Eric Roel Jimenez v. State ( 2015 )

ACCEPTED
13-13-00066-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
4/9/2015 10:02:57 AM
DORIAN RAMIREZ
CLERK
CAUSE NO. 13-13-00066-CR
FILED IN
13th COURT OF APPEALS
IN THE COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
4/9/2015 10:02:57 AM
THIRTEENTH JUDICIAL DISTRICT OFDORIAN
TEXAS E. RAMIREZ
Clerk
CORPUS CHRISTI - EDINBURG, TEXAS
ERIC ROEL JIMENEZ,
Appellant
v.
STATE OF TEXAS,
Appellee.
On appeal from the 357th Judicial District Court
of Cameron County, Texas
Trial Court Cause Number 2012-DCR-01135-E
STATE’S APPELLATE BRIEF
Luis V. Saenz
Cameron County District Attorney
ORAL ARGUMENT REQUESTED
René B. González
Assistant District Attorney
964 East Harrison Street, 4th Floor
Brownsville, Texas 78520
Phone: (956) 544-0849
Fax:(956) 544-0869
Attorneys for the State of Texas
TABLE OF CONTENTS
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Salutation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
State’s Response to Appellant’s First Issue.. . . . . . . . . . . . . . . . . . . 3
State’s Response to Appellant’s Second Issue. . . . . . . . . . . . . . . . . 6
State’s Response to Appellant’s Third Issue. . . . . . . . . . . . . . . . . . . 7
State’s Response to Appellant’s Fourth Issue. . . . . . . . . . . . . . . . . 10
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
-i-
INDEX OF AUTHORITIES
Cases
Adelman v. State,
828 S.W.2d 418 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . . . . . . 8
Aschbacher v. State,
61 S.W.3d 532 (Tex. App.--San Antonio 2001, pet. ref’d). . . . . . . . 11
Bartlett v. State,
270 S.W.3d 147 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . . 5
Carter v. State,
No. 05-02-00504-CR, 2003 WL 1544216
(Tex. App.--Dallas Mar. 26, 2003, no pet.). . . . . . . . . . . . . . . . . . . . . 9
Castillo v. State,
913 S.W.2d 529 (Tex. Crim. App. 1995). . . . . . . . . . . . . . . . . . . . . 11
Clark v. State,
878 S.W.2d 224 (Tex. App. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Cowger v. State,
No. 12-08-00459-CR, 2010 WL 338061
(Tex. App.--Tyler Jan. 29, 2010. pet. ref’d). . . . . . . . . . . . . . . . . . . . 5
Earley v. State,
855 S.W.2d 260 (Tex. App.--Corpus Christi 1993).. . . . . . . . . . . . . . 3
Fielding v. State,
719 S.W.2d 361 (Tex. App.--Dallas 1994, no pet.). . . . . . . . . . . . . . 3
Flores v. State,
871 S.W.2d 714 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . . . 4
Gagnon v. Scarpelli,
411 U.S. 778 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
-ii-
Hareter v. State,
435 S.W.3d 356 (Tex. App.--Amarillo 2014, no pet.). . . . . . . . . . . . . 6
Jackson v. Virginia,
443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Leija v. State,
No. 04-08-00679-CR, 2009 WL 331897
(Tex. App.--San Antonio Feb.11, 2009, no pet.). . . . . . . . . . . . . . . . 5
Mart. v. State,
13 S.W.3d 133 (Tex. App.--Dallas 2000, no pet.). . . . . . . . . . . . . . 10
McCray v. State,
861 S.W.2d 405 (Tex. App.--Dallas 1993, no pet.). . . . . . . . . . . . . . 8
Mestiza v. State,
923 S.W.2d 720 (Tex. App.--Corpus Christi 1996, no pet.). . . . . . . . 4
Powers v. State,
737 S.W.2d 53 (Tex. App.--San Antonio 1987, pet. ref’d). . . . . . . . 11
Resendez v. State,
160 S.W.3d 181 (Tex. App.--Corpus Christi 2005, no pet.). . . . . . . . 4
Sharp v. State,
707 S.W.2d 611 (Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . . . . . . 8
Stahle v. State,
970 S.W.2d 682 (Tex. App.--Dallas 1998, pet. ref’d). . . . . . . . . . . . . 8
Turner v. State,
805 S.W.2d 423 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . 8
Vargas v. State,
271 S.W.3d 338 (Tex. App.--San Antonio 2008, no pet.). . . . . . . . . . 5
-iii-
Statutes
