Driving While Intoxicated Case Law Update - Texas District ...

Driving While IntoxicatedCase Law UpdateRichard AlpertAssistant Criminal District AfforneyTarrant County District Attorneyos Officer alp ert@tar rantc o u nty. c o m([Ipdated June 8, 2010)

TABLE OF CONTENTSINFORMATION/CHARGING INSTRUMENT .... 1A. MENTALORPHYSICALFACULTIES.. .......1B..PUBLICPLACE'I SPECIFIC ENOUGH 1c. STATE DOES NOT HAVE TO SPECIFY WHICH DEFINITION OFINTOXICATION ITISRELYINGON INTHE INFORMATION ... "..... 1D. DEFINITIONJURY INSTRUCTION SHOULD BE LIMITED TO EVIDENCEPRESENTEDATTRIAL .......1E. NO MENTALSTATE NECESSARYIN DWI CHARGE ......,. 21. PRES49.04 .....22. POSTS49.04 ....2F. UNOBJECTEDTOERRORINCHARGINGINSTRUMENT. ......... 2G. READINGDWI ENHANCEMENTATWRONGTIME . ........ 3il.III.lv.VOIR DIREA. PROPERQUESTION/STATEMENT ....B. IMPROPERQUESTION/STATEMENT ....C. CHALLENGE FORCAUSE1. PRESUMPTION OF INNOCENCE . . . .2. ONE WITNESS CASE3. JURORS WHO WOULD REQUIRE BREATH TEST TO CONVICT . . .4. JUROR'S ABILITY TO CONSIDER FULL RANGE OF PUNISHMENTDWI ROADBLOCKSA. ARE ILLEGALB. AVOIDING ROADBLOCK CAN PROVIDE BASIS FOR STOPTRAFFIC VIOLATIONS33344445555V.vt.OCCUPATIONAL LICENSE CHARTBASIS FOR VEHICLE STOPIA. LEGAL STANDARDIB. TICKETS THAT PROVIDED BASIS FOR STOP INADMISSIBLE . . .Ic. INFORMATION FROM CITIZEN/POLICE RADIO/ANONYMOUS CALLI1, SUFFICIENT BASIS FOR STOP92. IDENTIFIED CITIZEN--CREDIBLE AND RELIABLE .103. DETAILS OF POLICE BROADCAST ARE ADMISSIBLE . . . .114. ANONYMOUS TIP FROM EMS TECHNICIAN .115. ANONYMOUS TIP FROM HITCHHIKER . . . .116. ANONYMOUS TIP FROM TRUCK DRIVER12D. BAD DRIVING NEED NOT = CRIMINAL OFFENSE12E. "coMMUNtTY CARE-TAK|NG FUNCT|ON" (CCF)131. APPLIES142. DOESN'T APPLY14F. OFFICER'S ARREST AUTHORITY WHEN OUTSIDE JURISDICTION . .151. FOR A TRAFFIC OFFENSE15(a) STOPS MADE BEFORE 9-01-05 = NO .15(b) STOPS MADE AFTER 9-01-05 = YES162. CAN STOP AND ARREST FOR "BREACH OF PEACE'' . . . . .16

3. TOMAKEARRESTFORDWI .......164. FAILURE TO NOTIFY OFFICERS WITHIN JURISDICTION DOES NOTVIOLAT EXCLUSIONARY RULE 175. CITY VS. COUNTY-WIDE JURISDICTION 17(a) COUNry-WIDE .. 17(b) oFFlcER WITHIN JURISDICTION'S PARTICIPATION 17(c) HoT PURSUIT . . 18G. PRETEXT STOPS - NO LONGER BASIS FOR SUPPRESSION 18H. OPERATING VEHICLE IN UNSAFE CONDITION 18I. FAILING TO DIM LIGHT 19J. RAPID ACCELERATION/SPINNING TIRES 191. YES . 192. NO .. 19K. WEAVING WITHIN LANE . 191. YES . 192. NO .. ... 20L. DEFECTIVE TAIL LAMP AS BASIS FOR STOP . . . . . . 221. NO .. ... 222. YES . ... 22M. MUST RADAR EVIDENCE MEET KELLY TEST? . . . . . 221. YES . ... 222. JUDICIALNOTICEOFRADAR ......233. RADAR MEETS 1ST PRoNG oF KELLY TEST . . . . . . 234. LIDAR RADAR AS SOLE BASIS FOR STOP WITHOUT PROOF OFRELIABILITY IS INSUFFICIENT23N. CITIZEN'S ARREST FOR'BREACH OF THE PEACE'AS BASIS FOR STOP 24o. TURNING/EXITING WITHOUT A SIGNAL241. YES .242. NO..25P.'FOLLOWINGTOO CLOSELY'_ SUFFICIENT DETAIL?25O. DRIVING UNDER THE POSTED SPEED LIMIT261. INSUFFICIENT ON THESE FACTS262. SUFFICIENT ON THESE FACTS26R. APPROACHING A VEHICLE THAT IS ALREADY STOPPED271. ENCOUNTER ....272. NOTAN ENCOUNTER....28S. PLATE OBSCURING STATE SLOGAN AND IMAGES PROVIDES BASISFOR STOP28T. DRIVERS LICENSE CHECKPOINT28U. VEHICLE STOPPED AT LIGHT28V. ONE OF THREE BRAKE LIGHTS NOT WORKING . .29W. OBJECTIVE FACTS CAN TRUMP OFFICER'SUBJECTIVE BELIEFX.AND SUPPORT STOPREWING ENGINE AND LURCHING FORWARD INSUFFICIENT BASISFOR STOP2930vil.vlll.PORTABLE ALCOHOL SENSOR DEVICESWARRANTLESS ARREST DWI SUSPECT. OFFENSE NOT VIEWEDA. BASED ON PUBLIC INTOXICATION THEORYB. BASED ON "BREACH OF PEACE"THEORYC. BASED ON -SUSPICIOUS PLACE" THEORY1. FRONTYARD2. PARKING LOT .30303031313131l_ l-

tx.x.3. HOSPITAL4, THE DEFENDANT'S HOME5. ACCIDENT SCENED. NEED NOT ACTUALLY CHARGE SUSPECT WITH PUBLIC INTOXICATION . . . . . .E. IMPLIED CONSENT LAW STILL APPLIESVIDEO33A. PARTS OF PREDICATE CAN BE INFERRED . .33B. NEW PREDICATE REPLACES EDWARDS33C. OPERATOR QUALIFICATIONS .33D. SUPPRESSIBLE ITEMS331. INVOCATION OF RIGH TO COUNSEL . . .332. INVOCATION OF RIGHT TO TERMINATE INTERVIEW343. EXTRANEOUS OFFENSES - IF OBJECTED TO34E. NOTSUPPRESSIBLE .....-341. AUDIO OF FSTs342. FST REFUSAL ..353. VIDEO PORTION AFTERAUDIO SUPPRESSED . . .354. INVOCATION OF RIGHTTO COUNSEL DURING BT REFUSAL . . . . . . . . . 355. VIDEO PORTION ADMISSIBLE EVEN IF AUDIO DID NOT RECORD 356. FIELD SOBRIETY TESTS ARE NON-TESTIMONIAL . . . .367. VERBAL FSTs TESTS/ALPHABET & COUNTING ARE NOTTESTIMONIAL ....... 368. RIGHT TO COUNSEL - MUST BE CLEARLY INVOKED . . . . . 369. RIGHT TO REMAIN SILENT MAY NOT BE SELECTIVELY INVOKED . . . . . . 36F. ABSENCEOFVIDEOTAPE... .......371. NOTGROUNDSFORACOUITTAL.... .....372. UNLESSDESTRUCTIONOFTAPEINBADFAITH ......,. 373. NO JURY INSTRUCTION FOR FAILURE TO TAPE . . 37G. SURREPTITIOUSAUDIORECORDINGS ....371. PRE-ARREST .... .... 372. POST.ARREST.. .....38H. DEFENSE RIGHTTOVIEWTAPEBEFORETRIAL ........ 38t. TAPEMADEINFOREIGNLANGUAGE ......38J. PROVIDING DEFENDANT WITH COPY OF DWI VIDEOTAPE . . . . . . 381. DEFENDANT NEED ONLY BE GIVEN''ACCESS" . . . 382. ACCESS TO THE TAPE IS NOT REQUIRED UNLESS THEREIS'CUSTODIAL INTERROGATION"38K. NO SOUND = NO PROBLEM .39L. MOBILE VIDEO CAMERA TAPE ADMISSIBLE39M. STATE MAY SUBPOENA/OFFER DEFENDANT'S COPY39N. LOSING VIDEOTAPE BETWEEN TRIAL AND APPEAL DOES NOTREOUIRE NEW TRIAL39o. PROBLEM OF OTHER STOPS BEING VISIBLE ON DWITAPE39P. VIDEO PART OF TAPE MAY BE ADMISSIBLE WITHOUT OPERATOR'STESTIMONY40o. INABILITY TO ID ALL BACKGROUND VOICES NOT A PROBLEM40R. OFFICER'S NARRATIVE ON PERFORMANCE OF FSTs411. CUMULATIVE....412. INADMISSIBLE HEARSAY41IN.COURTDEMONSTRATIONS/EXHIBITS ......A. FIELD SOBRIETY TESTSB. SMELLTEST3132323232414141rl_l_

xt.xil.xilt.c.D.E.F.G.SMELL & TASTE TESTCHART OF SYMPTOMS OF INTOXICATION INADMISSIBLECHART OF SYMPTOMS OF INTOXICATION-DEMONSTRATIVEEVIDENCEDEMONSTRATION OF DEFENDANT'S SPEECH . . . .ERROR TO ALLOW BOTTLE OF VODKA TO BE ADMITTED ASDEMONSTRATIVE EVIDENCE .ONE WITNESS SUFFICIENT (OPINION TESTIMONY)IMPEACHING POLICE OFFICERA. FINANCIAL MOTIVEB. QUOTASc. EMPLOYMENT AND DISCIPLINARY HISTORYIMPEACHING DEFENDANT AND BOND FORFEITURE EVIDENCEA l^f'oJol5-* :::::::::::C. EVIDENCE OF BOND FORFEITURE ADMISSIBLE4242424243434343434444444445B.c.D.E.F.PRE-ARREST STATEMENTS . .1. ADMISSIBLE....2. INADMISSIBLE,'CUSTODIAL INTERROGATION'' . . . . .''MIRANDAWARNINGS" - RECITATION MUST BE ACCURATEACCIDENT REPORTS STATUTE HAS NO EFFECT ON ADMISSIBILITYOF DRIVER'S ORAL STATEMENTSDOES HANDCUFFING DEFENDANT PLACE HIM IN "CUSTODY" FORMIRANDAPURPOSES? ....1. NO ..2. YES.STATEMENTS ABOUT DRUG USE INADMISSIBLE WITHOUT EXPERTTESTIMONYSTATEMENTS BY DEFENDANT'S HUSBAND - NOT HEARSAY45454548484B4949494949FIELD SOBRIETY TESTSHORIZONTAL GpZENYSTAGMUS . . . .1. IS ADMISSIBLE2. OFFICER DOES NOT HAVE TO BE AN OPHTHALMOLOGIST TOTESTIFY3. DOES THE OFFICER NEED TO BE CERTIFIED? . . . .(a) NO, BUT RULE 702 REQUIREMENTS MUST BE MET(b) CERTTFTCATTON FROM A TRATNTNG COURSE WILLSUFFICE(c) OFFICER MUST HAVE SOME CERTIFICATION .(d) LAPSED CERTTFTCATTON W|LL NOT DTSQUALTFY4. IMPROPER FOR TRIAL COURT TO TAKE JUDICIAL NOTICE OFTEST'S RELIABILITY . . . .5. WITNESS CAN'T CORRELATE TEST TO BLOOD ALCOHOLCONCENTRATION ..6. VERTICAL GAZE NYSTAGMUS/RESTING NYSTAGMUS ....7. IMPACT OF FAILING TO PERFORM FSTs PER NHTSAB.GUIDELINES.. -.ONE LEG STAND = LAY WITNESS TESTIMONY . . . .5050505050505051515151525253l-v

xvt.c.D.E.F.WALK AND TURN = LAY WITNESS TESTIMONY . . . .OFFICER MAY TESTIFYABOUT SCIENTIFIC STUDIES FINDINGS RE: THERELIABILITY OF FST'SOFFICERS MAY COERCE SUSPECT INTO PERFORMING FST'sREFUSAL TO PERFORM FSTS = PC TO ARREST AND EVIDENCE OFGUILTSPECIFIC ELEMENTS56A. PUBLIC ROAD - PLACE561. PARKING LOTS .562. MILITARY BASES563. PARK AS A PUBLIC PLACE574. DRIVEWAY575. MARINA576. GATEDCOMMUNITY....57B. PROOF OF'STATEPROOF OF 'MOTOR57c.VEHICLE"58D. "NORMAL USE OF MENTAL OR PHYSICAL FACULTIES'58E. ADMISSIBILITYOF ILLEGALDRUGSTO PROVE INTOXICATION .. ...... 5854545454XVII. BREATH TEST . . 58A. IMPLIEDCONSENTLAW. ....58B. BREATH TEST PREDICATE . . . 59C. INSTRUMENTCERTIFICATION ......591. NEWINSTRUMENTNEEDNOTBERE.CERTIFIED.. ..... 592. CERTIFICATION AND MAINTENANCE RECORDS ADMISSIBLE . . . 59D. LIMITED RIGHT TO BLOOD TEST . . . . 601. FAILURETOADVISE OF RIGHTTO BLOODTEST ........ 602. NO RIGHT TO BLOOD TEST IN LIEU OF BREATH TEST . . . 603. OFFICER'S CHOICE WHETHER BREATH OR BLOOD . . . . . 60E. MIRANDAWARNINGS ....... 601. NEED NOT GIVE PRIOR TO REQUEST FOR BREATH SAMPLE . . . 602. INVOCATIONOFRIGHTSWILLNOTEXCLUDEREFUSAL.... ... 61F.G.3. NO RIGH TO COUNSEL PRIOR TO DECIDING WHETHER TOGIVE SAMPLE ...BREATHAMPULES NEED NOTBE PRESERVED ...DIC-23 & DIC-24 WARNINGS1. REQUIREMENT THEY BE GIVEN IN WRITING RELATES ONLY TOADMISSIBILITY OF REFUSALS2. FAILURE TO GIVE WARNINGS IN WRITING NOT NECESSARILYFATAL3. WRITTEN WARNINGS NEED NOT BE PROVIDED PRIOR TOREFUSAL4. THAT ARREST PRECEDE READING OF DIC-24 = FLEXIBLE5. DIC-24 NOTICE IN WRITING REQUIREMENT SATISFIED BYMAKING WRITTEN COPY "AVAILABLEU . . . .6. OFFICER WHO READS DIC-24 & REQUESTSAMPLE NEEDNOT BE ARRESTING OFFICER7. CIVILIAN READING WARNINGS NOT NECESSARILY BASIS FOREXCLUSIONB. DIC.24 - WORDING .10 OR GREATER - IS CORRECT - THOUGHIT'S NOT TIED TO DRIVING9. ERROR IN SPANISH LANGUAGE VERSION OF THE WARNINGDID NOT MAKE DEFENDANT'S CONSENT INVALID616161616162626363636364

H.t.J.K.L.M.N.o.P.o.R.S.T.U.10. COMMERCIAL DRIVER'S LICENSE WARNINGS64(a)(b)NEED TO BE GIVENDON',T NEED TO BE G|VEN646411. DIC 23 & DIC 24 DOCUMENTS ARE NOT HEARSAY6512. URINE SAMPLE ADMISSIBLE WITHOUT EXPLANATION OFRIGH TO REFUSENOT NECESSARY TO SHOW 210 LITERS OF BREATH6565BREATH TEST NOT COERCED .661. EXTRA WARNING REFERRED TO CONSEQUENCES OFPASSING NOT REFUSING .662. NO EVIDENCE THAT ADDITIONAL WARNING ACTUALLYCOERCEDEFENDANT ....673. NO EVIDENCE THAT DEFENDANT RELIED UPON EXTRA WARNING . . . . 674. DEFENDANT GAVE SAMPLE, CONSEQUENCES UNDERSTATED . . . . . . . 675. AT MTS IT IS THE DEFENDANT'S BURDEN TO SHOW CONSENTTO GIVE BT WAS NOT VOLUNTARY676. INSUFFICIENT EVIDENCE OF CAUSAL CONNECTION BETWEENOFFICER STATEMENT AND CONSENT68BREATH TEST FOUND TO BE COERCED68BREATH TEST REFUSAL EVIDENCE691. AS EVIDENCE OF GUILT692. NO VIOLATION OF sTH AMENDMENT693. REASON FOR REFUSAL AND CONDITION OF INSTRUMENTIRRELEVANT.... .... 694. REFUSALBASEDONINTOXICATION ISSTILLA'REFUSAL" .... ....... 705. INTOXICATION MAYBEPRESUMED FROM BTR.. ....... 706. FAILURE TO FOLLOW BREATH TEST INSTRUCTIONS = REFUSAL . . . . . 70LATEBREATHTEST-CANBESUFFICIENT. ......701. LATE TEST NOT CONCLUSIVE BUT IS PROBATIVE . . . . . , 702. AFTERIHOUR&2OMINUTES .....703. AFTER2 HOURS ..... 714. AFTER2HOURS&1sMINUTES.. ........715. AFTER2HOURS&3OMINUTES.. ........716. AFTER4HOURS&3OMINUTES.. ........717. AFTERT HOURS ..... 71OBSERVATION PERIOD ...... 711. MORE THAN ONE OFFICER OBSERVATION REQUIREMENT . . . . 712. NO NEED TO REPEAT ON 2ND TEST . . . . . . 723. NO LONGERNECESSARYTO-OBSERVE"DEFENDANT FORI5MINUTES ..72BREATHTESTDELAYPRECLUDINGBLOODTEST. ...... 72OFFICER MAY REQUEST MORE THAN ONE TYPE OF TEST . . . . . 72BREATH TESTADMISSIBLEAS PROOF OF LOSS OF NORMAL . . . . . . . . . 72BREATH TEST RESULTS ADMISSIBILITY ISSUES . . 731. BREATH TEST RESULT IS NOT HEARSAY . . 732. PARTIALTESTRESULTSINADMISSIBLE... ...... 733. NEW TECHNICAL SUPERVISOR CAN LAY PREDICATE FOROLDTESTS ...73KELLYV. STATE ...... 731. APPLIESTOBREATHTESTS .......732. FIRSTTWOPRONGSOFKELLYTESTMETBYSTATUTE ....... 74PROPER TO OFFER BT SLIPS TO SHOW NO RESULT OBTAINED . . . . . . 74LOSS OF NORMAL & PER SE LAW EVIDENCE NOT MUTUALLY EXCLUSIVE . . . . 74NO SAMPLE TAKEN = NO DUE PROCESS VIOLATION . . . . 75V1

V.W.X.Y.FAILURE TO TIMELY RESPOND TO REPEATED BT REQUEST = REFUSAL . . . . .EXTRAPOLATION1. IS NOT NEEDED TO PROVE DEFENDANT WAS INTOXICATEDUNDER CHEMICAL TEST DEFINITION2. PROBATIVE VALUE OF BT OUTWEIGHS PREJUDICIAL EFFECT . . . . . . .3. PREJUDTCE OUTWETGHS PROBATTVE (A RTDTCULOUS OPIN|ON)4. EXTRAPOLATION TESTIMONY IS ADMISSIBLE UNDERKELLY, 824 S.W.2D 573 (TEX.CRTM.APP. 1992) .5. EXTRAPOLATION EVIDENCE IMPROPERLYADMITTED . . .6. IMPROPER ADMISSION OF EXTRAPOLATION EVIDENCENOTHARMLESS .7. EVIDENCE OF DRUG INGESTION STILL RELEVANT WITHOUTEXTRAPOLATIONB. EXTRAPOLATIONEVIDENCEPROPERLYADMITTEDOPERATOR NEED NOT UNDERSTAND SCIENCE BEHIND THEINSTRUMENT! ..FAILURE TO NOTE TEMPERATURE .1. OF REFERENCE SAMPLE = BT EXCLUDED2. OF SUSPECT & REFERENCE SAMPLE = BT NOT EXCLUDED75757576777878787g79BO808080XVIII. BLOOD TEST81A. "REASONABLE BELIEF' STANDARD81B. ARREST AT THE HOSPITAL821. RESTRAINT WAS SUFFICIENT822. LATER RELEASE DID NOT NEGATE82c. STATUTORY REQUIREMENTS FOR DRAWING MANDATORY BLOODDONOTAPPLY .......821. WHENDEFENDANTCONSENTS... .......822. WHEN DEFENDANT IS NOT UNDER ARREST . . . . . 823. READINGDIC-24-EFFECTONCONSENT... .... B34. READING DIC-24 AS EVIDENCE OF ARREST . . . . . . 83D. PROCEDUREFORTAKINGBLOODSAMPLE ......831. OFFICERS MAY USE FORCE TO TAKE BLOOD . . . . 832. SAMPLEFROMUNCONSCIOUSDEFENDANT .....833. USEOFALCOHOLSWABBEFORE BLOODRAW ....... 844. WHATCONSTITUTESA'QUALIFIEDTECHNICIAN' ...... 84(a) "PHLEBOTOMIST'MAY BE A.QUALIFIED TECHNICIAN" . . 84(b) "PHLEBOTOMTST'QUALTFTCATTONMUSTSTILLBESHOWN84(c) RESTRICTIONS ON WHO MAY DRAW BLOOD ONLYAPPLY IF SUSPECT IS UNDER ARREST855. EMS PERSONNEL MAYNOT DRAW MANDATORYBLOOD85E. HOSPITAL RECORDS851. ARE NOT PRIVILEGED . . .B52. OBTAINING RECORDS BY SUBPOENA . . .863. RELEASE OF DEFENDANT'S HOSPITAL RECORDS IN RESPONSETO A GJ SUBPOENA DOES NOT VIOLATE HIPAA864. NO HIPPA VIOLATION IN HOSPITAL PERSONNEL TELLING POLICEBREATH-ALCOHOL CONTENT WITHOUT SUBPOENA86F. CHAIN OF CUSTODY REOUIREMENTS871. BLOOD TESTED IS SAME AS BLOOD DRAWN. . . . . B72. NOT NECESSARYTHAT PERSON WHO DREW BLOOD TESTIFY . . . . . . . 873. GAPS IN CHAIN GO TO -WEIGHT" NOT ADMISSIBILITY . . . 874. NOT NECESSARYTO SHOW WHO DREW THE BLOOD . . . 87vl_ 1

G.H.t.J.K.L.M.N.o.5. NOTNECESSARYTOSHOWWHO DREW ORTESTEDTHE BLOOD! ...SANITARY PLACE REQUIREMENT . .SERUM-BLOOD TESTHOSPITAL DRAWN SAMPLE = NOT AN ASSAULT . . .ACQUIESCENCE TO HOSPITAL BLOOD DRAW = CONSENTSEARCH WARRANT IN DWI CASE1. IS PROPER2. FAILURE TO NOTE TIME OF STOP NOT NECESSARILY FATALTO WARRANT . .DIC-24 NEED NOT BE READ BEFORE MANDATORY BLOOD DRAWONLYONE SAMPLE MAYBE DRAWN UNDER MANDATORY BLOOD LAW . . . . . .WHEN DEFENDANT CONSENTS,724.O12 OF TRANSPORTATION CODEDOES NOT APPLYOFFICER BLOOD DRAW PROCEDURE "UNREASONABLE' UNDER THE 4THAMENDMENT ...888BBB898989899090909191xx.xxt.EXPERTTESTIMONY ...A. STATE EXPERT OPINION TESTIMONY.0S = LOSS OF NORMAL = PROPERB. TMPEACHMENT - PRTOR TESTTMONY (JOHN CASTLE)c. EXPERTESTIMONY ABOUT DWI VIDEO PROPERLY EXCLUDEDD. DEFENSEXPERT OPENE DOOR TO DEFENDANT'S ALCOHOLISM . . .E. RESULTS OF DEFENSEXPERT'S EXPERIMENT PROPERLY EXCLUDEDDEFENSESA. ENTRAPMENT DEFENSE . . . .B. NECESSITY DEFENSEc. INVOLUNTARY INTOXICATION DEFENSED. INSANIryAUTOMOTISM . . .E. NO "VOLUNTARYACT'JURYCHARGE...... .......97A. OBSERVATION PERIOD ...... 971. NOCHARGEREQUIRED ....972. CHARGE REQUIRED . . 97B. ALTERNATIVECAUSATION=NOCHARGE.... ....981. |NGENERAL.... ..;........982. FATTGUE ...... 98c.cHARGEoNWoRK|NGcoND|T|oNoF|NSTRUMENT...1. NOTENTITLEDTOSUCHACHARGE ......982. ENTITLED TO CHARGE AS TO DPS REGULATIONS . . . . . . 98D. NO CHARGE ON BLOOD OR URINE IN BREATH TEST CASE . . . . . 99E. SYNERGISTICCHARGES ....991. PROPER ...... 992. NOT FOR "FATIGUE' . . 993. NOT FOR "THEORY OF INTOXICATION NOT ALLEGED' . . 99F. GENERAL VERDICT FORM1OOG. SEPARATE VERDICT FORMS?1OOH. DRIVER'S LICENSE SUSPENSION INSTRUCTION . 101L MOTOR VEHICLE AS A DEADLY WEAPON IN A DWI CASE 1011. IS PROPER 1012. MAYORMAYNOTBEPROPER?.... 1023. IS NOT PROPER 1024. NOTICE MUST BE ADEQUATE AND TIMELY 103J.NoDEF|N|TloNoF-NoRMALUSE,SHoULDBEGlVEN929292929293939393949697vl_ I l_

K.L.M.N.o.P.o.R.S.NO SUCH THING AS -ATTEMPTED DWI" . 103NO CHARGE ON INVOLUNTARY INTOXICATION AND AUTOMATISMDEFENSE IN THIS DWI/PRESCRIPTION DRUG CASE 103NO MEDICAL EXCUSE INSTRUCTION . . 104NO JURY INSTRUCTIONFAILURE TO PRESERVEVIDENCE . . . . . . 104NO DEFINITION OF "OPERATING' . . . 104NO JURY INSTRUCTIONBTR CONSIDERED AS EVIDENCE . . . 104ERROR TO CHARGE ON CONCURRENT CAUSATION IN DWI CASE 105NOT ENTITLED TO A CCP 38.23 INSTRUCTION 105PER SE DEFINITION OPTION SHOULD BE SUBMITTED-LIMITINGINSTRUCTION IMPROPER 106XXII. JURYARGUMENT .... 106A. PERMISSIBLE ... 1061. DEFENDANT FAILED TO BLOW BECAUSE HE KNEW HE WOULD FAIL . 1062. DEFENDANT'S FAILURE TO DO FSTs ON VIDEO 1073. DEFENDANT'S REFUSAL TO DO ANYTHING (i.e. FSTs, BT) 1074. DEFENDANT'S TRYING TO LOOK GOOD ON TAPE 1075. JURY DOES NOT HAVE TO BE UNANIMOUS ON THEORY OFINTOX|CAT|ON.. 1076. TESTIMONY REGARDING AND ARGUMENT ABOUTDEFENDANT'S FAILURE TO CALL ITS EXPERT WAS PROPER 107B. IMPERMISSIBLE . 1OBXXIII. PROBATIONELIGIBLE108XXIV. PRIORS/ENHANCEMENTS108A. PROVING DEFENDANT IS PERSON NAMED IN JUDGMENT1081. I.D. MUST BE BASED ON MORE THAN "SAME NAME"1082. BOOK.IN CARD MUST BE TIED TO JUDGMENT AND SENTENCE 1083. PROOF OF ID POSSIBLE WITHOUT PRINTS OR PHOTOS . . . .1094. COMPUTER PRINTOUT AS PROOF OF PRIOR CONVICTION109B. PRIORS FOR WHICH DEFERRED ADJUDICATION GIVEN109c USE OF DPS RECORDS TO PROVE PRIORS1091. FORPURPOSEOFTYINGDEFENDANTTOJ&S.. 1092. DPS RECORDS ALONE WITHOUT J & S - NOT ENOUGH . . 1103. DPS RECORDS NOT EXCLUDABLE UNDER COLE 110D. FAXED COPY OF JUDGMENT & SENTENCE ADMISSIBLE 110E. ENHANCEMENT OF FELONY DWI WITH NON-DWI PRIORS 110F. ERROR IN ENHANCEMENT PARAGRAPH NOT FATAL 1101. WRONG DATE ALLEGED 1102. WRONGCASENUMBERALLEGED .......1113. WRONG STATE ALLEGED 1114. WRONG CHARGING INSTRUMENT ALLEGED . . . . 111G. APPEAL OF REVOKEDWI DOESN'T BAR ITS USE FOR ENHANCEMENT 111H. FELONYDWT .......1111. ORDEROF ENHANCEMENTS 1112. UNDERLYING DWI PRIORS ARE ADMISSIBLE INGUILT/INNOCENCESTAGE .......1123. DEFENDANT'S AGREEMENT TO STIPULATE TO PRIORS DOESPRECLUDE THEIR BEING ADMITTED 1124. STIPULATIONSHOULD BEADMITTED INTO EVIDENCE ....... 1125. TWO PRIORS THAT ARISE OUT OF A SINGLE CRIMINAL ACTMAYBE USEDTO ENHANCETOAFELONY 113l_x

J.K.L.M.N.o.P.o.R.S.T.U.V.W.X.6. JUDGE HAS NO AUTHORITY TO FIND PRIOR CONVICTIONTRUE WHEN ISSUE NOT SUBMITTED TO JURY 1137. STIPULATING TO PRIORS WAIVES 1O YEAR OBJECTION 1138. JURY INSTRUCTION MUST ADDRESS THE STIPULATION 1139. DEFENDANT WHO STIPULATES TO PRIORS ON CONDITIONTHEY NOT BE MENTIONED WAIVES ABILITY TO COMPLAINTHEY WERE NOT PROVED . . 11410. PROPER TO USE FEDERAL DWI CONVICTIONS FOR ENHANCEMENT . 11411. DATES OF PRIOR DWI'S ARE NOT ELEMENTS OF FELONY DWI . . . . . . 114LIMITS ON USE OF DWI PRIORS FOR ENHANCEMENT 1151. PRIOR FELONY DWI MAY BE USED TO ENHANCE FELONYUNDER PENAL CODE SECTION 12.42 1152. SAME PRIOR CANNOT BE USED TWICE 1153. WHAT IS NOT "USING A PRIOR TWICE' 115OPENCONTAINER.... 1161. SUFFICIENT PROOF OF . . 1162. EFFECT OF IMPROPEREADING OF OPEN CONTAINERENHANCEMENT IN GUILT INNOCENSE PHASE 116RE.OFFERING EVIDENCE FROM G/I PHASE 116DEFECT lN WORDING OF JUDGMENT/PROBATION ORDER = BAD PRIOR . . . . 1161. YES . 1162. NO .. 1173. NOT A PROBLEM FOR UNDERLYING PRIORS 1174. UNSIGNEDJUDGMENTCAN BE USEDTO PROV ENHANCEMENT 117ERRONEOUS DISMISSAL OF PROBATION BY THE COURT WON'T AFFECTFINALITYOFTHECONVICTION.... 117MANDATORY JAIL TIME AS CONDITION OF PROBATION-REPEATOFFENDERS .... 118IF YOU ALLEGE MORE PRIOR DWI'S THAN YOU NEED. MUST YOUPROVETHEMALL? 1181. YES . 1182. NO .. 118PROOF THAT PRIOR DWI IS WITHIN 10 YEARS OF OFFENSE DATE 1191. ONLY ONE OF THE TWO PRIORS MUST BE WITHIN 10 YEARS(FOR DWr OFFENSES PR|OR TO 9-1-01) . . . . 1192. PROOF OF 10 YEARS NOT NECESSARY 1193. THE lOYEARRULE FOROFFENSES FROM9-01-01 TOB.31.O5 ....... 1204. THE 1O YEAR RULE'S DEMISE DOES NOT VIOLAT EX POSTFACTOLAW . ....... 120JUDGE MAY NOT TERMINATE OR SET ASIDE DWI PROBATION EARLY 120INTRODUCEDJUDGMENTANDSENTENCE PRESUMED PROPER 1211. NO WAIVER OF RIGH TO JURY TRIAL 1212. IN THE ABSENCE OF JUVENILE TRANSFER ORDER 121PROBATEDWI CONVICTIONS UNDER 67011 MAY BE USED TOENHANCE NEW DWI OFFENSES 121MISDEMEANOR PRIORS ARE VALID WHEN DEFENDANT WAIVESJURYWITHOUTANATTORNEY ..... ]. 121DWI MUST INCLUDE JAIL TIME 122ILLEGAL SENTENCENFORCEABLE IF DEFENDANT ASKED FORITORAGREEDTOIT .......122EXPUNCTION WILL NOT ALWAYS RENDER UNDERLYING FACTS OF CASEINADMISSIBLEPUNISHMENT PHASE 122FELONY DWI CAN BE THE UNDERLYING FELONY IN A'FELONY MURDER"CHARGE 123

Y.z.DWIW/CHILD CAN BE THE UNDERLYING FELONY IN A FELONYMURDERCHARGE 124INVOLUNTARY MANSLAUGHTER PRIOR MAY NOT BE USED TOENHANCEADWITOAFELONY.. 124XXV. COLLATERALESTOPPEL/DOUBLEJEOPARDY ..124A. JUSTICE COURT FINDINGS . 124B. PROBATION REVOCATION HEARINGS . 125C. ALR HEARINGS-NO DOUBLE JEOPARDY . 1251. ALRSUSPENSIONS BASED ON BREATH TESTS . 1252. ALRSUSPENSIONS BASED ON BREATH TEST REFUSALS 125D. ALR HEARINGS: NO COLLATERAL ESTOPPEL . . . . 126E. NO DOUBLE JEOPARDY BAR TO PROSECUTING DEFENDANT FOR BOTH . . . . 1271. DWI & DWLS . 1272. DWI& FSRA 1273. FELONY DWI & INTOXICATION ASSAULT . . 1274. DWI & CHILD ENDANGERMENT 128F. OCCUPATIONAL DRIVER'S LICENSE/ALR SUSPENSIONS 128G. NO CONFLICT BETWEEN "DUI'AND"DWI'STATUTE 128H. NO CONVICTION FOR BOTH INTOXICATION ASSAULTAND AGGRAVATEDASSAULTSBI . 129I. EFFECT OF LOSING ONE BT THEORY AT FIRST TRIAL ONSUBSEQUENT TRIAL . 129J. COLLATERAL ESTOPPEL BARS INTOXICATION MANSLAUGHTERTRIAL ON DIFFERENT INTOXICANT 129K. NO DOUBLE JEOPARDY WHERE FAULTY UNDERLYING DWIPRIOR ALLEGATION DENIES COURT JURISDICTION . . 130XXVI. PUTTING DEFENDANT BEHIND THE WHEEL . . . . . 130A. DEFENDANT STATEMENTHAT HE WAS DRIVER = SUFFICIENTLYCORROBORATED 130B. SUFFICIENT CORROBORATION OF'DRIVING/OPERATING" . 131c. INSUFFICIENT CORROBORATION OF "DRIVING/OPERATING' 139D. EVIDENCE OF INTOXICATIONTIME DEFENDANT WAS DRIVING 1391. INSUFFICIENT .. 1392. SUFFTCTENT .... 140XXVII. CONDITIONS OF PROBATION. LIMITATIONS140A. STAY OUT OF BARS-CHANGE JOB = OK .140B. DEN|ALoFPRoBAT|oNDUEToLANGUAGEBARR|ER-PRoPER.'.. 140XXVIII. NO J.N.O.V. IN CRIMINAL CASES141XXIX. COURT OF APPEAL SHOULD NOT RE.WEIGH EVIDENCE . .. .. 141XXX. MISDEMEANOR APPEAL BOND CONDITIONS 141XXXI. INTERLOCK DEVICES . 142A. ASAPRE-TRIALBONDCONDITION .......142B. ASACONDITIONOFPROBATION. .......142C. AS PROOF OF PROBATION VIOLATION 142XXXII. JUDGE MAY CHANGE JURY SENTENCE OF JAIL TIME TO PROBATION . . . .. . 143x1

INhEYIt! 9Ln144TABLE OF AUTHORITIES146xl_ l_

I. INFORMATION/CHARGING INSTRUMENTA. MENTAL OR PHYSICAL FACULTIESHerrera v. State, 11 S.W.3d 412 (Tex.App.-Houston [1"'Dist.] 2000, pet. ref'd).McGinty v. State ,740 S.W .2d 475 (Tex.App.-Houston [1st Dist.] 1987, pet. ref'd).Sims v. State,735 S.W.2d 913 (Tex.App.-Dallas 1987, pet. refd).Use of language "/oss of normal use of mental and physical faculties" in charging instrument isproper & fhe Sfafe need not elect because fhe "and" becomes'or" in the jury instructions.B. "PUBLIC PLACE'' IS SPECIFIC ENOUGHRav v. State, 749 S.W.2d 939 (Tex.App.-San Antonio 1988, pet. ref'd).Kinq v. State,732 S.W.2d 796 (Tex.App.-Fort Worth 1987, pet. ref'd).Allegation of "public place" is a sufficiently specific description.C. STATE DOES NOT HAVE TO SPECIFYWHICH DEFINITION OF INTOXICATIONIT IS RELYING ON IN THE INFORMATIONState v. Barbernell, 257 S.W.3d 248 (Tex.Crim.App.2008).The State does not have to allege in the charging instrument which deflnition of "intoxicated" thedefendant is going to be prosecuted under. The definitions of "intoxicated" do not create twomanners and means of committing DWl. The conduct proscribed is the act of driving whileintoxicated. The two definitions only provide alternative means by which the State can proveintoxication and therefore are not required to be alleged in the charging instrument. The Courtfound that its holding in State v. Carter,870 S. W.2d 197 (Tex.Crim.App.1991) was flawed, and itwas explicitly overruled by this opinion. This will greatly simplify charging language and may doaway with the need for synergisti charges. Bottom line, when you say "intoxicated," yotJ've saidit all.D. DEFINITIONJURY INSTRUCTION SHOULD BE LIMITED TO EVIDENCEPRESENTED AT TRIALErickson v. State, 13 S.W.3d 850 (Tex.App.-Austin 2000, pet. ref'd).ln this case, the Court instructed the jury that a person is intoxicated within the meaning of the law"when such person does not have the normal use of his physical or mental faculties by reason ofthe introduction of alcohol, a controlled substance, a drug, or a combination of two or more of thesesubsfances into the body, tracking the charging instrument and the statutory definition." There wasno evidence at trial that defendant consumed any intoxicant except alcohol. For that reason, thetrial Court should have limited the definition in the instructions to just refer to alcohol. This errorwas found to be harmless because fhe prosecutor never suggesfed that the jury could convict on

fhe basis of a finding that appellant was intoxicated by the use of a controlled substance or drug,either alone or in combination with another substance.Ferquson v. State,2 S.W.3d 718 (Tex.App.-Austin 1999, no pet.).ln this case, the term "intoxicated" was defined in the charging instrument and the jury charge as"not having the normal use of oneb physical or mental faculties by reason of the introduction ofalcohol, a controlled substance, a drug, a substance or its vapors that contain a volatile chemical,an abuseable glue, or an aerosol paint, or a combination of two or more of those subsfances lnfothe body." The statue does not include within its definition of "intoxication" the words "a substanceor its vapors that contain a volatile chemical, an abuseable glue, or an aerosol paint." There wasno evidence presented at trial that the defendant's alleged intoxication was caused by theintroduction into her body "a substance or its vapors that contain a volatile chemical, an abuseableglue, or an aerosol paint." For fhese reasons and the fact that the prosecutor referred to theerroneous charge in argument, the error was found to be harmful and the case was reversed.E. NO MENTAL STATE NECESSARY IN DWI CHARGE',. PRE 549.04Ex Parte Ross, 522 S.W.zd 214 (Tex.Crim.App. 1975).Hardie v. State, 588 S.W.2d 936 (Tex.Crim.App. 1979).2. POST 549.04Lewis v. State, 951 S.W.2d 235 (Tex.App.-Beaumont 1997, no pet.).Reed v. State, 916 S.W.2d 591 (Tex.App.-Amarillo, 1996, pet. ref'd).Chunn v. State,923 S.W.2d728 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd).Sanders v. State, 936 S.W.2d 436 (Tex.App.-Austin 1996, pet. ref'd).State v. Sanchez, 925 S.W.2d 371 (Tex.App.-Houston [1st Dist.]1996, pet. ref'd).Burke v. State, 930 S.W.2d 230 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd).Aguirre v. State, 928 S.W.2d 759 (Tex.App.-Houston [14th Dist.] 1996, no pet.).F. UNOBJECTED TO ERROR IN CHARGING INSTRUMENTMcCoyv. State,877 5.W.2d844 (Tex.App.-Eastland 1994, no pet.).Where charging instrument mistakenly alleged loss of "facilities" and no objection was made priorto trial, the judge could properly replace the term with "faculties" in the jury instruction.

