an inarticulate hunch, or simply because he personally
    believes that the defendant is innocent or ‘received a raw deal.’”    
    Id. In Herndon,
    the court of criminal appeals established that a trial court would avoid
    an abuse of discretion ruling when granting a motion for new trial if the defendant:      (1)
    articulated a valid legal claim in his motion for new trial; (2) produced evidence or pointed
    to evidence in the trial record that substantiated his legal claim; and (3) showed prejudice
    to his substantial rights under the standards in rule 44.2 of the Texas Rules of Appellate
    Procedure.    
    Id. at 901;
    see TEX. R. APP. P. 44.2.
    III. DISCUSSION
    A.     Arguments in the Motion for New Trial
    By its first issue, the State contends that the trial court abused its discretion when
    it granted a new trial based on untimely arguments not raised in Zalman’s initial motion
    for a new trial. The State argues that Zalman’s initial motion was inadequate because it
    only stated that the verdict was “contrary to the law and the evidence,” and his
    “Memorandum of Law” was an untimely amendment to the motion for new trial. The
    State asserted that, under Texas Rule of Appellate Procedure 21.4, no amendments to a
    motion for new trial could be made after the thirty days following sentencing.     See TEX.
    7
    R. APP. P. 21.4; see also 
    Moore, 225 S.W.3d at 558
    .
    Here, assuming without deciding that Zalman’s “Memorandum of Law” was in fact
    an amended motion for new trial and thus disregarding it as untimely, we find that the
    trial court did not abuse its discretion in ordering a new trial.   The facts of this case meet
    the Herndon three-part test.     First, Zalman “articulated a valid legal claim in his motion”
    by stating that “the verdict in this cause [was] contrary to the law and the evidence.”
    See 
    Herndon, 215 S.W.3d at 901
    .          This sentence sets forth a sufficient legal claim.
    See TEX. R. APP. P. 21.9(a) (providing that “a court must grant a new trial when it has
    found a meritorious ground for new trial”).
    Second, Zalman’s attorneys “produced evidence or pointed to evidence in the trial
    record that substantiated his legal claim.”    
    Herndon, 215 S.W.3d at 901
    .       For example,
    Zalman’s counsel cited to portions of Trooper Jose Mena’s trial testimony to buttress
    Zalman’s argument that there was no reasonable suspicion or alleged criminal activity to
    pull him over.   See Crain v. Texas, 
    315 S.W.3d 43
    , 52 (Tex. Crim. App. 2010) (holding
    that an officer may not detain a motorist without a showing of reasonable suspicion).
    Zalman’s counsel also referenced that the blood warrant was admitted into evidence,
    noted its lack of a date or time, and the fact that it was not signed by a licensed attorney.
    See TEX. CODE CRIM. PROC. ANN. art. 18.01(c), (j) (West Supp. 2011) (establishing the
    requirements necessary for issuing a proper search warrant).         Zalman’s attorney further
    pointed out that a video of Zalman’s blood draw was admitted into evidence, which
    allegedly showed the unsanitary conditions under which the draw was taken.
    Zalman’s arguments about the arrest and his blood warrant sustain his assertion
    8
    that the verdict was “contrary to the law and evidence.”   The multiple references to trial
    testimony, documents offered into evidence, and the blood draw video provided the
    evidence necessary to support Zalman’s legal claim under Herndon.        
    See 215 S.W.3d at 901
    ; TEX. R. APP. P. 21.7 (outlining the types of evidence a court can consider at a
    hearing on a motion for new trial).       All of this evidence was within the court’s
    record—the trial court did not consider evidence outside the record or evidence that was
    untimely filed.
    Third, we conclude that there was sufficient evidence to question whether,
    through all the evidence presented, there was prejudice to Zalman’s substantial rights
    under the standards in rule 44.2 of the Texas Rules of Appellate Procedure.           See
    
    Herndon, 215 S.W.3d at 901
    .        This rule provides that “if the appellate record in a
    criminal case reveals constitutional error that is subject to harmless error review, the
    court of appeals must reverse a judgment of conviction or punishment unless the court
    determines beyond a reasonable doubt that the error did not contribute to the conviction
    or punishment.”    See TEX. R. APP. P. 44.2. The circumstances surrounding Zalman’s
    arrest, the issuance of his blood warrant, and his blood draw all potentially implicate
    constitutional rights.   See Aliff v. State, 
    627 S.W.2d 166
    , 169 (Tex. Crim. App. 1982)
    (holding that “the taking of a blood sample is a search and seizure under both the federal
    and Texas constitutions”).