Tex. Code Crim. Proc. arts. 38.07.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Tex. Code Crim. Proc. arts. 38.14.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Tex. Code Crim. Proc. arts. 38.15.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Tex. Code Crim. Proc. arts. 38.18.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Tex. Code Crim. Proc. arts. 38.22.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Tex. Pen. Code § 32.34(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Tex. Pen. Code § 49.01(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Tex. Penal Code § 49.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Rules
Tex. R. App. P. 33.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Tex. R. App. P. 38.1(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
-iv-
CAUSE NO. 13-13-00066-CR
____________________________________
IN THE COURT OF APPEALS
THIRTEENTH JUDICIAL DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG, TEXAS
____________________________________
ERIC ROEL JIMENEZ, Appellant
v.
STATE OF TEXAS, Appellee
____________________________________
STATE’S APPELLATE BRIEF
____________________________________
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, Appellee, the STATE OF TEXAS, by and through the
Cameron County District Attorney, the Honorable Luis V. Saenz, and,
pursuant to Rule 38.2 of the Texas Rules of Appellate Procedure, files this,
its Appellate Brief in the above-styled and -numbered cause of action, and
in support thereof, would show this Honorable Court as follows:
State’s Brief Page 1
SUMMARY OF ARGUMENT
Appellant raises four issues on appeal. (1) In his first issue,
Appellant complains that the trial judge impermissibly commented on the
weight of the evidence. The State responds by asserting that Appellant
has failed to preserve this issue for appellate review, and further the
comment by the trial judge was not a comment on the weight of the
evidence. (2) In his second issue, Appellant argues that the jury was given
an incorrect definition of intoxication. The State responds by asserting that
the definition given by the trial court to the jury is correct. (3) In his third
issue, Appellant contends the evidence is legally insufficient to show he
operated a “motor vehicle.” The State responds by asserting that the
evidence clearly shows that Appellant was operating a “motor vehicle,” as
that term is defined by the Texas Penal Code. (4) In his fourth issue on
appeal, Appellant argues that the trial court included an instruction in the
charge to the jury that constituted an impermissible comment on the weight
of the evidence. The State responds by asserting that the instruction of
which Appellant complains was a proper statement of the law, and
therefore is not erroneous.
State’s Brief Page 2
ARGUMENT & AUTHORITIES
State’s Response to Appellant’s First Issue
In his first issue, Appellant complains that the trial judge
impermissibly commented on the weight of the evidence. The State
responds by asserting that Appellant has failed to preserve this issue for
appellate review, and further the comment by the trial judge was not a
comment on the weight of the evidence.
Due process requires a neutral and detached hearing body or officer.
Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). The Texas Constitution
requires no less. Earley v. State, 855 S.W.2d 260, 262 (Tex. App.--Corpus
Christi 1993), pet. dism’d, improvidently granted, 872 S.W.2d 758 (Tex.
Crim. App. 1994). This Court should presume the trial court was neutral
and detached absent a clear showing to the contrary. See id.; Fielding v.
State, 719 S.W.2d 361, 366 (Tex. App.--Dallas 1986, pet. ref’d). The trial
court improperly comments on the weight of the evidence if it makes a
statement that implies approval of the State’s argument, indicates disbelief
in the defense’s position, or diminishes the credibility of the defense’s
approach to the case. Clark v. State, 878 S.W.2d 224, 226 (Tex. App.
1994) (Tex. App.--Dallas 1994, no pet.).
State’s Brief Page 3
The State would first note that the trial record demonstrates
Appellant’s counsel failed to object specifically to the judge’s comment.