G. READING DWI ENHANCEMENT AT WRONG TIMEPratte v. State, 2008 WL 5423193 (Tex.App.-Austin 2008).The court allowed the State to read the enhancement paragraph in front of the jury that alleged aprior DWI conviction over the defendant's objection. Article 36.01 of the Code of CriminalProcedure says that when prior convictions are alleged for purposes of enhancement only and arenot jurisdictional, that portion of the indictment or information reciting such convictionshall not beread until the hearing on punishment. ln this particular case, the defendant stipulated to the priorlisted in the enhancement afterthe information was read and before the State called itsfirsf wifnessso the Court holds that the asserfed error did not contribute to the defendant's conviction.II.VOIR DIREA. PROPER QUESTION/STATEMENTKirkham v. State,632 S.W.2d 682 (Tex.App.-Amarillo 1982, no pet.).Voir dire question, "Do yotr believe a person is best judge of whether they are intoxicated?" isproper and is not a comment on defendant's right not to testify.Vrba v. State,151 S.W.3d 676 (Tex.App.-Waco, October 27,2004, pdr ref'd.).The following questions asked by the prosecution were proper in that they were not "commitmentquestions:""What are some s/gns that somebody is intoxicated?""Who thinks that the process of being arrested would be something that might sober you up a littlebit?""Why do you think someone should be punished?""[W]hich one of these [four theories of punishment] is mosf importanto you in trying to determinehow someone should be punished and how much punishmenthey should receive?"B. IMPROPER QUESTION/STATEMENTHarkey v. State, 785 S.W.2d 876 (Tex.App.-Austin 1990, no pet.).Defense attorney asking member of jury panel "if they could think of a reason why anyone wouldnot take such a (breath) test" held to be improper in its'Torm."Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App. 2001).The question, "lf someone refused a breath test, would you presume him/her guilty on theirrefusal alone?" was held to be improper as it consfitufes an attempt to commit the juror. This

case a/so reaffirms that a juror may permissibly presume guilt from evidence of a refusal to givea breath or blood test.Davis v. State, 2006 WL 2194708, No. 14-03-00585-CR (Tex.App.-Houston [14th Dist.] 2006).Even if State established that breathlesting device was functioning properly at the time of the test,that the fesf was properly administered, and that defendanfb fesf result was 0.08 or above,defendant was still entitled to challenge, and the jury to disbelieve, the reliability of the methodologyused by the device, and Sfafeb misstatemenfs fo the contrary during voir dire required reversal.C. CHALLENGE FOR CAUSE1. PRESUMPTION OF INNOCENCEHarkey v. State, 785 S.W.2d 876 (Tex.App.-Austin 1990, no pet.).Jurors stating, in response fo suggesfion by defense counse/ that defendant "must be guilty ofsomething or he wouldn't be there" did not provide a basis for challenge for cause.2. ONE WITNESS CASEZinoer v. State, 932 S.W.2d 511 (Tex.Crim.App. 1996).Leonard v. State, 923 S.W.2d770 (Tex.App.-Fort Worth 1996, no pet.).Castillo v. State, 913 S.W.2d 529 (Tex.Crim.App.1995).Garrett v. State, 851 S.W.2d 853 (Tex.Crim.App.1993).Statement by venire person that "testimony of one wifness would not be enough for him to convicteven if that testimony proved all elements beyond a reasonable doubt' may make that jurorchallengeable for cause but be very careful and read the above cases before you try it.3. JURORS WHO WOULD REQUIRE BREATH TEST TO CONVICTMcKinnon v. State, 2004 WL 878278 (Tex..App.-Dallas 2004, pet. ref'd) (Not designated forpublication).Quesfibn of "Would you require the State to bring you a blood or breath test?" is nof improper"commitment question," and a juror that says that they would not be able to convict without sucha fesf is subT'ecf to a challenge for cause.Fierro v. State, 969 S.W.2d 51 (Tex.App.-Austin 1998, no pet.).Prospective juror who stated he would be unable to convict in the absence of a breath fesf waschallengeable for cause as he had a bias againsf a phase of the law on which the State wasentitled to rely. He would be holding Sfafe fo a higher level of proof of intoxication than the lawrequired.

4. JUROR'S ABILITY TO CONSIDER FULL RANGE OF PUNISHMENTGlauser v. State, 66 S.W.3d 307 (Tex.App.-Houston [1't Dist] 2000, pdr ref'd).This was an lntoxication Manslaughter where the trial court properly denied the defense attorney'schallenge for cause on jurors who could not consider probation under the specific facts of the casebeing tried that went beyond the elements of the offense. The Court cited the standard set out inSadler v. State. 977 S.W.2d 140 (Tex.Crim.App.1998) which said that a prospective juror is notchallengeable for cause because he or she will use factsto determine punishment. A prospectivejuror is not challengeable for cause based on inability to consider the full range of punishmenf soIong as he or she can consider the full range of punishment for the offense as defined by law. Theproper question to determine bias againstthe law regarding punishment is "Whether in a properintoxication manslaughter case as defined by statute, where the facts justify it, the venireperson could fully and fairly consider the entire range of punishment, including theminimum and maximum."III.DWI ROADBLOCKSA. ARE ILLEGALHolt v. State, 887 S.W.2d 16 (Tex.Crim.App. 1994).Held that state wide ptan setting out guidelines is neede d to make use of roadblock constitutional.Untilthat time, DWI roadblocks are illegal.B. AVOIDING ROADBLOCK CAN PROVIDE BASIS FOR STOPJohnson v. State, 833 S.W.2d 320 (Tex.App.-Fort Worth 1992, pet. ref'd).Here officer had reasonable suspicion to stop the suspecf, and that reasonable susprbrbn was notaffected by the presence of the roadblock.

IV.TRAFFIC VIOLATIONSYou will often find the traffic sfop was based on what the officer perceived to be a movingviolation. Locating the particular violation can often be a difficult process. Io assisf youI am including this list of common traffic violations along with the citation to theTransportation Code.OffenseCompliance with Traffic Control DeviceUnsafe Passing to the left of another vehicle:Passing in a "no passing" zoneUnsafe Passing to the right of another vehicle:Driving on lmproved ShoulderFailure to Drive within a Single LaneFollowing to Closely behind another vehiclePassing a School Buslmproper turn at Intersectionlmproper use or of Failure to use turn signalFailure to signal stop/sudden stoplmproper stop/Failure to stop at intersectionFailure to Yield Right of Way at intersectionFailure to/lmproper Yield to Emergency Vehiclelmproper stopping/parking (i.e. in an intersection)Driving at an unsafe speedSpeed Limits when not otherwise postedReckless DrivingLeaving Vehicle UnattendedDriving too slowTransporting Ghild w.o. child safety seatFailure to wear seat beltTransporting child in bed of pick up trucklmproper backing of vehicleDriving with operators view obstructedRacing (includes rapid acceleration "peeling out"Driving through drive way - parking lotFailure to Drive within Single Lane/Unsafe lane changeDriving w.o. lights onAbsence of License Plate LightTaillamp not emitting plainly visible red lightTinted Windows (i.e. too much)Failure to display inspection stickerDisplaying fictitious inspection stickerOperating a vehicle in dangerous mechanical conditionStriking Unattended VehicleStriking Fixture or Highway LandscapingTransportation CodeTRC 5544.004TRC 5545.053TRC 5545.055TRC 5545.057TRG 5545.058TRC 5545.060TRC 5545.062TRC 5545.066TRC 5545.101TRC 5545.104TRC 5545.105TRC 5545.151TRC 5545.153TRC 5545.156TRC 5545.302TRC 5545.351TRC Ss45.352TRC 5545.401TRC 5545.404TRC 5545.363TRC 5545.412TRC 5545.413TRC 5545.414TRC 5545.415TRC 5545.417TRC 5545.420TRC 5545.422TRC 5545.060TRC 5547.302TRC 5s47.322TRC 5547.322TRC 5547.613TRC 5548.602TRC 5548.603TRC 5548.604TRC 5550.024TRC 5550.025

V. OCCUPATIONAL LICENSE CHARTThe following flow chart depicts when a defendant is eligible to apply for and receive anoccupational driver's license following a conviction for DWl. The flow chart is divided betweendefendants under 21 years of age and over 21 at the time they commithe offense.The flow chart is set up to be used in conjunction with a Texas driver's license printout ordriver's license "certified packet" from Austin. By answering a few preliminary questions regardingthe case, the appropriate path can be used to determine when and if the defendant can apply foran occupational license. The relevant sections of the Transportation Code and Code of CriminalProcedure are provided for easy reference.

Eliqibilitv for Occupational Driver's LicensesOver 21YESNOA can get an occupational license withoutwaiting, following the effective date ofsuspension. S521 .251(a). The suspensiontime from the current ALR period can beapplied to the current DWI post-convictionsuspension. S521Saa@)From the arrest date on the current case, goback Syears. Does A have any alcohol /drug-related contacts OR any finalconvictions for DWI?YESA can get an occupational license withoutwaiting, following the effective date ofsuspension. S521 .251(a). BUT, if A has a priorconviction for DWI at any time in their history,then the suspension time from the current ALRsuspension cannot be applied to the current DWIpost conviction suspension. S52 1 .344(cX1).Not SuspendedSuspendedKev Terms to Know"Alcohol or Drug RelatedContact"tDWl conviction fromany state)a Breath/Blood refusal)being over the legalalcohol concentration.s524.001."Effective Date ofSuspension")can be anyruherebetween date ofconviction until 30 daysthereafter.s521.344@X1))driver's licensesuspensionPrior ALR Suspension &/ DWIFinal Conviction where DL notSuspendedThe occupational is allowed on the91't day following the effectivedate of suspension. $521.251 (b).lf the A does not have a DWI atany time in their history, then thecurrent ALR period can be'appliedto the current DWI post-convictionsuspension. S521.3aa(p). lf the Ahas a prior DWI conviction, thenthe current ALR suspensioncannot be applied to the currentpost-conviction sus pens ion .S521 .344(cX1).Final DWI Conviction where DLSuspendedThe occupational is allowed on the181" d"y following the effectivedate of suspension. $521.251 (c).The suspension time from thecurrent ALR suspension cannot beapplied to the current DWI postconvictionsuspension.S521 .344(cX1).BUT, if the current suspension isfor a second conviction for DWl,Intox. Assault, or Intox.Manslaughter, then the effectivedate for the occupational is 1 yearfrom date of suspension.s521 .251(d).Elisibilitv for Occupational License Under 21Defendant cannot get an occupational license for the first 30 days of a suspension for failure of a breathtest. Section 524.O22(d)(1). lf they fail a breath test and they've had one prior conviction of an offense underSection 106.041 ABC code or an offense under Section 49.04, 49.07 or 49.08, Penal Code, they cannot getan occupational for the first 90 days of the suspension. Section 524.022(dl(2). lf they fail a breathtest and they've had two or more prior convictions for offenses listed above, the maximumsuspension is 180 days and they cannot get an occupational for the entire suspensionperiod. Section 524.022(dX3).

VI.BASIS FOR VEHICLE STOPA. LEGAL STANDARDStone v. State, 685 S.W.2d 791 (Tex.App.-Fort Worth 1985), aff'd 703 S.W.2d 652(Tex.Crim.App. 1986).Need only be reasonable suspicion to justify stop. (Definition of that standard included in thisopinion).B. TICKETS THAT PROVIDED BASIS FOR STOP INADMISSIBLENevarez v. State, 671 S.W.2d 90 (Tex.App.-El Paso 1984, no pet.).Error to allow Sfafe fo elicit testimony that traffic tickets were issued in connection with DWI stop.C. INFORMATION FROM CITIZEN/POLICE RADIO/ANONYMOUS CALL1. SUFFICIENT BASIS FOR STOPVillareal v. State, 2008 WL 4367616 (Tex.App.-Houston [1't Dist] 2008, no pet.).Officer received call from dispatch that citizen was following a possr'ble drunk driver and hadobserved the defendant's vehicle pull into a parking lot where she uras approached andinvestigated by the officer. The officer had dispatcher callthe citizen informant and have him meetthe officer at the parking lot where he repeated the details of the bad driving he had obserued. lnupholding the stop, the Court focused on the fact that the observations reported by the informantof the defendant's driving behavior constituted criminal activity, specifically, DWI. Since theinformant chose to follow defendant's vehicle after reporting the conduct, he was not "truly ananonymous informer." In addition the officer corroborated Garcia's identification details when helocated defendant's car in the parking lot.Hawes v. State, 125 S.W.3d 535 (Tex.App.-Houston [1't Dist.], 2002, no pet.).Police received call from tow truck driver reporting reckless driving and that he was following thevehicle. Officer arrived and pulled defendant over based on information received and withoutseeing any traffic violations. The truck driver on seeing defendant pulled over continued withoutstopping. ln holding the stop was valid, the Court found that by presenting his information to thepolice via his busrness's dispatcher and following the suspect in his own readily traceable vehicle,the truck driver placed himself in a position where he could be held accountable for his interuention.These indicia of reliability, when combined with the officer's corroboration of the identificationdetails, provided sufficient reasonable suspicion to justify the investigative stop.

State v. Fudqe, 42 S.W.3d 226 (Tex.App.-Austin, 2001, no pet.).Officer's sole basis for the sfop was the details of bad driving provided to him by a cab driver ina face to face encounter. Court held that that was a sufficient basrs for the stop of the defendant.Court referred and distinguished these factsfrom Florida v. J.L.. 529 U.S. 266, 12A S.Ct.1375, 146L.Ed.2d 254 (2000).State v. Nelson, 228 S.W.3d 899 (Tex.App.-Austin 2007, no pet.).Winborn v. State , 2007 WL 1711791(Tex.App.-Austin 2007, pdr ref'd).Brother v. State, 166 S.W.3d 255 (Tex.Crim.App. 2005), cert. denied,546 U.S. 1150 (2006).Pipkin v. State, 114 S.W.3d 649 (Tex.App.-Fort Worth 2003, no pet.)State v. Stolte, 991 S.W.2d 336 (Tex.App.-:Fort Worth 1999, no pet.).State v. Sailo, 910 S.W.2d 184 (Tex.App.-Fort Worth 1995, pet. ref'd).State v. Adkins, 829 S.W.2d 900 (Tex.App.-Fort Worth 1992, pet. ref'd).Ferouson v. State, 573 S.W.2d 516 (Tex.Crim.App. 1978).Albert v. State, 659 S.W.2d 41 (Tex.App.-Houston [14th Dist] 1983, pet. ref'd).lnformation from a concerned citizen may provide sufficient basrs for officer to make investigativesfop.2. IDENTIFIED CITIZEN-CREDIBLE AND RELIABLEGabrish v. State, 2009 WL 2605899 (Tex.App.-Corpus Christi 2009) (Not designated forpublication).Civilians observed an apparently drunk defendant get in his car after urinating outside and driveaway. One of them called 911 and they all pointed out the car to the officer who stopped thedefendant based on their description of multiple indicators of intoxication. ln upholding the stop,the Court focused on the fact that the civilian informants placed themselves in a position wherethey could have been easily identified and held responsible and that the information they providedto the officer was sufficiently reliable to support the temporary detention.Hime v. State, 998 S.W. 2d 893 (Tex.App.-Houston, [14th Dist.] 1999, pet. ref'd).Citizen stopped at Burger Kng to call police after observing suspecf swerving towards other carsas rt passed. Citizen gave her name and noted that suspect had stopped at BK, too. Officerarrived a minute later just as suspecf was leaving BK and stopped suspecf. Court held sufficientbasis for stop noting that an (identified) citizen who calls in to report criminalacfs is inherentlycredible and reliable.See also, Vanderhorst v. State, 52 S.W.3d 237 (Tex.App.-Eastland 2001).Mitchellv. State, 187 S.W.3d 113 (Tex.App. -Waco 2006, pet. ref'd).l_0

Pospisil v. State, 2008 WL 4443092 (Tex.App.-Texarkana 2008, no pet,).Off-duty firefighter called 911 to report a reckless driver he was following. Based on the details ofthat call, officer quickly located and stopped the defendant's vehicle. ln finding the stop proper, theCourt focused on three factors. First, it noted that the firefighter's report was not "anonymous" ashe gave his name and occupation thereby making himself accountable for the information hereported. Further, the caller was a 'professio nal firefighter," making him one of the types of people(along with teachers and police officers) that we teach our children are generally trustworthy andreliable. Finally, the officer responded in a short period of time allowing him to corroborate thevehicle description.3. DETAILS OF POLICE BROADCAST ARE ADMISSIBLEKimball v. State, 24 S.W.3d 555 (Tex.App.-Waco 2000, no pet.).Officer was properly allowed, over objection, to relate information he received over the police radioby unidentifiedispatcherthat unknown motorist had called 911 to report possibly intoxicate driverin vehicle matching defendant's. Court sfafed that an officer should be allowed to relate theinformation on which he was acting. Such information is not hearsay as rt is not offered for thetruth of the matter asserted but to show how and why the defendant's vehicle was initially identifiedand followed.Ellis v. State, 99 S.W.3d 783 (Tex.App.-Houston [1 Dist.] 2003, pet ref'd.).Officer testified that basisfor stop was he ran defendant's license plate on the computer in his carand received a response that appellant's car had possibly been involved in a robbery three daysearlier. Defendant objected on basis of hearsay. Here, the testimonywas not offered to prove thetruth of the matter asserted; itwas offeredto show probable causeforthe detention when appellantwas sfopped for traffic violations.4. ANONYMOUS TIP FROM EMS TECHNICIANGlover v. State, 870 S.W.2d 198 (Tex.App.-Fort Worth 1994, pet. ref'd).It was proper for officer who witnessed no erratic driving and based the stop solely on informationprovided by EMT to make sard sfop.5. ANONYMOUS TIP FROM HITCHHIKERMann v. State, 525 S.W.2d 174 (Tex.Crim.App. 1975).Anonymou s call from h itchh iker provided ju stification for investigative dete ntion.11

6. ANONYMOUS TIP FROM TRUCK DRIVERGansky v. State, 180 S.W.3 d 240 (Tex. App.-Fort Worth 2005, pet ref'd).While on routine patrol, Deputy Perkinsreceived reportsfrom multipletruckdriversthatawhite carwas driving the wrong way on the highway and struck or almost struck other vehicles, signs, andgas pumps. In holding that the "anonymous tips" provided a sufficienf basrs for the stop, the Courtfocused on potential danger and extreme risk to the public, and stated that Courts should look tonot only the "content of the information but the quality of the information in reviewing an officer'sdecision fo sfop and detain."D. BAD DRIVING NEED NOT = CRIMINAL OFFENSEState v. Alderete,2010 WL 1634580 (Tex.App.-El Paso 2010).Police officers had reasonable suspicion to stop defendant on suspicion of DWI, where defendantcontinuously swerved within her lane for half of a mile in the early morning hours, and officers weretrained to detect individuals driving while intoxicated, even if defendant did not violate any trafficregulation.Kuciemba v. State , 2010 WL 2077174 (Tex.Crim.App. 201q.Defendant was found behind the steering wheel, injured and intoxicated , at the scene of a one-carrollover accident, with a blood-alcohol level of more than twice the legal limit. The Court of Appealsfound the evidence to be insufficiento show that appellant was intoxicated at the time that theaccident occurred as there was no evidence of anyone who saw defendant driving on the road orevidence of when the accident occurred. The Court of Criminal Appeals reversed finding, amongother things, that being intoxicated at the scene of a traffic accident in which the actor was a driverrs some circumstantial evidence that the actor's intoxication caused the accident, and the inferenceof causation is even stronger when the accident is a one-car collision with an inanimate object.They focused on the driver's failure to brake, his high BAC, and the fact that he was still bleedingas supporting an inference that the accident was recent, and he had been intoxicated for quiteawhile.Rafaelli v. State, 881 S.W.2d 714 (Tex.App.-Texarkana 1994, pet. ref'd).Weaving in his lane, though not inherently illegal act, did provide sufficienf basis for officer fo sfopdefendant's vehicle.Dowler v. State, 44 S.W.3d 666 (Tex.App.-Austin 2001, pet. ref'd.).In support of an anonymous tip, officer also observed defendant weave or drift within his lane oftraffic, touching the outside white line more than once and once crossing into an on ramp whendefendant had no reason to enter the on ramp. Defendant uras a/so driving twenty miles per hourI2

elow the posted limit and failed to respond when the officer turned on the patrol car's emergencylights. Officer testified in his experience it is uncommon for sober drivers to drive in that fashion.Fox v. State, 900 S.W.2d 345 (Tex.App.-Fort Worth 1995), pet. dism'd,S.W.2d 607 [Tex.Crim.App. 1996]).granted,930Fluctuating speed and weaving within the lane did provide sufficient basis for officer to stopdefendant's vehicle.Townsend v. State, 813 S.W.2d 181 (Tex.App.-Houston [14th Dist] 1991, pet. ref'd).Testimony that defendant wove back and forth was sufficient basis even in the absence of anyevidence it was unsafe fo do so.Oliphant v. State,764 S.W.2d 858 (Tex.App.-Corpus Christi 1989, pet. ref'd).Defendant's car extended into intersection at stop;then defendant made wide turn, drifted in andout of his lane and swerved within his lane.E. "COMMUNTTY CARE-TAK|NG FUNCT|ON" (CCF)Wriohtv. State, 7 S.W.3d 148 (Tex. Crim. App. 1999) rev'd on remand,18 S.W.3d 245 (Tex.App.- Austin 2000, pet. ref'd).The case came to the Court of Criminal Appeals when the Austin Court of Appeals faited to applythe "community care-taking function" in holding the stop in this case fo be unreasonable. Ihe basisfor the sfop was that the officer obserued a passenge r in the vehicle vomiting out of a car window.The Court of Appeals did not believe that concept covered a passenger's actions. The Court ofCriminal Appeals held that the exception could apply fo fhese facts and listed four factors that arerelevant in determining when community care-taking provides a sufficient basis for a traffic stop:1)2)3)4)the nature and levelof disfress exhibited by the individualthe location of the individualwhether the individualwas alone and/or had access fo assisfance independent ofthat offered by the officer; andto what extent the individual-if nof assisfed-presented a danger to himself orothers.The court added that, "as part of his duty to 'serve and protect' a police officer may stop and assisfan individual whom a reasonable person--given the totality of the circumstances--would believe isin need of help." The case was remanded back to the Court of Appeals which in 18 S.W.3d 245(Tex. App. - Austin 2000) applied the above mentioned factors and found the stop to beunreasonable.l_J

1. APPLIESChilman v. State, 22 S.W.3d 50 (Tex. App.-Houston [14th Dist] 2000, pet. ref'd.).Around 2:00 a.m., the officer observed a red car stopped in front of a barricade erected to blockcampus entrance. The officer did not know when the red car had pulled up to the barricadealthough he knew the car was not there when he passed by the same spot twenty minutes earlier.Officer observed the passenger leave the red car and suruey the barricade to the campus entrance.ln an effort to determine what the car's occupants were doing on campus and possibly to providesome aSsisfance because they appeared to be lost, officer turned on his patrol car's emergencyequipment. This action prompted fhe passenger to jump back into the red car. When the officerapproached, the Defendant who was in the driver's seat, asked the officer why he had stopped himand declared that there was no reason to stop him. After determining the Defendant wasintoxicated, the officer arrested him for DWI. Stop held to be justified.Hulit v. State, 982 S.W.2d 431(Tex. Crim. App. 1998).Police were dispatched in response to a report of a "woman possibly having a heart attack in avehicle." Officer found a pickup truck sitting in the inside lane of a service road about fifty feet froman intersection and saw an individual slumped over the steering wheel of the truck. The truckengine was still running and the windows were rolled up. The officer approached the vehicle andbegan rapping on the window and yelling at the driver to wake up. With the asslsfance of a secondofficer, the driver awakened and opened the door of the pickup. The testifying officer smelledalcohol about the driver. Once the driver got out of the truck at the officer's request, the truck beganrolling backward. Defendantwas arrested for DWI. The Court of Criminal Appeals held "that Articlel, Section 9 contains no requirementhat a seizure or search be authorized by a warrant, and thata seizure or search that is otherwise reasonable will not be found to be in violation of that sectionbecause it was not authorized by a warrant." The court concluded that, based on the totatity of thecircumstances, the officers' actions were not unreasonable.Cunningham v. State, 966 S.W.2d 811 (Tex.App.-Beaumont 1998, no pet.).Officer stopped Defendant after obseruing her driving late at night at an unsafe speed on a flat tirein a bad neighborhood. Stop justified under CCF.2. DOESN'T APPLYKoteras v. State , 2010 WL 1790808 (Tex.App.-Houston [14th Dist.] 2010) (Not designated forpublication).Court of Appeals rejected Trial Court's finding that this was a proper community caretaking stop.Specifically, it found that merely pulling oneb vehicle onto the shoulder of the road does notwarrant detention by a law enforcement officer, and the curiosity of an officer fo see "what is goingon" is not sufficiento meet the community caretaking function1-4

Franks v. State,241 S.W.3d 135 (Tex.App.-Austin 2007, pet. ref'd).This was an appeal of a motionfo suppress deniat. Ihe rssue was whether the officer's contactwith a visibly upset female motorist in a parked car with the motor running and his refusal to allowher to leave, fellwithin Community Care-taking Exception. The Court found that the officer's initialinteraction with the defendantwas an encounter, butthat encounter became a detention when theofficer told the defendant she couldnT leave. The detention was not justified by the officer'scommunity care-taking function because the defendant did not exhibit a high enough level ofdisfress, she was not in an unsafe locatian, and she did not pose a danger to herself or others.Corbin v. State, 85 S.W.3d 272, (Tex.Crim.App.2AA\.Defendant's carwas observed at 1:00 a.m. crossing over a side stripe ontothe shoulder of the roadand driving on the shoulder about 20 feet. He was traveling 52 mph when speed limit was 65 mph.Officer pulled Defendant over for failure to maintain a single lane and because he felt theDefendant might be drunk or in need of assisfance. Before pulling him over, the officer followedthe Defendant for about a mile and obserued no traffic violations. Upon stopping, it was discoveredthat the Defendant had cocaine strapped to his back. The majority focused on whether the officer'sbelief that Defendant needed help was "reasonable." The Court further held that the most weightshould be given to factor number one, namely, "the nature and levelof disfress exhibited by theindividual." The Court held that the "community care-taking function" did not apply in this case.Andrews v. State, 79 S.W.3d 649 (Tex. App.- Waco 2002, pdr ref'd).Officer obserued Defendant pull to the side of the road and then observed Defendant's wife, frontseaf passenger, lean out the door and vomit, and the Defendant drove off and was stopped byofficer. Court held stop was not justified by the community care-taking function.F. OFFICER'S ARREST AUTHORIW WHEN OUTSIDE JURISDICTION1. FOR A TRAFFIC OFFENSE(a)STOPS MADE BEFORE 9-01-05 = NOState v. Kurtz, 152 S.W.3d 72 (Tex.Crim.App., 2004).An officer of the police department of a city does not have authority to sfop a person for committinga traffic offense when the officer is in another city within the same county.1_5

(b)STOPS MADE AFTER 9-01-05 = YESArticle 14.03 (oX1)Authorizes a municipal police officer to make a warrantless arresf for a traffic offense that occursanywhere in the county or counties in which the officer's municipality is located. Note: Thislegislative change effectively overrules the Kurtz case /isfed above.2. CAN STOP AND ARREST FOR'BREACH OF PEACE'State v. McMorris, 2006 Wt 1452097 (Tex.App. Fort Worth 2006, pet. ref'd) (Not designated forpublication).Ihis case addressed fhe rssue of whether a municipal police officer has authority fo sfop a driveroutside of his jurisdiction when he reasonably suspects the driver of DWl. The law in effect is thepre-2005 version of Article 14.04 of the CCP. The trial court suppressed fhe stop and the Courtof Appeals reversed. The trial court viewed this as an officer stopping a vehicle for a traffic offense,failure to yield right of way, which he cannot do and the Court of Appeals viewed the traffic offenseas giving the officereasonable suspicion that the defendant was DWI which does sup port the stop.Valentich v. State,2005 WL 1405801 (Tex.App.-Fort Worth 2005) (Not designated forpublication).Officer was authorized to detain Defendant because he had reasonable suspicion to believe he wasobseruing a breach of the peace, that is, driving while intoxicated, and because he pursued herfrom his lawfuljurisdiction in Flower Mound a very short distance into Lewisville.Ruiz v. State, 907 S.W.2d 600 (Tex.App.-Corpus Christi 1995, no pet.).Officer, who was outside of his jurisdiction, could properly stop and arrest defendant whom heobserued driving the wrong way down a highway for a "breach of the peace."See also: Romo v. State, 577 S.W.2d 251 (Tex.Crim.App. 1979).3. TO MAKE ARREST FOR DWIPreston v. State, 983 S.W.2 d 24 (Tex.App.-Tyler 1998, no pet.).Officer may arrest a suspecf for DWI even though he is outside of his jurisdiction under Article14.03(9) of the lexas Code of Criminal Procedure so long as he, as soon as practical, notifies anofficer having jurisdiction where the arrest was made.1"6

FAILURE TO NOTIFY OFFICERS WITHIN JURISDICTION DOES NOTVIOLATE EXCLUSIONARY RULETurnbow v. State,2003 WL 2006602 (Tex.App.-Fort Worth, May 1,2003, pet. ref'd.) (Notdesignated for publication).Bachick v. State, 30 S.W.3d 549 (Tex.App.-Fort Worth 2000, pet. ref'd).Officer undertook a valid traffic stop outside his jurisdiction after observing a traffic offense withinhis jurisdiction which ultimately led to the arrest of the defendant for DWl. Officer did not notifyarresting agency within that jurisdiction as required by 1 a.ffi@) . His failure fo do so did not warrantevidence suppressrbn under the exclusionary rule. Court held that the notice reQuirement isunrelated to the purpose of the exclusionary rule.5. CITY VS. COUNTY.WIDE JURISDICTION(a)COUNTY-WIDESawyer v. State, 2008 WL3877701 (Tex.App.-Austin 2008).Doqavv. State, 101 S.W.3d614 (Tex.App.-Houston [1't Dist.] 2003, no pet.).Brother v. State, 166 S.W.3d 255 (Tex.Crim.App. 2005), cert. denied, 546 U.S. 1150 (2006).Officer made the traffic stop outside his jurisdiction (city) but within the same countty. The courtfound thatthere was nothing in the legislative history of amendmentsto Tex.Code Crim. Proc.Ann.Art. 1403 (Vernon Supp. 2002) and Tex. Loc. GovT. Code Ann. fi341 .001(e), 341 .021(d(Vernon1999).to indicate that the legislature intended to abrogate the common law rule that the jurisdictionof an officer of a c/ass A general-law municipality was county-wide. The court declined to followrulings to the contrary.(b)oFFtcERW|THTNJURTSD|CT|ON'SPARTICIPATIONArmendariz v. State, 123 S.W.3d 401(Tex.Crim.App.2003).The lower Court of Appeals reversed fhr's case because it found that the stop occurred outside thearresting officer's jurisdiction and was therefore unlawful. ln rejecting this argument, the courtpointed out that the police who were outside their city limits and arguably their jurisdiction wereacting on information provided by a county sheriff (within whose county jurisdiction the stop didoccur) who observed the traffic offense, radioed the information to the police and stayed in radiocontact with the police up to the stop. ln effect, the sheriff's participation in the circumstancessurrounding the defendant's arrest made him just as much a participant in the arrest as if he hadseized the defendant himself.L1

(c)HOT PURSUITYeaqer v. State, 104 S.W.3d 103 (Tex.Crim.App.2003).After obseruing the defendant nearly drive his vehicle into a ditch while leaving the parking lot ofa bar within their city limits, officersfollowed him to further evaluate his driving and ultimately pulledhim over for investigation of DWI outside the city limits. They stopped him after they obserued himalmost hit another vehicle. The trial court held sfop was legal and the Court of Appeals reversedholding that the officers' "Type B Municipality" authority ended at the city limits, and it furtherrejected the "hot pursuit" argument as it found that there was no "chase" or "pursuit" as officersmerely followed the defendant. The Court of Criminal Appeals found that this was a good exampleof "Hot Pursuit" and the dictionary definition of "prtrsuit" includes "follow." The test is whether theinitial "pursuit" was lawfully initiated on the ground of suspicion, and the Court found in this casethat it was. Ihe rssue of the jurisdiction of a "Type B Municipality" was not reached.Turnbow v. State, 2003 W1.2006602 (Tex.App.-Fort Worth, May 1, 2003, pet. ref'd.) (Notdesignated for publication).Officer obserued defendant's vehicle speeding and cross over the center line five times. Thoughthe officer tried to initiate the stop within the county line, by the time the defendant was pulled over,he was just under a mile across the line. The officer testified at a Motion fo Suppress hearing thathe did not feel that he was involved in a chase or in a pursuit while he followed the defendant. Thedefendant was convicted at a later trial and argued on appeal that the arrest was illegal and not"hot pursuit." The Court of Appeals found that it was a legal stop under the "hot pursuit" doctrineand further found the doctrine applies even when an officer does not subjectively believe he is inhot pursuit.G. PRETEXT STOPS . NO LONGER BASIS FOR SUPPRESSIONCrittendon v. State, 899 S.W.2d 668 (Tex.Crim.App. 1995).Pretext sfops are valid so long as objective basis for stop exisfs.H. OPERATING VEHICLE IN UNSAFE CONDITIONSweeney v. State, 6 S.W.3d 670 (Tex.App.-Houston [1"tDist.] 1999, pet. ref'd.).State v. Kloecker, 939 S.W.2d 209 (Tex.App.-Houston [1st Dist.] 1997, no pet. h.).Trialiudge held that there was insufficient basis for the stop. Court of Appeals reversed holdingthat officer obseruation that defendant was driving on a tireless mefal wheel and knew thisconstituted the traffic offense of driving a vehicle on a highway in an unsafe condition.Id

I. FAILING TO DIM LIGHTSTexas v. McCrary, 986 S.W.2d 259 (Tex.App.-Texarkana 1998, pet. ref'd).Violation of a portion of the traffic code (failing to dim lights) provides a sufficient basis for a trafficsfop.J. RAPID ACCELERATION/SPINNING TIRES1. YESFernandez v. State, 306 S.W.3d 354 (Tex.App.-Fort Worth 2010).Officer heard defendant's pickup loudly squealifs fires and saw light smoke coming from the tiresasthepickupfishtailedabouttwofeef oufsrdeifs/ane oftrafficsupportingofficer'sopinionthatwhathe observed constituted reckless driving and supported the stop. Ihis was so although there wereno vehicles directly around defendant's vehicle though there was testimony there were othervehicles in the area.Bice v. State, 17 S.W.3d 354 (Tex.App.-Houston [1"'Dist.] 2000, reh overruled).Collins v. State, 829 S.W.2d 894 (Tex.App.-Dallas 1992, no pet.).Harris v. State, 713 S.W.2d773 (Tex.App.-Houston [1't Dist.] 1986, no pet.).2. NOState v. Guzman, 240 S.W.3d 362 (Tex.App.-Austin 2007, pdr ref'd).The spinning motion of one tire of defendant's truck as truck began to move from a stop after trafficlight turned green did not alone give police officer reasonable suspicion that defendant wasunlawfully exhibiting acceleration in violation of statute pertaining to racing on highways, and thusofficer's stop of defendant's vehicle on that basrs was unlawful.K. WEAVING WITHIN LANE1. YESDunkelberq v. State, 276 S.W.3d 503 (Tex.App.-Fort Worth, 2008, pet. ref'd),The defendant's vehicle was obserued weaving within lane in road. The vehicle crossed the lanedivider at least once. ln supporting this asthe basrs forthe stop and distinguishing itfrom holdingsthat have held weaving insufficient as a basrs, the Court focused on the following: The officer statedthat based on his training, defendant's weaving, slow reaction to officer's emergency lights anddriving at that time of night are three of the sixteen c/ues that indicated the driver might beintoxicated.L9