    Even disregarding Zalman’s “Memorandum of Law,” we conclude that Zalman’s
    attorneys presented sufficient evidence at the hearing on the motion for new trial to meet
    the Herndon three-part test.    See 
    Herndon, 215 S.W.3d at 901
    ; TEX. R. APP. P. 21.7.
    9
    Accordingly, the trial court did not abuse its discretion in granting the motion.      See
    
    Herndon, 215 S.W.3d at 901
    .
    The State cites Curcuru v. State to support its argument that the motion for new
    trial was improperly granted.    See 13-08-00734-CR, 2010 Tex. App. LEXIS 9748, at
    **10–11 (Tex. App.—Corpus Christi Dec. 9, 2010, no pet.) (mem. op., not designated for
    publication). The facts of Curcuru, however, are distinguishable from the facts of this
    case. In Curcuru, the defendant timely filed a motion for new trial. See 
    id. at *30.
       His
    motion included several arguments, like ineffective assistance of counsel, which were
    based on matters outside the trial record. 
    Id. Curcuru did
    not include any evidence to
    support these arguments. 
    Id. Curcuru later
    filed an untimely amended motion for new
    trial which included evidence in the form of several affidavits to support his
    argument. 
    Id. The trial
    court properly refused to consider the late affidavits.      
    Id. “Texas courts
    . . . have long held that when the grounds for a new trial are outside the
    record, a defendant must support his motion by. . . affidavit.” 
    Id. at *31
    (citing Klapesky
    v. State, 
    256 S.W.3d 442
    , 454 (Tex. App.—San Antonio 2008, pet. ref’d) (emphasis
    added)).
    The basis for Zalman’s motion for a new trial, on the other hand, is that the verdict
    was “contrary to the law and evidence.”     Zalman’s ground for a new trial is essentially
    one of sufficiency, which is allowed under Texas Rule of Appellate Procedure
    21.3(h). See TEX. R. APP. P. 21.3(h).    Importantly, Zalman’s basis was already rooted
    within the court’s record.   The arguments Zalman asserted at the hearing on the motion
    for new trial about his illegal arrest and improper blood draw were not outside the record,
    10
    thus making Curcuru inapplicable.
    We overrule the State’s first issue.
    B.       In the Interest of Justice
    By its second issue, the State argues the trial court erred when it granted
    Zalman’s motion for new trial in the “interest of justice.” A trial judge has discretion to
    grant or deny a motion for new trial "in the interest of justice.”    
    Herndon, 215 S.W.3d at 906-07
    .      “Justice” means “in accordance with the law.”     
    Id. “A court
    must grant a new
    trial when it has found a meritorious ground for new trial.”     TEX. R. APP. P. 21.9.
    The trial court conducted a full hearing wherein it considered the motion, evidence
    from the trial record, and heard arguments of counsel. The trial court later entered
    multiple findings of fact and conclusions of law which supported its decision to grant a
    new trial.    A trial court abuses its discretion only when no reasonable view of the record
    could support the trial court's ruling.   
    Holden, 201 S.W.3d at 763
    . We do not find that
    to be the case here.
    Because the trial court granted the new trial in accordance with the Herndon
    three-part test and explained the basis for its decision, the new trial was “in accordance
    with the law,” and the trial court did not abuse its discretion in granting a new trial in the
    “interest of justice.”   
    Herndon, 215 S.W.3d at 906
    –07. We overrule the State’s second
    issue.
    C.       Response to Dissent
    The dissent ignores the majority opinion’s assertion that we did not consider the
    memorandum of law filed by Zalman one day before the hearing on the motion for new
    11
    trial.   As stated previously, we disregarded this memorandum in its totality.      Instead,
    we considered only the timely filed motion for new trial and the arguments of counsel and
    evidence proffered at the hearing in our analysis.