(R.R. Vol. 3, p. 170). In order to preserve an error for appellate review, a
party must make an objection to the court and the court must explicitly or
implicitly make an adverse ruling or refuse to rule on that objection. Tex.
R. App. P. 33.1; see Flores v. State, 871 S.W.2d 714, 723 (Tex. Crim. App.
1993). Thus, Appellant has waived this complaint by not objecting to the
trial judge’s comment. See Resendez v. State, 160 S.W.3d 181, 189-90
(Tex. App.--Corpus Christi 2005, no pet.) (holding that without a specific
objection, a defendant waives his complaint that a judge has conveyed his
opinion about the case to the jury); see also Mestiza v. State, 923 S.W.2d
720, 724 (Tex. App.--Corpus Christi 1996, no pet.) (“[a] timely proper
objection is necessary to preserve error concerning a trial judge’s
comment”).
Further, it is clear from the record that the comment made in
connection with this incident does not convey the judge’s opinion about the
case. (R.R. Vol. 3, pp. 170).1 The trial judge’s comment sprang from an
1
The State would note that Appellant does not provide the correct cite to the
record in his appellate brief. Appellant consistently states that this comment appears in
the reporter’s record at volume 1, pages 4-5. (See Appellant’s Brief, pp. 13, 16, 18-19).
Because Appellant fails to support his argument with proper cites to the record, this
State’s Brief Page 4
objection to the prosecutor making a reference to Appellant’s failure to take
a breath test. The law clearly allows the State to introduce this type of
evidence and make reasonable inferences from the evidence. “A person’s
refusal of a request by an officer to submit to the taking of a specimen of
breath or blood ... may be introduced into evidence at the person’s trial.”
Tex. Transp. Code § 724.061.2 The trial judge’s statement which Appellant
challenges is not a comment on the weight of the evidence. It did not
express or imply approval of the State’s position. Rather the comment
merely affirmed that the prosecutor’s argument was an argument from the
Court may chose to overrule Appellant’s issue due to inadequate briefing. See Tex. R.
App. P. 38.1(i); (“The brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.”)
2
In the past, trial judges often instructed juries in DWI trials using language
similar to that in the statute. This practice is now prohibited by the holding of the Texas
Court of Criminal Appeals “that a jury instruction informing the jury that it may consider
evidence of a refusal to take a breath [or blood] test constitutes an impermissible
comment on the weight of the evidence.” Bartlett v. State, 270 S.W.3d 147, 154 (Tex.
Crim. App. 2008). The evidence, however, is still admissible, and the jury may consider
it. See Tex. Transp. Code § 724.061. Although a judge may no longer instruct the jury
on the refusal to provide a blood or breath specimen, a comment by the prosecutor on
the refusal is permissible. Leija v. State, No. 04-08-00679-CR, 2009 WL 331897, at *3
(Tex. App.--San Antonio Feb.11, 2009, no pet.) (mem. op., not designated for
publication) (concluding that a prosecutor may still comment on a refusal to submit to a
breath or blood test in light of Bartlett); Vargas v. State, 271 S.W.3d 338, 341 (Tex.
App.--San Antonio 2008, no pet.) (same). Further, the State may summarize evidence
as part of its jury argument, which includes the failure to submit to a breath or blood test
and that such failure is evidence of intoxication. Leija, 2009 WL 331897, at *3; Vargas,
271 S.W.3d at 341. Thus, the State’s argument, insofar as it constitutes a comment on
Appellant’s refusal to submit to a breath test or a summary of the evidence, is proper.
Cowger v. State, No. 12-08-00459-CR, 2010 WL 338061, at *3 (Tex. App.--Tyler Jan.
29, 2010, pet. ref’d) (mem. op., not designated for publication).
State’s Brief Page 5
evidence, and merely allowed the jury to consider the State’s argument
based on the evidence. The comment did not decide whether Appellant’s
actions constituted an admission of guilt by appellant, or did not constitute
such an admission. Hareter v. State, 435 S.W.3d 356, 359-60 (Tex. App.--
Amarillo 2014, no pet.).