Curtis v. State, 209 S.W.3d 688, (Tex.App.-Texarkana, 2006, pdr granted). Reversed: Curtis v.State, No. PD-1820-06, 2007 WL 317541 (Tex.Crim.App. 2007). Conviction affirmed Curtis v.State. No. 06-05-00125-CR, 2008 WL 707285 (Tex.App.-Texarkana, 2008).Court of Appeals overruled the trial court's denial of motion to suppress on the following facts.Officer's observing the defendant swerving from lane to lane on a four-lane divided highway did notgive him reasonable suspicion of intoxication to support traffic stop, even though officer testifiedhe had a suspicion that driver's weaving was the result of intoxication, where officers did not testifythat anything other than defendant's weaving led them fo suspecf intoxication, and there werenumerous reasons other than intoxication that would cause a driver to swerue.This holding was reversed by the Court of Criminal Appeals which held that the Court of Appealshad applied the wrong legal standard in its determination of the rssue of reasonable suspicion tomake the traffic stop. The rejected standard arose from the Court's suggestion that the Stateneeded to disprove the non-intoxicated reasons that may have accounted for the weaving of thedefendant's car.State v. Arend, 2005 WL 994710 (Tex.App.-Fort Worth 2005, pet. ref'd.) (Not designated forpublication).Trooper's observation that the Defendant weaved within his lane as he followed him forapproximately 50 secondg combined with his experience as a police officer and his belief that saiddriving tended to indicate intoxication, provided sufficient reasonable suspicion to justify the stop.Held v. State, 948 S.W.2d 45 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd).Weaving need not constitute an offense to provide basis for a proper traffic stop.Cook v. State, 63 S.W.3d 924 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd).Gaiewskiv. State, 944 S.W.2d 450 (Tex.App..-Houston [14th Dist] 1997, no pet).Weaving in and out of several traffic lanes may not be negated by the fact that no other traffic wasaround at the time-in that this action raises reasonable suspicion of intoxication rather than a meretraffic offense.2.NOFowler v. State, 266 S.W.3d 498 (Tex.App.-Fort Worth 2008, pet. ref'd).The defendant's vehicle crossrng one time into adjacent lane by tire's width when there was noother traffic in area did not constitute sufficient basr.s for traffic stop. The officer also testified thathe did not find the driving unsafe but thought it violated Transportation Code. The Court held thatan officer's honest but mistaken understanding of the traffic law which prompted a stop is not ananZV

exception to the reasonable suspicion requirement. Thereis a/so no mention in the record of theofficer's suspecting the driver was intoxicated.State v. Huddleston, 164 S.W.3d711 (Tex.App.-Austin, 2005).Officer observed suspecf vehicle pull out from the bar's parking lot, proceed to within one-and-ahalf miles of the bar, drift twice to the right side of the roadway and cross over the white shoulderstripe, or fog line. The activated video shows that the right wheels of fhe car crossed the fog linethree more times during the next three minutes. He never saw the vehicle cross the yellow lineseparating the two lanes of traffic. He further testified the movements individually were neitherunlawful nor unsafe, but the combined number did make them unsafe. Sole basr's raised for thesfop was failure to stay within a single marked lane. Only after Motion to Suppress was granteddid State offer other justifications for the sfop: reasonable suspicion of DWI and communitycaretaking, but these were deemed untimely and therefore waived. Therefore, the Court holdingthat the officer had no reasonable susprbion to make fhe sfop was upheld.Bass v. State, 64 S.W.3d 646 (Tex.App.-Texarkana 2001, pet. ref'd).Obseruation that the defendant was sweruing within his lane and crossing over the lane marker didnot provide sufficient basis for a traffic stop. Though the State argues that the officer was stoppingthe defendant based upon a traffic offense, the Court points out that the officer in this case nevertestified that the lane change occurred in an "unsafe manner" nor did the record show how manytimes he had crossed over the lane marker.State v. Cernv, 28 S.W.3d 796 (Tex.App.-Corpus Christi 2000, no pet.).Ihisisa Sfafe's appealof thetrialjudge'sgranting a motion fosuppress. Defendantwasobservedby the officer swerving across the center lane divider and sweruing over the white shoulder linethree times. The Court upheld the suppression based upon the lack of testimony that the lanechange was in an unsafe manner. The Court also noted that it will give deference to a trialjudge'sruling.State v. Arriaoa, 5 S.W.3d 804 (Tex.App.-San Antonio 1999, pet. ref'd).ln a DWI investigatory detention, drifting within the lane does not give rise to reasonable suspicionto pull over. Under the totality of the circumstances, the officer must have more facts which leadhim to intoxication. For example, just pulled out of a bar and the time of night. The officer offeredno evidence to show that he believed the defendanto be intoxicated. Although mere weaving inoneb lane of traffic can justify an investigatory stop when the weaving is erratic, unsafe, or tendsto indicate intoxication or other criminal activity, nothing in the record indicated that thearresting officer believed any of the above to be the case.2L

State v. Tarvin ,972 S.W .2d 910 (Tex.App.-Waco 1998, pet. ref'd).Where evidence at Motion fo Suppress wasthat officer observed defendantweaving within his laneand there was no testimony that officer found said driving to be "erratic, unsafe or tending toindicate intoxication," trialjudge was correct in suppressrng the stop. /n essence the evidencedidn't rise to the level necessary to support stop under Texas Transportation Code 545.060(a).See a/so Ehrhart v. State. I S.W.3d 929 (Tex.App.-Beaumont 2000,reh. overruled).Hernandez v. State, 983 S.W.2d 867 (Tex.App.-Austin 1998, pet. ref'd).A single tnsfance of drifting across a traffic /ane does not give an officer reasonable suspicion topull the car over unless it was dangerous fo do so. For example, on a four lane highway with notraffic around.L. DEFECTIVE TAIL LAMP AS BASIS FOR STOP1. NOVicknair v. State, 751 S.W.2d 180 (Tex.Crim.App.1998 [op. on reh'g]).Where sfop was based on cracked tail lamp with some white light showing through, there wasinsufficient evidence that traffic statute was violated. (Red light also showing.)2. YESTexas Department of Public Safety v. Hindman, 989 S.W.2d 28 (Tex.App.-Fort Worth 1999, nopet.).Where sfop was based on broken tail light with white light showing through and there was noevidence that any red light was showing, there was sufficient evidence of traffic statute violationand stop was proper. (VicknaL Distinguished.)M. MUST RADAR EVIDENCE MEET KELLY TEST?1. YESOchoa v. State, 994 S.W.2d 283 (Tex.App.-El Paso 1999, no pet.).Officer's testimony that he was certified to use hand held radar to detect speed, that he calibratedand tested his radar instrument on the day he issued the speeding ticket, and that the gun usedradar waves to calculate speed was insufficiento establish proper foundation for admitting radarevidence. Pursuant to Kelly v. State. 824 S.W.2d 568 (Tex.Crim.App. 1992), the officer mustfurther be able to explain the calculation the gun made or explain the theory underlying thecalculation. Error held harmless in fhis case because officer also gave opinion motorist was drivingat a "high rate of speed."22

2. JUDICIAL NOTICE OF RADARlcke v. State,36 S.W.3d 913 (Tex.App.-Houston [1"tDist.] 2001, pet. ref'd).Trial Court took judicial notice of the scientific reliability of radar over defense objection. Thedefense appealed arguing the Court could not take such notice and the radar reading was notadmissible under Kellv v. State citing Ochoa. The Appellate Court held that where the officerformed the opinion that defendant was speeding before using radar and testified that radar merelyconfirmed his suspicion that appellant was speeding provided sufficient evidence that the officerhad a reasonable suspicion and that the stop was proper. The court speaks to the Ochoa casesand comments that the question of whether a judge could properly take judicial notice of thescientific reliability of radar is an interesting one, does not reach theissue orresolve that question.3. RADAR MEETS 1ST PRONG OF KELLY TESTMills v. State, 99 S.W.3d 200 (Tex.App.-Fort Worth 2002, pet. ref'd).In agreeing with the reasoning of the Mavsonet opinion, the Court points out the importance offlexibility in determining the admissibility of scientific evidence. "When dealing with well-establishedscientific theory, Kellv's framework provides courts flexibility to utilize past precedence andgenerally accepted principles of science to conclude its theoretical validity as a matter of law. Tostrictly construe Kelly otherwise would place a significant burden on judicial economy by requiringparties to bring to court experts in fields of science that no reasonable person would challenge asvalid." Though the first prong is met under Kellv. the State must stillesfabfish that the officerapplied a valid technique and that it was correctly applied on the particular occasion in question.Mavsonet v. State, 91 S.W.3d 365 (Tex.App.-Texarkana, October 16,2002, pet. ref'd).ln this case, the suspecf was sfopped for going 74 mph in a 70 mph speed zone. The speed wasmeasured with radar. The officer testified he had been using the radar equipment since 1990 andhad calibrated and fesfed his radar unit one day before he stopped fhe suspect. He could notexplain the margin of error or the underlying scientific theory of radar and no evidence showing thevalidity of the underlying theory or technique applied was offered. The appellant objects and citesOchoa for the proposition that the predicate under Kellv was not meL The Court rejects thatargument holding that in light of society's widespread use of radar devlces, "we view the underlyingscientific principles of radar as indisputable and valid as a matter of law." Allthe State needed toestablish was that the officer applied a valid technique correctly on the occasion in question andthe Court finds that a trier of fact coutd have found the officer's testimony sufficient.4. LIDAR RADAR AS SOLE BASIS FOR STOP WITHOUT PROOF OFRELIABILITY IS INSUFFICIENTHalf v. State, 297 S.W.3d 294 (Tex.Crim.App. 2009).Ttis case involved a sfop for speeding based on LIDAR radar device. ln finding there was no PCto supporthe stop, the Court of Criminal Appeals held there was no evidence that the LIDARdevice was used fo confirm the arresting officer's independent, personal observation that defendant23

was speeding. There was no evidence to show that use of LIDAR technology to measure speedsupp/ies reasonably trustworthy information or that the trialjudge took judicial notice of this fact,as well as his basis for doing so. As a result, the State failed to establish that the officer, who reliedsolely on LIDAR technology to conclude that the defendant was speeding, had probable cause tostop him.N. CITIZEN'S ARREST FOR 'BREACH OF THE PEACE' AS BASIS FOR STOPCunninqham v. State, 2004 WL 2803220 (Tex.App.-Sandesignated for publication).December 08, 2004) (NotThe defendant nearly hit vehicle of a private security officer-forced him off the road and thenproceeded to weave in his lane. These actions constituted a breach of the peace and posed acontinuing threat to the safety of the community. Additionally, upon being approached afterstopping his vehicle at a drivelhrough, the defendant exhibited further symptoms of intoxicationand admifted he had consumed several beers. Court held that the defendant committed a breachof the peace and a citizen's arrest was authorized in this instance.Kunkel v. State, 46 S.W.3d 328 (Tex.App.-Houston [14th Dist.] March 8,2001, pet.ref'd).Defendant challenges the authority of a civilian wrecker driver to stop and "arrest" him. Court foundthat even though a citizen cannot make an arrest for mere moving violations, the cumulative drivingbehavior of the defendant in this case amounted to a "breach of the peace." The citizen observedthe defendant weaving back and forth over the roadway, hitting and driving over the curb about 20times over a quarter of a mile before she pulled up the gated entrance of some town homes atwhich point the civilian pulled in front of her blocking her entrance into the complex, taking her carkey and keeping her in her car untilthe police arrived.o.TURNING/EXITING WITHOUT A SIGNAL1. YESWehrinq v. State, 276 S.W.3d 666 (Tex.App.-Texarkana 2008, no pet.).Defendant's failure to signal his intent to turn when entering the turn lane and when actually makingthe right turn constituted a traffic violation, and therefore, officer was authorized to stop and detaindefendant. Transportation Code 545. 104Reha v. State, 99 S.W.3d 373 (Tex.App.-Corpus Christi 2003).Defendanturned left at intersection without signaling and was subsequently stopped for trafficviolation. Secfion 545.104 of the Transportation Code requires an operator fo use a turn signal "toindicate an intention to turn, change lanes, or start from a parked position." A turn signal is requiredregardless of the degree of the turn. No language in the Statute limiting it to turns of ninetydegrees. Court disagrees with Trahan and Zeno.24

Kruq v. State,86 S.W.3d764 (Tex.App.-El Paso 2002}Defendant failed to signal his turn off of a public roadway into a private driveway. Court held thatthe failure to signal was a traffic violation and disagrees with Trahan and Zeno.2.NOState v. Zeno, 44 S.W.3d 709 (Tex.App.-Beaumont 2001, pet. ref'd).Trahan v. State, 16 S.W.3d 146 (Tex.App.-Beaumont 2000, no pet.).Defendant was stopped for failing to signal when he exited the freeway. Court held that 45.104did not apply as there was no evidence that he made a turn or changed lanes to exit the freeway./f bases the finding that there was no "turn'on its belief that the language only applies to ninetydegree turns.P. "FOLLOWING TOO CLOSELY''- SUFFICIENT DETAIL?Ford v. State,158 S.W.3d 488 (Tex.Crim.App., March 9, 2005).Iexas State Trooper Andrew Peavy pulled Matthew Ford's vehicle over for following another cartoo closely on Highway 290 outside of Houston in violation of Texas Transporlation Code 6545.062h1 which providesthat an operator shall, if following another vehicle, maintain an assuredclear distance between the two vehicles so that, considering the speed of the vehicles, traffic, andthe conditions of the highway, the operator can safely stop without colliding with the precedingvehicle or veering into another vehicle, object, or person on or near the highway. There were nodetails given beyond the statement that the officer thought the defendant was traveling 'tooclosely." Court of Appeals held stop was proper and the Court of Criminal Appeals reversedholding that the officer's "conclusory statement" was unsupported by articulable facfs. "Ihe Sfafefailed to elicit any testimony pertinent to what facts would allow Peavy to objectively determine Fordwas violating a traffic law in support of his judgment."But See:Stoker v. State, 170 S.W.3d 807 (Tex.App.-Tyler, 2005, no pet.).Because police officer testified that he saw defendant's vehicle "right up on another" vehicle whiletraveling at a high rate of speed, such that defendant would not have been able to safely sfop hr'svehicle, officer gave specific, articulable facts to support the reasonable suspicion that defendanthad committed a traffic violation so as to justify stop. V.T.C.A., Transportation Code 5545.062.Walface v. State. 2005 WL 3465515 (Tex.App.-Texarkana Dec 20,20Q5, pdr dismissed) (Notdesignated for publication).Testimony that when the defendant changed lanes, he pulled his vehicle in front of another car andcaused the driver of fhrs second car to have to apply the brakes because he was foo c/ose coupledwith officer testimony that the two vehicles were "[p]robably a car length or /ess" apart when25

defendant made the lane change presented clear, concrete facts from which the trial court coulddetermine whether the officer did indeed have "specific, articulable facts," which when viewedunder the totality of the circumstances could lead the officer to reasonably conclude Wallace hadviolated a traffic law. The Court distinguished these facts from those in the Ford case.O. DRIVING UNDER THE POSTED SPEED LIMIT1. INSUFFICIENT ON THESE FACTSTexas Dept. Of Public Safety v. Gonzales, 2008 WL 4657528 (Tex.App.-San Antonio, 2008).At 4:00 a.m. officer obserued defendant's driving 45 mph in a 65 mph zone on a public highway,andthatwasthesolebasrsforthestop. The casearose outof anALRappeal. Atthehearingtheofficer sfafed he thought at that speed the defendant was "impeding traffic." He also admitted itwasfoggy and drizzly and the road waswet. Officer admitted thatthose conditions mightwarranta prudent driver's slowing down and also could not recall if there was any traffic on the roadwaythat was actually impeded by the defendant'slow driving. The officer's report also mentioned oneinstance of drifting within his lane. The Court held this was insufficienf basrs for the sfop. /n soholding they noted officer did not say he suspecfed the defendant was intoxicated, and that thes/ow speed was not clearly in violation of the ordinance that referred to "reasonable and prudentunder the conditions" in stating the minimum and maximum speed that should be traveled.Richardson v. State, 39 S.W.3d 634 (Tex.App.-Amarillo 2000, no pet.).The Court held that the officer did not have reasonable suspicion to believe that defendant wascommitting offense of impeding normal and reasonable movement of traffic at time officer madetraffic stop. ln fhis case, the defendant was driving approximately 45 miles per hour in what officerbelieved was 65 mph zone, and defendant increased speed to approximately 57 mph when officerfollowed him, where road was under construction and speed limit was 55 mph, defendant was inright lane, and only one vehicle passed defendant while officer followed him. This was the holdingdespite the officer's testimony that he thought the slow speed was a sign of intoxication.2. SUFFICIENT ON THESE FACTSMoreno v. State, 124 S.W.3d 339, (Tex.App.-Corpus Christi 2003, no pet.).Police officer's testimony that defendant was driving 25 mph in 45 mph zone, and that officerobserued traffic was backed up behind defendant's vehicle due to his driving and heavy amountof traffic, in violation of statute prohibiting drivers from driving in a manner so as to impede traffic,provided officer with probable cause fo sfop vehicle.zo

R. APPROACHING A VEHICLE THAT IS ALREADY STOPPED1. ENCOUNTERState v. Woodard , 2010 WL 1268035 (Tex.App.-Fort Worth 2O1O) (Not designated forpublication).Respondrng to a call about a car in a ditch and report that the driver was on foot, the officer on ahunch that a pedestrian he saw on foot near the scene might be the driver led to him approachingand engaging the pedestrian in questioning. Based upon that encounter, the officer developedprobable cause to believe the pedestrian/defendant was the operator of the vehicle in the ditch andto arrest him for DWI. The defense objected that the officer had no legal basis for approaching andquestioning the defendant. The Court held that an officer needs no justification for a consensuale ncou nter, wh ich triggers no con stitution al protection s.State v. Murphy,2OOT WL 2405120 (Tex.App.-Fort Worth 2007, no pet.) (not designated forpublication).Ihrs case involved a defendant who accidentally drove his motorcycle down an embankment in apark after hours. The trial judge granted the motion fo suppress finding there was no reasonablesuspicion or probable cause to stop the defendant. The Appellate Court characterized the officer'sinitial contact with the defendant when he helped him get his motorcycle up the embankment asa consensual "encaunter." ln overruling the trial judge, the Court found that this encounterescalated into an investigative detention that was supported by reasonable suspicion that thedefend ant was i ntoxicated.State v. Bryant, 161 S.W.3d 758 (Tex.App.-Fort Worth 2005, no pet.).Officer saw defendant turn into the parking lot of a strip shopping center, drive toward the rear ofthe buildings, turn around, stop between the buildings, and turn off his headlights. Afficer droveto where defendant was parked, got out of his patrol car, approached the defendant's car, andknocked on defendant's window. Defendant opened his car door. Officer smelled a strong odorof alcohol and noted defendant had "something all over the front of him" and that his zipper wasundone. After conducting an investigation, officer arrested defendant for DWl. Trial Courtsuppressed fhe sfop finding the officer had no /egal basis to approach vehicle. Court held thatpolice officer was not required to have reasonable suspicion that defendant was engaged incriminal activity to approach defendant's car and knock on his window. Court characterizeseverything up to the point where defendant opened his door as an "encounter' which is nof aseizure for 4h Amendment purposes.27

2. NOT AN ENCOUNTERStatev. Carter, 2005WL2699219(Tex.App.-FortWorth 2005, pdrrefused) (Notdesignatedforpublication).Officer obseruedpassenger in vehicle throwing up out passenger side of vehicle and decided toinvestigate passenger's medical condition. ln response to shining of spotlight on defendant'svehicle, the vehicle pulled over into parking lot and stopped. The officer's activating strobe lightsand getting out of his vehicle and approaching defendant's vehicle on foot meant the contact wasa detention and not an encounter as argued by the Sfafe.S. PLATE OBSCURING STATE SLOGAN AND IMAGES PROVIDES BASIS FORSTOPState v. Johnson, 219 S.W.3d 386 (Tex.Crim.App.2007).Potice officer had reasonable suspicion that defendant was violating statute governing visibility oflicense plates and thus was justified in making traffic stop; dealer-installed frame for Texas licenseplate on defendant's vehicle entirely covered phrase "THE LONE STAR STATE" and probablycovered images of space shuttle and starry night, and phrase and images were all original designelements of license plate. V.T.C.A.. Transportation Code 6 502.409(al(7)(Bl (2003).T, DRIVERS LICENSE CHECKPOINTState v. Luxon, 230 S.W.3d 440 (Tex.App.-Eastland 2007, no pet.).The defendant was sfopped at a driver's fibense checkpoint and subseguently arrested for DWt.The Court of Appeals held the sfop was illegal because:1)2)3)operation of roadblock was left to unfettered discretion of officers;officers conducted roadblock without authorization or guidance of a supervisory officer;officers conducted roadblock in absence of any departmental plan of police department.Thus the operation of the roadblock presented a serious risk of abuse of officers' discretion andthereby intruded greatly on defendant's fourth amendment interest in being free from arbitrary andoppressive searches and seizures.U. VEHICLE STOPPED AT LIGHTKlepper v. State, 2009 WL 384299 (Tex.App.-Fort Worth 2009).The defendant was stopped at an intersection past the stop line. Texas Transportation Coderequires the operator of a vehicle facing only a steady red signalto stop at a clearly marked stopline. Texas Transportation Code Ann.S 544.007(d (Vernon 200d. Additionally, an operator of avehicle may not stop, stand, or park in an intersection. Id. fi 545.302(d?l (Vernon 2008). The28

defendant argued that the officer failed to articulate in his testimony that he believed this to be atraffic violation. The Court of Appeals reminds us that the subjective intent of the officer makingthe stop is ignored, and we look solely to whether an objective basis for the sfop exrsfs. As itclearly did in fhis case, the motion fo suppress u/as properly denied.V. ONE OF THREE BRAKE LIGHTS NOT WORKINGStarrin v. State.2005 WL 3343875 (Tex.App.-Fort Worth 2005).Sfop was based on obseruation that one of the three bratke tights on the defendant's vehicle wasout. Defendant argued on appealthat Texas law requires only two functioning brake lights. TheCourt finds that federal standard requires three brake lights for cars of a certain width and takesjudicial notice of the fact that the car in question fits those dimensions and holds the stop waslawful.W.OBJECTIVE FACTS CAN TRUMP OFFICER'S SUBJECTIVE BELIEF ANDSUPPORT STOPKessler v. State, 2010 WL 1137047(Tex.App.-Fort Worth 2010) (Not designated for publication).Officer obserued defendant abruptly swerved to the left to avoid a curb, failed to drive the car withina single lane of traffic, and moved "the majority of the vehicle" into a designated left-turn lane whilecontinuing to drive straight. Officer Goodman testified that based on his experience, narrowlyavoiding a curb with such a quick movement and failing to remain in a single lane were signs ofpossib/e intoxication. He noticed the driving occurred shortly after 2:00 a.m., when local barsclosed, which also supported the stop. This was found to provide proper basis for stop eventhough officer's subjective belief that a traffic violation was committed was wrong.Reed v. State, 2010 WL 851424 (Tex.App.-Fort Worth 2010) (Not designated for publication).Even though trial court found the officer's belief that two traffic violations were committed waserroneous, the officer still had reasonable susprcion fo sfop defendant for suspected DWI basedon the other reasons sfafed for the stop; namely, he had suspected that she might be intoxicatedbased on time of day, area of city that she had been coming from, and his experience withintoxicated drivers exhibiting similar characteristics of driving.Huqhes v. State, 2008 WL 4938278 (Tex.App.-Fort Worth 2008, pet.ref'd).The officer testified that the traffic sfop in this DWI case yyas based on his mistaken subjectivebelief that defendant had committed a traffic violation (failure to maintain a single lane). lnupholding the stop, the Court holds that the sfop uras supported by the officer's observation andtestimony concerning specific driving behavior that was consistent with DWI. Specifically he notedthe defendant was driving well below the posted speed limit, slower than other vehicles on theroadway, and was on the road around 2:00 a.m. when bars are closing and was having troublemaintaining a single lane of traffic.29

Sinsleton v. State.91 S.W.3d 342 (Tex.App.-Texarkana, 2002).Officer's basis for stop was that the defendant squealed his tires as he made a turn which hethought at the time was a traffic offense but is not. Though he testified he did not stop thedefendantfor driving unsafely, he did state the defendant made the turn in an unsafe manner. Thiswas held to be sufficiento susfarn the stop even though it was not the reason he had articulated.X. REWING ENGINE AND LURCHING FORWARD INSUFFICIENT BASIS FORSTOPFoster v. State, 297 S.W.3d 386 (Tex.App.-Austin 2009, pet. granted).Defendant drove up to the officer's unmarked vehicle and stopped extremely close to the vehicleat a traffic light. Officer then heard a rewing sound from defendant's engine and obserueddefendant's truck make two forward lurching movements and based on this, the officer stopped thedefendant for investigation of DWl. Given that nothing indicated that defendant was out of controlwhen he stopped or that he was othenuise driving recklessly, the Court held thatthe officer did nothave a reasonable suspicion that defendant had committed a traffic violation and found the stopshould have been suppressed.vl.Fowler v. State. 2007 WL 2315971 (Tex.App.-San Antonio 2007, pet. ref'd) (not designated forpublication).Fernandez v. State, 915 S.W.2d 572 (Tex.App.-San Antonio 1996, no pet.).Court rejected argumenthat evidence of the 'passive alcohol sensor" was not admissible becauseit was not certified on the basis that the device was not taking samples for the purpose ofdetermining alcohol concentration but was rather given as one of several DWI FST tests, and thedevice merely showsthe presence of alcohol. Qualitative score given by device was not admitted.VIII. WARRANTLESS ARREST DWI SUSPECT - OFFENSE NOT VIEWEDA. BASED ON PUBLIC INTOXICATION THEORYOoden v. State,2004 W1314916 (Tex.App,. Austin 2004) (Not designated for publication).Chilman v. State, 22 S.W.3d 50 (Tex. App.-Houston [14th Dist] 2000, pet. ref'd.).Mathieu v. State, 992 S.W.2d725 (Tex.App.-Houston [1" Dist.]1999, no pet.).Porter v. State, 969 S.W.2d 60 (Tex.App.-Austin 1998, pet. ref'd).Jones v. State, 949 S.W.2d 509 (Tex.App.-Fort Worth 1997, no pet. h.).Revnolds v. State, 902 S.W.2d 558 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd).Seoura v. State, 826 S.W.2d 178 (Tex.App.-Dallas 1992, pet. ref'd).Carrasco v. State ,712 S.W .2d 120 (Tex.Crim.App. 1986).Warrick v. State, 634 S.W.2d 707,709 (Tex.Crim.App. 1982).30

Flecher v. State, 298 S.W.2d 581 (Tex.Crim.App. 1957).ln accident case where officer did not see fhe defendant driving his car, the officer may still makea warrantless arresf of the DWI suspect pursuant to Article 14.01 of the Texas Code of CriminalProcedure under the authority of the public intoxication statute.B. BASED ON'BREACH OF PEACE'THEORYGallups v. State, 151 S.W.3d 196 (Tex.Crim.App., December0S, 2004).Kunkel v. State, 46 S.W.3d 328 (Tex.App.-Houston [14th Dist.] March 8,2001, pet.ref'd).Lopez v. State, 936 S.W.2d 332 (Tex.App.-San Antonio 1996, pet. ref'd).Romo v. State,577 S.W.2d 251 (Tex.Crim.App. 1979).C. BASED ON "SUSPICIOUS PLACE'' THEORY1. FRONT YARDState v. Parson, 988 S.W.2d 264 (Tex.App.-San Antonio 1998, no pet.).Defendant urhose vehicle was sfopped in front yard = "susprbrbus place."2. PARKING LOTCooperv. State,961 S.W.2d229 (Tex.App.-Houston 1't Dist.l 1997, pet ref'd).Officer arrived at scene of accident (in parking lot) and never sau/ suspect driving his vehicle butdetermined suspecf wa s involved in accident. Court held detention and arrest were proper holdingthat it was reasonable for the officer to conclude that the parking lot, in front of a bar, in the weehours of the morning, with bleeding people walking around wrecked cars and where suspecfappeared intoxicated = Susprbious Place.3. HOSPITALDvar v. State,125 S.W.3d 460 (Tex.Crim.App., April 24,2003).Defendant was involved in a one car accident and was transported to a hospital where he wasvisited by an officer investigating the accident. The officer noted the following: a visible head injury,speech slurred, admission by Defendanthat he had been partying with friends, odor of alcoholicbeverage, defendant under 21 years of age. Placed Defendant under arrest and after reading himthe DIC-24 Defendant agreed to give a blood specimen. /ssue on appealwas whether this wasa valid warrantless arrest and could a hospitalbe a Susprbious place?" Court holds that a hospitalcan be, and was a susprbious place, underthetotality of the circumstancesrelied upon in fhiscase.Jl_

4. THE DEFENDANT'S HOMEGallups v. State, 151 S.W.3d 196 (Tex.Crim.App., December0S, 2004).Defendant's warrantless arresf rn his home for driving while intoxicated (DWI) was not illegal. Theevidence showed the defendant walked to his home after abandoning wrecked truck followingaccident short distance away. The home under fhese circumstances consfffuted a'Susptbiousplace," when the police officer who responded noticed that defendant was bleeding from mouth.Ihese circumstances a/so gave police officer reason to believe that defendant had committed"breach of the peace."5. ACCIDENT SCENEState v. Rudd. 255 S.W.3d 293 (Tex.App.-Waco 2008).Contrary to Trial Court's findings, the officer did not need to have even reasonable suspicion to talkwith defendant at the accident scene and ask questions about the accident. ln determiningreasonable suspicion, the fact that an officer does not personally observe defendant operatingmotor vehicle is irrelevant as Article 14.03(d(1) of the Code of Criminal Procedure provides inpertinent part that an officer may arrest a person found in a suspicious place under circumstancesreasonably showing that he committed a violation of any of the intoxication offenses. The Courtfound that the Court's excluding HGN because fhe officer did not videotape the testing was withinits discretion and upheld that ruling.D. NEED NOT ACTUALLY CHARGE SUSPECT WITH PUBLIC INTOXICATIONPeddcord v. State,942S.W.2d 100 (Tex.App.-Amarillo 1997, no pet.).Warrick v. State, 634 S.W.2d 707,709 (Tex.Crim.App. 1982).There is no requirementhat the officer actually arresthe defendant on public intoxication chargefor the Sfafe fo take advantage of the above mentioned theory.E. IMPLIED CONSENT LAW STILL APPLIESChilman v. State, 22 S.W.3d 50 (Tex. App.-Houston [14th Dist] 2000, pet. ref'd.).Arnold v. State, 971 S.W.2d 588 (Tex.App.-Dallas 1998, no pet.).Elliot v. State, 908 S.W.2d 590 (Tex.App.-Austin 1995, pet. ref'd).While officer did not observe the defendant driving a motor vehicle and made a warrantless arresffor DWI pursuanto Article 14.01 of the lexas Code of Criminal Procedure and under the authorityof the public intoxication statute, the implied consent law was still applicable as it applies fo personarrested for anv offense arising out of the operation of a motor vehicle while intoxicated and is notlimited fo arresfs for the offense of DWl. /see Secfion 724.011(a) of the Transportation Code.l5Z

VIDEOA. PARTS OF PREDICATE CAN BE INFERREDRov v. State, 608 S.W.2d 645 (Tex.Crim.App. [panel op.] 1980).Sims v. State,735 S.W.2d 913 (Tex.App.-Dallas 1987, pet. ref'd).That machine was operating properly can be inferred from evidence and testimony supportingpredicate can come from non-operator.B. NEW PREDICATE REPLACES EDWARDSLeos v. State, 883 S.W.2d 209 (Tex.Crim.App, 1994).Rule 901 of Rules of Criminal Evidence controls on issue of proper predicate for admission ofvideotapes.C. OPERATOR QUALIFICATIONSClark v. State ,728 S.W.2d 484 (Tex.App.-Fort Worth , vacated and remanded on other grounds,753 S.W.2d 371 (Tex.Crim.App. 1987), on remand 781 S.W.2d 954 (Tex.App.-FortWorth 1989,no pet.).Holland v. State , 622 S.W .2d 904 (Tex.App.-Fort Worth 1981, no pet.).No specra/ training on use of video equipment ls necessary if operator has baslc knowledge ofoperating procedures or instructions.D. SUPPRESSIBLE ITEMS1. INVOCATION OF RIGHT TO COUNSELOpp v. State, 36 S.W.3d 158 (Tex.App.-Houston [1't Dist.] 2OOO, pet. ref'd).Grav v. State, 986 S.W.2d 814 (Tex.App.-Beaumont 1999, no pet.).Lolr v. State, 982 S.W.2d 616 (Tex.App.-Houston [1't Dist.] 1998, no pet.).Hardie v. State, 807 S.W.2d 319 (Tex.Crim.App. 1991) but see Griffith v. State, 55 S.W.3d 598(Tex.Crim.App. 2001).Jury should not have been allowed to hear defendant's invocation of his right to counsel onvideotape.33

Kalisz v. State, 32 S.W.3d718 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd).Dumas v. State , 812 S.W .2d 611 (Tex.App.-Dallas 1991, pet. ref'd).Improper for jury to be allowed to hear officer give defendant his Miranda warnings and ask himif he wanted to waive his rights. Turning down volume to exclude defendant's.refusal could leadjury to conclusion he did in fact invoke his rights.2. INVOCATION OF RIGHT TO TERMINATE INTERVIEWCooper v. State, 961 S.W.2d 229 (Tex.App.-Houston 1997, no pet.).Court of Appeals found that the question of "where is he" upon being told about his right to anattorney did not constitute an invocation of his right to an attorney. Court further held that thedefendant'subseguent statement, "l'm not answering any questions" was an invocation of his rightto terminate the interview. This, Iike the invocation of rightto counsel, should not have been heardby the jury and reversed the case. Court relied on Hardie v. State, 807 S.W.2d 319 Tex.Crim.App.1991, pet. ref'd).3. EXTRANEOUS OFFENSES - lE OBJECTED TOJohnson v. State,747 3.W.2d 451 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd).Extraneous offenses mentioned by defendant or police on tape must be objected to attime tapeis offered or no error is preserved.E. NOT SUPPRESSIBLE1. AUDIO OF FSTsJones v. State, 795 S.W.2d 171(Tex.Crim.App. 1990).Even after invocation of Miranda rights, police reguesfs that suspects perform the sobriety testsand directions on how suspects are to do the fesfs do not constitute "interrogation;" neither doqueries concerning a suspecf's understanding of her rights. If the police limitthemselves fo fhesesorts of quesfiong they are not "interrogating" a DWI suspect.State v. Davis, 792 S.W.2d751(Tex.App.-Houston [14th Dist.] 1990, no pet.).Dawkins v. State. 822 S.W. 2d 668, 671 (Tex.App.-Waco, 1991, pet. ref'd).Pennsylvania v. Muniz, 496 U.S. 582,110 S. Ct 2638, 110 L.Ed.2d 528 (1990).Audio portion of video need not be turned off after invocation of rights as they concern performanceof sobriety tesfs so long as police questioning is of the type normally incident to arrest and custodyand is not reasonably likely to elicit testimony.34

Mathieu v. State, 992 S.W.2d725 (Tex.App.-Houston [1"'Dist.] 1999, no pet.).An officer's requesthat suspect perform sobriety fesfs and directions on how to do the fesfs donot constitute interrogation, nor do queries concerning a suspecfb understanding of his rights.2. FSTREFUSALRafaelli v. State, 881 S.W.2 d 714 (Tex.App.-Texarkana 1994, pet. ref'd).Dawkins v. State. 822 S.W. 2d 668, 671 (Tex.App.-Waco, 1991, pet. ref'd)Barraza v. State, 733 S.W. 2d379 (Tex.App.-Corpus Christi, 1987, pet. granted) aff'd 790 S.W.2d 654 (Tex.Crim.App.June 20, 1990)Jury is allowed to hear defendant's refusal to perform the field sobriety fesfs on the video. Nodistinction between allowing jury to hear about refusalfo do FSIs or BTRs.3. VIDEO PORTION AFTER AUDIO SUPPRESSEDFierro v. State, 969 S.W.2d 51 (Tex.App.-Austin 1998, no pet.).Huffman v. State, 746 S.W.2d 212 (Tex.Crim.App. 1988).So /ong as visual portions are true and correct, the video rs admissible without sound.4. INVOCATION OF RIGHT TO COUNSEL DURING BT REFUSALStrinoer v. State, 2003 Wt 21283181 (Tex.App.-Fort Worth, June 5, 2003, pet. ref'd.) (Notdesignated for publication).Griffith v. State, 55 S.W.3d 598 (Tex.Crim.App. 2001).Halbrook v. State, 31 S.W.3d 301 (Tex.App.-Fort Worth 2000, pet. ref'd.).Ex Parte Jamail, 904 S.W.2d 862 (Tex.App.-Houston [1st Dist] 1995, pet. ref'd).Refusal to take breath test coupled with and based upon requesf fo consult an attorney isadmissible.5. VIDEO PORTION ADMISSIBLEVEN IF AUDIO DID NOT RECORDAkins v. State,2007 WL 1847378 (Tex.App.-Houston [14th Dist] 2007, no pet.).Burke v. State, 930 S.W.2d 230 (Tex.App.-Houston [14th Dist.] 1996 pet ref'd).Video rs admissible so long as predicate for introduction of photo is met.35

6. FIELD SOBRIETY TESTS ARE NON-TESTIMONIALTownsend v. State, 813 S.W.2d 181 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd).The Fifth Amendment protects againsttestimonialcommunications. A compulsion that makes anaccused a source of real or physical evidence does not violate the Fifth Amendment. Evidencesuch as a person's voice, demeanor. or physicalcharacteristics is outside the scope of protectionaqainst self incrimination. Queries bythe custodial officer regarding a defendant's name, address,heiaht. weiqht" place of emplovment. or phvsicaldisabildres are the type of questions normallyattendanto arrest and custodv and do not constitute interrogation under the Fifth Amendment.Visual depictions of a sobriety test are not testimonial in nature and therefore do not offend thefederal or the state privilege against self-incrimination.7. VERBAL FSTs TESTS/ALPHABET & COUNTING ARE NOTTESTIMONIALGassaway v. State, 957 S.W.2d 48 (Tex.Crim.App. 1997).A recitation of the alphabet and counting backwards are not testimonia! in nature because fhesecommunications are physical evidence of the functioning of appellant's mental and physicalfaculties. The performance of these sobriety fesfs shows the condition of a suspecf's body. Thisoverrules Vickers v. State, 878 S.W.2d 329 (Tex.App.-Fort Worth 1994, pet. ref'd).8. RIGHT TO COUNSEL - MUST BE CLEARLY INVOKEDHalbrook v. State, 31 S.W.3d 301 (Tex.App.-Fort Worth 2000, pet. ref'd.).Granberrv. State,745 S.W.2d 34 (Tex.App.-Houston [14th Dist.] 1987) pet. refd, per curiam,758 S.W.2d 284 (Tex.Crim.App. 1988).Defendant's requesto make phone call to "find out" who his attorney is does not constitute requestfor attorney. No violation of right to counsel when defendant who has sought to terminate interviewis videotaped performrng FSIs.9. RIGHT TO REMAIN SILENT MAY NOT BE SELECTIVELY INVOKEDAnderson v. State. 2006 WL 744272 (Tex.App.-Fort Worth 2006, pdr dismissed) (Not designatedfor publication).After receiving Miranda warnings on the DWI videotape, the defendant answered guesflonsselectively-solne he answered and sorne he refused to answer. He did not terminate theinterview. The defense argued the jury should not have been allowed to hear him refuse to answercertain guesfions. The Court held that while it is clear that the prosecution cannot use adefendant's post-arrest silence to impeach him at his trial, an accused may not selectively invokehis right to remain silent. Therefore, the Trial Court did not abuse its discretion by admitting theportion of the videotape in which appellant refused to answer specific questions while answeringothers.36