    Further, the dissent is mistaken when it proclaims that the majority contradicts
    Cueva v. State.     
    339 S.W.3d 839
    , 858–59 (Tex. App.—Corpus Christi 2011, pet ref’d).
    Cueva is distinguishable from the underlying case.        In Cueva, Cueva timely filed a
    motion for new trial stating that his counsel was ineffective for several reasons. 
    Id. at 854.
        Cueva later filed an untimely amendment to his motion, along with affidavit
    evidence, setting forth new grounds why he believed his attorney was ineffective.         
    Id. The appellate
    court held that the trial court erred when it improperly considered the new
    grounds and new evidence.        
    Id. These circumstances
    did not occur here.        In the
    underlying case, the trial court heard issues “contrary to the law and the evidence”
    regarding the initial arrest, blood warrant, and blood draw that were already in the trial
    record.    Even if Zalman had never filed his memorandum of law at Judge Lowery’s
    request, he would have had the right to argue all of the points made within it at the
    hearing.    See generally Jordan v. State, 
    883 S.W.2d 664
    , 665 (Tex. Crim. App. 1994)
    (en banc) (setting out that “the purpose of the hearing is for a defendant to fully develop
    the issues raised in the motion for new trial”).
    Finally, the dissent never explains how the trial court abused its discretion in
    granting the motion for new trial.     See State v. Moreno, 
    297 S.W.3d 512
    , 520 (Tex.
    Crim. App. 2009) (“the granting of a new trial rests within the sound discretion of the trial
    court”); 
    Holden, 201 S.W.3d at 763
    .     The trial court had a timely motion before it which
    12
    argued that a new trial was necessary because the verdict was “contrary to the law and
    evidence.”   This is a sufficient ground for a new trial.      See TEX. R. APP. P. 21.3(h);
    Castleberry v. State, 
    646 S.W.2d 599
    , 601 (Tex. App.—Houston [1st Dist.] 1983),
    overruled on other grounds at 
    704 S.W.2d 21
    (Tex. Crim. App. 1986); see also Bonner v.
    State, No. 01-04-00611-CR, 2005 Tex. App. LEXIS 5874, at **7–8 (Tex. App.—Houston
    [1st Dist.] July 28, 2005, pet. ref’d).   At the hearing on the motion, the trial court heard
    arguments previously made at both the pre-trial and trial levels, and considered evidence
    already admitted into the record.     Compare 
    Cueva, 339 S.W.3d at 839
    (concluding that
    it was improper for the trial court to consider evidence that was untimely filed and that
    was not in the trial court’s record). The trial court then filed conclusions of law holding
    that Zalman’s Fourth Amendment rights were violated because: the officers that initially
    stopped Zalman lacked reasonable suspicion that Zalman was committing an illegal
    activity before they stopped him; the search warrant affidavit forced the magistrate to go
    beyond the four corners of the affidavit; Zalman’s blood draw was unsanitary and void of
    any generally accepted medical practices; and the search warrant was not issued in
    compliance with the Texas Code of Criminal Procedure.
    “An appellate court is not to substitute its judgment for that of the trial court; rather
    the appellate court’s role is to examine the record to determine whether the trial court
    granted a new trial without reference to any guiding rules or principles. . . .”       
    Moreno, 297 S.W.3d at 520
    .     The record shows that the trial court’s decision to grant a new trial
    “in the interest of justice,” after listening to the evidence presented at the hearing, was
    founded within the record and grounded in Fourth Amendment concerns.                       See
    13
    
    Herndon, 215 S.W.3d at 909
    (“For more than one hundred and twenty years, our trial
    judges have had the discretion to grant new trials in the interest of justice.”). We fail to
    see how the trial court abused its discretion in this regard.
    IV. CONCLUSION
    Having overruled all of the State’s issues, we affirm the trial court’s order to grant
    a new trial in this matter.
    __________________________
    GINA M. BENAVIDES,
    Justice
    Dissenting Memorandum Opinion by Justice Gregory T. Perkes.
    Do not publish.
    TEX. R. APP. P. 47.2 (b).
    Delivered and filed the
    31st day of August, 2012.
    14