Accordingly, this Court should overrule Appellant’s first issue.
State’s Response to Appellant’s Second Issue
In his second issue, Appellant argues that the jury was given an
incorrect definition of intoxication. The State responds by asserting that
the definition given by the trial court to the jury is correct.
Section 49.01 of the Texas Penal Code provides, in part, as follows:
Sec. 49.01. DEFINITIONS. In this chapter:
(1) “Alcohol concentration” means the number of grams of
alcohol per:
(A) 210 liters of breath;
(B) 100 milliliters of blood; or
(C) 67 milliliters of urine.
(2) “Intoxicated” means:
(A) not having the normal use of mental or physical
faculties by reason of the introduction of alcohol, a
controlled substance, a drug, a dangerous drug, a
combination of two or more of those substances, or any
other substance into the body; or
State’s Brief Page 6
(B) having an alcohol concentration of 0.08 or more.
Tex. Penal Code § 49.01. The Court’s charge to the jury tracked this
statutory language (C.R. p. 52).
Appellant argues that this definition of intoxication is wrong because
the legislature forgot to put a percentage sign after the 0.08 in section
49.01(2)(B). (Appellant’s Brief, p. 25). However, in light of the fact that the
legislature now defines “alcohol concentration” in section 49.01(1)(B), as
the number of grams of alcohol per 100 milliliters of blood, the calculations
are correct.3 It is not the legislature that has miscalculated the proper
alcohol concentration; instead, it is Appellant’s counsel that has failed to
“do the math” correctly.
Appellant’s second issue should be overruled.
State’s Response to Appellant’s Third Issue
In his third issue, Appellant contends the evidence is legally
insufficient to show he operated a “motor vehicle.” The State responds by
asserting that the evidence clearly shows that Appellant was operating a
“motor vehicle,” as that term is defined by the Texas Penal Code.
3
In his brief, Appellant uses a measurement that is based on the amount of
alcohol per 1,000 milliliters of blood. (Appellant’s Brief, p. 27).
State’s Brief Page 7
When this Court reviews the legal sufficiency of the evidence, it must
view the evidence in the light most favorable to the prosecution. Jackson
v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423,
427 (Tex. Crim. App. 1991). The inquiry is whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt. Turner, 805 S.W.2d at 427. The jury is the sole judge of the
credibility of the witnesses and the weight to be given their testimony.
Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). As such,
the jury may choose to believe or disbelieve all or any part of any witness’s
testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986);
McCray v. State, 861 S.W.2d 405, 407 (Tex. App.--Dallas 1993, no pet.).
A jury is also permitted to make reasonable inferences from the evidence.
See Stahle v. State, 970 S.W.2d 682, 86-87 (Tex. App.--Dallas 1998, pet.
ref’d).
Appellant apparently asserts the evidence is legally insufficient to
support his conviction because the vehicle he was driving was not a “motor
vehicle.” Section 49.01 of the penal code, concerning driving while
intoxicated offenses, provides “motor vehicle” has the meaning assigned
by section 32.34(a) of the penal code. See Tex. Pen. Code § 49.01(3).
State’s Brief Page 8
Section 32.34(a), in turn, defines motor vehicle as “a device in, on, or by
which a person or property is or may be transported or drawn on a
highway, except a device used exclusively on stationary rails or tracks.”
See Tex. Pen. Code § 32.34(a)(2). At trial, the State presented evidence
that appellant was driving a maroon, two-door Saturn Vue (R.R. Vol. 3, p.
34), which was described as a car (R.R. Vol. 3, pp. 24, 29, 30), a vehicle
(R.R. Vol. 3, pp. 24, 27, 28) and a motor vehicle (R.R. Vol. 3, p. 62).
Testimony was also offered that the vehicle was driven on a roadway (R.R.