F. ABSENCE OF VIDEOTAPE1. NOT GROUNDS FOR ACQUITTALWilliams v. State, 946 S.W.2d 886 (Tex.App.-Waco 1997, no pet.).lrion v. State, 703 S.W.2d 362 (Tex.App.-Austin 1986, no pet.).Absence of videotape in DWIcase is not grounds for acquittal.2. UNLESS DESTRUCTION OF TAPE IN BAD FAITHGamboa v. State ,774 S.W .2d 111 (Tex.App.-Fort Worth 1989, pet. ref'd).To support motion fo drsmrss based on destruction of video, said destruction must be shown tohave been in "bad faith."3. NO JURY INSTRUCTION FOR FAILURE TO TAPEPlatero v. State, 1995 WL 144565 (Tex.App.-Houston [14th Dist.] 1995) pdr ref'd (Not designatedfor publication).Logan v. State, 757 S,W.2d 160 (Tex.App.-San Antonio 1988, no pet.).No jury instruction on sfafe's failure to videotape defendant.Manor v. State , 2006 WL 2692873 (Tex.App.-Eastland , 2006, no pet.).Where the DWI videotape was mrssrn g, the defendant was not entitled to a "spoilation" instruction.A defendant in a criminal prosecution is not entitled to a spoilation instruction where there is noshowing that the evidence was exculpatory or that there was bad faith on the part of the State inconnection wfh ifs /oss.G. SURREPTITIOUS AUDIO RECORDINGS1. PRE.ARRESTWallace v. State,707 S.W.2d 928 (Tex. App.-Texarkana 1986), affd,782 S.W.2d 854(Tex.Cdm.App. 1989).Surreptitiously obtained audio recordings are admissibl evidence on pre-arrest situations as/ongas no incriminating questions are asked without benefit of Miranda warnings.37

2. POST.ARRESTMever v. State, 78 S.W.3d 505 (Tex.App.-Austin 2002, pet. ref'd).After arresting the defendant for DWl, he was placed in the back of the patrol unit and then officerwent to search defendant's car. As defendant sat in the patrol unit with doors c/osed and windowsshut, he made oral statements that were recorded by the videotaping equipment. Details of thecomments were not disclosed other than being characterized in the brief as an "acrimonious tiradeprofanely blaming his wife and the two officers for his plight." Court holds there was no reasonableexpectation of privacy in the patrol car and holds statemento be admissible.H. DEFENSE RIGHT TO VIEW TAPE BEFORE TRIALDurhan y. State, 710 S.W.2d 176 (Tex.App.-Beaumont 1986, no pet.).Defendant and/or attorney have right to view DWI video prior to trial. Failure to view won't preventtape's being admitted into evidence.Quinones v. State, 592 S.W.2d 933 (Tex.Crim.App. 1980), cert. denied, 101 S. Ct. 256. (1980).DWI videotapes are discoverable.I. TAPE MADE IN FOREIGN LANGUAGELeal v. State, 782 S.W.2d 844 (Tex.Crim.App. 1989).When fape is in foreign language, a translation by a sworn interpreteris necessary.J. PROVIDING DEFENDANT WITH COPY OF DWI VIDEOTAPE1. DEFENDANT NEED ONLY BE GIVEN'ACCESS"Lane v. State, 933 S.W.zd 504 (Tex.Crim.App. 1996).Held Rule 38.22 that says State must provide a true and correct copy of tape to the defense beforethe 20th day before the date of the proceeding is safisfied if the tape is "made avaihble" to thedefense.2. ACCESS TO THE TAPE IS NOT REQUIRED UNLESS THERE IS..CUSTODIAL I NTE RROGATION''Mann v. State, 13 S.W.3d 89 (Tex.App.-Austin 2000, Affirmed other grounds 58 S.W.3d 132[Tex.Crim.App. 2001 ]).38

Where there were no oral statements resulting from custodial interrogation offered on the DWIvideotapes, the rule that said tapes must be provided to defense no later than the 2tr day beforethe trial does not apply.K. NO SOUND = NO PROBLEMAquirre v. State, 948 S.W.2d 377 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd).Absence of sound on DWI video will not affect its admissibility.L. MOBILE VIDEO CAMERA TAPE ADMISSIBLEPoulos v. State, 799 S.W.2d 769 (Tex.App.-Houston [1st Dist.] 1990, no pet.).The field sobriety fesf was videotaped by the officer from a camera mounted on his dashboard.This videotape was not testimonial in nature and therefore did not offend the Fifth Amendmentprivilege.M. STATE MAY SUBPOENA/OFFER DEFENDANT'S COPYAdams v. State, 969 S.W.2d 106 (Tex.App.-Dallas 1998, no pet.).Where fhe Sfafe or police inadvertently destroyed sfafe's copy of DWI videotape after copy hadbeen made for defendant, it was proper for State to subpoena defendant's copy and introduce itinto evidence.N. LOSING VIDEOTAPE BETWEEN TRIAL AND APPEAL DOES NOT REQUIRENEW TRIALYates v. State, 1 S.W.3d 277 (Tex.App.-Fort Worth 1999, pet. ref'd).The fact that a videotape is /osf befween trial and appeal is not conclusive as to whether a new trialis granted. If the issue on appeal is intoxication, the video needs to be close in time to driving tomerit a reversal.O. PROBLEM OF OTHER STOPS BEING VISIBLE ON DWI TAPEHackett v. State , 2003 WL 21810964 (Tex.App.-Fort Worth , 2003, no pet.) (Not designated forpublication).The defense objected when it discovered, while the jury was deliberating, that the DWI tapeadmitted into evidence and being viewed by the jury had other sfops on lf. The trial court did notallow the defendanto examine the jurors fo see if watching the tape of the other sfops affected39

them. The Court found there was no error because the defendant did not show that the jurors'viewing ofher sfops harmed the defendant and because the judge had properly instructed them notto consider fhose extraneous portions of the tape.PRACTICE NOTE:If your tape has extraneou sfops on it, edit them out of the tape before you offer it into evidence.P. VIDEO PART OF TAPE MAY BE ADMISSIBLE WITHOUT OPERATOR'STESTIMONYReavis v. State, 84 S.W.3d 716 (Tex.App.-Fort Worth , 2002, no pet.).Paqe v. State, 125 S.W.3d 640 (Tex.App.-Houston [1't Dist] 20Q3, pet. ref'd).Ihese cases dr'scuss the way you can admit a videotap even if you dont have the officer/witnessavailable who was in the room with the defendant. The authority for admitting at least the videopart of the tape falls under what the federal courts have called the "silent witness" rule. The keyis whether there is sufficient evidence to enable a reasonable juror to conclude that the videotapeis what the State claimed it to be. A showing of how the tape is loaded, that the machine wasworking should suffice. Bofh cases cited above involved a store security video.Johnson v. State, 2005 WL3244272 (Tex.App.-Fort Worth 2005, pdr ref'd) (Not designated forpublication).ln-car videotape provided the only basis for the traffic stop and officer/operator of the tape wasunavailable to testify as he had been killed by a drunk driver subseguent to this arrest. Court heldthe tape alone, withouthe officer's testimony, was sufficient proof that the stop of the defendant'scar was proper.A. INABILIry TO ID ALL BACKGROUND VOICES NOT A PROBLEMJones v. State, 80 S.W.3d 686 (Tex.App.-Houston [1"'Dist] 2002, noPredicate for admitting video is under Rule 901 of the Texas Rules of Evidence. Nothing in thatrule requires that every voice on the tape be identified by name.Allen v. State, 849 S.W.2d 838 (Tex.App.-Houston [1"tDist] 1993, pet. ref'd).This opinion applied the old standard ftom the Edwards case fesf for tape admissibility and heldthat even under that test, the requirement that speakers be identified does not include backgroundvoices.40

Garza v. State, 794 S.W.2d 530 (Tex.App.-Corpus Christi 1990, reh. overruled).Under Edwards test, it was sufficient that officer was able to identify the background voices asofficers, even though the officers could not be named.R. OFFICER'S NARRATIVE ON PERFORMANCE OF FSTs1. CUMULATIVEEvans v. State, 2006 WL 1594000 (Tex.App.Houston [14th Dist.] 2006, pdr ref'd).ln this case fhe defendant objected to admissibility of the audio portion of the DWI tape becauseof the officer'sverbal narrative conclusions about defendant's performance on fhe FSIs. Becausethe jury had already heard the officer describe the same matters on direct without objection, thetaped comments were merely cumulative and did not require reversal.2. INADMISSIBLE HEARSAYFischer v. State, 252 S.W.3d 375 (Tex.Crim.App.2008).At a Motion fo Suppress hearing, defendant soughtto suppress the sound on the videotape wherethe officer's recorded commentary of what was occurring during traffic stop and where the officerdictated on videotape hrs observations of DWI suspecf. The trial Court denied the Motion toSuppress; the defendant plead nolo and appealed. The Court of Appeals rejected fhe Sfafe'sargumenthat these statements were admissrble as "present sense impression" and held that thecommentswere the equivalentto police reportor offense report offered fortruth of matter asserted,and thus, inadmissible he,arsay, and the case was reversed and remanded.X. IN.COURT DEMONSTRATIONS/EXHIBITSA. FIELD SOBRIETY TESTSBakerv. State,879 S.W.2d218 (Tex.App.-Houston [14th Dist] 1994, pet. ref'd).Court property refused to atlow defendant to demonstrate his abitity to perform FSIs in court asno predicate was laid as to reliability or probative value of said demonstration.B. SMELLTESTLewis v. State, 933 S.W.2d 172 (Tex.App.-Corpus Christi1996, pet. ref'd).Defendant claimed beer he was consuming was non-alcoholic beer to explain odor officersdetected on his breath at time of stop. Defense counsel wanted to do experiment where officersin front of the jury would be asked to judge which of 9 cups had alcoholic and which had non-4L

alcoholic beer. Test was properly disallowed as conditions of fesf substantially differed from thoseexisting at time of the stop.C. SMELL&TASTETESTKaldis v. State, 926 S.W.2d771 (Tex.App.-Houston [1st Dist] 1996, pet. ref'd).Defense requesthat jurors be allowed to smell and taste non-alcoholic mixtures so jurors wouldsee that ff is possible for non-alcoholic mixtures to smell and taste like alcoholic beverages wasproperly denied.D. CHART OF SYMPTOMS OF INTOXICATION INADMISSIBLEMarkev. State, 996 S.W.2d 226 (Tex.App.-Houston [14th Dist.] 1999, no pet.).In jury trial, chart on which officer listed symptoms of intoxication observed in that case u/as foundto be a proper demonstrative aid, but should not have been admifted into evidence. Error in doingso found to be harmless.E. CHART OF SYMPTOMS OF INTOXICATION-DEMONSTRATIVE EVIDENCEBaker v. State, 177 S.W.3d 113 (Tex.App.-Houston [1't Dist.] 2005, no pet.).The Court held that a fill-in-the-blank chart that covered signs of intoxication the officer observedwas admissible as demonstrativ evidence. The prosecutor filled in the blanks as the officertestified. The fact that the chart might contain information similar to that in the police report doesnot render it inadmissible as a demonstrative aid.F. DEMONSTRATION OF DEFENDANT'SPEECHWilliams v. State, 116 S.W.3d 788 (Tex.Crim.App. October 1,2003).To rebut the evidence that defendant'speech was slurred due to alcohol, his aftorney sought tohave his client provide a voice exemplar before the jury, but wanted to do so without beingsubjected fo cross examination. The Court of Appeals found that the trial Court properly prohibitedthis holding that other means of showing the same thing were available and that to allow thedefendant fo do so without being exposed fo cross examination nsks great potential prejudice tothe State and risks misleading the jury. The Court of Criminal Appeals reversed finding that a voiceexemplar is nottestimonialwhether it is offered bythe State orthe Defense. It is physical evidence.+z

G.ERROR TO ALLOW BOTTLE OF VODKA TO BE ADMITTED ASDEMONSTRATIVE EVIDENCEOrrick v. State, 36 S.W.3d 622 (Tex.App.-Fort Worth 2000).Sfafe was allowed to offer a full unopened bottle of vodka as demonstrativevidence in this DWIcase where a bottle of vodka was found in defendant's car at the time of the arrest. ln holding itwas error, albeit harmless, to allow the State to do so the Court found that when an object that issubsflfufed for the original used in the commission of a crime is not an exact replica and differs inits distinguishing characteristics, the probative value of that object as demonstrative evidence willbe very slight.xl.oNE WTTNESSUFFTCTENT (OPTNTON TESTTMONY)Dumas v. State, 812 S.W.2d 611 (Tex.App.-Dallas 1991, pet. ref'd).Valles v. State, 817 S.W.2d 138 (Tex.App.-El Paso 1991, no pet.).lrion v. State, 703 S.W.2d 362 (Tex.App.-Austin 1986, no pet.).Testimony of arresting officer alone = sufficient to convict DWI.XII.IMPEACHING POLICE OFFICERA. FINANCIAL MOTIVECastillo v. State, 939 S.W.2d754 (Tex.App.-Houston [14th Disq 1997 pet. ref'd).Defense wanted to offer into evidence the aggregate, annual overtime income earned by arrestingofficer by testifying in court. Court held that though relevant, such testimony was properly excludedholding "(the) decision to make allegedly'marginal'arresfs is foo attenuated from any potentialfinancial gains to overcome the risk of confusion of theissues, embarrassment, harassment, andundue delay." Court did allow inquiry into amount earned for testifying in that case and his per hourwage.B. OUOTASAlexander v. State, 949 S.W.2d772 (Tex.App.-Dallas 1997, pet. ref'd).Reversible error in fhis case to not allow defense fo cross-examine the arresting officer regardinga departmental directive establishing quotas for DWlarresfs that was in place at the time of thedefendant's arrest.43

C. EMPLOYMENT AND DISCIPLINARY HISTORYDeleon v. State, 2006 WL 1063765 (Tex.App.-Dallas 2006) (Not designated for publication).ln this case, the defense sought fo cross examine the officer on his employment and disciplinaryhistory. Specifically, the defense counsel sought to question the officer regarding (1) an off-dutyincident in which he pursued vandals; (2) a reprimand he received for missed court dates; (3)sfafemenfs in a "development plan" from officer's personnel record that some of his reports werehastily written; and (4) the circumsfances surrounding his resignation from another policedepartment more than ten years before the trial. Held the Trial Court properly excluded the crossexaminationon these rssues as defense failed to show the relevance of these matters to the meritsof the case or to any defensive strategy.XIII. IMPEACHING DEFENDANT AND BOND FORFEITURE EVIDENCEA. PROPEROchoa v. State, 481 S.W.2d 847 (Tex.Crim.App.1972).Where witness makes blanket statements concerning his exemplary conduct such as having neverbeen arrested, charged, or convicted of any offense, or having never been "in trouble" or purportsto detail his convictions leaving the impression there are no others, (i.e."opensthe door'). Thisfalse impression may be corrected rn cross by directing urifness to the bad acts, convictions, etc.even though sard acfs may not otherwise be proper subject for impeachment.Stanberq v. State, 989 S.W.2d 847 (Tex.App.-Texarkana 1999, pet. ref'd).Where defendant on station house videotape made the statement he does not drink alcoholicbeverages, it was proper to elicit testimony from arresting officer that he had seen defendant drinkalcoholic beverages on a prior occasion. Voucher Rule r's no longer the rule in Texas.B. IMPROPERLewis v. State, 933 S.W.2d 172 (Tex.App.-Corpus Christi 1996, pet. ref'd).Defendant statement on directthat he'\uill not drink and drive" did not amountto an assertion thathe had never drank and driven and did not open the door to his impeachment with a prior DWIconviction. Butthe Courtfound thatthe mention of the ten year old DWI conviction was harmlesserror in fhls case.Hammett v. State, 713 S.W.2d 102 (Tex.Crim.App. 1986).Testimony on direct that the defendant had only been arrested on one prior occasion for publicintoxication did not leave the false impression that he had never been arrested for any other44

offense and did notopenthe doorto his impeachmentwith a convictionfor criminal mischief. Casereversed on this basr.s for determination of harmfulness of the error.C. EVIDENCE OF BOND FORFEITURE ADMISSIBLEPratte v. State , 2008WL 5423193 (Tex.App.-Austin 2008, no pet.).ln this case fhe defendant was charged in 1998 but was not rearrested and tried until 2008. TheSfafe, over objection, offered evidence that the defendant failed to appear and had his bondforfeited in the guilt-innocence phase of the trial. The Court held that the forfeiture of an accused'sbail bond may be proved as tending to show flight which, in the context of bail-jumping, may beconstrued as evidence of guilt. For that reason evidence of the defendant's failure to appear in1999 and that his bond was forfeited was relevant and admissible as evidence of his guilt.XIV. STATEMENTS BY DEFENDANTA. PRE-ARREST STATEMENTS1. ADMISSIBLEDavidson v. State,2010 WL 118776 (Tex.App.-Dallas 2010) (Not designated for publication).After the officer administered the field sobriety fesfs, he asked the defendant if he thoughtthat heshould be driving and asked if the defendant would have been driving if his grandchildren were inthe car. Defendant answered "no"to both questions. Defendant argued that such statements wereinadmissible custodial interrogation, but Court held he failed to identify any facts of the incidenthatwould objectively s/tow that the officer manifested the existence of probable cause or intent toarrest him at the time he answered the questions. Therefore, questions and answers wereadmissible.Froh v. State, 2006 WL 1281086 (Tex.App.-Fort Worth, 2006. May 11, 2AQ6, no pet.)(Notdesignated for publication).After stoppingthe defendantfor a trafficviolation and smelling an odor of alcohol, the officer askedthe defendant how much he had to drink and the defendant responded "at least five" beers. Theofficer later asked him if he was saying he was intoxicated and appellant responded, "yes." Thedefendant moved fo suppress fhese statements arguing they were the product of custodialinterrogation. The Court held that he was not in custody for purposes of Miranda when he madethe statemenfs rn question. Though the officer's guesfions concerning alcohol consumption andfield sobriety evaluations may indicate that appellant was under susprcion, they were nof sointrusive as to elevate the investigatory stop to a custodial interrogation. The Court further pointedout that the mere existence of probable cause alone is not sufficient to trigger Miranda: othercircumstances musf existfor a reasonable person to believe that he is under restrainto the degreeassocrafed with an arrest and those circumstances were not presenf in fhis case.4tr.=J

Hernandez v. State, 107 S.W.3d 41 (Tex.App.-San Antonio 2003, pet. ref'd).In holding that the defendant'statement was admissible, the Court focused on the standard thatit is not what the officer thought, his subjective intent, but rather how a reasonable person insuspecf's p osition would see fhe rssue of whether he was in custody. After some brief questioningand field sobriety fesfs were performed, the officer formed a subjective intent to arrest thedefendant but did not communicate thatto him untilthe defendanttold the officer he had consumed"nine beers" after which he was placed under arrest and handcuffed. Up to that point, the Courtfound thatthe defendant "would not have felt completely atthe mercy of the police and would haveexpected to be able to proceed along his way if he passed fhe field sobriefy fesfs. " For that reason,the defendant was not in custody when he made the statement and the statement was properlyadmifted.Lewis v. State, 72 S.W.3d704 (Tex.App.-Fort Worth 2002, pet. ref'd).Officer arrived atthe scene of the accident and witness pointed out defendant as being the driver.Officer asked defendant for drivers license and insurance, noticed odor of alcoholic beverage,noticed defendant stumble. Officer asked defendant if he had anything to drink and defendantresponded he had approximately five beers. Court held statements were admissible as defendantwas not in custody.State v. Stevenson, 958 S.W.2d 824 (Tex.Crim.App. 1997).Officer arrived at scene of one accident and finds defendant and his wife at the scene and askedwho was driving. Both defendant and his wife sard she was. Officer noted injuries on wifeconsrsfenf with her being passenger and repeated the question after which defendant admitted hewas the driver. ln holding that the statement.was admissible, the Court noted that defendant'sbecoming the focus of a DWI investigation at the time the question was asked did not conveft theroadside stop to custodial interrogation.Loar v. State , 627 S.W.2d 399 (Tex.Crim.App. [panel op] 1981).Statement made by defendanthat he had "one glass of wine" made during traffic stop, not productof custodial interrogation and rs admrssible.Abernathv. State, 963 S.W.2d 822 (Tex.App.-San Antonio 1998, pet. ref'd).After stopping defendant, the officer smelled a moderate odor of intoxicants, noticed defendant'seyes were glassy, asked him to get out of the vehicle, and if he had had anything to drink.Defendant responded that he had had a few drinks. The officer asked defendanto perform aseries of three field sobriefy fesfs after which he again asked him how much he had had to drinkand defendant said he had consumed four drinks. In holding both statementswere admissible, theCourt found that all the measures employed by the officer until the time of the arrest were inpursuance of atemporary investigation to determine whether defendantwasdriving a motorvehiclewhile intoxicated. There was no coercive atmosphere of custodial interrogation as contemplated46

y Miranda and its progeny. No violations of the Fifth and Fourteenth Amendments have beenshown, as defendant simply was not subjected to custodial interrogation.Gallowav. State,778 S.W.2d 111 (Tex.App.-Houston [14th Dist.] 1989, no pet.).Massie v. State , 744 S.W .2d 314 (Tex.App.-Dallas 1988, pet. ref'd).Questioning that occurs as normal incident of arrest and custody is not interrogation. Officer uponapproaching defendant asked if he had been drinking and defendant replied "Yes, I've beendrinking a lot." That statemenf rs admissible.State v. Waldrop, 7 S.W.3d 836 (Tex.App.-Austin 1999, no pet.).A roadside sfop does not place a driver in custody to the degree that Miranda warnings need to beadministered. ln this case, the Court reversed an order of the trial court suppresslng statementsabout when and where a defendant was drinking and his comment that he was drunk when allsfafemenfs were made after the stop but before field sobriefy fesfs were conducted.Hutto v. State,977 S.W.2d 855 (Tex.App.-Houston [14th Dist.] 1998, no pet.),Before an accident investigation becomes a cusfodiat situation where Miranda protection isavailable there must be: 1 ) evidence that defendant subjectively perceived he was not free to leave;2) a manifestation by the officer to the defendant of his intent to arrest him. ln this case, the Courtfound the officer's conducting field sobriety testing and questioning of defendant did not convertroadside stop into arrest and that oral statements of defendant were admissible.Harrison v. State, 788 S.W.2d 392 (Tex.App.-Houston [1st Dist.] 1990, no pet.).Statement made by defendant, in response fo questioning by officer, that he had 3-5 beers, wasnot result of custodial interrogation where officer had just stopped the defendant, had noted theodor of alcohol on his breath, and had not arrested him. Court sfressed officer was "just beginningto form suspicion that motorist was intoxicated at time of statement."Morris v. State, 897 S.W.2d 528 (Tex.App.-El Paso 1995, no pet.).During DWI videotaping, officer asked defendant during recitation of statutory warning, "Are youtoo intoxicated to understand me?" -not custodial interrogation.Shepherd v. State, 915 S.W.2d 177 (Tex.App.-Fort Worth 1996, pet. ref'd).Statement made by defendanthat he was not going to take breath test because he was toointoxicated fo pass it was admissible when it was an unsolicited response to a query by intoxoperator over the radio to arresting officer as to whether the defendant was going to take the test.4'7

2. INADMISSIBLE,'CUSTODIAL INTERROGATION"Alford v. State, 22 S.W.3d 669 (Tex.App.-Fort Worth 2000, pet. ref'd).Defendant who had exhibited signs of intoxication including field sobriety test failures, who wassubsequently handcuffed, was in custody when second officer arrived 6-7 minutes after the stop.As such, the officer's question aboutwhether he had been drinking was custodial interrogation andhis answer of 6 beers was inadmssible and warranted reversal of his conviction.Gonzales v. State, 581 S.W.2d 690 (Tex.Crim.App. 1979).After viewing vehicle weaving, driver stopped for DWI investigation, asked to sit in patrol car whilelicense was checked, not free to go, asked if "he had been in trouble before."Scott v. State, 564 S.W.2d 759 (Tex.Crim.App. 1978).Driver stopped for license check, arrested for outstanding warrant, placed in patrol car, pistolfound,asked "who pistol belonged to?"Newberry v. State, 552 S.W.2 d 457 (Tex.Crim.A pp. 1977).Driver stopped for traffic violations, had difficulty getting out of car and finding his license, askedif, what and how much he had been drinking, and then placed under arrest. Testimony showedhe was not free to go from the time he was stopped.Raqan v. State , 642 S.W .2d 489 (Tex.Crim.App. 1982).Defendant stopped for weaving. Officer suspected intoxicated. Asked to sit on police car for furtherq uestion i ng. Officer tape recorded state me nts.B.'MIRANDAWARNINGS"RECITATION MUST BE ACCURATEState v. Subke, 918 S.W.2d 11 (Tex.App.-Dallas 1995 pet. refd).When giving Miranda warning, the wording must be followed precisely. In this case the officerwarning that any statement could be used against fhe suspect "at trial" instead of "in court"re ndered state me nts m ad e i nad m i ssi ble.C. ACCIDENT REPORTS STATUTE HAS NO EFFECT ON ADMISSIBILITY OFDRIVER'S ORAL STATEMENTSState v. Revna, 89 S.W.3d 128 (Tex.App.-Corpus Christi 2002, no pet.).48

State v. Stevenson, 958 S.W.2d 824 (Tex.Crim.App. 1997).Spradlinq v. State, 628 S.W.2d 123 (Tex.App.-Beaumont 1981, pet. ref'd).Sfafufe making accident reports privileged and confidential did not prevent police officer fromtestifying to oral statements given by defendant concerning said accident.D. DOES HANDCUFFING DEFENDANT PLACE HIM IN ''CUSTODY'' FOR MIRANDAPURPOSES?1.NORhodes v. State, 945 S.W.2d 115 (Tex.Crim.App. 1997).Based finding of no custody on its determination of whether the defendant was subjected totreatmenthat resulted in his being in custody for practical purposes and whether a reasonableperson in those circumstances would have felt he or she was not at liberty to terminateinterrogation and leave.2. YESAlford v. State, 22 S.W.3d 669 (Tex.App.-Fort Worth, July 20, 2000, pet. ref'd).Using the same standard listed above and distinguishing fhis case from that one held thathahdcuffing the defendant did place him in custody and thereby rendered his statementsinad missible and required reversal.E. STATEMENTS ABOUT DRUG USE INADMISSIBLE WITHOUT EXPERTTESTIMONYLavton v. State, 280 S.W.3d 285 (Tex.Crim.App. 2009, reh. denied).The defendant objected tothe admission of the portion of the DWI videowhere he admitted takingValium and Xanax as irrelevant. (lt should be noted that the definition of intoxication listed in theinformation in this case alleged only "alcohol" intoxication). ln reversing the case, the Court ofCriminal Appeals held that without expert testimony to provide the foundation required to admitscientific evidence, the testimony regarding Appellant's use of prescription medications was nofshown to be relevanttothe rssue of his intoxication.F. STATEMENTS BY DEFENDANT'S HUSBAND. NOT HEARSAYSnokhous v. State , 2010 WL 1930088(Tex.App.-Austin 2010) (Not designated for publication).Defendant's husband made the statemento officers during his wife's arrest for DWI that "whateveryou guys can do to keep her out of a DWI I would really appreciate it" was admissible as nonhearsayas a presenf sense impression. (Concurring opinion)49

XV.FIELD SOBRIEry TESTSA. HORIZONTAL GAZE NYSTAGMUS1. IS ADMISSIBLEQuinnev. State, 99 S.W.3d 853 (Tex.App.-Houston [14th Dist.] 2003, no pet.).Gullatt v. State, 74 S.W.3d 880 (Tex.App.-Waco 2002, no pet.).Emerson v. State, 880 S.W.2d 759 (Tex.Crim.App. 199a).2. OFFICER DOES NOT HAVE TO BE AN OPHTHALMOLOGIST TOTESTIFYEmerson v. State, 880 S.W.2d 759 (Tex.Crim.App. 1994).Anderson v. State, 866 S.W.2d 685 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd).Finlevv. State, 809 S.W.2d 909 (Tex.App.-Houston ['t4th Dist.] 1991, pet. ref'd).3. DOES THE OFFICER NEED TO BE CERTIFIED?(a)NO, BUT RULE 702 REQUIREMENTS MUST BE METPrice v. State, 2006 WL 1707955 (Tex.App.-Austin 2006, pet. denied) (Not designated forpublication).Burkhart v. State, 2003 WL 21999896 (Tex.App.-Dallas, 2003, no pet.) (Not designated forpublication).Hackett v. State,2003WL21810964 (Tex.App.-Fort Worth, 2003, no pet.) (Not designated forpublication).Kerr v. State, 921 S.W.2d 498 (Tex.App.-Fort Worth 1996, no pet.).The Emerson case does not require that an officer have "practitioner certification" before histestimony on HGN is admrssrble. Such determination is to be covered by Rule 702 of the lexasRules on Criminal Evidence.(b)cERTtFtcATtoN FROM A TRAIN|N GOURSE WILL SUFFICESmith v. State, 65 S.W.3d 332 (Tex.App.-Waco 2001, no pet.).Officer who had extensive training in standardized field sobriety tests which began at the poticeacademy and continued with additional course workwho also received certification from a courseat Texas A & M University was qualified to testify about HGN.50

(c)OFFICER MUST HAVE SOME CERTIFICATIONEllis v. State, 86 S.W.3d 759 (Tex.App.-Waco 2002, pet. ref'd).Officer who testified that he never completed the thirty fesf cases he was supposed to perform aspart of a NHISA course on HGN and who testified upon cross that he was not certified to performHGN should not have been allowed to testify about HGN. Error was found to be harmless.(d)LAPSED CERTTFTCATTON W|LL NOT DISQUALIFYLiles v. State,2009 WL 3152174 (Tex.App.-Houston[1't Dist.] 2009) (Not designated forpublication).The Court held that even though the officer's sfafe certification [see TEX.ADMIN.CODE 5221.9(2009)l in HGN had expired the month prior to testing the appellant, and he had not taken therequisite re-certification courses, he was nevertheless qualified to testify as an expert regarding theadministration of the HGN fesf based on his training and experience.4. IMPROPER FORTRIAL COURTTO TAKE JUDICIAL NOTICE OF TEST'SRELIABILITYO'Connellv. State, 17 S.W.3d746 (Tex.App.-Austin 2000, no pet.).It was improper for the trial judge to take judicial notice of the HGN fesf and to include a paragraphin the jury instruction to that effect. The Court holds that the reliability of HGN is a legislative fact,not an adjudicative fact, so Texas Evidence Rule 201 does not apply.5. WITNESS CAN'T CORRELATE TEST TO BLOOD ALCOHOLCONCENTRATIONSmith v. State,65 S.W.3d332 (Tex.App.-Waco 2001, no pet.).Webster v. State, 26 S.W.3d 17 (Tex.App.-Waco 2000, pet. ref'd).Youens v. State, 988 S.W.2d 404 (Tex.App.-Houston [1't Dist] 1999, no pet.).Officer's testimony that his finding four clues in HGN told him there was a 75% chance that thesubject had a B.A.C. over 0.10 was error. (ln Webster error rendered harmless afrer instructionto disregard testimony.)51

6. VERTICAL GFZE NYSTAGMUS/RESTING NYSTAGMUSStovallv. State, 140 S.W.3d712 (Tex.App.-Tyler 2004) (reh. overruled).Evidence of vertical nystagmushould not have been admifted bythetrialcourtwithoutconductinga DauberilKelly hearing. The Court points out that a trial court must actually examine and assessthe reliability of VGN before it is admissible and no Court has (as of yet) done that. So Emersoncould not be cited on the issue of admissibility as that case never mentioned VGN.Quinnevv. State,99 S.W.3d 853 (Tex.App.-Houston [14th Dist.] 2003, no pet.).In holding that it was error, albeit harmless, fo allow testimony concerning "vertical nystagmus" and"resting nystagmus," the Court distinguished these tests from horizontal gaze nystagmus fesfs asfollows. ln Emerson. the Court of Criminal Appeals exhaustively examined the scientific theorybehind HGN testing, but did not address the theory behind "vertical nystagmus" or "restingnystagmus" testing. For "vertical nystagmus" and "resting nystagmus" evidence to be admissible,the proponent must present evidence of similar research of the scientific theory underlying fhosefesfs.7. IMPACT OF FAILING TO PERFORM FSTs PER NHTSA GUIDELINESLeverett v. State ,2007 WL 1054140 (Tex.App.-Dallas, 2007, no pet.).In holding that smallvariations in the way HGN was performed did not render it inadmissible, theCourt pointed out that small variations in the administration of the fesf do not render the HGN testresu/fs inadmissible or unreliable but may affect the weight to be given to the testimony. Plouff v.State, 192 S.W.3d 213. 219 (Tex.App.-Houston[14h Dist.l 2006. no pet.) (citing Compton v.Sfafe. 120 S.W. 3d 373, 378 (Tex.App.-Texarkana 2003, pet.ref'd)). Here, the officer tookapproximately fifty-three seconds to complete the test but allegedly should have taken at leasteighty-two. This difference in timing is not a meaningfulvariation. Cf. McRae v. State. 152 S.W.3d739, 744 (Tex.App.-Houston[1"t Dist.l2004. peL ref'dt (holding where officer admitted HGN testwas invalid, court abused its discretion in admitting HGN testimony). Moreover, there are interualsin the HGN fesf where the officer is simply positioning the eyes for the next test, and any variationin the time to do so "would have no effect on the reliability of [the] test."Taylor v. State, 2006 WL 1649037 (Tex.App.-Austin 2006, pet. ref'd) (Not designated forpublication).Ihis case involves an attAck on the manner in which the HGN fesf wasperformed and attacks onthe method put forward by the defense with expert wifness Troy Walden. Ihis case involves adetailed recitation of the attacks and is a good read for any prosecutor facing an expert attack onfhe FSIs. ln response to the defense attack that the time of the passes was done incorrectly, theCourt found that "Even if the time recommended by Walden and the NHISA manual is accurate,the difference between this time and that estimated by Officer Clayton appears negligible." TheCourt further found that there was nothing to show that the difference in time would result in afinding of smooth pursuit of appellanf's eyes rather than a lack of smooth pursuit. The Court alsofound that Walden's fesfimony that Officer Clayton made only one pass of each eye in checkingfor smooth pursuit of the eyes when there should have been fwo passes of each eye did notprovide a basis for excluding the HGN test. The defense a/so attacked the fact that the stimulus52

was held at maximum deviation for 3 rather than 4 seconds. Again the Court found the timedifference negligible. The Court mentioned that the NHISA manual was not introduced. Nor didthe trial Court take "judicial notice" of any such manual.Reynolds V. State, 163 S.W.3d 808 (Tex.App. Amarillo 2005) affirmed othergrounds204 S.W.3D386 (Tex.Crim.App. 2006).Compton v. State, 120 S.W.3d 375 (Tex.App.-Houston [1't Dist.] 2003, pet. ref'd).Police officer's slight deviation in number of secondstaken to conduct horizontal nystagmus (HGN)testfrom number of secondsrecommended by DWI Detection Manual did not invalidafe fesf resu/fsotherwise indicating that defendant was driving while intoxicated. The objection by the defensewas that the officer administered the smooth pursuit portion of the HGN fesf in eleven secondsinstead of the sixteen sebondsprescribed in the DWI Detection Manual. He argued thatthe officermoved the stimulus fwo and a half seconds faster than recommended for each eye. The Courtnoted that the manual itself only provides approximations of the time required for properlyconducting fhe fesfs. The Defendant's argument that the slightly increased speed with whichBaggett administered the test amounted to an inappropriate application of the technique,invalidating the results was found by the Court to be untenable and, if accepted, would "effectivelynegate the usefulness of fhe fesfs entirely." As fo the OLS, the officer failed to instruct thedefendanto keep his arms by his side. The Court found that it was error to admit fhis fesf whichit did find was not done per the manual but found that error to be harmless. Ihe Court noted thatthe officer's failure to instruct Compton to keep his arms at his side should have made fhe fesfeasier to perform.B. ONE LEG STAND = LAY WITNESS TESTIMONYTaylor v. State, 2006 WL 1649037 (Tex.App.-Austin 2006, pet. ref'd) (Not designated forpublication).McRae v. State, 152 S.W.3d 739 (Tex.App.-Houston [1"tDist.] December 02,2004, pet. ref'd).We conclude that the testimony by the arresting officer concerning the one-leg stand, whichfollows, is lay urifness testimony governed by Rule 701 of the Iexas Rules of Criminal Evidence.That an officer uses ferms like "standardized clues, "test," or "divided attention," does not meanthe officer is no longer testifying as a lay wifness and begins to testify as an expert, who musttherefore be qualified. The Court disagreed with U.S. v. Horn. 185 F Supp.2d 530, (D.Md.Jan. 31,2002) opinion to the extent that it holds that using fhese words automatically changes lay testimonyinto expert testimony. We conclude that, under the circumstances demonstrated here, the words"clues,""test," and "divided attention" merely refer to observations by the peace officer based oncommon knowledge observations of the one-leg stand and do not convertthe lay witness fesfimonyinto expert testimony. We hold that the officer's testimony, as described above, concerning hisobservations of appellant's performance on the one-leg-stand test were admissible as lay wifnesstestimony under Rule 701 of the Texas Rules of Criminal Evidence.53

C. WALK AND TURN = LAY WITNESS TESTIMONYPlouff v. State, 192 S.W.3d 213 (Tex.App.-Houston [14 Dist.], 2006).Arresting officer's testimony regarding the results of walk-and-turn and one-leg stand fesfs wasadmissible as lay urifness testimony in driving while intoxicated (DWI) prosecution. Officer'stestimony about defendant's coordination, balance, and mental agility problems exhibited duringone-leg stand and walk-and-turn fesfs was observation grounded in common knowledge thatexcessive alcohol consumption could cause problems with coordination, balance, and mentalagility.D. OFFICER MAY TESTIFY ABOUT SCIENTIFIC STUDIES FINDINGS RE: THERELIABILITY OF FST'SLorenz v. State,176 S.W.3d 492 (Tex.App.-Houston [1 Dist.] 2Q04, pdr ref'd).Arresting officer's testimony thaf sfudies had found that the three field sobriety tests conducted ondefendant were 91 to 95 percent accurate when used in conjunction with each other, did notimpermissibly correlate to defendant's quantitative blood-alcohol content (BAC).E. OFFICERS MAY COERCE SUSPECT INTO PERFORMING FST'sOountope v. State, 177 S.W.3d 435 (Tex.App.-Houston [1't Dist.] 2005, no pet.).Officer told Defendant who had initially refused fo do FSIs that he would take him to jail if hecontinued to refuse after which Defendant drd FSIs. Prior to his plea, Defendant had moved tosuppress the results of his FSIs on the grounds he was improperly coerced into doing fhe fesfsby the officer's statement. The Court of Appeals held that there was no due process violation inadmitting the test resu/fs. In so holding, the Court points out that Court of Criminal Appeals hasheld that authorities may compel a defendant to submit physical evidence of intoxication. ltdistinguishes fhis case from Erdman as there are no statutory warnings that apply fo FSIs.F. REFUSAL TO PERFORM FSTs = PG TO ARREST AND EVIDENCE OF GUILTMaxwell v. State, 253 S.W.3d 309 (Tex.App.-Fort Worth, 2008, pet. ref'd).Officer may consider defendant's refusalto do Field Sobriety Iesfs when determining the issue ofprobable cause to arrest.Texas Dept. Of Public Safety v. Nielsen. 102 S.W. 3d 313 (Tex.App.-Beaumont, 2003, no pet.).Substantial evidence existed of probable cause for driver's arrestfor driving while intoxicated (DWI)where police officer noticed severalsigns of intoxication including alcoholic odor coming fromvehicle, driver's refusal to make eye contact with officer, driver's refusal to roll down window,driver's response that he had consumed two to four beers when asked if he had been drinking, andtr,4

driver's refusal to take field sobriefy fesfs. The totality of the circumstances is substantial evidenceof probable cause for Nielsen's arrest.Lonsdale v. State. 2006 WL 2480342 (Tex.App.-El Paso, 2006, pet. ref'd).Defendant challenged the admission of testimony that he refused to perform the field sobriefy fesfs.He complains that the evidence was irrelevant, and if relevant, more prejudicial than probative. Healso points to violations of his constitutional rights, arguing that the invocation of the right tocounsel, the right to remain silent, and the right against unreasonable search and seizure may notbe relied upon as evidence of guilt. The Court rejecfs fhese arguments and findsthat a defendant'srefusal to perform FSfb is relevant and admissible. Court further held that it was proper argumentthat the jury could infer that his refusalwas evidence of intoxication.State v. Garrett. 22 S.W. 3d 650 (Tex.App.-Austin, 2000, no pet.).Defendant's argument-which prevailed in the trial courtwas that c/assic indicators of inebriationthat would be present in a normal DWI arrest were absent in this case. We note that many of thesefactors such as performance on field sobriety tests, were absent as a direct result of defendant'sconduct, i.e., his refusalto participate in any of these tests. While we regard fhese missrng factorsas a part of the totality of the circumstances, they are only a part, and where many of the mrssingfactors are due to a defendant's conduct, we believe that the officers could reasonably considerthat conduct as part of the totality of the circumstances that provided probable cause to arrest.Dawkins v. State,822 S.W.2d 668,671 (Tex.App.-Waco, 1991, pet. ref'd).ln prosecution for felony driving while intoxicated, admission of video tape which showeddefendant's refusalto submit to sobriety tests requiring him to recite alphabet and to count aloudwas not violation of defendant's constitutional privilege against self-incrimination. Evidence thatdefendant refused to submit to sobriety fesfs drd not constitute violation of defendant'sconstitutional right to be free from self-incrimination where there was no indication that defendantwas compelled to perform the sobriety tests.Barraza v. State. 733 S.W. 2d 379 (Tex.App.-Corpus Christi, 1987 , pet. granted) att'd 790 S.W.2d 654 (Tex.Crim.App.June 20, 1990).Arequestto perform afield sobriefyfesf issufficiently similarto a requestto perform a breathalyzerfesf so as to allow an analogy to the law governing the admissibility of evidence of a suspecfbrefusal to take a breathalyzer test. Both types of fesfs are designed to test the sobriety of thesuspecf. We can discern no reason to distinguish between them with regard to the admissibilityof refusal to perform fhe fesfs.55

XVI. SPECIFIC ELEMENTSA. PUBLIC ROAD . PLACE1. PARKING LOTSRouse v. State, 651 S.W.2d 736 (Tex.Crim.App. [panel op.] 1983).State v. Carter, 810 S.W.2d 197 (Tex.Crim.App. 1991).Thibaut v. State ,782 S.W .2d 307 (Tex.App.-Eastland 1989, no pet.).Though a "parking lot" is not a "road" under Article 67011-1, evidence may show a road through aparking lot.Howard v. State,744 S.W.2d 640 (Tex.App.-Houston [14th Dist.] 1987, no pet.)."lmplied Consent" law does not apply to defendant who was driving on a "parking lot."{TH|S CASE DOES NOT APPLY TO OFFENSES COMMTTTED AFTER SEPTEMBER 1, 1993WHEN ARTTCLE 67011-551, V.T.C.S WAS AMENDED SUBSTTTUTTNG THE TERM'PUBLICPLACE' FOR'pUBLtC H|GHWAY OR BEACH*)Kapuscinski v. State, 878 S.W.2d 248 (Tex.App.-San Antonio 1994, pet. ref'd).State v. Nailor, 949 S.W.2d 357 (Tex.App.-San Antonio 1997, no pet.).Parking lot can be a "public place."Holloman v. State, 1995 WL17212433 (Tex.App.-Eastland 1995) (Notdesignated for publication).The parking lot was a common area for the complex. The manager of the complex testified thatthe entire complex was surrounded by a metal fence, that the complex had between 200 and 300resrdenfs, and that the parking lot was a common area for the complex. When a resident movedinto the complex, the resident received a "gate card" which would "electronically trigger the gatemechanism" to allow the residento enter the complex. Ihe guesfs to the complex would push theresident's apartment number and then the phone in the residenf's apartment would ring. If theresrdenf wanted the guest to be admitted, the resident would then push a number and the gatewould open. The apartment complex placed no restrictions on resrdenfs as to whom they couldallow to come into the complex. Court held sufficient evidence that parking lot was "public place."2. MILITARY BASESWoodruff v. State, 899 S.W.2d 443 (Tex.App.-Austin 1995, pet. ref'd).Tracev v. State, 350 S.W.2d 563 (Tex.Crim.App. 1961).Military base can be "public place."56

3. PARK AS A PUBLIC PLAGEPerry v. State, 991 S.W.2d 50 (Tex.App.-Fort Worth 1998, pet. ref'd).The factthat a park is c/osed (ds hours of operation are over) and the public is not supposed fo usethe park is irrelevanto the determination of whether the place is one to which the public hasaccess. Held park was a "public place."4. DRIVEWAYFowlerv. State,65 S.W.3d 116 (Tex.App.-Amarillo 2001, no pet.).Unpaved driveway of a rural residence located approximately 1/4 mile from a country road in anisolated and secluded part of county was not a "public place."5. MARINAShaub v. State, 99 S.W.3d 253 (Tex.App.-Fort Worth 2003, no pet.).ln holding that the marina where the defendant operated hisvehicle was a public place, the Courtfocused on evidence that the entire marina area appeared to be accessrble to anyone who wantsto use it.6. GATED COMMUNITYState v. Gerstenkorn, 239 S.W.3d 357 (Tex.App.-San Antonio 2007, no pet.).The defendant was stopped in a gated community with a s;ecurity guard and timited access. Heargued that it was not a "public place." In rejecting that argument, the Court found that anyonecould gain access fo fhe community "under the right set of circumsfances." lt found the situationanalogous to that in the Woodruff case which found the grounds of a military base fo be a "publicplace."B. PROOF OF "STATE''Barton v. State, 948 S.W.2d 364 (Tex.App.-Fort Worth 1997, no pet.).State proved offense occurred in lexas when it proved it occurred in Denton County. Court couldtake judicial notice of that fact.51

C. PROOF OF "MOTOR VEHICLE"Turner v. State, 877 S.W.2d 513 (Tex.App.-Fort Worth 1994, no pet.),Reference by police officer to vehicle as "car" stJfficient to establish that the vehicle involved in theDWI was a motor vehicle.D. "NORMAL USE OF MENTAL OR PHYSICAL FACULTIES''Hernandez v. State, 107 S.W.3d 41 (Tex.App.-San Antonio 2003, pet. ref'd)Raifsback v. State, 95 S.W.3d 473 (Tex.App.-Houston [1$ Dist] 2002, pet. ref'd).Foqle v. State, 988 S.W.2d 891 (Tex.App.-Fort Worth 1999, pet. ref'd).Reaqan v. State,968 S.W.2d 571 (Tex.App.-Texarkana 1998, pet. ref'd).Massie v. State,744 S.W.2d 314 (Tex.App.-Dallas 1988, pet. ref'd).Allegation that defendant did not have the "normal use of his mental and physicalfaculties"doesnot require fhe Sfafe to prove what the defendant's normal faculties are. It simply means that thefaculties fo be fesfed must belong to the defendant.E. ADMISSIBILITY OF ILLEGAL DRUGS TO PROVE INTOXICATIONCook v. State, 2006 WL 1633250 (Tex.App.-Tyler 2006) (Not designated for publication).The defendant was arrested for DWI. Clues of intoxication included horizontal and verticalnystagmus, bloodshot and glassy eyes, odor of alcohol on his breath, slurred speech andunsteadiness on his fe et. lncidento his arrest, marijuana was found on his person. The defendantrefused to give a sample of his breath. The State alleged the general definition of intoxication inits charging instrument. The Court held that fhe possession of marijuana made it more likely thathe had smoked marijuana, and that supported an inference his intoxication could be explained inpart by the use of marijuana. It is worth noting that no odor of marijuana is mentioned by the officerthough unobjected to in testimony about vertical nystagmus being present and its relation to theconsumption of narcotics. The Court held that the admission at trial of the marijuana was not error.XVII. BREATH TESTA. IMPLIED CONSENT LAWRodriouez v. State, 631 S.W.2d 515 (Tex.Crim.App. 1982).Statutory presumption of consento breath test.58

Graham v. St?te, 710 S.W.2d 588 (Tex.Crim.App. 1986).'lmplied consent law" does not place any mandatory duty on the Sfafe fo administer a chemicalfesf.Growe v. State,675 S.W.2d 564 (Tex.App.-Houston [14th Dist.] 1984, no pet.).Motorist's implied consent is not subject to motorist's electing to contact an attorney.B. BREATH TEST PREDICATEHarrell v. State,725 S.W.2d 208 (Tex.Crim.App. 1986).PREDICATE:1) proper use of reference sample.2) existence of periodic supervision over machine and operation by one whounderstandscientific theory of machine.3) proof of result of fesf by witness or witnesses qualified to translate and interpretsuch result so as to eliminate hearsay.Kercho v. State, 948 S.W.2d 34 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd).The testimony of an Intoxilyzer operator and a technical supervisor to the effecthat the instrumentwas periodically tested to ensure that it was working properly,.that a test sample run prior toappellant's Intoxilyzer tests demonstrated the machine was functioning properly at that time, thatthe operator had been trained in the operation of the Intoxilyzer machine, and that the technicalsupervisor, who also testified abouthe theory of the test, was certified by the Department of PublicSafety as a technical supervisor, was sufficient predicate to admithe results of the Intoxilyzer test.C. INSTRUMENT CERTIFICATION1. NEW INSTRUMENT NEED NOT BE RE.CERTIFIEDState v. Kraqer, 810 S.W.2d 450 (Tex.App.-San Antonio 1991, pet. ref'd).When police agency substitutesone approved brand of breathtesting equipmentforanother, itwasnof necessary that there be a reapplication for certification of entire breath testing program.2. CERTIFICATION AND MAINTENANCE RECORDS ADMISSIBLEPonce v. State, 828 S.W.2d 50 (Tex.App.-Houston [1st Dist.] 1991, pet. ref'd).Reporfs and test records which reflected that the lntoxilyzer machine used to test appellant's59

alcoholconcentrationwasworking properlywere admissible under Rule 803(6) and are not mattersobserved by law enforcement personnel.D. LIMITED RIGHT TO BLOOD TEST1. FAILURE TO ADVISE OF RIGHT TO BLOOD TESTMaxwellv. State. 253 S.W.3d 309 (Tex.App.-Fort Worth 2008).Defendant argued that breath fesf was inadmissible because he was not afforded "his right tocontact a physician to obtain a specimen of his blood." ln overruling this pointthe Court points outthat Section (c) of 724.019 provides that a peace officer ls nof required to transport someone incustody to a facility for testing, and further, section (d) provides that the "failure or inabjllLyto obtainan additional specimen or analysis under this section does not preclude the admission of evidencerelating to the analysis of the specimen taken" by the officer originally.McKinnon v. State, 709 S.W.2d 805 (Tex.App.-Fort Worth 1986).State v. Lyons, 820 S.W.2d 46 (Tex.App.-Fort Worth 1991, no pet.).Officer has no duty to advise defendant of right to blood fesf & failure fo do so will not affectadmissibility of breath test.2. NO RIGHT TO BLOOD TEST IN LIEU OF BREATH TESTAquirre v. State, 948 S.W.2d 377 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd).Drapkin v. State,781 S.W.2d710 (Tex.App.-Texarkana 1989, pet. ref'd).Statute does not give the suspecf the right to a blood test instead of a breath test.3. OFFICER'S CHOICE WHETHER BREATH OR BLOODState v. Neel,808 S.W.2d 575 (Tex.App.-Tyler 1991, no pet.).A police officer arresting a suspect for driving while intoxicated is entitled to choose between askingfhe suspect to take a breath test or a blood test, both of which are authorized by statute. Theofficer need not track the statutory language and ask the defendanto take a breath or blood test.E. MIRANDA WARNINGS1. NEED NOT GIVE PRIOR TO REQUEST FOR BREATH SAMPLEParks v. State,666 S.W.2d 597 (Tex.App.-Houston [1st Dist.] 1984, no pet.).Miranda warnings need not be given fo suspecf prior to breath fesf reguesf.60

2. INVOCATION OF RIGHTS WILL NOT EXCLUDE REFUSALGarner v. State,779 S.W.2d 498 (Tex.App.-Fort Worth 1989) pet. refd per curiam, 785 S.W.2d158 (Tex.Crim.App. 1990).BTR admissibl even if after right to counsel is invoked.Jamailv. State,787 S.W.2d 380 (Tex.Crim.App. 1990).Mixing requestfor breath sample with warnings during custodial interrogation such thatdefendantperceived he had the right to consult an attorney will not negate ability to show refusal at trial.3. NO RIGHT TO COUNSEL PRIOR TO DECIDING WHETHER TO GIVESAMPLEForte v. State, 759 S.W.2d 128 (Tex.Crim.App. 1988).De Manqin v. State, 700 S.W.2d 329 (Tex.App.-Houston [1st Dist] 1985) aff'd.787 S.W.2d 956(Tex.Crim.App. 1990).F. BREATHAMPULES NEED NOTBE PRESERVEDTurpin v. State, 606 S.W.2d 907 (Tex.Crim.App. 1980).Breath ampules need not be preserved. Defendant's inability to obtain blood test within two hoursdid not render breath fesf resu/fs inadmissible.G.Dtc-23 & DrC-24 WARNTNGS1. REQUIREMENT THEY BE GIVEN IN WRITING RELATES ONLY TOADMISSIBILITY OF REFUSALSNebes v. State,743S.W.2d729 (Tex.App.-Houston [1st Dist.] 1987, no pet.).Rule that DIC-24 warnings be given in writing does not apply to case where breath fesf vvas given.This rule only affects admissibility of breath test "refusals."2. FAILURE TO GIVE WARNINGSWRITING NOT NECESSARILY FATALAnderson v. State.2006 WL 744272 (Tex.App.-FortWorth 2006, pdrdismissed) (Notdesignatedfor publication).The fact that the arresting officer gives an oral warning but fails to give a written warning beforerequesting a breath fesf does not, by itself, render the results of the test inadmissible. There must6t

e some showing of a causal connection between the failure to give the written warning and thedefendant's refusal to submit to the breath fesf fo render the refusal inadmissible. No suchconnection was shown in this case and refusalwas held admissible.Martinez v. State, 2005 WL787075 (Tex.App.-El Paso 2005).There was a dispute as to whether the defendant was read the DIC-14 warnings before beingasked to give a breath sample. The defendant refused to give a sample and based on the conflictin testimony wanted a charge under Article 38.23 CCP which would allow the jury to disregard therefusalasevidenceiftheyfoundthewarningswerenotgiven. Inrejectingthatargument,theCourtheld that defendant had failed to meet the burden of showing a causal connection between anyimproper warning and the decision whether to submit to a breath test. For that reason, therequested charge was properly denied.Schaum v. State, 833 S.W.2d 644 (Tex.App.-Dallas 1992, no pet.).Giving only oral and not "written" warnings to defendant does not always mean evidence of refusalwill be inadmissible. It will be subject to a "harmless error" analysis. ln this case, held to be"harmless" and evidence of refusalwas properly admitted.Lane v. State, 951 S.W.2d 242 (Tex.App.-Austin 1997, no pet.).Giving only oral and not written warnings to defendant does not render breath fesf resu/finadmissible.3. WRITTEN WARNINGS NEED NOT BE PROVIDED PRIOR TO REFUSALTexas Department of Public Safetv v. Jaurequi, 176 S.W.3d 846, (Tex.App.,-Houston [1 Dist.],2005, rev. denied).O'Keefe v. State, 981 S.W.2d 872 (Tex.App.-Houston [1't Dist] 1998, no pet.).Rowland v. State, 983 S.W.2d 58 (Tex.App.-Houston (1"tDist.) 1998, pet. ref'd).Jessup v. State, 935 S.W.2d 508 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd).No harm shown where defendant was not given DIC-24 statutory warnings in writing until afterrefusal.4. THAT ARREST PRECEDE READING OF DIC.24 = FLEXIBLENottinqham v. State, 908 S.W.2d 585 (Tex.App.-Austin 1995, no pet.).Though defendant was not told he was under arrest prior to DIC-24 being read to him, the readingof the DIC-24 and circumsfances concerning the reading were sufficiento justify a finding that thearrest requirement was met even though officer testifies that he did not think defendant was under62

arrest at the time.See also Washburn v. State. 235 S.W.3d 346, (Tex.App.-Texarkana 2007, no pet.).5. DIC.24 NOTICE IN WRITING REQUIREMENT SATISFIED BY MAKINGWRITTEN COPY NNAVAILABLE"Texas Department of Public Safety v. Latimer, 939 S.W.2d 240 (Tex.App.-Austin 1997, no pet.).Writte notice requirement as applied to request for blood sample complied with by officer's leavingthe written copy with the nurse to give the defendant the following day.6. OFFICER WHO READS DIC.24 & REQUESTSAMPLE NEED NOT BEARRESTING OFFICERTexas Dept. of Public Safetv v. Walter, 979 S.W.2d 22 (Tex.App.-Houston [14th Dist.] 1998, nopet.).McBride v. State, 946 S.W.2d 100 (Tex.App.-Texarkana 1997, pet. ref'd).For officer fo reguesf that allegedly intoxieate driver provide specimen of breath or blood, it is notnecessary that same officer obserue driver, arrest driver, transport driver, and inform driver ofconsequences of refusal fo take test.7. CIVILIAN READING WARNINGS NOT NECESSARILY BASIS FOREXCLUSIONHarrison v. State, 766 S.W.2d 600 (Tex.App.-Fort Worth 1989, pet. ref'd).A peace officer, rather than a civitian breath test operator, must give a defendanthe statutorywarning on refusing alcoholfesfs, buf the fact thpt a civilian gives the statutory warning on alcoholfesfs does not render a defendant's refusal to take the test automatically inadmissible. Before atrial court is obligated to exclude the evidence, the defendant must show a causal connectionbetween his refusal to give a breath specimen and the fact that a civilian gave the warning.8. DIC-24 - WORDING .10 OR GREATER . IS CORRECT. THOUGH IT'SNOT TIED TO DRIVING (Note: At the time these cases came down,.10 was the per se standard.)Texas Dept. of Public Safety v. Bennoit, 994 S.W.2d 212 (Tex.App.-Corpus Christi 1999, pet.denied).McLain v. State, 984 S.W.2d 700 (Tex.App.-Texarkana 1998, pet. ref'd).Shirlev. Texas Department of Public Safety,974 S.W .2d 321 (Tex.App.-San Antonio 1998, nopet.).Texas Department of Public Safetv v. Butler, 960 S.W.2d 375 (Tex.App.-Houston [14th Dist.]1998, no pet.).63

Martin v. Department of Public Safetv, 964 S.W.2d772 (Tex.App.-Austin 1998, no pet.).The following language on the DIC-24: "lf you give the specimen and analysishows that you havean alcohol concentration of 0.10 or more, your license, permit or privilege to operate a motorvehicle will be suspended..." is not defective for not stating that the concentration must be 0.10 ormore "at the time of driving." It is clear that it was not the intent of the legislature to require a fesfto show thatthe defendantwas 0.10 atthe time of driving for a license suspeRsion to be called for.Thus the statute should not, and does not, contain the wording "at the time of driving" because itdoes not pertain to whether the arrestee was driving while intoxicated.9. ERROR IN SPANISH LANGUAGE VERSION OF THE WARNING DIDNOT MAKE DEFENDANT'S CONSENT INVALIDGonzalez v. State, 967 S.W.2d 457 (Tex.App.-Fort Worth 1998, no pet.).Complaint was that the Spanish version of the warning translates to "if you refuse the analysis thataction can be used against you in the future." The court rejects the claim and finds that theSpanish-language translation of the warning was not required to track the statutory languageverbatim and that the warning given substantially complied with the statutory mandate.10. COMMERCIAL DRIVER'S LICENSE WARNINGS(a)NEED TO BE GIVENTexas Department of Public Safetvv. Thomas, 985 S.W.2d 567 (Tex.App.-Waco 1998, no pet.).Defendant who was arrested for DWI held a commercial driver's license that allowed him to operateboth commercial and non-commercial motor vehicles. After his arrest he received the warningsrequired by Chapter 724 (applying to non-commercial drivers) and refused to give a breath sample.He challenged his subsequent license suspension arguing that because he was notwarned of theconsequences of his refusal to give a specimen under 724 and Section 522 (regarding commercial/icenses,), his refusal was not knowing and voluntary. Court of Appeals found that the failure towarn him of both consequences rendered his refusal involuntary.(b)DoN'T NEED TO BE GTVENTexas Department of Public Safet v. McGlaun, 51 S.W.3d 776 (Tex.App.-Fort Worth 2001 , pet.denied).Ihe rssue is whether failure to warn the defendant of the consequences of his refusal to give abreath fesf as to his commercial license means his license should not be suspended. Thedefendant was not operating a commercial vehicle when he was stopped. The Court held that theDefendantwas properlywarned and his license should be suspended. Specifically, the Court heldthat 724.015 does not distinguish between commercial and non-commercial vehicles, so it appliesto allvehicles. The fact that different consequences are authorized by more than one applicable64

statute does not reduce the notice given to the defendant of the consequences provided for each.The Court nofes the contrary holding in Thomas and declines to follow that opinion.See also Texas Department of Public Safety v. Struve. 79 S.W.3d 796 (Tex.App.-Corpus Christi,2002, pet. denied).11. DIC 23 & DIC 24 DOCUMENTS ARE NOT HEARSAYBlock v. State , 1gg7 WL 530767 (Tex.App.-Houston [14th Dist.] 1gg7 , pet.ref'd) (Not designatedfor publication).DIC 24is nof hearsay as the warnings form is not offered to prove the truth of the matter assertedin those warnings, but rather is offered to show that the warnings were given to the defendant.Texas Department of Public Safetv v. Mitchell, 2003 WL 1904035 (Tex.App.-Fort Worth 2003).DIG 23 and DIC 24were properly admitted underthe public records exception tothe hearsay rule80s(8).12. URINE SAMPLE ADMISSIBLE WITHOUT EXPLANATION OF RIGHT TOREFUSEHarrison v. State, 205 S.W.3d 549 (Tex.Crim.App. 2006).Defendant was arrested for DWI and afrer having the DIC-24 read to her agreed to give a breathsample which showed no alcohol. She was asked to give blood and agreed as well and wastransported to hospitalfor blood draw. Afterfive or six soimewhat painful attemptsto get blood, shewas asked if she would give urine instead, and she agreed so as to avoid continuing to be stuckto obtain a blood sample. The urine sample showed controlled subsfances, and the defenseattacked the urine sample on the basis that the officer did not warn her that she did not have to givea sample and her refusal to give urine would not result in a license suspensrbn. The Court ofAppeals found that the consento give urine was not voluntary as it was given to avoid the furtherpain of a blood draw. The Court of Criminal Appeals found that there was no requirementhat anywarnings be read before asking for consento a urine sample and upheld the trial court's findingthat the consent was voluntary.H. NOT NECESSARY TO SHOW 210 LITERS OF BREATHWaqner v. State ,720 S.W .2d 827 (Tex.App.-Texarkana 1986, pet. ref'd).Nof necessary to show that 210 liters of breath were used in the lntoxilyzer fesf.65

t.BREATH TEST NOT COERCED1. EXTRAWARNING REFERRED TO CONSEQUENCES OF PASSING NOTREFUSINGBookman v. State, 2008 WL 3112713 (Tex.App.-Waco, 2008, reh. overruled).ln holding that the officer's statement to the defendant regarding the breath test "that if thedefendant passed, the officer would let him go," did make the defendant's consent involuntary. Inso holding the Court sfafes "Texas appellate courts have uniformly held that consento a breathfesf rs not rendered involuntary merely because an officer has explained that the subject will bereleased ffhe passes fhe fesf."Hardv v. State,2005WL 1845732 (Tex.App.-Corpus Christi, Aug. 4, 2005XNot designated forpublication).ln response to her question, officer informed the defendant "if she would pass the breath fesf, shewould probably be released." ln response to the defendant's asserfion on appealthatthisviolatedErdman. the Court noted that the "statement to appellant falls far short of the officer's statementsfound to be coercive in Erdman." The Court focused on the fact that the officer did not make anystatements about the consequences of appellant's refusal to take a breath test beyond fhose 4istedin Section 724.015 of the Transportation Code. By merely answering appellant's question, OfficerTrujillo did not warn appellanthat dire consequences would follow if she refused to take the breathfesf.Ness v. State, 152 S.W.3d 759 (Tex.App.-Houston [1 District] December 2,2004, pet. ref'd).Police officer's statemento defendant at the scene of the arrest that "pending outcome of breathtest, defendant would be detained" did not render defendant'submissrbn to breath test coerced,where officer did not make any statements about consequences of refusal to take test beyondfhose /isfed in statute, and he did not warn defendanthat dire consequences would follow if.herefused to take breath test.Urquhart v. State, 128 S.W.3d701 (Tex.App.-El Paso 2003, reh. overruled, pet. ref'd).Statement by officer to defendanthat if he passed the breath test he would be released wasalleged to be coercive and should result rn suppression of his breath fesf resu/fs. Courtfound thatthere was no causalconnection between the statement and the decision to give a breath sample.Sandoval v. State 17 S.W.3d 792, (Tex.App.-Austin, 2000, pet. ref'd).Suspecf asked what would happen if he "passed the (breath) test?" Officer responded that ifsuspecf failed the test, he would be charged with DWl, but if he passe4 the officer would call arelative to come pick up suspecf. Suspecf took a breath test. Court upheld the test distinguishing66

fhese factsfrom Erdman. It did this by pointing outthat Erdman concerned telling a suspect aboutthe extra-statutory consequences of a "refusal" to submit to a breath test while in this case theextra warning dealt with what would happen if he "passed" the test. The Court further pointed outthat there was absence of evidence that the extra warning actually coerced fhe suspecf.2. NO EVIDENCE THAT ADDITIONAL WARNING ACTUALLY COERCEDDEFENDANTTexas Department of Public Safetv v. Rolfe, 986 S.W.2d 823 (Tex.App.-Austin 1999, no pet.).Officer admitted (hypothetically) to telling suspecf, when asked, that if she refused to give a sampleshe would be jailed. Held that consento breath fesf was still valid absent any evidence that thisadditional warning actually coerced suspecf into submitting to a breath test.3. NO EVIDENCE THAT DEFENDANT RELIED UPON EXTRAWARNINGEwerokeh v. State, 835 S.W.2d 796 (Tex.App.-Austin 1992, pet. ref'd).Officer telling defendant "if he failed test he would be jailed," found not to be coercive where therewas no evidence that defendant relied on this incorrect statement.4. DEFENDANTGAVESAMPLE,CONSEQUENCESUNDERSTATEDFranco v. State, 82 S.W.3d 425 (Tex.App.-Austin 2002, pet. ref'd).After being arrested for DWl, the defendant was read the standard lexas Transportation CodeAnn. 724.015 admonishments as to the consequences of refusing to give a sample. He gave asample and then argues that he should have been read the admonishments under lexasTransportation Code Ann. 522.103(a) as he also holds a commercial drivers license. Thecommercial consequences of a refusal are harsher than fhose for non-commercial holders.Without addressrng whether the failure to read him'the additionalwarning was a mistake, the Courtholds that he has failed to show he was coerced. Specifically, the Court holds "(Thedefendant)......cannot plausibly argue that his decision to take the breath fesf was induced orcoerced by the officer understating the consequences of a refusal."SEE also Curl v. State, 199 WL 33757096 fl-ex.App.-Corpus Christi 1999).5.AT MTS IT IS THE DEFENDANT'S BURDEN TO SHOW CONSEN TOGIVE BT WAS NOT VOLUNTARYState v. Amaya, 221S.W.3d 797 (Tex.App.-Fort Worth 2007, pdr ref'd).This involved a claim that the breath fesf uras not voluntary because the warnings were read inEnglish and only the written copy given to the defendant was in Spanrsh. The trial judge concluded67

that because fhe statutory warning was not read in the Spanish language and because we do notknow whether the defendant could read the Spanrsh warning sheet, we have no way of knowingif the defendant understood, or at least substantially understood, what the officer was telling him.The trial judge suppressed the breath fesf resu/fs. The Court of Appeals reversed the trial court,finding it was the defendant's burden to point to some evidence rebutting the presumption arisingfrom the implied consent statute. This finding-that the evidence did not establish whetherdefendant could or could not read the Spanish DIC-24 form-required the trial court to overrule thedefendant's motion fo suppress.6. INSUFFICIENT EVIDENCE OF CAUSAL CONNECTION BETWEENOFFICER STATEMENT AND CONSENTBerqner v. State, 2008 WL 4779592 (Tex.App.-Fort Worth 2008, no pet.).ln this appeal the defendant claimed that her breath fesf resu/f should have been suppressedbecause of officer's statement regarding consequences of refusal. The defendant when asked fora sample after the warnings were read, sard she would give a sample. While officer was out of theroom, she called a friend on her cell, and he told her to refuse. When she asked officer what wouldhappen if she refused, he told her that she would go to jail if she did not blow. While concedingthatthe officer'sstatementwasof thetypethatresulted in suppression in Erdman.the Courtfoundthat there was no causal connection between the statement and the refusal. Upon crossexamination the defendant admitted she already knew that she would go to jail if she refused sothe officer's statement could not have caused the "psychological pressures" that Erdman and thecases that followed were designed to prevent.J. BREATH TEST FOUND TO BE COERCEDState v. Serano, 894 S.W.2d 74 (Tex.App.-Houston [14th Dist] 1995, no pet.).Where officer told defendant if he passed the breath test he would be released, and if he failed ithe would be arrested while defendant was at scene, said statement was coercive even though twohours passed from time of the statemento time of breath test and even though another officerproperly admonishe defendant prior to the sample's being given.Erdman v. State, 861 S.W.2d 890 (Tex.Crim.App. 1993).Officer's incorrectly informing defendant of consequences of refusalto give breath sample will notalways = evidence that consent was coerced. Question of voluntariness rs a case-by-casequestion of fact. Court concluded under fhese facts that officer stating to defendant "if he took thetest and passedhe would be released, but if he refused he would be charged with DWl" constitutedcoercion.58

Stqte v. Sells, 798 S.W.2d 865 (Tex.App.-Austin 1990, no pet.).Motorisfs consent to breath test was not voluntary due to officer's statementhat defendant'wouldautomatically be charged and incarcerated" if he refused.Hall v. State, 649 S.W.2d 627 (Tex.Crim.App. 1983).Motorist's consento breath test held not to be voluntary when officer said, "You're automaticallyconvicted of DWI and your license will be suspended if you refuse to give a breath sample."K. BREATH TESTREFUSAL EVIDENCE1. AS EVIDENCE OF GUILTMody v. State, 2 S.W.3d 652 (Tex.App.-Houston [14th Dist.] 1999, pet ref'd).Finle v. State, 809 S.W.2d 909 (Tex.App.-Houston [14th Dist] 1991, pet. ref'd).Jury can considerBlR as evidence of defendant's guilt.2. NO VIOLATION OF sTH AMENDMENTGressettv. State, 669 S.W.2d748 (Tex.App.-Dallas 1983), aff'd,723 S.W.2d 695 (Tex.Crim.App.1e86).Evidence of a defendant's refusal to submit to blood alcohol test after lawful request by policeofficer is admissible at trial when intoxication is an issue.Bass v. State,723 S.W.2d 687 (Tex.Crim.App. 1986).ln the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect willtake a blood fesf is not an interrogation within the meaning of the Fifth Amendment.SEE also Shepherd v. State,915 S.W.2d 177 (Tex.App.-Fort Worth 1996, pet. ref'd).3. REASON FOR REFUSAL AND CONDITION OF INSTRUMENTIRRELEVANTMody v. State, 2 S.W.3d 652 (Tex.App.-Houston [14th Dist.] 1999, pet ref'd).Moore v. State, 981 S.W.2d701(Tex.App.-Houston [1"tDist.] 1998, pet. ref'd).Evidence of defendant's refusal to take a breath fesf uras properly admitted, and State had nopreadmittance burden to show that defendant was over .10 at the time of driving, why thedefendant refused, or that instrument was accurate.69

4. REFUSAL BASED ON INTOXICATION IS STILL A "REFUSAL''Malkowsky v. Texas Department of Public Safetv, 53 S.W.3d 873 (Tex.App.-Houston [1't Dist.]2001, pet. denied).This was an appeal of an ALR hearing where defendant claimed that he did not intentionally refuseto give a sample; he was just too intoxicated to comply. The undisputed testimony was that thedefendant agreed to give a sample and according to the breath test operator was truly trying to doso buf was too intoxicated to comply. Court held that when a person is unable to give a breathsample because of his voluntary intoxication that qualifies as a refusal under 724.032 of theTransportation Code.5. INTOXICATION MAY BE PRESUMED FROM BTRStandefer v. State, 59 S.W.3d 177 (Tex.Crim.App. October 31,20Q1)Thomas v. State, 990 S.W.2d 858 (Tex.App.-Dallas 1999, no pet.).Gaddis v. State, 753 S.W.2d 396 (Tex.Crim.App. 1988).tntoxication is a tegitimate deduction from defendant's refusalto take a breath test.6. FAILURE TO FOLLOW BREATH TEST INSTRUCTIONS = REFUSALKennedy v. Texas Department of Public Safety,2009 WL 1493802 (Tex.App.-Houston [1"tDist.]200e).Texas Department of Public Safet v. Sanchez. 82 S.W.3d 506 (Tex.App.-San Antonio 2002, nopet.).Repeatedly failing to follow directions in submitting an adequate sample for breath testingconstitutes an intentional refusal.L. LATE BREATH TEST. CAN BE SUFFICIENT1. LATE TEST NOT CONCLUSIVE BUT IS PROBATIVEOwen v. State, 905 S.W.2d 434,437-39 (Tex.App.-Waco 1995, pet. ref'd).Martin v. State ,724 S.W .2d 135 (Tex.App.-Fort Worth 1987, no pet.).Late breath test, though not conclusive, is probative when combined with other testimony.2. AFTER 1 HOUR & 20 MINUTESAnnis v. State, 578 S.W.2d 406 (Tex.Crim.App. 1979).Breath test taken t hour and 20 minutes after the stop may be sufficiento prove intoxication at thetime of stop when coupled with arresting officer's testimony.70

3. AFTER2 HOURSHollowav. State, 698 S.W.2d 745 (Tex.App.-Beaumont 1985, pet. ref'd).Breath test taken 2 hours after the stop of the defendant may provide sufficient basis to finddefendant intoxicated at the time of the accident when coupled with other evidence in aninvoluntary manslaughter case.4. AFTER 2 HOURS & 15 MINUTESDorsche v. State, 514 S.W.2d 755 (Tex.Crim.App.1974).Breath test taken 2 hours & 15 minutes after the stop may provide sufficient basis for findingdefendant over .10 at time of sfop.5. AFTER 2 HOURS & 30 MINUTESVerbois v. State, 909 S.W.2d 140 (Tex.App.-Houston [14th Dist] 1995, no pet.).6. AFTER 4 HOURS & 30 MINUTESDouthitt v. State, 127 S.W.3d 327 (Tex.App.-Austin 2004, no pet.).Resu/fs of breath test administered 5 % hours after defendant stopped drinking and 4 % hoursafter accident which resulted in a charge of Intoxication Manslaughter were relevant to show thedefendant did not have normal use of his mental or physical faculties at time of accident becauseof excess alcohol consumption.7. AFTERT HOURSKennemur v. State, 280 S.W.3d 305 (Tex.App.-Amarillo 2008,reh. overruled, pet. ref'd).ln this lntoxication Manslaughter case, approximately seven hours afterthe accidentthe defendanthad a blood-alcohol content (BAC) of .098. The Court found that his appearance and the bloodalcohol test, even though it was taken many hours after the wreck, tended to make it moreprobable that he was intoxicated at the time of the collision because there had been evidence thathe introduced alcohol into his body prior to the accident.M. OBSERVATION PERIOD1. MORE THAN ONE OFFICER OBSERVATION REQUIREMENTState v. Melendes , 877 S.W.2d 502 (Tex.App.-San Antonio 1994, pet. ref'd).Same operator is not required to observe and administer breath test. Officer who was also acertified operator obserued defendant for 15 minutes and then turned defendant over to anotheroperator who administered the test.1!