Vol. 3, p. 62), which would exclude the possibility of it being operated on
stationary rails or tracks. Additionally, photographs of the motor vehicle at
the scene of the accident were received into evidence as State’s Exhibit 8
through 16. Based on the exhibits and the testimony of all the witnesses,
there was sufficient evidence for the jury to infer and conclude that the
vehicle was self-propelled, had a motor, and was driven on a roadway, not
on stationary rails or tracks. Accordingly, this Court should conclude the
evidence is legally sufficient to show the vehicle was capable of carrying a
person or property on a highway and was not used exclusively on
stationary rails and tracks. Consequently, the vehicle was a motor vehicle
for purposes of the penal code. See Carter v. State, No. 05-02-00504-CR,
State’s Brief Page 9
2003 WL 1544216, at *1-2 (Tex. App.--Dallas Mar. 26, 2003, no pet.)
(mem. op.) (not designated for publication) (holding that evidence was
sufficient to prove a bulldozer was a motor vehicle under the definition of
section 32.34 of the penal code).
Therefore, Appellant’s third issue should be overruled.
State’s Response to Appellant’s Fourth Issue
In his fourth issue on appeal, Appellant argues that the trial court
included an instruction in the charge to the jury that constituted an
impermissible comment on the weight of the evidence. The State
responds by asserting that the instruction of which Appellant complains
was a proper statement of the law, and therefore is not erroneous.
Only in cases of treason, perjury, and aggravated perjury are two
witnesses required. Martin v. State, 13 S.W.3d 133, 140 (Tex. App.--
Dallas 2000, no pet.) (citing Tex. Code Crim. Proc. arts. 38.15, 38.18).
Corroborating circumstances are required only when a conviction is based
on the testimony of an accomplice, in certain circumstances when a
defendant’s oral statement resulting from custodial interrogation is
admitted into evidence, and in certain circumstances in sexual assault and
State’s Brief Page 10
aggravated sexual assault cases. Id. at 140-41 (citing Tex. Code Crim.
Proc. arts. 38.07, 38.14, art. 38.22, § 3(c)). In all other cases, the
testimony of a single witness, without corroboration, is sufficient for
conviction if the jury may believe it beyond a reasonable doubt. See
Castillo v. State, 913 S.W.2d 529, 532-33 (Tex. Crim. App. 1995).
Appellant complains that the trial court instructed the jury that the law
provides “that a person may be convicted on the testimony of one witness
where guilt, each element of the criminal offense, is proven beyond a
reasonable doubt.” (C.R. 53). As noted above, this is a correct statement
of the law. “Generally, ‘a correct statement of the law by the trial court,
even during trial, is not reversible’ as a comment on the weight of the
evidence.” Aschbacher v. State, 61 S.W.3d 532, 538 (Tex. App.--San
Antonio 2001, pet. ref’d) (quoting Powers v. State, 737 S.W.2d 53, 54 (Tex.
App.--San Antonio 1987, pet. ref’d). Because the trial court’s instruction
was a correct statement of the law, the instruction is cannot be reversible
error.
Therefore, Appellant’s fourth issue should be overruled.
State’s Brief Page 11
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas prays
that this Court will overrule Appellant’s issues on appeal, and affirm both
the judgment of conviction and the sentence herein.
Respectfully Submitted,
LUIS V. SAENZ
Cameron County District Attorney
964 East Harrison Street, 4th Floor
Brownsville, Texas 78520
Phone: (956) 544-0849
Fax: (956) 544-0869
By: /s/ René B. González
René B. González
Assistant District Attorney
State Bar No. 08131380
rgonzalez1@co.cameron.tx.us
Attorneys for the State of Texas
State’s Brief Page 12
CERTIFICATE OF COMPLIANCE
I certify that this document contains 2,579 words (excluding the
cover, table of contents and table of authorities). The body text is in 14
point font, and the footnote text is in 12 point font.
/s/ René B. González
René B. González
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing State’s Appellate Brief was e-
mailed to Mr. Larry Warner, Attorney at Law, 3109 Banyan Drive,
Harlingen, Texas 78550, at Office@larrywarner.com on the 9th day of
April, 2015.
/s/ René B. González
René B. González
State’s Brief Page 13