2. NO NEEDTO REPEATON 2NDTESTState v. Moya, 877 S.W.2d 504 (Tex.App.-San Antonio 1994, no pet.).When test is repeatedue to intox error message, an additional 15 minute observation period isnot necessary.3. NO LONGER NECESSARY TO "OBSERVE'' DEFENDANT FOR 15MINUTESState v. Reed, 888 S.W.2d 117 (Tex.App.-San Antonio 1994, no pet.).Subject need not be continuously observed for 15 minutes now that regulations expressly providethat subject need only be in the operator's continuous presence.N. BREATH TEST DELAYPRECLUDING BLOODTESTHawkins v. State, 865 S.W.2d 97 (Tex.App.-Corpus Christi 1993, pet. ref'd).Fact that breath fesf uras not taken until two hours after arrest thereby precluding option ofdefendant's exercising right for btood test within 2 hours of arrest did not render breath test resultinadmissible.O. OFFICER MAY REQUEST MORE THAN ONE TYPE OF TESTState v. Gonzales, 850 S.W.2d 672 (Tex. App.-San Antonio 1993, pet. ref'd).Where defendant was unable to give sufficient breath samp/e due to asthma, ff was proper forofficer to request a blood test and indicate the DIC-24 consequences of refusal would apply toblood fesf reguest as well.SEE ALSOTexas Departmentof PublicSafetyv. Duqqin,962 S.W.2d 76 (Tex.App.-Houston [1st Dist.] 1997,no pet.).Kerrv. Texas Departmentof Public Safetv,973 S.W.2d732 (Tex.App.-Texarkana 1998, no pet.).P. BREATH TEST ADMISSIBLE AS PROOF OF LOSS OF NORMALHunt v. State, 848 S.W.2d764 (Tex.App.-Corpus Christi 1993, no pet.).Where Court refused to submit charge on .10 definition due to inability or failure of State toextrapolate, itwasproperforthe Sfafefo arguethatthe juryconsiderthe breathtestresultasproofof "/oss of normal."72

O. BREATH TEST RESULTS ADMISSIBILITY ISSUES1. BREATH TEST RESULT IS NOT HEARSAYStevenson v. State, 895 S.W.2d 694 (Tex.Crim.App. 1995) on remand,920 S.W.2d 342(Tex.App.-Dallas 1996, no pet.).When lntoxilyzer operator did not testify, the Court held the test result became hearsay andremanded case fo Court of Appeals to make that determination (controversial decision with 4drssenfs). When asked on remand to consider whether breath fesf resu/fs are hearsay, found(logically) that a breath fesf s/rp could not be 'ohearsay" and affirmed the original holding.Smith v. State, 866 S.W.2d731(Tex.App.-Houston [14th Dist.] 1993, no pet.)."Computer-generated data is not hearsay." Where the computer conducts the test itself, ratherthan simply storing and organizing data entered by humans, the test result is not subject to ahearsay objection. The proper objection to the admissibility of a computer-generated lntoxilyzerprintout slip should be based upon whether the Sfafe has shown that the printout is reliable.2. PARTIAL TEST RESULTS INADMISSIBLEBoss v. State,778 S.W.2d 594 (Tex.App.-Austin 1989, no pet.).Arresting officer should not have been permitted to testify that, although valid lntoxilyzer fesf resu/fwas not obtained, digital indicator preliminarily registered alcohol content of defendant's breath atlevel that was two and one half times the legal level of intoxication.3. NEWTECHNICAL SUPERVISOR CAN LAY PREDICATE FOR OLD TESTSHenderson v. State, 14 S.W.3d 409 (Tex.App.-Austin 2000, no pet.).TechnicalSupervisor who maintained instrument was not called to testify. The State called hissuccessorinsfead who did not prepare reference sample or personally maintain instrument whensample was given. Court held that succeeding supervisor could rely on previous superuisor'srecords as basrs for opinion that breath test machine was working properly. Also held to berelevant that new supervisor had personal knowledge that old superuisor was certified.R. KELLY V. STATE1. APPLIES TO BREATH TESTSHartman v. State, 946 S.W.2d 60 (Tex.Crim.App. 1997).This was a breath fesf case in which fhe rssue at the motion fo suppress was whether the fesf sefforth in Kellv v. State. 824 S.W.2d 568 (Tex.Crim.App. 1992) applied to breath tests. The Court73

of Criminal Appeals remands back to the Court of Appeals and holds that the Kelly test isapplicable to all scientific evidence offered under Rule 702 and not just novel scientific evidence.The three prongs that must be satisfied are: (1) the underlying scientific theory must be valid; (2)the technique applying the theory must be valid; and (3) the technique must have been properlyapplied on the occasion in question2. FIRST TWO PRONGS OF KELLY TEST MET BY STATUTEBeard v. State, 5 S.W.3 883 (TA-Eastland 1999), permanently abated in 108 S.W.3 304(TCA-2003), opinion withdrawn in 2003 WL 21398347 (TA-Eastland, June 18, 2003)(unpublished). (Case was permanently abated due to death. The body of opinion can be found athttp://www. cca. courts.state.tx. usiopinions/028200. htm. )Harmonizing the Transportation Code and Rule 702, we hold that when evidence of alcoholconcentration as shown by the results of analysis of breath specimens taken at the request or orderof a peace officer is offered in the trial of a DWI offense, (1) the underlying scientific theory hasbeen determined by the legislature to be valid; (2) the technique applying the theory has beendetermined by the legislature to be valid when the specimen was taken and analyzed by individualswho were certified by, and were using the methods approved by the rules of, the Department ofPublic Safety; and (3) the trial court must determine whether the technique was properly applied,in accordance with the department's rules on the occasion in question.Henderson v. State, 14 S.W.3d 409 (Tex.App.-Austin 2000, no pet.).Testimony regarding the validity of the underlying theory of breath test analysis and techniqueapplying theory was not necessary for test resu/fs to be admissible. Legislature recognized thevalidity of the theory and the technique when ff passed the statute authorizing admission of testresu/fs in DWIcases.PROPER TO OFFER BT SLIPS TO SHOW NO RESULT OBTAINEDKercho v. State, 948 S.W.2d 34 (Tex.App.-Houston [14th Dist] 1997 pet. ref'd).State offered lntoxilyzer s/rps to show no test result was obtained. Defense objected thatcompliance with DPS regulation was not shown. Court held that such compliance is required onlywhen test results are beinq offered. and in fhis case since the State conceded the fesf uras invalidand the slips did not show any result, the admission of the fesf s/rps was proper.T. LOSS OF NORMAL & PER SE LAW EVIDENCE NOT MUTUALLY EXCLUSIVEDaricek v. State, 875 S.W.2d 770 (Tex.App.-Austin 1994, pet. ref'd).Proof needed attrialto show "loss of faculties" and per se offense are not mutually exclusive in thatblood fesf resu/f is probative of /oss of faculties and failure of FSIs makes it probable the breathor blood test taken an hour before is reliable.14

U. NO SAMPLE TAKEN = NO DUE PROCESS VIOLATIONJohnson v. State, 913 S.W.2d 736 (Tex.App.-Waco 1996, no pet.).Failure of officer who arrested defendant for DWI to offer blood or breath test did not denydefendant his due process rights. No evidence that resu/fs would have been useful or that officeracted in bad faith (defendant was belligerent).V. FAILURE TO TIMELY RESPOND TO REPEATED BT REQUEST = REFUSALState v. Schaeffer, 839 S.W.2d 113 (Tex.App.-Dallas 1992, pet. ref'd).During videotape session, appellant changed his mind several times about consenting to breathtest. Officers refused to read appellant his rights for third time, or allow him to read them himself.Court found that appellant never affirmatively consented to breath test, and that trial court couldhave reasonably concluded, based on the record, that appellant did not voluntarily consent orrefuse to give a breath test. Judge's suppression of breath test upheld.W. EXTRAPOLATION1. IS NOT NEEDED TO PROVE DEFENDANT WAS INTOXICATED UNDERCHEMICAL TEST DEFINITIONStewart v. State, 129 S.W.3d 93 (Tex.Crim.App. 2004).In a lower court opinion, the San Antonio Court of Appeals hetd that a .16 breath fesf resu/f wasinadmissible, irrelevant, and "no evidence" in the absence of extrapolation and should therefore nothave been admitted into evidence. The Court of Criminal Appeals reversed and remandedrejecting that argument. lt specifically held that the resu/fs of a breath test administered eightyminutes after the defendant was pulled over were relevant even without retrogradeextrapolation. One argument that the court rejected was that Secfion 724.064 of theTransportation Code mandates that such resu/fs are admissible in DWI cases. The Court alsofailed fo address fhe r'ssue of whether the probative value of the breath test results wereoutweighed by the prejudicial effect. The case was remanded to the San Antonio Court of Appealsfo address that issue and other points.Ihrs case was senf back by the Court of Criminal Appeals so fhe Court of Appeals could answerthe probative vs. Prejudicial effect rssue. ln holding that the probative value outweighed theprejudicial effect, the Court pointed out that both of the samples fesfed significantly over the legalblood-alcohol limit, the breath fesf resu/fs related directly to the charged offense, presentation ofthe evidence did not distracthe jury away from the charged offense, and the State needed theevidence to prove intoxication due to evidence that defendantook field sobriefy fesfs under poorconditions and she passed four of the field sobriefy fesfs. Note the need for the evidence was notas importanto the Court of Criminal Appeals in Mechler.

Garcia v. State, 112 S.W.3d 839 (Tex.App.-Houston [14th Dist]August 7,2003, no pet.).Beard v. State, 5 S.W.3 883 (TA-Eastland 1999), permanently abated in 108 S.W.3 304(TCA-2003), opinion withdrawn in 2003 WL 21398347 (TA-Eastland, June 18, 2003)(unpublished). /Case was permanently abated due to death. The body of opinion can be found athftp ://vvww. cca. courts. state.tx. u dopin ions/028200. html.In response to the defendant's argument that withoul rctrsgrade extrapolation the breath testresu/fs themselves were inadmrssrble as they were irrelevanto show the subject's BAC at the timeof the sfop unless the State offers extrapolation testimony. Judge Womack pointed out that theargument was one that "we have never accepted and that other courts have rejected."SEE ALSO:Forte v. State,707 S.W.2d 89 (Tex.Crim.App. 1986).Price v. State, 59 S.W.3d 297 (Tex.App.-Fort Worth 2001, pet. ref'd).Texas Department of Public Safet v. Thompson, 14 S.W.3d 853 (Tex.App.-Beaumont 2000, nopet.).Mireles v. State, I S.W.3d 128 (Texas 1999).O'Neal v. State, 999 S.W.2d 826 (Tex.App.-Tyler 1999, no pet.).Martin v. Texas Department of Public Safety, 964 S.W.2d772 (Tex.App.-Austin 1998, no pet.).Owen v. State, 905 S.W.2d 434 (Tex.App.-Waco 1995, pet. ref'd).2. PROBATIVE VALUE OF BT OUTWEIGHS PREJUDICIAL EFFECTGiqliobianco v. State, 210 S.W.3d 637 (Tex.Crim.App 2006).In determining that the trial court and Court of Appeals properly held that even in the absence ofretrograd extrapolation, evidence of two breath test samplestaken 80 minutesafterthe defendantwas driving which read .09 and .092, the Court of Criminal Appeals found as follows:1) probative force of appellant's breath fesf resu/fs was considerable, srnce fhose fesf resu/fsshowed that appellant had consumed in the hours preceding the breath fesf, a substantial amountof alcohol-enough alcoholto raise his breath alcohol concentration to 0.09. This evidence tendedto make more probable appellant's intoxication at the time he was driving, under either statutorydefinition of intoxication.2)The Sfafeb needforthebreath fesf resu/fswasconsiderable,sincethe Sfafe'svideotapewhichshowed appellant as quite lucid, tended to contradicto some extent Officer Heim's testimonyconcerning appellant's appearance and behavior.3) The breath fesf resu/fs did not have a tendency fo suggesf decision on an improper basis. Thefesf resu/fs were not inflammatory in any sense and they'?elate[d] directly to the charged offense.4) The breath fesf resu/fs did not have a tendency to confuse or distract the jury from the mainrssues because the results related directly to the charged offense.5) The breath fesf resu/fs did not have any tendency to be given undue weight by the jury. Srncefhe Sfafe's expert testified that the breath fesf resu/fs could not be used to determine whatappellant's breath alcohol concentration was at the time he was stopped, the trial court could havereasonably concluded thatthe jurywas equipped to evaluate the probative force of the breath testresu/fs.The Court of Criminal Appeals did not say that breath fesf resu/fs will always be admissible in theface of a Rule 403 challenge. /f suggesfed that if a jury was not given adequate information with76

which to evaluate the probative force of breath test results, it might be reasonable to conclude thatthe admission of such evidence would pose a danger of misleading the jury. It further suggesfedthat if the fesf was administered to an accused several hours after he was stopped and the resultswere at or below the legal limit, it might be concluded that the probative force of the fesf resu/fs wastoo weak to warrant admission in the face of a Rule 403 challenge.State v. Mechler,.153 S.W.3d 435 (Tex.Crim.App.2005).Ihrs is a post Stewart case where the Court held that the prejudice of admitting evidence of breathtesting machine resu/fs taken one and a half hours after defendant's arrest did not outweigh itsprobative value, and thus resu/fs were admissible. The Court so held even though it mentionedthe State had other evidence of intoxication and may not have needed the results to convict in thiscase.3. PREJUDTCE OUTWETGHS PROBATTVE (A RTDTCULOUS OPINiON)State v: Franco, 180 S.W.3 d 21g(Tex.App.-San Antonio 2005, pdr refused).This arose from the Sfafe's appeal of a Motion fo Suppress Blood lesf Resu/fs in an lntoxicationManslaughter/lntoxication Assault case. The facts in brief were that the crash was caused bydefendant running a stop sign that he claimed he did nof see. The offense occurred at 7:50 p.m.The test resu/fs in question were two blood fesf resu/fs: one was taken at 10:05 p.m. and was a.07; the second was taken at 11:55 and was a .02. There was a/so a PBT used at the scene thatshowed a .09. The Court applied a four part fesf as follows:1) What is the probative value of the evidence? The Court found the probative value of the resu/tsof Franco's blood fesfs are significantly diminished by the two and four hour delay in obtaining thesamples and by the fact that both resu/fs are below the legal limit, and coupled with the fact thatthere was no extrapolation evidence (this was held properly excluded in this same opinion). Thisfactor was found to go in the defendant's favor (? Added by me).2) The potential to impress the jury in some irrational yet indelible way: In its examination of thisrssue, the Court stated it could not fathom a reason for the Sfafe fo introduce fesf resu/fs showingblood alcohol concentration below the legal limit other than to invite the jury "to conduct its owncrude retrograde extrapolation," but it admitted that the Texas Court of Criminal Appeals hasrejected this argument (in Stewart which, until this was handed down, was the worst opinionto come out of San Antonio Court of Appeals). It then conceded the results showed thedefendant consumed alcohol and found that part of the test favored admission.3) The time needed to develop the evidence: This factor a/so was found to favor admission.4) The proponent's need for the evidence: The Court then finds the State did not have a great needfor this evidence as other evidence showed that officer smelled a strong odor of alcohol ondefendant's breath, defendantwa swaying and told officer he drank a beer;the results of the fieldsobriety fesfs shorared srBns of impairment; a videotape at the scene, on which defendant sfafeshe had been drinking beer before the accident; and possibly the resu/fs of the portable breath testtaken at the scene an hour after the accident (which has never been found to be admissible incourt!?) all led the Court to find the State does not have a great need for the blood fesf resulfs.This factor thus weighs in favor of exclusion. The Court held that blood fesf resu/fs were properlyexcluded.77

4. EXTRAPOLATION TESTIMONY IS ADMISSIBLE UNDER KELLY, 824s.w.2D 573 (TEX.CRTM.APP. 1992)Hartman v. State, 2 S.W.3d 490 (Tex.App.-San Antonio 1999, pet. ref'd.)lnteresting to note both these cases involved the testimony of expert George McDougall, BexarCounty Breath Test Technical Supervisor. Mata contains a lengthy dissent by retired Chief JusficeCadena reviewing and challenging the testimony of Mr. McDougall (26 pages!). This dr'ssenf rsworth reading as it constitutes a kind of treatise (defense oriented) of the problemswith retrogradeextrapolation.5. EXTRAPOLATIONEVIDENCEIMPROPERLYADMITTEDMata v. State, 46 S.W.3d 902 (Tex.Crim.App. 2001).Ihis case has senf broad ripples through the state and there has been a great deal of discusstbnand disagreement over its meaning and impact on the admissibility of extrapolation evidence. I amless inclined than others to believe that this opinion has broad and terrible implications. Whatfollows is a brief review of what I interpret this holding to mean.The case involves the much toutedSfafeb expert George McDougaltwho very much impressedthe Court of Appeals in the Hartman case cited above and Court of Appeals opinion of this case.Ihe rssue before the Court of Criminal Appeals r's whether the State proved by clear and convincingevidence that McDougall's retrograde extrapolation was reliable. The Court held that in this caseit was not, and that the testimony should have been excluded. In arriving at this conclusion, theCourt is careful to point out that it is not saying extrapolation is necessary for the State to prove adefendant guilty in a DWI or to get the results of a breath or blood test before the jury. lt alsoexplicitly finds that "retrograde extrapolation" can be reliable in a given case. It also sets what Ibelieve to be a minimum threshold for the type of factors an expert must be aware of before he cangive such an opinion. Those facts are: the length of time over which the defendant was drinking,the time of his last drink, and the defendant's weight. Without knowing these factors, I donT believeit would be proper for an expert for either srde fo give an opinion on what the defendant's alcoholIevel would have been at the time he/she was driving.6. IMPROPER ADMISSION OF EXTRAPOLATION EVIDENCE NOTHARMLESSBaqheri v. State, 119 S.W.3d 755 (Tex.Crim.App.2003).This was a DWI case where extrapolation evidence was allowed in over objection. On appeal, theState conceded that the extrapolation evidence should not have been admitted. The Court ofAppeals found the error to be harmful and reversed. One argument made by the State on appealwasthatthe Texas Legislature effectively mandated thatjurors engage in retrograd extrapolation.They did not agree with that argument pointing out the State did have to show breath results arerelevant. The Court upheld the Court of Appeals reversal as it could not say that the erroneousadmission of retrograde extrapolation testimony did not influence the jury. ltdid nof address ffterssue of whether retrograde extrapolation is needed to prove intoxication underthe per sedefinition.t6

7. EVIDENCE OF DRUG INGESTION STILL RELEVANT WITHOUTEXTRAPOLATIONMannino v. State, 114 S.W.3d 922 (Tex.Crim.App.2003).Thiswas a Manslaughter charge where the State alleged that one of the reckless acfs uras thatthedefendant consumed a controlled subsfance. The only evidence of this was the presence in theblood sample of .15 mg. of a cocaine metabolite known as benzoylecgonine. The testimony at trialwas this result at best showed that some time before the accident, cocaine was ingested. TheCourt of Appeals felt the evidence was not compelling and should not have been admitted becausethe State did not extrapolate back to the time of the accident. The Court of Criminal Appealsreversed the Court of Appeals and agreed with fhe Sfafe that the lower Court was confusingsufficiency with admissibility. The evidence was still relevanto show cocaine had been consumedby the defendant.8. EXTRAPOLATION EVIDENCE PROPERLY ADMITTEDKennedv. State, 264 S.W.3d 372 (Tex.App.-Houston [1 Dist.], 2008, reh. overruled, pet. ref'd).The only information known to experts in this case on which fo base their extrapolation concerningthe defendant's BAC at the time of the collision was his height and weight, the type andapproximate number of drinks, the time of the crash and the time of the blood test which was abouttwo hours and 15 minutes after the crash. The expert was a/so told to rely on certain assumptionssuch as the time period over which he drank, when and what he last ate, the size of the beerconsumed, and the fact that defendant was a "social drinker." The Court held it was not error toadmit the extrapolation evidence.Fulenwider v. State, 176 S.W.3d 290 (Tex.App.-Houston [1 Dist.] 2004).The retrograde extrapolation expert had sufficient knowledge of defendant's characteristics andbehaviors to render reliable extrapolation of defendant's alcohol concentration at time of allegedoffense of DWl. The expert testified that she did not know when defendant had her last drink, butdid know the time of offense, time that breath fesfs were conducted, and defendant's gender,weight, height, and last meal, and expert had basis on which to determine time that defendant hadher last drink, given eyewitness testimony as to defendant's drinking prior to offense.Peden v. State,2004WL2538274 (Tex.App.-Houston[1 Dist.] 2004, pdr ref'd).Retrogradextrapolation was properly admitted in this case based upon the expert's knowing thefollowing details. There was a single test result an hour and forty-four minutes after the stop. Sheknew defendant's weight and what he ate over a four hour period and that he did not have anyalcohol after 10:30 which was thirty-five minutes before the stop and an hourand nineteen minutesbefore the test result of 0.12. Based on this the expert concluded that even if the defendant'salcohol content had peaked at the time of testing, his alcohol concentration would have been over0.08 at the time he drove his car.79

Bhakta v. State, 124 S.W.3d 738 (Tex.App.-Houston [1 Dist.], 2003, pdr ref'd).The Court held that fhe Sfafeb expert was qualified to testify about retrograde extrapolation andthat he knew sufficient facts about the defendanto offer an opinion. ln so holding, the Courtsfressed fh at not every single personal fact about the defendant musf be known to an expert givingretrograde extrapolation testimony in a driving while intoxicated prosecution in orderto produce anertrapolation with the appropriate level of reliability. In this case, the facts known to the Sfafe'sexpert were the time of his last drink, his weight and height, the time of the breath fesfs, fhe resu/fsof the breath fesfg his last meal prior to being stopped, and the time of that meal.X. OPERATOR NEED NOT UNDERSTAND SCIENCE BEHIND THE INSTRUMENT!Revnolds v. State, 204 S.W.3d 388 (Tex.Crim.App. 2006).ln response to the question of whether the breath test operator needed to understand the sciencebehind the instrument, the Court said: The fact of certification is sufficientto meetthe Kellv criteriawith respecto the competence of the breath test operator. That the opponent of the evidence candemonstrate that the operator has not retained all of the knowledge that was required of him forcertification is a circumsfance that goes to the weight, not the admissibility, of the breath testresu/fs. As long as the operator knows the protocol involved in administering the test and cantestify that he followed it on the occasion in question, he need not also demonstrate any personalfamiliarity with the underlying science and technology.Y. FAILURE TO NOTE TEMPERATURE1. OF REFERENCE SAMPLE = BT EXGLUDEDState v. Garza,2005 WL 2138082 (Tex.App.-San Antonio 2005)(not for pub.).Trial court held that evidence of Intoxilyzer fesf resu/fs was inadmissrble without testimony that thelntoxilyzer's reference sample was operating at a "known" temperature at the time the fesf wasadministered. The technical supervisor testified it was reasonable to infer the temperature was inrange as he had checked it before and after the test. The Court held that it was not abuse ofdiscretion for the trial court to exclude the results. lt distinguished fhis case from Gamez on thebasr's that the reference was checked the day before and the day after in Gamez, and in fhis caseit was the week before and the week after.2. OF SUSPECT & REFERENCE SAMPLE = BT NOT EXCLUDEDGamez v. State,2003 WL 145554 (Tex.App.-San Antonio, 2003) (not for pub.).The Defense proved through fhe Sfafe's expert that the "Fox strJdy" was accurate in its findings thatan elevated alcohol concentration can result if the subject is running a high fever (the Sfafeb expertsaid it would have to be 4 % to 5 degrees elevated). On the basis of that answer, the defendanttried to get the Court fo suppress the breath test because his temperature was not taken by the80

operator prior to his sample being taken. The Court rejects that argument finding there is no suchrequirement in the breath testing regulations. It also found that the operator's failure to check thereference sample temperature was not a basis for exclusion as the technical supervisor hadchecked it the day before and the day after the test, and both times it was at the correcttemperature.XVIII. BLOOD TESTA. "REASONABLE BELIEF'' STANDARDGratis v. State, 2004 WL 2358455 (Tex.App.-Houston[14 District] October 21, 2004)(Notdesignated for publication).Where several officers are involved, the sum of the information known to the cooperating officersat the time of arrest r's fo be considered in determining if there is a reasonable belief that theaccident occurred as a result of defendant's intoxication.Badqett v. State, 42 S.W.3d 136 (Tex.Crim.App. 2001).Officer's "reasonable belief that the accident occurred as the result of defendant's intoxication mustbe based on something more than the mere fact that the accident involved an intoxicated driver.Rather there must be specific and articulable facts that the intoxication caused the accident. Thatbelief may be based upon a number of factors including but not limited to: witness interuiews,conclusions drawn from experience, obseruations made at the accident scene, determinations byreconstruction team. The Court of CriminalAppeals reversed the lower court's holding that specificevidence that "intoxicated" driver was at fault was not required.Broadnax v. State, 995 S.W.2d 900 (Tex.App.-Austin 1999, no pet.).ln this case there was a high speed wreck in which a passenger in the vehicle was seriouslyinjured. After detecting alcohol on defendant's breath and considering the circumstances of thewreck, the officer determined the defendant was intoxicated, put him in custody, and informed hima mandatory specimen would be taken. Defendant was read the mandatory blood warning andconsented to the sample. The significance of the holding is that without FSIs and evidence otherthan the circumstances of the wreck obseruable at the scene, the Court held that a mandatoryblood specimen could have been taken and that the defendant's consent removed the need of theSfafe fo prove that statute applied.Mitchell v. State, 821 S.W.2d 420 (Tex.App.-Austin 1991, pet. ref'd).Court hetd officer had "reasonable belief'based on facts obserued and information received fromothers at the scene of the accident.B1

B. ARREST AT THE HOSPITAL1. RESTRAINT WAS SUFFICIENTGattis v. State,2004 WL 2358455 (Tex.App.-Houston [14th Dist.] 2004) (Not designated forpublication).This was an lntoxication Manslaughter case where the defendant was transported to the hospitalwhere an officer requested mandatory blood draw. The defendant attacked the legalbasis forthedraw claiming the defendant was not under arrest at the hospital and as proof pointed out nocharge was filed at the time of the defendant's release from the hospital. The court found thatwhen the officer told the defendant he was under arrest, the defendant was restrained to a hospitalbed and that although the restraint was done for medical purposes, it still constituted a restrictionof movement sufficiento be perceived as an arrest.LATER RELEASE DID NOT NEGATEWilliams v. State, 2004 WL 434622 (Tex.App.-Dallas2004, pet. ref'd) (Not designatedforpublication).Gattis v. State, 2004 WL 2358455 (Tex.App.-Houston [14th Dist.] 2004) (Not designated forpublication).The fact that the officers, after obtaining the blood sample and learning appellant would not bereleased immediately from the hospital, decided not to stay with appellant and released him fromtheir custody does not affect the conclusion that appellant was under arrest at the time the officersrequested the sample.C. STATUTORY REQUIREMENTS FOR DRAWING MANDATORY BLOOD DO NOTAPPLY1. WHEN DEFENDANTCONSENTSDotv v. State, 2005 WL 1240697 (Tex.App.-Austin May 26,2005)(mem.op., Not designated forpublicaiton), pet. dism'd, improvidently granted, No. PD-1159-05, 2AO7 WL 841112(Tex.Crim.App.2007)(Not designated for publication).Ramos v. State, 124 S.W.3d 326 (Tex.App.-Fort Worth 2003, pet. ref'd).Bennett v. State,723 S.W .2d 359 (Tex.App.-Fort Worth 1987, no pet.).Defendantb consenf to blood-alcohol test relieved police officers of obligation to comply withprerequisites for compelling blood sample.WHEN DEFENDANT IS NOT UNDER ARRESTSkinner v. State. 2006 WL 1420388 (Tex.App.-Tyler 2006) (not designated for publication).Blumenstetter v. State, 135 S.W.3d 234 (Tex.App.-Texarkana 2004, no pet.).82

Ramos v. State, 124 S.W.3d 326 (Tex.App.-Fort Worth 2003, pet. ref'd).Knisley v. State, 81 S.W.3d 478 (Tex.App. Dallas 2002, pet. ref'd.).Nottinoham v. State, 908 S.W.2d 585 (Tex.App.-Austin 1995, no pet.).Burhalter v. State,642 S.W.2d 231 (Tex.Crim.App. 1982).Aliff v. State,627 S.W.2d 166 (Tex.Crim.App. 1982).Where suspecf was not under arrest, officer requesting blood sample be drawn from semicon scio u {u nconscious d efe n d ant j u stifi e d by e xi ge nt circ u m sta n ce s.3. READING DIC.24 - EFFECT ON CONSENTCombest v. State, 953 S.W.2d 453 (Tex.App.-Austin 1997). On remand 981 S.W.2d 958(Tex.App.-Austin 1998). Same holding.Reading DIC-24 when defendant is not under arrest will not per-se make subsequent consent togive blood sample involuntary.4, READING D'C.24 AS EVIDENCE OF ARRESTWashburn v. State, 235 S.W.3d 346 (Tex.App.-Texarkana 2007).Bellv. State, 881 S.W.2d794 (Tex.App.-Houston [14m Dist.] 1994).Nottinqham v. State, 908 S.W.2d 585 (Tex.App.-Austin 1995, no pet.).Where police officer read the DIC-24 fo a suspect prior to asking for a mandatory blood specimen.The reading of that form constitufesome evidence that the suspecf was under arrest.D. PROCEDURE FOR TAKING BLOOD SAMPLE1. OFFICERS MAY USE FORCE TO TAKE BLOODBurns v. State,807 S.W.2d 878 (Tex.App.-Corpus Christi 1991, pet. ref'd).No due process violation in involuntary manslaughter case where two police officers held down adefendant for hospitaltechnician to extract a blood specimen.2. SAMPLE FROM UNCONSCIOUS DEFENDANTPesina v. State, 676 S.W.2d 122 (Tex.Crim.App.198 ).Blood test evidence collected at request of police officer in DWI case not suppressible wheresuspecf was unconscious and there were exigent circumstances.83

3. USE OF ALCOHOL SWAB BEFORE BLOOD DRAWKennemur v. State. 280 S.W.3d 305 (Tex.App.-Amarillo 2008, reh. overruled, pet,ref'd).Kaufman v. State, 632 S.W.2d 685 (Tex.App.-Eastland 1982, pet. ref'd).Use of alcohol solution to cleanse skin before test merely affects the weight of test and not itsadmissibility.WHAT CONSTITUTES A "QUALIFIED TECHNICIAN''(a)"PHLEBOTOMIST" MAY BE A "QUALIFIED TECHNICIAN"State v. Binqham, 921 S.W.2d 494 (Tex.App.-Waco 1996 pet. ref'd).Common sense interpretation of term "qualified technician" as used in statute permitting onlyphysician, qualified technician, chemis.t, registered professional nurse, or licensed vocational nurseto draw blood specimen for purpose of determining alcohol concentration or presence of controlledsubsfance upon request or order of police officer, must include phlebotomistwhom hospital or othermedical faciltty has determined to be qualified in technical job of venesection or phlebotomy, i.e.,drawing of blood.(b)..PHLEBOTOMIST''QUALIFICATION MUST STILL BE SHOWNTorres v. State, 109 S.W.3d 602 (Tex.App.-Fort Worth 2003, no pet.).Because a phlebotomisf rs not one of the occupations /isfed in the Statute, the qualifications mustbe proven. Though she had no formal training, the witness had been a phlebotomist for the last24 years. She was certified through NPA. She drew blood every day and had done so thousandsand thousands of times in her career.Cavazos v. State, 969 S.W.2d 454 (Tex.App.-Corpus Christi 1998, no pet.).Circumstantial evidence that blood was drawn by a phlebotomist was held insufficiento supportthat he was qualified. In this case no one testified regarding the qualifications of the persondrawing the blood, and no evidence established that the blood was drawn by someone the hospitalhad determined to be qualified for that task. (Note: the gist of this holding was that this was aproblem that could have been cured by an additional urifness who was aware of this person'squalifications.)84

(c)RESTRICTIONSWHO MAY DRAW BLOOD ONLY APPLY IFSUSPECT IS UNDER ARRESTBlackwell v. State,2005WL 548245, (Tex.App.-Austin 2005) (Not designated for publication).Restrictions that say that only "a physician, qualified technician (other than an emergency medicaltechnician), chemist, registered professional nurse, or licensed vocational nurse may take a bloodspecimen at the reguesf or order of a peace officer" do not apply when fhe suspect is not underarrest and the draw is not done at the request of a peace officer.5. EMS PERSONNEL MAY NOT DRAW MANDATORY BLOODState v. Laird, 38 S.W.3d707 (Tex.App.-Austin 2000, pet. ref'd).Defendant was taken to hospital for mandatory blood draw but when he refused to consento thetaking of the sample, which was properly requested under 724.012(b) of the Transportation Code,the hospital staff refused to take the sample on advice of their risk manager. Officer then tookdefendanto a nearby fire station where a paramedic who was an "emergency medical servicestechnician," drew the blood sample. The blood was suppressed because $24.017(c) of theTransportation Code excludes "emergency medicalserylces personnel" from the list of peoplequalified to draw blood under that statute. The State argued that the Court could and shouldproperly inferthatthe legislature intended to exclude emergency medicalseruicespersonnelfromdrawing blood only when they are responding to an emergency situation. This and otherarguments were rejected in favor of following unambiguous wording of the statute.E. HOSPITAL RECORDS1. ARE NOT PRIVILEGEDState v. Liendo, 980 S.W.2d 809 (Tex.App.-San Antonio 1998, no pet.).State v. Hardy, 963 S.W.2d 516 (Tex.Crim.App. 1997).Knapp v. State,942 S.W.2d 176 (Tex.App.-Beaumont 1997, pet. ref'd).Clark v. State, 933 S.W.2d 332 (Tex.App.-Corpus Christi 1996, no pet.).Corpus v. State, 931 S.W.2d 30 (Tex.App.-Austin 1996), pet. dism'd,962 S.W.2d 590(Tex.Crim.App. 1998).State v. Hurd, 865 S.W.2d 605 (Tex.App.-Fort Worth 1993, no pet.).Thurman v. State, 861 S.W.2d 96 (Tex.App.-Houston [1st Dist] 1993 no pet.).Blunt v. State ,724 S.W .2d 79 (Tex.Crim.App. 1987).See also Tex.R.Crim.Evid.509 = no physician/patient privilegeCourt held that defendant has no rightto privacy in hospital blood fesf records and the State coulduse sald records that were obtained by grand jury subpoena.85

2. OBTAINING RECORDS BY SUBPOENATapp v. State, 108 S.W.3d 459 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd)Garcia v. State, 95 S.W.3d 522 (Tex.App.-Houston [1"tDist.] 2Q02, no pet.).Knapp v. State , 942 S.W .2d 176 (Tex.App.-Beaumont 1997).As there is no constitutional or statutory reasonable expectation of privacy in hospital records ofblood fesf resulfg a suspect has no standing to complain of defects in the GJ subpoena process.Dickerson v. State,965 S.W.2d 30 (Tex.App.-Houston [1st Dist] Feb. 19, 1998), 986 S.W.2d 618(Tex.Crim.App.1999).Thurman v. State, 861 S.W.2d 96 (Tex.App.-Houston [1st Dist] 1993, no pet.).Proper fo use grand jury subpoena to obtain medical records.3. RELEASE OF DEFENDANT'S HOSPITAL RECORDS IN RESPONSE TOA GJ SUBPOENA DOES NOT VIOLATE HIPAAMurray v. State, 245 S.W.3d 37 (Tex.App-Austin 2007, pet. ref'd).Health Insurance Portability and Accountability Act (HIPAA) and privacy rule promulgated pursuantto HIPAA did not overrule or preempt holding in State v. Hardv that a defendant did not have anexpectation of privacy in blood-alcohol test resu/fs obtained solely for medical purposes after anaccident. An entity covered by HIPAA regulations rs express/y authorized fo dtsc/ose healthinformation that is othenuise protected under HIPAA without a patient's consent in numeroussituations, including for law enforcement purposes pursuant to a grand jury subpoena.Jacques v. State, 2006 WL 3511408 (Tex.App.-Tex arkanaDec 07, 2006) (not designated forpublication).A hospital's release of medical recordsto law enforcement is permitted under limited circumsfancesunder HIPAA. 45 C.F.R.6 164.512 (20061. HIPAA specifically authorizes a hospitalto release apatient's medical records in response to a grand jury subpoena. 45 C.F.R. 5164.512(00)0i)(B).4. NO HIPPA VIOLATION IN HOSPITAL PERSONNEL TELLING POLICEBREATH.ALCOHOL CONTENT WITHOUT SUBPOENAKirsch v. State, 276 S.W.3d 579 (Tex.App.-Houston [ 1"tDist.] 2008) aff'd 306 S.W.3d 738(Tex.Crim.App. 2010).The defendant had been brought into the hospital for treatment after being involved in a motorvehicle collision. The attending physician ordered a blood draw and analysisfor medicalpurposeswhich showed defendanto be intoxicated. Without a request from law enforcement and withoutdefendant's consent, hospital personnel informed Houston deputies aboutthe results of the blood86

-alcohol test. The defendantried to suppress the evidence as a violation of HIPPA. The Court ofAppeals points out that under HIPPA, a covered health care provider who provides emergencyhealth care in response to a medical emergency may disclose protected health care informationto a law enforcement official if such disclosure appears necessary to alert law enforcement to the"commission and nature of a crime." ln affirming the denial of the motion fo suppresg the Courtheld that the defendant's blood-alcohol content in this case suggesfed he had committed theoffense of DWI. The Court cites Kennemurv. State. 2008 WL 1991730 (Tex.App.-Amarillo 2008)in support of this holding.F. CHAIN OF CUSTODY REQUIREMENTS'..BLOOD TESTED IS SAME AS BLOOD DRAWNLvnch v. State, 687 S.W.2d 76 (Tex.App.-Amarillo 1985, pet. ref'd).CanT rely solely on medical records to prove blood test result. State must further show: (1) aproper chain; and (2) that blood fesfed was same as blood drawn from defendant. In the absenceof such evidence, medical records are inadmissible.2. NOT NECESSARY THAT PERSON WHO DREW BLOOD TESTIFYYearv v. State,734 S.W.2d 766 (Tex.App.-Fort Worth 1987, no pet.).It is sufficient if officer fesfrfies she witnessed ffie blood drawn by the nurse and any objections tofailure to call nurse to testify go to weight and not admissibility of evidence.3. GAPS IN CHAIN GO TO N'WEIGHT'' NOT ADMISSIBILITYPatel v. State, 2009 WL 1425219 (Tex.App.-Fort Worth 2OOg) (Not designated for publication).Penle v. State, 2 S.W.3d 534 (Tex.App.-Texarkana 1999, pet. ref'd).Burns v. State, 807 S.W.2d 878 (Tex.App.-Corpus Christi 1991, pet. ref'd).Galleqos v. State,776 S.W.2d 312 (Tex.App.--Houston [1st Dist.] 1989, no pet.).Where the State shours the beginning and the end of the chain of custody, any gaps in the chaingo to the weight of the evidence and not to its admissibility.4. NOT NECESSARY TO SHOW WHO DREW THE BLOODBlackwell v. State,2005WL 548245, (Tex.App.-Austin 2005) (Not designated for publication).Hospital records with blood fesf resu/fs were admitted with Business Records Affidavit. Thedefense confesfed their admission because the person who drew the blood could not be identifiedand did not testify. The State called the surgeon who treated the Defendant but he could notidentify who drew the blood. He said that although he did not conduct or observe the blood draw,6t

he and other doctors routinely relied on such procedures and records in treating patients. Therewas not evidence that an unauthorized or unqualified person drew the blood or that it was done inan improper manner. The results were therefore held to be admissible.Beck v. State, 651 S.W.2d 827 (Tex.App.-Houston [1$ Dist.] 1983, no pet.).Proper chain of custodywashown in admission of hospital drawn blood sample in a manslaughtercase even though physician witness could not testify who actually drew the blood sample.5. NOT NEGESSARY TO SHOWWHO DREW OR TESTED THE BLOOD!Durrett v. State, 36 S.W.3d205 (Tex.App.-Houston (14th Dist.) 2001, no pet.).Medical records were offered to show defendant's blood was drawn and tested. Testimony failedto show who actuatly drew the btood and there was contradictory testimony about whether theState had shown who actually tested the blood. There was testimony about the precautions takenby the hospital to ensure blood samples are properly drawn, labeled and tested. The Court heldthat the testimony was adequate to link the blood result in the records to the defendant and thatthe beginning and end of chain were adequately proven. That witness could not recallwho tookthe sample and who fesfed ff goes to the weight not the admissibility of the evidence.G. SANITARY PLACE REQUIREMENTAdams v. State, 808 S.W. 2d 250, (Tex.App.-Houston [1't Dist.] 1991 , no pet.).Defendant contends that an inspection a month before the blood was drawn at the hospital doesnot show the sanitary condition when blood was drawn. The statute does not require suchevidence. It requiresthat a "periodic" inspection be done, not an inspection on the date blood wasdrawn. Even without the nurseb affidavit, the trial judge could have concluded that Sf. JosephbHospital was a "sanitary place," thus satisfying the first part of the statutory predicate.H. SERUM.BLOOD TESTBiqon v. State, 252 S.W.3d 360 (Tex.Crim.App.2008).Defendantobjected tothe state expedbfestimonyconcerningthe conversion of appellant'sserumalcoholleveltoa blood-alcohollevel and retrograde extrapolation on fhe basis that said testimonywas not reliable. The Court of Appeals held both were admissible. The Court of Criminal Appealsheld that it was not an abuse of discretion to allow said testimony.Reidweo v. State, 981 S.W.2d 399 (Tex.App.-San Antonio 1998, pdr. ref'd).Objection to admitting evidence of serum-blood test as opposed to whole blood test overruled asevidence showed that test instrument was standardized such that serum-blood fesf result wouldbe the same as if whole blood were tested.dU

l. HOSPITAL DRAWN SAMPLE = NOT AN ASSAULTHailey v. State, 87 S.W.3d 118 (Tex.Crim.App.2002) cert. denied, 538 U.S. 1060 (2003).Defendant arrested for DWl. The evidence at the time of arresf showed that defendant was: 1)Bouncing off guardrail; 2) Crossing into oncoming traffic; 3) PBT administered atthe scene showedan alcohol concentration of .337. Officer, fearing there may be Alcohol Poisoning transporteddefendanttothe hospital. Defendantwas read the DIC-24 and refused to give a sample. Hospitaldrew a medical sample that showed a .454. Court of Appeals held that blood was illegally takenand that the taking of the blood sample constituted an assault on the defendant by the hospitalpersonnel. The problem was that no wifness was called from the hospital to say why the blood wastaken. The Court of Criminal Appeals held that it was improper for the Court of Appeals toreverse the case based on a theory not presented to the trial court (that being the hospitalassaulf rssue) and so reversed the Court of Appeals decision affirming the trial court'sfinding that the blood sample was admissible.Spebar v. State, 121 S.W.3d 61 (Tex.App.-San Antonio, September 3, 2003, no pet.).Another case where the btood sample was drawn by hospitat personnel after the defendant refusedto give the police a sample. As in the case above, the defendant claims the evidence wasinadmissible because it was obtained when the hospital illegally assaulted him. This claim wasrejected by the Trial Court. The defendant cites the Court of Appeals opinion in the Hailev case.The Court first distinguishes Hailey by pointing out that the trial judge in its ruling sfafed that thiswas not a case of law enforcementaking a blood sample but rather blood taken as part of thedefendant's medical treatment. The Court further rejects the defendant's argumenthat the hospitalpersonnel were agents of the Sfafe.J. ACQUIESCENCE TO HOSPITAL BLOOD DRAW = GONSENTState v. Kellv, 204 S.W.3d 808 (Tex.Crim.App., 2006)./n response to the objection to the admissibility of a medical blood draw where the defendantobjected she never "consented" to the draw, the court held that an express or implied finding of"mere acquiescence" to the blood draw also constitutes a finding of consento the blood draw.K. SEARCH WARRANT IN DWI CASE1. IS PROPERDve v. State, 2003 WL 361289 (Tex.App.-El Paso 2003)(not designated for publication).Beeman v. State, 86 S.W.3d 613, (Tex.Crim.App.2A04.This case involved a rear end collision withoui injuries that resulted in thesuspecf's arrest for DWI.After the suspect refused fo give a breath sample, the officer got a search warrant that authorizeda blood sample be drawn and said sample wastaken over the suspecfb objection. The issue on89

appeal is whether the implied consent law prohibits drawing a suspecf's blood under a searchwarrant. The Court of Criminal Appeals holds that it does not, pointing out that to interpret thestatute in that way would afford DWI suspects more protection than other criminalsuspecfs.2. FAILURE TO NOTE TIME OF STOP NOT NECESSARILY FATAL TOWARRANTState v. Duoas, 2009 WL 2356665 (Tex.App.-Houston[14th Dist.] 2009, pet. ref'd) (Notdesignated for publication).Ihis case involved an attack on a blood search warrant. At the motion to suppress hearing, thedefendant argued the affidavit was insufficient as it failed to include the time the alleged offenseoccurred which meantthere was nof basis for the magistrate to determine whether the defendant'sblood would contain evidence of a crime. The trial court granted the motion to suppress on fhr'sargument. The Appellate Court stated that fhe fesf rs not whether other facts could or even shouldhave been included in the affidavit but whether.the combined logicalforce of facts that are in theaffidavit provide probable cause. ln this case even though the affidavit did not reflect the time ofthe stop, it did reflect the stop and warrant issuance occurred on the same date and that themaximum amount of time would have been just over six hours and concluded the trial court erredin granting the motion fo suppressL. DIC.24 NEED NOT BE READ BEFORE MANDATORY BLOOD DRAWEnriquez v. State, 56 S.W.3d 596 (Tex.App.- Corpus Christi 2001, pet. ref'd).Motorist was not entitted to statutory warnings (DIC-24) before officer requested that motoristsubmit to blood test when officer had statutory grounds for compelling a blood test. The Court wenton to say that a requirementhat appellant be admonished as the statute requires would besurplus.M. ONLY ONE SAMPLE MAY BE DRAWN UNDER MANDATORY BLOOD LAWState v. Neesley,196 S.W.3d 356 (Tex.App..-Houston [1" Dist.] 2006, pdr granted).Reversed State v. Neesley, 239 S.W.3d 780 (Tex.Crim.App.2007).Ih,s ts an intoxication manslaughter case in which the police subsequentto arrest had a mandatoryblood specimen drawn by a nurse after the defendant refused to give a sample. The proximity ofthe first blood draw to an intravenous saline line caused the first sample to be diluted so thatanother sample was drawn atthe officer's request about an hour later. The defendant attacksthelegal authority for the second blood draw and the motion to suppress fhose resu/fs was granted bythe trial court. The State raised four reasons why the results of the second blood draw should beadmitted. Those were that (1) probable cause and exigent circumstances authorized the seconddrawing of appellee's blood without awarrant and without additional statutory compliance; (2) theimplied consent statute is not applicable because defendant's blood was drawn primarily fortreatment purposes; (3) section 724.012(b) of the Transportation Code (implied consent statute)90

allows for the taking of multiple specimens to obtain a "usable" specimen; and (4) the seconddrawing of blood was a continuation of the initial blood sample, precluding the need for additionalauthorization forthe second blood sample. The Court'sresponse wasthatthe State waived itsfirstfwo lssues for review, that section 724.012(b) allows for the taking of a single specimen, thecontinuation-search theory is not applicable. The Court distinguished the cases that the Statepresented as supporting the taking of multiple samples as being based upon section 724.012(a)as opposed to section 724.012(b).The Court of Criminat Appeals reversed hotding that "specimen" is to be construed to meana "usable" specimen - ln essence adopting Sfafe's argument number three listed above.Itfurther held that underthe section cited above only one usable specimen could be drawn.N. WHEN DEFENDANTCONSENTS,T24.Ol2OFTRANSPORTATIONCODEDOESNOT APPLYSubirias v. State, 278 S.W.3d 406 (Tex.App.-San Antonio 2009, pdr ref'd.).Ihrs case involves a defendant who was involved in a wreck that resulted in two deaths and twoS8/'s. A total of three blood draws were done; he was arrested after the second blood draw butbefore the third. He challenged the first blood draw as being pre-arrest, and the second blood drawas being in violation of Transportation Code Section 724.012(b) allowing only a single blood draw.The evidence showed he consented to both blood draws and the Court held that when oneconsenfs, 724.012 does not apply. He further objected to the first and second blood draws asbeing in violation of Rule 403 of the Texas Rules of Evidence and that was rejected after applyingthesixfactorsthatgofofhafrssue. Theattackonthereliabilityoftheretrogradeextrapolationwasalso rejected based on the facts of this case. In his final point, he argued that the medical blooddraw should have been suppressed because it was not taken by a person qualified fo do so underTransportation Code 724.017 while conceding that medical blood draws are not required to meetthe standards sef forth in section 724.107, but argued they should still be applicable to ensurereliability of said draws. Ihis rssue was not properly preserued for review.O. OFFICER BLOOD DRAW PROCEDURE "UNREASONABLE'' UNDER THE 4THAMENDMENTState v. Johnston, 305 S.W.3d746 (Tex.App.-Fort Worth 2009).Defendantwas arrested by Dalworthington Gardens Police Dept. for DWI and a search warrantforblood was obtained. Suspecf resisfed blood draw and was restrained. Resu/f = .19. At MTShearing the Trial court found that the blood draw was done by recognized medical procedures,force used was reasonable, but officer who did the draw was not qualified under 724.017 ofTransportation Code and the seizure of defendant's blood viotated the 4th Amendment'sreasonableness requirement by not being taken by medical personnel in a hospital or medicalenvironment. Court of Appeals confirmed that Transportation Code does not apply, held it was nota problem that blood was not drawn in medical environment, and made no finding that officer wasnot qualified. Under 4h Amendment found the means used were not "reasonable." ln so holdingthe Court mentions no medical history taken, no video recording, no written guidelines for use offorce. (Both srdes have filed PDR's).9I

XIX. EXPER TESTIMONYA. STATE EXPERT OPINION TESTIMONY .08 = LOSS OF NORMAL = PROPERLonq v. State, 649 S.W.2d 363 (Tex.App.-Fort Worth 1983, pet. ref'd).Adams v. State, 808 S.W.2d250 (Tex.App.-Houston [1st Dist] 1991, no pet.).Expertestimony that .08 = "loss of normal use of mental and physical faculties" is admissible, eventhough intoxication is defined as .10 or greater.B. TMPEACHMENT - PR|OR TEST|MONY (JOHN CASTLE)Sparks v. State, 943 S.W.2d 513 (Tex.App.-Fort Worth 1997, pet. ref'd).It was proper for State to impeach defense expert John Castle with circumsfances of his priortestimony in a Collin County trial, State v. Lucido. Namely, the prosecutors pointed out that an incourtexperiment with the lntoxilyzer 5000 demonstrated that contrary to his expert opinion, certainfoods, chewing gum, and medications did not affect the test resu/fs.C. EXPER TESTIMONY ABOUT DWI VIDEO PROPERLY EXCLUDEDPlatten v. State , 2OO4 WL 100399 (Tex.App.-Tyler 2004, pdr ref'd) (Not designated forpublication).Defense attempted to call Dr. Gary Wimbish, a toxicologist, as an expert wifness to testify that hebelieved defendantwas notintoxicated based uponthe defendant'sperformance onthe DWlvideo.There were no FSIs on the tape. Though Dr. Wimbish testified in a Daubert hearing that hisopinions drawn from viewing the fapes were based on independently recognized principlesthat hadbeen studied, applied and peer reviewed, he admitted that none of those applied to situationswhere there were no FSIs. He further could not cite any scientific theory supporting the conclusionthat intoxication can be determined solely from the viewing of a videotape and he could not referthe Court to any literature on that proposition. The Appellate Court found the exclusion of thistestimony was proper and further found that Wimbish's testimony was excludable as it would notbe outside the knowledge and experience of the average juror.D. DEFENSEXPERT OPENE DOOR TO DEFENDANT'S ALCOHOLISMManor V. State, 2006 WL2692873 (Tex.App.-Eastland, 2006).In response to the defendant's putting forth the defense that what appeared to be signs ofintoxication was actually a symptom of her suffering from depression and having a panic attack,the State was allowed to rebut this theory by putting on evidence that she a/so suffered fromalcoholism. ln response to the attack that there was no 404(b) notice, the Court held that becausethe evidence of alcoholism of which Manor complains was introduced in cross-examination and notin the Sfafe's case-in-chief, the State was not required to give advance notice to Manor of its intentto introduce such evidence.92

E. RESULTS OF DEFENS EXPERT'S EXPERIMENT PROPERLY EXCLUDEDNoves v. State,2007 WL 470452 (Tex.App.-Houston[14th Dist.] 2007)(not designated forpublication).Defens expert was precluded from testifying about an out of court drinking experiment conductedon defendant. Defendant failed to affirmatively show the proposed experiment was substantiallysimilar to the incident and, thus, the trial court did not abuse its discretion in excluding the results.XX.DEFENSESA. ENTRAPMENTDEFENSEEvans v. State, 690 S.W.2d 112 (Tex.App.-El Paso 1985, pet. ref'd).No entrapment where defendant is allowed to drive to station by police and subsequently stoppedagain and arrested for DWl.B. NECESSIW DEFENSEShafer v. State, 919 S.W.2d 885 (Tex.App.-Fort Worth 1996, pet. ref'd).Trial court properly refused to give "justification" instruction. Defendant's argument was that onceshe realized she was too intoxicated to drive, she was justified in continuing to drive until she founda safe place to pull over. Sadly, she was stopped and arrested before that point. Court rejectedthis argument, pointing out itwas her own voluntary conductthat caused herto be intoxicated andhaving done so was not entitled to necessity defense.Rodriquez v. State, 2005 WL 2313567 (Tex.App.-El Paso 2005, no pet.) (Not designated forpublication).Defendant was on his way to pick up his in-labor wife and take her to the hospital. Opinionassumes that necessity defense can be raised, but not raised here because there was no evidencethat defendant faced an urgent need to avoid harm that outweighed the harm sought to beprevented by driving while intoxicated. Also, this defendant did not admit the offense.Texas Dept. Of Public Safetv v. Moore. 175 S.W.3d 270 (Houston [1* Dist.] 2004, no pet.).Defendant fled scene of altercation after being threatened with a gun which was fired; thedefendant drove away, but continued to drive after the threat from which he fled ceased to existby returning to the scene after the police arrived thus, while expressly declining to rule on whethernecessity was initially implicated, this defense was nof esfab/ished regarding defendant'ssubseguent conduct as a mafter of law.93

Moncivais v. State , 20O2WL 1445200 (Tex.App.-San Antonio 2002, no pet.) (Not designated forpublication).Defendant was victim of continued assault and got into her vehicle and drove to escape herattacker. Defendant held not to be entitled to necessity instruction because did not admit she wasintoxicated on night of offense.Torres v. State, 2000 WL34251147 (Tex.App.-Corpus Christi2000, no pet. (Not designated forpublication).An Intoxication Manslaughter case. Held necessity defense not raised because defendant's betiefthat she needed to drive while intoxicated from coasf fo San Antonio after being in a fight with afriend/police officer was not objectively reasonable. The Court held that even though defendantfeared the person who assaulted her "might" follow her; the fact that she stopped at a conveniencestore in Victoria for gas and made a telephone call and did nof see Dunaway following her at anytime; she intended on traveling allthe way back fo San Antonio; she made no attempt to contactany police officer outside of Point Comfort; and she made no attempt fo sfop anywhere to spendthe night, even though she knew she uras intoxicated, Ied Court to conclude this situation did notinvolve imminent harm.Biornson v. State,1996 WL 627374 (Tex.App.-Austin 1996, no pet. (Not designated forpublication).Necessifydefense not raised because defendant's belief that he needed to drive while intoxicatedto look for his missing asthmatic five-year-old was not objectively reasonable.C. INVOLUNTARY INTOXICATION DEFENSESpence v. State, 2009 WL 3720179 (Tex.App.-Fort Worth 2009, pet ref'd) (Not designated forpublication).In the bench trial of fhis case, the defendant admitted to having a small amount to drink but saidshe thought someone must have drugged her as the amount she consumed uras rnconsistent withthe obserued intoxication at the time of the stop. Testimony was put on of another young womanwho was drugged and assaulted atthat same establishment, but no evidence beyond the suspectassumption was offered to support that something was put in her drink. In supporting theconviction in spite of the trial court's finding at the time of the conviction that the driver's intoxicationwas "involuntary," the Court of Appeals held this was not a finding of an involuntary act and did notsupport a defense to DWI. Srnce involuntary intoxication was not a defense to DWI and the trialcourt upheld the conviction, it is plain that the court did not intend to find that she was intoxicatedas the result of an involuntary act. Moreover, the record supported the finding that the intoxicationwas not the result of an involuntary act; thus, a rational trier of fact could have found that theevidence was sufficiento establish the elements of DWI beyond a reasonable doubt.OAJ=

Brown v. State. 290 S.W.3d 247 (Tex.App.-Fort Worth 2009, reh. denied, pdr ref'd).Defendant claimed he had two drinks before he went to bed, then woke up and took Ambien bymistake instead of his blood pressure pills, and as a result, had no recollection of consuming anymore alcohot that night and didn't recall driving. He asked for a jury instruction on "lnvoluntarylntoxication." The Court held that such an instruction would never be available in a DWlcase asthere is no mentalsfafe.Bearden v. State, 2000 WL 19638 (Tex.App.-Houston [1st Dist.] 2000).Defendantestified at trial that someone must have slipped him a drug that caused his intoxicationand requested a defensive instruction on "lnvoluntary lntoxication" arguing that an individualwhois unaware of the administration of mind-altering drugs cannot engage in the intentional conductof operating a motor vehicle any more than a woman under the influence of drugs can voluntarilyconsento sexual activity. Absent the defense of involuntary intoxication, individuals who havebeen the victim of an assault by drugs will be unjustly penalized. The Court rejected this argumentfinding that the Legislature has not seen fit to include a culpable mental state in its definition of theoffense. The Court cited a number of decrsions that have held that Involuntary lntoxication cannotapply or did not apply to the facts of a case. ln fhis case the Court found there was no evidenceof any drug being added to appellant's beer and no evidence that he did not voluntarily consumethe beer he drank that night.Stamper v. State, 2003 Wt 21540414 (Tex.App.-Dallas 2003).In this case fhe Court affirmed the rejection of an involuntary instruction request pointing out thatwhat she really seemed to want is an instruction on involuntary act which she did not properlyrequest. The courtfound involuntary intoxication was not applicable in this case so the lower courtwas justified in denying her requested instruction and in refusing to let a defense expert testify onfhis issue.Nelson v. State, 149 S.W.3d 206 (Tex.App.-Fort Worth 2004).Ihis uras a DWI where intoxication arose from defendant's taking prescription drugs. The defenserequested an instruction on "involuntary intoxication" and the court affirmed the denial of thatrequest holding that the defense of involuntary intoxication does not apply fo persons who areunconscious or semr'-conscious at the time of the alleged offense nor does it apply when thedefendant's mentalsfafe is not an element of the alleged offense.Aliff v. State, 955 S.W.2d 891 (Tex.App.-El Paso 1997).Defendant was intoxicated due to ingestion of prescription drugs. He wanted an instruction on"involuntary intoxication" and that request was rejected on two grounds. First, there was noevidence in the record indicating that the defendant took the intoxicating drugs unknowingly, orwithout knowledge of their effect. Second, involuntary intoxication rs a defense to criminalculpability and proof of a culpable mentalsfafe r.s not required in prosecutions for intoxicationofienseg including driving while intoxicated.95

McKinnon v. State, 709 S.W.2d 805 (Tex.App.-Fort Worth 1986).Defendantestified she only had two g/asses of wine and that she "blacked out." She does notbelieve this was caused by the wine and thoughthat the man who served her the wine must haveslipped something in her drink. The Court held she was properly denied the defense because thereis no evidence of any drug having been added to appellant's wine and no testimony that appellantdid not voluntarily consume the wine.Curtin v. State, 2006 WL347025 (Tex.App.-Corpus Christi 2006).Defendant was arrested for DWI after he caused a traffic accident and his breath test showed analcohol concentration of 0.243. Defendant and his physician testified that defendant suffered fromtraumatic amnesia at the time of the accident. This was allegedly caused when he was struck inthe head by a bar patron earlier that evening. Defendant claims he involuntarily drank tn excessbecause of the effecfs from the blow to his head. In approving the denial of an instruction oninvoluntary intoxication, the Court found that the defense did not apply as the defendant's mentalsfafe is not an element of the alleged offense.D. INSANITY/AUTOMOTISMNelson v. State, 149 S.W.3d 206 (Tex.App.-Fort Worth 2004).The defense tried fo use the defense of automatism. Automatism is defined as "engaging in whatwould otherwise be criminal conduct but is not criminal conduct if done in a state ofunconsciousness or semi-consciousness." The Court first points out that Texas courts have heldthat states of unconsciousness or automatism, including epileptic sfafes, fallwithin the defense ofinsanity. lt then says insanity defense will not stand for an offense like DWI where there is nomental state. With the defense argumenthat it is focusing on the lack of a voluntary act as a basisfor its defense, the Court replr'es that there is nothing in the record fo show that the defendant didnot make the decision to get in his car and drive and that he did take the prescription drugsvoluntarily, knowing their effect, which bars his claim of involuntary conduct.Beasley v. State, 810 S.W.2d 838 (Tex.App.-Fort Worth 1991).The defendant admitted to having a few drinks but attributed her signs of intoxication to her body'sreaction to her running out of her prescription which she sard caused her to be in a state of atrance-like high. The Court affirmed the denial of an instruction on insanity pointing out that thefocus of the insanity defense is clearly upon the mental state of the accused at the time of theoffense and because there is no mental state in a DWI case, that defense will not stand.Aliff v. State, 955 S.W.2d 891 (Tex.App.-El Paso 1997).Defendant was intoxicated due to ingestion of prescription drugs. He wanted an instruction oninsanity defense. The Court held that insanity is not available because to convict a defendant for96

driving while intoxicated, it is not necessa{y to prove a culpable mental state; therefore, insanitycannot be a defense to the charge of driving while intoxicated.E. NO "VOLUNTARY ACT''Howey v. State, 2009 WL264797 (Tex.App.-Dallas 2009) (Not designated for publication).The defendant admitted to having no more than three drinks at trial , and testified she had left herdrink unattended atthe bar and that something "must have happened"to alter her as much as shewas atthe time of the sfop. She also claimed gaps in her memory in events of that night after sheleft the bar. The defense requested a charge under 6.01 of the Texas Penal Code of "VoluntaryAct" under the theory that something must have been added to her drink. In affirming the trialcourt's rejection of that requested instruction, the Appellate Court relied on the fact that thedefendant did not admit she committed the charged offense and the lack of evidence or testimonythat someone put something in her drink. Before the defendant is entitled to such a charge on'\toluntarinessof conduct," there must be "evidence of an independent event, such as conduct ofa third party that coutd have precipitated the incident."XXI. JURY CHARGEA. OBSERVATION PERIOD1. NO CHARGE REQUIREDAdams v. State, 67 S.W.3d 450 (Tex.App.-Fort Worth 2002, pet. ref'd.).Davis v. State, 949 S.W.2d 28 (Tex.App.-San Antonio 1997, no pet.).Rav v. State, 749 S.W.2d 939 (Tex.App.-San Antonio 1988, pet. ref'd).Not required to charge jury that defendant needs to be obserued continuously for 15 minutes beforethey can consider Intoxilyzer test result.2. CHARGE REQUIREDSmithev. State, 850 S.W.2d 204 (Tex.App.-Fort Worth 1993, pet. ref'd).Garcia v. State,874 S.W.2d 688 (Tex.App.-El Paso 1993, pet. ref'd).Gifford v. State, 793 S.W.2d 48 (Tex.App.-Dallas 1990), pet. dism'd, improvidentlygranted, 810S.W.2d 225 (Tex.Crim.App. 1991).91

B. ALTERNATIVE CAUSATION = NO CHARGE1. IN GENERALNeaves v. State ,767 S.W .2d 784 (Tex.Crim.App. 1989).Charge that singles out limited parts of the evidence constitutes improper comment by judge onweight of evidence. ln fhis case not entitled to charge concerning possibility that defendant receiveda blow to the head the resu/fs of which the officer mistook for signs of intoxication.Grissett v. State, 571 S.W.2d 922 (Tex.Crim.App. 1978).Defendant is entitled to jury instruction on another "causation" factor only when he: (1) denies useof alcohol + (2) can explain his suspect actions.2. FATIGUEDrapkin v. State,781 S.W.2d710 (Tex.App.-Texarkana 1989, pet. ref'd).When defendant claims fatigue or some other alternative cause that merely negates existence ofelement of sfafe s case, no defensive jury instruction need be given.C. CHARGE ON WORKING CONDITION OF INSTRUMENT1. NOT ENTITLED TO SUCH A CHARGEStone v. State, 685 S.W.2d 791 (Tex.App.-Fort Worth 1985), affd., 703 S.W.2d 652.(Tex.Crim.App. 1986).lmproper to charge jury it should disregard results of test if jury had reasonable doubt as to whetherinstrument was in good working order. Court held that hole in breath test tube went to weight tobe accorded the test result.2. ENTITLED TO CHARGE AS TO DPS REGULATIONSAtkinson v. State, 871 S.W.2d 252 (Tex.App.-Fort Worth 1994, rev'd, 923 S.W.2d 21(Tex.Crim.App. 1996).Should have charged on issue of whether DPS regulations regarding breath testing were compliedwith. Court of Criminal Appeals holdsthatthe charge on the working condition of instrument in thiscase was proper and sefs ouf the following standard for making that determination on page 5 andit does bear reading. It did remand the case fo the Fort Worth Court of Appeals because that courtapplied the wrong standard in determining that the failure to give the charge was not harmless.Upon remand, that court found harm.98

D. NO CHARGE ON BLOOD OR URINE IN BREATH TEST CASEMaddox v. State, 705 S.W.2d 739 (Tex.App.-Houston [1st Dist] 1986), pet. dism'd, 770 S.W.2d780 (Tex.Crim.App. 1988).Not required to include definition of alcohol concentration as it relates to blood/urine when evidenceis that breath test given.E. SYNERGISTICHARGES1. PROPERGrav v. State, 152 S.W.3d 125 (Tex.Crim.App. 2006).This appeal involved a DWI case where the State alleged alcohol asthe intoxicant and the defensepresented evidence that it was the anti-depressanfs the de,fendant was taking more than thealcoholthat caused his behavior. Ihe Sfafe's chemist testified the drugs the defendantook hada synergistic effect and the Heard/Sutton charge was given. The defense aftacked this and arguedthat the intoxicant was an element of the DWI charge and that Sutton should be overruled. TheCourt of Criminal Appeals rejected both of those arguments. lt concluded that the substance thatcauses intoxication is not an elementof the offense. Instead, it is an evidentiary matter. The Courtaffirmed that Sufton was properly decided and that a synergisti charge was properly used in thiscase.Sutton v. State, 899 S.W.2d 682 (Tex.Crim.App. 1995).Heard v. State, 665 S.W.2d 488 (Tex.Crim.App. 1984).Booher v. State, 668 S.W.2d 882 (Tex.App.-Houston [1st Dist] 1984, pet. ref'd).Miller v. State, 341 S.W.2d 440 (Tex.Crim.App. 1960).State entitled to when drug use evidence comes out, even though not alleged in charge.2. NOT FOR "FATIGUE''Atkins v. State, 990 S.W.2d 763 (Tex.App.-Austin 1999, no pet.).Hetd to be error, atbeit harmless, when court gave synergisticharge that spoke to defendant's"allowing his physical condition to deteriorate." Court distinguishes fhrs instruction from othersynergisti charge situations and holds it bordered on comment on weight of evidence.3. NOT FOR "THEORY OF INTOXICATIONOT ALLEGED''Rodriquez v. State, 18 S.W.3d 228 (Tex.Crim.App.2000).Defendant in this felony DWI trial was alleged to have been intoxicated by the introduction of"alcohol" into his body. There was testimony at trial by defendanthat he had not been drinkingalcohol but had taken cold/flu medication (Contact) that made him drowsy. The charge allowed the99

jury to convict if they found the defendant intoxicated "by reason of the introduction of alcohol, adrug, or a combination of both of these subsfances" into the body. The State argued the Heard andSutton casespermitted this butthe Court pointed outthat Heard and Sutton only speakto chargingthat a subsfance made a suspecf more susceptible to alcohol while this expanded the theory byallowing conviction on theory of introducing a drug into the body.F. GENERAL VERDICT FORMBradford v. State,230 S.W.3d719 (Tex.App.-Houston [14th Dist.] 2007, no pet.).Fullenwider v. State, 176 S.W.3 d 290 (Tex.App.-Houston [1 st Districtl 2004).Torres v. State, 109 S.W.3d 602 (Tex.App.-Fort Worth 2003, no pet.).Trial Court properly denied request for specific verdict form in DWI trial. Srnce the definition ofintoxication sets forth alternative means of committing one offense, a special verdict form is notneeded when multiple theories of intoxication are alleged.See Also!Price v. State, 59 S.W.3d 297 (Tex.App.-Fort Worth 2001, pet. ref'd).Blok v. State, 986 S.W.2d 389 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd).Chauncev v. State,837 S.W.2d 179 (Tex.App.-El Paso 1992), aff'd., 877 S.W.2d 305(Tex.Crim.App. 199a).Reardon v. State, 695 S.W.2d 331 (Tex.App.-Houston [1st Dist.] 1985, no pet.).McGinty v. State, 740 S.W.2d 475 (Tex.App.-Houston [1st Dist.] 1987, pet. ref'd).Sims v. State, 735 S.W.2d 913 (Tex.App.-Dallas 1987, pet. ref'd).Rdv v. State,749 S.W.2d 939 (Tex.App.-San Antonio 1988, pet. ref'd).Though separate theories of intoxication are alleged, a generalverdictform is sufficient if evidencesupporfs conviction under either theory.G. SEPARATE VERDICT FORMS?Reidweo v. State, 981 S.W.2d 399 (Tex.App.-San Antonio 1998, pdr. ref'd).Rav v. State,749 S.W.2d 939, 944 (Tex.App.-San Antonio 1988, pet. ref'd).Atkinson v. State,923 S.W.2d21,23 (Tex.Crim.App. 1996).Davis v. State,949 S.W. 2d28,29-30 (Tex.App.-San Antonio 1997, no pet.).Owen v. State, 905 S.W.2d 434,437-39 (Tex.App.-Waco 1995, pet. ref'd).These opinions say that separate verdict forms should have been given but further hold that thefailure fo do so was harmless so there was sufficient evidence to support a finding of guilt undereither theory of intoxication. So they really don't contradict fhe cases cited in (F) above.100

H. DRIVER'S LICENSE SUSPENSION INSTRUCTIONHernandez v. State, 842 S.W .2d 294 (Tex.Crim.App. 1992).Defendant has no burden to show he has a vatid drivers license to be entitted to a jury instructionthat the jury can recommend his driver's license not be suspended.I. MOTOR VEHICLE AS A DEADLY WEAPON IN A DWI CASE1. IS PROPERSierra v. State, 280 S.W.3d 250 (Tex.Crim.App. 2009).In this felony DWI case, the Court of Criminal Appeals reversed the Court of Appeals holding thatthere is insufficient evidence that the defendant's vehicle was used as a deadly weapon. The factsshow the defendant struck a vehicle that pulled out of an apartment complex parking lot. Thedefendant argued he was not speeding, he had the right of way, his view was obstructed, and hetried to avoid the collision. The dissent argues that the finding was not appropriate because thedefendant did not cause this accident and was merely involved in an accident with a "careless driverwho was injured." The Court majority focused on the lack of evidence that defendant attempted tobrake before the crash even though he saw the other vehicle in time to do so, and the fact the jurycould have found evidence the defendant was speeding.Woodall v. State, 2008 WL 3539997 (Tex.App.-Austin 2008 pet. ref'd) (not designated forpublication)In this case witness fesf/ied that defendant entered his tane of traffic and almost hit his truck.Witness had to slow down when defendant entered his lane and further described how defendantstruck several traffic barrels which was sufficient proof that he was "actually endangered" by thedefendant's driving so a deadly weapon finding would stand.Ochoa v. State, 119 S.W.3d 825 (Tex.App..-San Antonio 2003).ln this case officer testified that there were other vehicles on the road when the defendant driftedout of his lane and came "real close to striking and hitting" another vehicle. The Court found thiswas sufficient because there were "other drivers on the road who were actually endangered by thedefendant's use of his vehicle" so the deadly weapon finding was proper.Mann v. State, 58 S.W.3d 132 (Tex.Crim.App.2001).Testimony showed that defendant almost hit another vehicle "head-on" when ff crossed the centerIine and that other vehicle took evasive action and avoided the collision. The arresting officer furthertestified that based on his experience reconstructing accidents, he was of the opinion that a collisionunder fhose circumstances would have been capable of causing death or serious bodily injury.Charge on and finding of Deadly Weapon was proper.101

Davis v. State, 964 S.W.2d 352 (Tex.App.-Fort Worth 1998, no pet.).Testimony showed that the defendant was weaving and drove in the oncoming lane of trafficresulting in another vehicle having to take evasive action to avoid a collision. Deadly Weaponfinding was proper.2. MAY OR MAY NOT BE PROPER?Drichas v. State, 175 S.W.3d 795 (Tex.Crim.App.2005) on remand 187 S.W.3d 161(Tex.App.-Texarkana 2006) pdr granted, judgment vacated by 210 S.W.3d 644 (Tex.Crim.App.2006) on remand to 219 S.W.3d 471 (Tex.App.-Texarkana 2007 pet. ref'd).Court of Appeals had found there was insufficient evidence to show that the motor vehicle in thiscase u/as used as a deadly weapon because it found there was no evidence that others wereactually endangered. ln reversing this holding, the Court of Criminal Appeals found that the Courtof Appeals had misconstrued the actual danger requirement by equating a deadly weapon'scapability of causing death or serious bodily injury with its probability of doing, thus reading into thesfafufe an additional requirement of evasive action or zone of danger when said requirement did notexist and therefore reversed and remanded this case fo the Court of Appeals. Upon remand, theCourt of Appeals once again found there was insufficient evidence to support the deadly weaponfinding based on its finding that there was insufficient evidence that there was another motoristpresent on the roadway "at the same place and time" as the defendant when he drove in a recklessmanner. The Court of CriminalAppeals once again accepted PDR and reversed and remandedagain, finding that the factual-sufficiency standard of review used by the Court of Appeals wasflawed. ln last remand Court of Appeals applied proper standard and (big surprise) again heldagainst deadly weapon finding.3. IS NOT PROPERBoes v. State,2004WL 1685244 (Tex.App.-Austin 2004).ln this case frooper obseryed defendant failed to come to a complefe sfop at the sfop s/gn. Whenturning, defendant over- accelerated and momentarily lost control of his vehicle causing it to fishtailsideways and almost hit the curb of the sidewalk. There was insufficient evidence to support thedeadly weapon finding. The Court pointed out there was no evidence that anyone else was actuallyendangered by the defendant's driving.Williams v. State, 946 S.W. 2d 432 (Tex.App.-Fort Worth 1997, no pet.).Court of Appeals held that a "deadly weapon" finding was not permissible absent evidence thatanother motorist was on the highway at the time and place defendant drove in an intoxicatedcondition.L02

4. NOTICE MUST BE ADEQUATE AND TIMELYHocutt v. State,927 S.W.2d 201 (Tex.App.-Fort Worth 1996, pet. ref'd).In felony DWI case with an accident and minor injurieg Sfafe faxed notice of intent to seek a deadlyweapon finding just 3 days before voir dire began. The notice did not specify on its face that thedeadly weapon was the "automobile." The Court of Appeals held that the notice was neither timelynor adequate and reversed the case on punishment only.J. NO DEFINITION OF "NORMAL USE'' SHOULD BE GIVENMurphy v. State, 44 S.W.3d 656 (Tex.App.-Austin 2001, no pet.).It was improper for the Court to charge the jury on a definition of "normal use."But see Daw v. State, 67 S.W.3d 382 (Tex.App.-Waco, 2001) for a contrary holding.K. NO SUCH THING AS "ATTEMPTEDWI''Stronq v. State, 87 S.W.3d 206 (Tex.App.-Dallas, 2002, pet. ref'd).Evidence was presented that the officer saw a vehicle stopped in the middle of the road, facingnorth, with its hazard lights blinking. The officer saw the suspecf alone in the driver's seat of thevehicle and observed the rear reverse lights were illuminated which he testified meant that theignition of the vehicle had to be on. After speaking with fhe suspect and asking her fo sfep out ofthe vehicle that suspect put the vehicle in park and got out of the vehicle. She was later arrestedfor DWI. The trialjudge directed the Sfafe out on DWI and submitted the lesser charge of attemptedDWI to the jury for which she uras convicted. The State tried to appealthe acquittal on the DWIcharge and the Court of Appeals held that it was barred from doing so by double jeopardy and itfurther held there is no such thing as Attempted DWI and remanded the case for acquittal.L. NO CHARGE ON INVOLUNTARY INTOXICATION AND AUTOMATISM DEFENSEIN THIS DWI/PRESCRIPTION DRUG CASENelson v. State, 149 S.W.3d 206 (Tex.App.-Fort Worth 2004).Case involved a Defendant who was tried for DWI from ingestion of prescription drugs. TheDefendant appealed the court's denial of his request for a charge on involuntary intoxication andautomatism. Involuntary intoxication by prescription medication occurs only if the individual had noknowledge ofpossrb/e intoxicating side effecfs of the drug, since independent judgmenf rsexercisedin taking the drug as medicine, not as an intoxicant. ln fhis case, the Defendant had taken the drugsbefore and was aware of their effect. Another reason the defensive charge was not available wasthat although involuntary intoxication is a defense to criminal culpability, proof of a culpable mentalsfafe is not required in prosecutionsfor intoxication offenses, including DWl. Claim of automatismfails because that defense is not available when, as here, the defendant voluntarily took theintoxicant.103

M. NO MEDICAL EXCUSE INSTRUCTIONBurkett v. State, 179 S.W.3d 18 (Tex.App. San Antonio 2005, reh. overruled).The defense argued and presented evidence in this case that what the officer thought was signs ofintoxication were actually AID's related complications. An instruction was requested on that issueand denied. The Court of Appeals held that the Defendant's medical excuse instruction was not astatutorily-enumerated defense. lt merely served as evidence that they could argue would negatethe impairment element of the Sfafe's case. Therefore, the trial court properly denied Burkett'sreq u e ste d i n str u ctio n.N. NO JURY INSTRUCTION ON FAILURE TO PRESERVEVIDENCEWhite v. State, 125 S.W.3d 41 (Tex.App.Houston [14tn Dist.]2003).The defense in this intoxication manslaughter case sought a "spoilation" instruction based on theSfafeb failure to secure a bicycle that was involved in the crash. The duty to preserve evidence islimited to evidence fhaf possesses an exculpatory value that was apparent before the evidence wasdestroyed. ln this case, the only evidence before the trial court regarding the materiality of thebicycle was an affidavit from appellant's counsel stating that appellant's accident-reconstructionexpert "has indicated a need to inspectthe complainanft bicycle." At best, appellant has shown onlythat preservation of the bicycle miqht have been favorable, which is insufficiento satisfy therequirement of materiality. The instruction was properly denied in this case.O. NO DEFINITION OF "OPERATING''Yokom v. State, 2004 WL 742888 (Tex.App.-Fort Worth 2004, pdr ref'd) (Not designated forpublication).In response tothe denial of the defense requestto define "operating"the jury instruction, the courtheld that as a general rule, terms not statutorily defined need not be defined in the jury charge, butinstead are to be given their common, ordinary, or usual meaning. The term "operating" has notacquired a peculiar meaning in the law. Courts have consistently applied a plain meaning to theword, allowing jurors to freely construe the term to have any meaning within its normal usage.P. NO JURY INSTRUCTIONBTR CONSIDERED AS EVIDENCEHelm v. State, 295 S.W.3d 780 (Tex.App.-Fort Worth 2009).Bartlett v. State, 270 S.W.3d 147 (Tex.Crim.App. 2008).Varoas v. State, 271 S.W.3d 338 (Tex.App.-San Antonio 2008, no pet.).Hess v. State,224 S.W.3d 511 (Tex.App.-Fort Worth 2007) rehearing overruled, pdr. refused).J ury Charge instruction stating that jury could consider the defendant's refusal to submit to a breathfesf as evidence constituted an improper comment on the weight of the evidence.1-04

a. ERROR TO CHARGE ON CONCURRENT CAUSATION IN DWI CASEOtto v. State, 2008 WL313942 (Tex.Crim.App.2008, reh. denied).Af Sfafeb request, the jury instructions included 6.04 of the lexas Penal Code. Defendant claimedthat was error and the Court agreed for the following reasons. Unlike Sutton and Gray. the jurycharge did not include a susceptibility theory. ln Gray and Sutton. the jury charge permittedconviction if the ingestion of drugs made the defendant more susceptible to being intoxicated by thecharged intoxicant -alcohol. Here, the jury charge and instructions authorized the jury to find Ottoguilty if itfound her intoxicated by reason of (1) the introduction of alcohol into her body, the chargedintoxicant, or (2) by the introduction of unknown drugs concurrently with alcohol-a combinationtheory. A jury's finding that Otto was intoxicated by reason of unknown drugs concurrently withalcohol does not mean -like in Sutton and Grav -that the jury found Otto intoxicated by alcoholalone. Grav. 152 S.W.3d at 133 (stating"[i]n both fhis case and in Sutton. the charge permittedconviction only if the drugs made the defendant more susceptible to the alcohol').R. NOT ENTITLED TO A CCP 38.23INSTRUCTIONDovle v. State, 2008 WL 597450 (Tex.App.-Houston [1 Dist.], 2008 pdr ref'd).At the charge conference, defendant objected to the lack of a 38.23 instruction regarding the stopof his car, specifically whether he was weaving or failed to maintain a single lane. Both the officerand the defendantestified that he weaved into the lane of oncoming traffic. Defendant explainedthat he did so to avoid a parked car, but did not dispute the reason why the officer stopped him, i.e.,because he was weaving. Because there was no factual issue in dispute regarding the stop, he wasnot entitled to the requested instruction.Sledqe v. State,1994 WL 247961 (Tex.App.-Dallas June 9, 1994, no pet.)(Not designated forpublication).The defendantestified that he changed lanes but only because the lane ended, "played out." TheCourt of Appeals held that the defendant was not entitled to an article 38.23 instruction because hedid not dispute the officer's testimony about his weaving but, instead, sought to explain the reasonhe drove that way. ld. The Court of Appeals concluded that the evidence did not raise a fact issueabout whether the officer stopped the defendant.Bellv. State, 2005 WL 503647 (Tex.App.-Fort Worth 2005, pet. ref'd)(mem.for publication).not designatedThe Court of Appeals upheld the trial court's denial of the defendant's request for an article 38.23instruction, noting that she did not contesthe existence or nature of the evidence underlying theofficer's decision to stop her. She merely challenged whether the circumsfances he observedauthorized the stop. Because only the effect of the underlying facts was disputed, the Court ofAppeals held that the defendant was not entitled to an article 38.23 jury instruction.105

Beaslev. State, 810 S.W.2d 838, (Tex.App.-Fort Worth 1991).Where the arresting officers and the defendant testified that she was swenring and weavingbetween lanes on the highway, and the only issue was that the defendant offered an explanationthat she swerued because she was trying fo sfop her children from fighting, the court held she wasnot entitled to the article 38.23 instruction she requested.S. PER SE DEFINITION OPTION SHOULD BE SUBMITTED_LIMITINGINSTRUCTION IMPROPERKirsch v. State, 306 S.W.3d 738 (Tex.Crim.App. 2010).It was proper for the Trial Court to instructhe jury that it could find the defendant guilty under theper se impairment definition of intoxication, despite the absence of retrograde extrapolationevidence. The defendant's blood fesf shorare d that he had a BAC of 0.10 at the hospital, 80 minutesafer he was involved in the car wreck. The results are evidence from which a jury could find thedefendant guilty under the per se impairment definition. Trial Court's instruction in prosecution fordriving while intoxicated (DWI), that jury could consider defendant's blood alcohol content (BAC) testresult "for the limited purpose of showing that the individualfesfed had ingested alcohol only atsome point before the time of the test," was misleading and an improper comment on the weight ofthe evidence; BAC fesf resu/f was also probative to show that defendant was intoxicated at the timehe was driving, even though it was not sufficient by itself to prove intoxication at the time of driving.Williams v. State ,2010W1745785(Tex.App.-FortWorth 2010) (Not designated for publication).Even though BAC was .07 ninety minutes after the defendant's arrest and there was noextrapolation evidence. The trial court properly submitted the per se theory of intoxication as theevidence supported an inference the defendant was intoxicated under both theories.XXII. JURY ARGUMENTA. PERMISSIBLE1. DEFENDANT FAILED TO BLOW BECAUSE HE KNEW HE WOULD FAILNunez v. State,2007 WL 1299241 (Tex.App.-Fort Worth 2007, no pet.) (not designated forpublication).Gaddis v. State, 753 S.W.2d 396 (Tex.Crim.App. 1988).It is proper to argue that defendant failed to blow into instrument because "he knew he would fail."1_06

2. DEFENDANT'S FAILURE TO DO FSTs ON VIDEOEmiqh v. State,916 S.W.2d71 (Tex.App.-Houston [1st Dist] 1996, no pet.).Prosecutors referring to defendant's failure fo do FSIs on the station house videotape was not acomment on violation of defendant's privilege against self-incrimination.3. DEFENDANTIS REFUSAL TO DO ANYTHING (i.e. FSTs, BT)Castillo v. State, 939 S.W.2d754 (Tex.App.-Houston [14s Dist.] 1997 pet. ref'd).Argumentsthat jurors should not reward defendant "for doing nothing" and thatthey should not senda message that it's "okay to refuse to do everything," both constituted a proper plea for lawenforcement and a proper response to defense argumenthat asked jurors not to punish defendantfor refusing to do unreliable fesfs.4. DEFENDANT'S TRYING TO LOOK GOOD ON TAPEGomez v. State, 35 S.W.3d746 (Tex.App.-Houston [1't Dist.] 2000, pet ref'd).State argued in response to defense argumenthat they should rely on how defendant looked onthe videotape vvas as follows,"They walked him into the room and common sense tells you thatwhen an individual knows they are being taped and knows it's important, they will straighten up.They are going to straighten up." Defense argument this was outside the record was rejected bythe Court which found that the argument represented a statement of common knowledge and wastherefore proper.5. JURY DOES NOT HAVE TO BE UNANIMOUS ON THEORY OFINTOXICATIONPrice v. State, 59 S.W.3d 297 (Tex.App.-Fort Worth 2001, pet. ref'd).The definition of intoxication sets forth alternate means of committing one offense. lt does not setforth separate and distinct orfenses. A jury is not therefore required to reach a unanimousagree me nt on altern ative factual theories of i ntoxication.6. TESTIMONY REGARDING AND ARGUMENT ABOUT DEFENDANT'SFAILURE TO CALL ITS EXPERT WAS PROPERPope v. State, 207 S.W.3d 352 (Tex.Crim.App. Nov. 15, 2006).Testimony elicited from state's DNA experts indicating that defendant's DNA expert had beenprovided with the sfafe's DNA testing and had failed to request additionaltesting did not violate workproduct doctrine; such fact was within the personal knowledge of the sfafe's experts, and a partyt0'l

could be allowed to comment on the fact that the opponent failed to call an available witness andthen argue that the opponent would have called wifness if witness had anything favorable to say.Ihis does not violate the attorney work product doctrine.B. IMPERMISSIBLEBlessinq v. State,927 S.W.2d 266 (Tex.App.-El Paso 1996, no pet.).It was reversible error for prosecutor to inform jury of the existence of two for one good time creditthe defendantwould receive if sentence was for jail time as opposed to prison and to urge them toconsider ifs exisfence rn assessing punishment.XXIII. PROBATIONELIGIBLEBaker v. State, 519 S.W.2d 437 (Tex.Crim.App. 1975).Tennery v. State, 680 S.W.2d 629 (Tex.App.-Corpus Christi 1984, pet. ref'd).Burden of proof is on defendanto show by sworn affidavit plus testimony (from some source) thathe is eligible for probation.XXIV. PRIORS/ENHANCEMENTSA. PROVING DEFENDANT IS PERSO NAMED IN JUDGMENT1. I.D. MUST BE BASED ON MORE THAN "SAME NAME''White v. State, 634 S.W.2d 81 (Tex.App.-Austin 1982, no pet.).2. BOOK.IN CARD MUST BE TIED TO JUDGMENT AND SENTENCEZimmer v. State, 989 S.W.2d 48 (Tex.App.-San Antonio1998, Rehearing overruled 1999, pet.ref'd).Where State proved identity of defendant by using book-in card which it offered in conjunction witha Judgment and Sentence and the judge admifted the Judgment and Sentence but notthe card, andthere was no evidence tying the card to the Judgment and Sentence, the proof was insufficient astothat prior. (lt appearsthere may not have been a sufficient predicate laid for admission of the slip,r.e. business record, and implies no tie between the slip and the Judgment and Sentence [i.e. causenumber on slip tied to J & S/ because there was no mention of same in the opinion.)r_08

3. PROOF OF ID POSSIBLE WITHOUT PRINTS OR PHOTOSRichardson v. State, 2OO4 Wt 292662 (Tex.App.-Dallas 2004, no pet.) (Not designated forpublication).There were no prints on the certified trial docket sheefg charging instruments, orthe judgment andprobation order, nor were there any photographs used to prove the defendant was fhe same personnamed in the two priors. The defendant's address, gender, race, date of birth, and drivers'licensenumber were on fhose documents, and they matched the information gained from defendant at thetime of the arrest. This was found to be sufficient proof that the defendant was the same personnamed in the prior.4. COMPUTER PRINTOUT AS PROOF OF PRIOR CONVICTIONFlowers v. State, 220 S.W.3d 919 (Tex.Crim.App.2007).Held that a computer printout offered to prove prior conviction contained sufficient information andindicia of reliability to constitute the functional equivalent of a judgment and sentence tied to thisparticular defendant. In this case, the printout sfafes the defendant's name, the offense charged,and date of commission; that he was found guilty of and sentenced for the offense; and gives thespectfics of the sentence and the amount of time served. Further, the printout is properlyauthenticated by the Dallas County Clerk in accordance with evidentiary rule 902(4). The otherdocument offered was a certified copy of defendant's DL record.B. PRIORS FOR WHICH DEFERRED ADJUDICATION GIVENBrown v. State, 716 S.W.2d 939 (Tex.Crim.App. 1986).[reversed on othergrounds].Order of DFAJTs admrssible in punishment phase of trial regardless of whether probation has beencompleted. (Applies in general, not specific to DW prosecution).C. USE OF DPS RECORDS TO PROVE PRIORS1. FOR PURPOSE OF TYING DEFENDANT TO J & SGibson v. State, 952 S.W.2d 569 (Tex.App.-Fort Worth 1997, no pet.).Williams v. State, 946 S.W.2d 886 (Tex.App.-Waco 1997 no pet. h.).Spauldinq v. State, 896 S.W.2d 587 (Tex.App.-Houston [1st Dist] 1995, no pet.)Abbrinq v. State, 882 S.W.2d914 (Tex.App.-Fort Worth 1994, no pet.).Lopez v. State, 805 S.W.2d 882 (Tex.App.-Corpus Christi 1991, no pet.).Use of DPS records to tie defendant to priors is proper.109

2. DPS RECORDS ALONE WITHOUT J & S . NOT ENOUGHGentile v. State, 848 S.W.2d 359 (Tex.App.-Austin 1993, no pet.).Use of DPS records alone without judgment and sentence is notsufficientto prove enhanced priors.3. DPS RECORDS NOTEXCLUDABLE UNDERCOLETanner v. State, 875 S.W.2d 8 (Tex.App.-Houston [1st Dist] 1994, pet. ref'd).Driving records prepared by DPS do not fall under the exclusion of 803(8)b) described in Cole v.Sfafe.D. FA)(ED COPY OF JUDGMENT & SENTENCE ADMISSIBLEEnqlund v. State, 907 S.W.2d 937 (Tex.App.-Houston [1st Dist] 1995) affirmed 946 S.W.2d 64(Tex.Crim.App. 1997).Court held that requiremenfs of Rules 1001 (3), 1001 (4),& 901 (a)& (b)(7) of the lexas Rules ofCriminal Evidence were met when faxed judgment and sentence were offered in lieu of originals.E. ENHANCEMENT OF FELONY DWI WITH NON-DWI PRIORSJones v. State, 796 S.W.2d 183 (Tex.Crim.App. 1990).Phifer v. State ,787 S.W .2d 395 (Tex.Crim.App. 1990).Seaton v. State, 718 S.W.2d 870 (Tex.App.-Austin 1986, no pet.).Rawlinos v. State, 602 S.W.zd 268 (Tex.Crim.App. 1980).Felony DWI can be enhanced with non-DWl prior convictions. (Point being that if felony convictionsother than those of felony DWI are used, a person convicted of felony DWI can be a "habitual"criminal.)F. ERROR IN ENHANCEMENT PARAGRAPH NOT FATAL1. WRONG DATE ALLEGEDValenti v. State, 49 S.W.3d 594 (Tex.App.-Fort Worth 2001, no pet.).Zimmerlee v. State , 777 S.W .2d 791 (Tex.App.-Beaumont 1989, no pet.).Variance between dafes in DWI enhancemenfs as alleged and as proved notfatal absent showingthat defendant was surprised, mislead, or prejudiced.t_1_0

2. WRONG CASE NUMBER ALLEGEDHuman v. State , 749 S.W .2d 832 (Tex.Crim.App. 1988).ln the absence of a showing that the defendant was surprised or prejudiced by discrepancy, the factthat cause number in DWI conviction alleged in felony indictment differed from that proven at trialwas not fatal. ln fhis case, it was alleged that prior had cause #F80-1197-MN when proof showedit was cause #F80-11997N.Cole v. State, 611 S.W.2d 79 (Tex.Crim.App. 1981).No fatalvariance in enhancement paragraph that alleged prior was in cause #8794 when it wasIater proven that it was in fact under cause #87594.3. WRONG STATE ALLEGEDPlessinger v. State, 536 S.W.2d 380 (Tex.Crim.App. 1976).Where the enhancement alleged the prior was out of Texas when itwas really out of Arizona, proofis sufficient in absence of a showing that the defendant was misled, prejudiced, or surprised.4. WRONG CHARGING INSTRUMENT ALLEGEDHallv. State, 619 S.W.2d 156 (Tex.Crim.App. 1980).Where enhancement alleged that prior arose out of indictment" when it in fact arose out of an"information" was held not to be a fatal variance.G. APPEAL OF REVOKE DWI DOESN'T BAR ITS USE FOR ENHANCEMENTState v. Camacho , 827 S.W.2d 443 (Tex.App.-San Antonio 1992, no pet.).DWI revocation being appealed doesn't bar its use fo enhance DWI to felony.H. FELONY DWI1. ORDEROFENHANCEMENTSStreff v. State, 890 S.W.2d 815 (Tex.App.-Eastland 1994, pet. ref'd).Peck v. State, 753 S.W.2d 811 (Tex.App.-Austin 1988, pet. ref'd).Prior DWI's convictions used fo enhance case fo felony need not be sequential.1-tI

.2DWl PRTORS ARE ADMTSSTBLE rN GU|Lr/TNNoGENCESiiorRLyrNGBarfield v. State,63 S.W.3d 446 (Tex.Crim.App.2001).Maibauer v. State, 968 S.W.2d 502 (Tex.App.-Waco 1998, pet. ref'd).Will v. State,794S.W.2d 948 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd).Addinqton v. State, 730 S.W.2d 788, 789-90 (Tex.App.-Texarkana, pet. ref'd).Freeman v. State, 733 S.W.2d 662,663-64 (Tex.App.-Dallas 1987, pet. ref'd).State v. Wheeler, 790 S.W.2d 415 (Tex.App.-Amarillo 1990, no pet.).Defendant's prior DWI convictionswere jurisdictionalelementsof the offense of felony DWI. Thus,those convictions were properly part of sfafeS proof at guilt stage of trial.3. DEFENDANT'S AGREEMENT TO STIPULATE TO PRIORS DOESPRECLUDE THEIR BEING ADMITTEDHernandez v. State, 109 S.W.3d 491 (Tex.Crim.App. 2003).Smith v. State, 12 S.W.3d 149 (Tex.App.-El Paso 2000, pet. ref'd).Tamez v. State, 11 S.W.3d 198 (Tex.Crim.App.2000).lf a defendant stipulates to two prior convictions, the State may read the indictment at the beginningof the trial mentioning the two prior convictions but may not give any evidence.of them during trial.Also, if stipulated that there are two prior DWIs, evidence of more than two DWls may not bementioned d uring trial.Robles v. State, 85 S.W.3d 211 (Tex.Crim.App.2002).Where the defendant agrees to stiputate to priors, the State canT offer fhose priors into evidence.The Court points out that details contained in the priors can be prejudicial to the defendant.4. STIPULATION SHOULD BE ADMITTED INTO EVIDENCEHollen v. State, 117 S.W.3d 798 (Tex.Crim.App. 2003).Hernandez v. State, 109 S.W.3d 491 (Tex.Crim.App. 2003).State v. McGuffev, 69 S.W.3d 654 (Tex.App.-Tyler 2002, no pet.).Orona v. State,52 S.W.3d242 (Tex.App.-El Paso 2001, no pet.).The proper procedure, under Tamez. is for the stipulation to be offered into evidence and publishedto the jury.1-1-2

5. TWO PRIORS THAT ARISE OUT OF A SINGLE CRIMINAL ACT MAY BEUSED TO ENHANCE TO A FELONYGibson v. State, 995 S.W.2d 693 (Tex.Crim.App. 1999).Two previous convictions for manslaughter that were based on two deaths arising out of a singleact of driving while intoxicated could be used to enhance a new charge of driving while intoxicatedup to a felony charge of driving while intoxicated.6. JUDGE HAS NO AUTHORITY TO FIND PRIOR CONVICTION TRUE WHENISSUE NOT SUBMITTED TO JURYMartin v. State, 84 S.W.3d 267 (Tex.App.-Beaumont 2002, pet ref'd).ln this case the defendant was tried for lntoxication Manslaughter, and the jury was given a /esserincluded instruction for DWl. The jury found the defendant guilty of the /esser charge, and the trialcourt found the defendant had two prior DWls and found him guilty of Felony DWI. The Courtreversed the conviction, holding that there is no support for the argumenthat the trial court waspermitted to assume the role of fact-finder on the issue of the two prior convictions. The Court heldthat the prior convictions are elements and must be included in the jury charge and found to be truebefore a jury may find a defendant guilty of the offense of Felony DWl.7. STIPULATING TO PRIORS WAIVES 10 YEAR OBJECTIONGordon v. State, 161 S.W.3d 188 (Tex.App.-Texarkana 2005, no pet.).Smith v. State, 158 S.W.3d 463 (Tex.Crim.App.2005).Ihis was a case where the defendant agreed to stipulate to two prior convictions in a felony DWItrial. He later challenged the conviction on appeal on the basisthat one of the priorswastoo remoteunder the current rule for calculating such priors as has been articulated in fhe Geffs case. TheCourt of Criminal Appeals upheld the conviction and the use of the remote prior stating that thedefendant waived appellate challenge to remoteness of the "prior conviction used as predicateconviction for felony sentencing by confessing such prior conviction by stipulation."8. JURY INSTRUCTION MUST ADDRESS THE STIPULATIONMartin v. State, 200 S.W.3d 635, (Tex.Crim. App. 2006).Ihis is a felony DWI case that focused on alleged error in the jury instructions regarding failure toaddress the defendant' stipulation to his priors. Ihis is a great opinion for those who have anydoubts about the rules regarding the acceptance of such stipulations and how the priors may beaddressed during the trial. ln part, the Court reaffirmed that: when a defendant offers to stipulateto jurisdictional priors in a felony DWI case, the State may (but is not required) to read the entireindictment, including the two jurisdictional allegations (but only those two) in arraigning thedefendant in the presence of the jury; both the State and the defense may voir dire the juryI. IJ

concerning the range of punishmentfor both afelony and misdemeanor DWI; the jury need not beinformed of the particulars of the prior convictions in reading the indictment, voir dire, opening orclosing arguments or in the jury charge itself; a defendant's stipulation to the two prior DWIs, beingin the nature of a judicial admission, has the legal effect of removing the jurisdictional element fromcontention; a defendant may not offer evidence or argument in opposition fo his stipulation; duringthe trial, the jury may be informed of the stipulation and any written stipulation may be offered intoevidence before the jury, but the evidence is sufficiento support a defendant's conviction even ifthe stipulation is not given or read to the jury; in a bench trial, the guilt and punishment sfages arenot bifurcafe4 so fhe Sfafe rs nof required to offer the stipulation during the initial portion of thehearing, even if the proceeding is improperly bifurcated.The new requiremenfs addressed by the Court are that:1) The jury charge must include some reference to the jurisdictional element of two prior DWIconvictions in a felony DWI trial;2) The jury charge must include some reference to the defendant' stipulation and its legal effectof establishing the jurisdictional element.3) Any error in failing to include in the jury charge some reference to the jurisdictional element andthe stipulation is analyzed under Almanza.ln this case. the charge failed to do 1 thru 3. but Court found error to be harmless.9. DEFENDANTWHO STIPULATES TO PRIORS ON CONDITION THEY NOTBE MENTIONED WAIVES ABILITY TO COMPLAIN THEY WERE NOTPROVEDBrvant v. State, 187 S.W.3d 397 (Tex.Crim.App.2005).ln this case, the defendant stipulated on the condition that the State not mention or offer evidenceof the priors. He then complained on appeal that the priors, elements in the case, were not proven.The Court held that by stipulating to two prior convictions for DWl, the defendant waived any rightto contesthe absence of proof on stipulated element in prosecution for felony DWI; he could notargue that the State failed to prove /fs case on an element to which he had stipulated.10. PROPER TO USE FEDERAL DWI CONVICTIONS FOR ENHANCEMENTBell v. State, 201 S.W.3d 708 (Tex.Crim.App., 2006).Defendant's two prior convictions in federal court, under federal Assimilative Crimes Act (ACA), fordriving while intoxicated (DWI) were properly used to enhance defendant's state conviction of DWIto third degree felony; federal convictions under ACA were convictions for offenses under Texaslaw.11. DATES OF PRIOR DWI'S ARE NOT ELEMENTS OF FELONY DWITietz v. State, 2008 WL372464 (Tex.App.-San Antonio 2008).The defendantried to attack the use of the underlying DWI's for enhancement by arguing that theenhancement law that was in effect at the time the priors were committed (ten year rule), asL1-4

opposed to the enhancement law in effect at the time of the primary offense (no ten year rule),should be applied. This argumentwas rejected and the court reiteratesthatthe exact dafes of priorconvictions used for enhancement are not elements of the primary DWI offense.See alsoVanderhorst v. State, 52 S.W.3d 237 (Tex.App.-Eastland 2001).In re State ex rel. Hilbiq, 985 S.W.2d 189 (Tex.App.-San Antonio 1998).LIMITS ON USE OF DWI PRIORS FOR ENHANCEMENT1. PRIOR FELONY DWI MAY BE USED TO ENHANCE FELONY UNDERPENAL CODE SECTION 12.42Maibauer v. State, 968 S.W.2d 502 (Tex.App.-Waco 1998, pet. ref'd).The State can use a prior felony DWI conviction under Penal CodeSecfion 12.42 for enhancementpurposes, provided that the prior conviction is not also used to elevate the alleged offense to afelony.2. SAME PRIOR CANNOT BE USED TWICERodriquez v. State, 31 S.W.3d 359 (Tex.App.-San Antonio 2000, pet. ref'd).Phillips v. State, 964 S.W.2d735 (Tex.App.-Waco 1998, pet. granted in part) 992 S.W.2d 491(Tex.Crim.App. 1999) 4 S.W.3d 122 (Tex.App.-Waco 1999).Rivera v. State, 957 S.W.2d 636 (Tex.App.-Corpus Christi 1997, pet. ref'd).The same prior DWI convictions may not be used both to enhance the underlying DWI charge andto prove habitual felony offender sfafus.3. WHAT IS NOT "USING A PRIOR TWICE''Perez v. State, 124 S.W.3d 214 (Tex.App.-Fort Worth 2002, no pet.).Orona v. State,52 S.W.3d242 (Tex.App.-El Paso 2001, no pet.).Carrollv. State, 51 S.W.3d797 (Tex.App.-Houston [1't Dist.] 2001, pet. ref'd).A misdemeanor DWI conviction uras used to elevate the DWI jurisdictionally to a Felony and theFelony DWI was enhanced with other Felony DWls to make the defendant an habitual offender.One of the Felony DWIs relied upon the same misdemeanor conviction described above. Defendantargued that constituted using the same prior twice. This argument was rejected by the Court whichheld that the State did not use the misdemeanor offense twice because it did not use it forpunishment enhancement purposes but rather only jurisdictional purposes. /f based this holding onthe factthat no independent proof of the misdemeanor's existence is required under 12.42(d) of theIexas Penal Code.1_ t_5

J. OPEN CONTAINER1. SUFFICIENT PROOF OFWalters v. State,757 S.W.2d 41 (Tex.App.-Houston [14th Dist.] 1988, no pet.).Half full can of beer found lodged between windshield and dash immediately in front of steeringwheel, defendant alone in car, no evidence that can smelled or tasted of alcohol = sufficient.Troff v. State, 882 S.W.2d 905 (Tex.App.-Houston [1st Dist.] 1gg4,pet. ref'd)Not required to prove defendant held beer while driving.2, EFFEGT OF IMPROPER READING OF OPEN CONTAINERENHANCEMENT IN GUILT INNOCENSE PHASEDoneburg v. State, 44 S.W.3d 651 (Tex.App.-Fort Worth 2001, pdr ref'd.).The State erroneously read the open container enhancemento the jury when it arraigned thedefendant at the beginning of trial. That this was a mistake is conceded by all. The Defenserequested that the "open container" paragraph be included as an element that the State had toprove in the guilt innocence jury instructions. This request was denied by the trial court and theCourt affirmed the conviction explaining thatwhen the State alleges evidentiary mattersthat are notnecessaryto be proved under Article 21.03 of the CCP, the allegations are considered surplusage.K. RE.OFFERING EVIDENCE FROM G/I PHASEBuchanan v. State, 911 S.W.2d 11(Tex.Crim.App. 1995).State need not "re-offer" evidence in the punishment phase that has previously been admitted inthe guilt or innocence phase of the trial.L. DEFECT IN WORDING OF JUDGMENT/PROBATION ORDER = BAD PRIOR1. YESMosoueda v. State, 936 S.W.2d714 (Tex.App.-Fort Worth 1996, no pet.).This was a felony DWI case where there was a defect in the paperwork supporting one of theunderlying misdemeanor DWI convictions. The order of probation contained the language "it istherefore considered, ordered, and adjudged, that the verdict and findinq of quilty herein shall notbe final. that no judoment be rendered thereon. and that the defendant be, and is hereby placed onprobation. lf you see fhe underlined wording on the probation order of your DWI prior, it violates42.01 of the Texas Code of Criminal Procedure in that ff does not show that the defendant wasIt6

"adjudged to be guilty"as is required. The result in this case u/as that the defendant was orderedacquitted.NOTE: IF YOU SPOT THIS PROBLEM EARLY YOU CAN PRIOBABLY SAVE THE PRIOR BYSEEK/NG A NUNC PRO TUNC ORDER FROM THE JUDGE OF THE COURT OUT OF WHICHTHE PRIOR I4IAS /SSUED.2.NOGonzales v. State,2010WL 1687773 (Tex.Crim.App. 2010).Williamson v. State,46 S.W.3d 463 (Tex.App.-Dallas 2001, no pet.).Rizo v. State, 963 S.W.2d 137 (Tex.App.-Eastland 1998, no pet.)3. NOT A PROBLEM FOR UNDERLYING PRIORSState v. Vasquez, 140 S.W.3d 758 (Tex.App.---Houston [14th Dist.] 2004, no pet.).State v. Duke, 59 S.W.3d 789 (Tex.App.-Fort Worth 2001, pet. ref'd).Thiswas a Sfafe's appealof an order setting aside an indictmentfor Felony DWl. The State reliedupon two Felony DWI priors to raise the new charge to a felony. The defense attacked the felonyenhancement pointing out that priors that had been relied upon to raise fhose cases fo a felony werefaulty. The specific problem with the underlying priors, both out of Dallas, was that the judgmentscontained language stating the priors "shall not be final." So rn a o'domino" theory, the defendantargues that if the underlying priors were infirm, then the resulting felony convictions used in theactual enhancement are infirm as well. The Court of Appeals, even granting that the underlyingpriors were not final, distingurshes fhis case from Mosqueda by holding that even if the underlyingDallas priors are void, there is no reason to say that the felony DWI's could not be reformed toreflect misdemeanor convictions for DWI and the status of the underlying priors beingmisdemeanors or felonies is immaterial. The trial Court's order setting asrde the indictment wasreversed.4. UNSIGNED JUDGMENT CAN BE USED TO PROVE ENHANCEMENTGallardo v. State,2010 WL 99011 (Tex.App.-Amarillo 2010) (Not designated for publication).The validity of a judgment of conviction and the ability fo use it to enhance a DWI to a felony is notaffected by the failure of the trial judge to sign the judgment. Court cited,Mulder v. State ,707 S.W .2d 908 (Tex.Crim.App. 1986).M. ERRONEOUS DISMISSAL OF PROBATION BY THE COURT WON'T AFFECTFINALITY OF THE CONVICTIONAnderson v. State, 110 S.W.3d 98 (Tex.App.-Dallas 2003, reh. overruled).Jordy v. State, 969 S.W.2d 528 (Tex.App.-Fort Worth 1998, no pet.).Mahaffev. State, 937 S.W.2d 51 (Tex.App.-Houston [1't Dist], 1996, no pet.).1-L]

The problem here was not with the face of the judgment but rather with a subsequent order by thesentencing court which rssued an order that discharged the defendant from probation, set aside theverdict, dr'smrssed the complaint, and released him from all penalties and disabilities resulting fromcommission of the offense. The defense argued such an order should prevent the State fromoffering said prior into evidence as a final conviction. The Court of Appeals rejects that argumentpointing out that said order was purportedly made under a section of the code that was at the timeof the order repealed. (The section referred to is now Article 42.12 Section 20 of the CCP whichthen, as now, does not apply to DWIcases.) Srnce the order was issued without authority to do sqits order is void and has no effect on the finality of the defendant's conviction.N. MANDATORY JAIL TIME AS CONDITION OF PROBATION-REPEATOFFENDERSState v. Lucero, 979 S.W.2d 400 (Tex.App.-Amarillo 1998, no pet.).Trial court erred when it probated defendant convicted of DWI who was proven to be a repeatoffender [49.09(a)] by not ordering a minimum of three days in jail as a condition of probation.O. IF YOU ALLEGE MORE PRIOR DWI'S THAN YOU NEED, MUST YOU PROVETHEM ALL?1. YESJimenez v. State, 981 S.W.2d 393 (Tex.App.-San Antonio 1998, pdr. ref'd).In this felony DWI case, the State alleged three prior DWI's in the charging instrument and then thecourt charged the jury that if it found any two of three to have been proved, it was sufficient. Courtheld that it was error in that the state, bv alleqinq three priors had increased its burden of proof andthus had to prove allthree priors. Error was found to be harmless rn fhis case.NOTE: ANOTHER CONTROVERSIAL OPINION THAT SEE,T/S TO DEFY LOGIC ANDPRECEDENT.2. NOBiederman v. State,724 S.W.2d 436 (Tex.App.-Eastland 1987, pet. ref'd).Read v. State, 955 S.W.2d 435 (Tex.App.-Fort Worth 1997, pet. ref'd)Wesley v. State, 997 S.W.2d 874 (Tex.App.-Waco 1999, no pet.).Washinqton v. State,350 S.W.2d924 (Tex.Crim.App. 1961)State may allege as many prior DWI's as it wants and still need not prove any more than two ofthem.118

P. PROOF THAT PRIOR DWI IS WITHIN 10 YEARS OF OFFENSE DATE1. ONLY ONE OF THE TWO PRIORS MUST BE WITHIN 10 YEARS(FOR DWr OFFENSES PR|OR TO 9-1-01)Smith v. State, 1 S.W.3d 261 (Tex.App.-Texarkana 1999, pet ref'd).Held that State need only prove that one of the defendant's two prior DWI convictions was for anoffense committed within 10 years of new offense date. The Court further admits it made a mistakein the dicta of its opinion in Renshaw v. State,987 S. W.2d 464 (Tex.App.-Texarkana 1998) . "TheState correctly points out that dicta in the Renshaw case is in error in stating that the State wouldhave to prove two prior DWI convictions within the same ten year period."2. PROOF OF 10 YEARS NOT NECESSARYSummers v. State, 172 S.W.3d 102 (Tex.App.-Texarkana 2005, no pet.).St.Clair v. State,101 S.W.3d737 (Tex.App.-Houston [1't Dist.] 2003, pet. ref'd).Weaver v. State, 87 S.W.3d 557 (Tex.Crim.App.20A\.Priors listed in enhancement paragraphs were too remote (no intervening conviction to bring it under10 year rule was alleged). /ssue raised is whether the State must present evidence of interveningconviction to the jury? ls 49.09 (e) an element of the offense of Felony DWI? Court of Appeals saidit is. Court of Criminal Appeals in this opinion says rtrs not an element and the State does not needto offer evidence of that conviction to the jury, but rather jusf needs to submit the proof to the trialcourt which it did in fhis case.Bower v. State, 77 S.W.3d 514 (Tex.App.-Houston [1"1 Dist.] 2002, pet ref'd).Ihis was a felony DWI trial where the Defendant stipulated to his prior DWI's and pled true to theenhancements. The enhancements did not contain the offense dates of the priors and no evidenceof the offense dafes was presented by the State during the guilUinnocence phase of the trial. Thedefendant argued fhis uras a failure of proof and cited Renshaw and Smith. This Court finds thatthe reasoning of those two opinions is wrong in that the accusation of two priors is all thatis needed to give the Court jurisdiction. lt distinguishes 12.42(d) from 49.09(b). It also points outthat if fhe Sfafe's priors were stale, the proper remedy would have been to move to quash theindictment, object to the admission of the priors, or ask for a lesser charge of misdemeanor DWl.While we wait for the Court of Criminal Appeals fo address fhis issue, it would seem prudentto go ahead and mention at least one of the offense dates in the body of our stipulations infelony DWI cases.1,1"9

3. THE 10 YEAR RULE FOR OFFENSES FROM 9.01.01 TO 8.31.05Getts v. State, 155 S.W.3d 153 (Tex.Crim.App.2005).Ihis case fel/s us how to apply the 2001 amendmento the DWI statute to the question of how tocalculate in prior DWI convictionsto bump the charge up to a felony under 49.09 of the Texas PenalCode. The Court holds that prior DWI convictions are available for enhancement so long as theyare within ten years of each other, calculating that time period by using fhe c/osesf possrb/e dafes,whether that be the offense date, date of sentencing, or date of release from sentence, includingprobation or parole.For example, if a defendant has a 2005 DWI arrest and his record includestwo priorsfrom 1987 and1993, this case should be filed as a felony DWI because the two prior DWlorTenses are within tenyears of each other-even though more than ten years time has lapsed since the priors and thecurrent offense.4. THE 10 YEAR RULE'S DEMISE DOES NOT VIOLATE EX POST FACTOLAWEffective September 1, 2005, the legislature repealed subsections (d) and (e) of Section 49.09 ofthe Texas Penal Code. This means that there are no age limitations on the use of DWI priors toenhance fo C/ass A or Felony DWls.Crocker v. State, 260 S.W.3d 589 (Tex.App.-Tyler 2008, no pet.).This appeal was based on the argument that the statute that did away with the ten year rule wasa violation of the ex posf facto law. ln rejecting that argument that court held that the previousversion of the law that restricted the use of priors was "not an explicit guarantee that thoseconvictions could not be used in the future, but only a restriction on what prior convictions could beused to enhance an offense at that time." As a resu/t, changing fhe sfafufe did not increasedefendant's punishnlent for his prior conviction and did not violate his right of protection against expost facto laws.O. JUDGE MAY NOT TERMINATE OR SET ASIDE DWI PROBATION EARLYln re State of Texas Ex Rel. Steve C. Hilbio, 985 S.W.2d 189 (Tex.App.-San Antonio, 1998, nopet.).Judge had no authority to terminate and set aside felony DWI probations early - writ of prohibitiongranted by the Court of Appeals.L20

R. INTRODUCEDJUDGMENTANDSENTENCEPRESUMEDPROPER1. NO WAIVER OF RIGHT TO JURY TRIALBattle v. State, 989 S.W.2d 840 (Tex.App.-Texarkana 1999, no pet.).Where State introduced copies of judgments which were silent as to waiver of a jury trial, the Courtheld that the priors were properly admitted as fhe '?egularity of the conviction was presumedunless...(the defendant) affirmatively showed that he did not waive his right to a jury trial.2. IN THE ABSENCE OF JUVENILE TRANSFER ORDERJohnson v. State ,725 S.W .2d 245 (Tex.Crim.App. 1987).State offered a proper judgment and sentence and defendant challenged the lack of documentationof a proper transfer from juvenile giving district court jurisdiction. The defendant fails to offer anyevidence that there was no transfer. The Court spe//s out the rule as regards priors as follows:"Once the State properly introduced a judgment and sentence and identifies appellant with them,we must presume regularity in the judgments. The burden then shifts to the defendant, who mustmake an affirmative showing of any defect in the judgment, whether that be to show no waiver ofindictment or no transfer order."S. PROBATE DWI CONVICTIONS UNDER 6701L MAY BE USED TO ENHANCENEW DWI OFFENSESEx Parte Serrato, 3 S.W.3d 41 (Tex.Crim.App.1999).The Court points out that the relevant penalty enhancement provision [49.09(b)] provides: whenit is shown on the trial of an offense under Secfion 49.04 that the person has previously beenconvicted two times of an offense relating to the "operating of a motor vehicle whileintoxicated," the offense is a felony of the third degree. 49.09(c) specifically defines the term"offense relating tothe operating of a motorvehicle"to include an offense underArticle 6701/-1Revised Sfatutes, as that law existed before September 1 , 1994. 6701lsfafed; "For purposes of fhisarticle, a conviction for an offense that occurs on or after January'1, 1984, is a final conviction,whether or not the sentence for the conviction is probated." So, by incorporating the prior DWIstatute, as that law existed before enactment of the new statute, the Legislature declared its intentto continue the status quo, which included permitting probated DWI convictions for enhancementif the offense occurred after January 1, 1984.T. MISDEMEANOR PRIORS ARE VALID WHEN DEFENDANT WAIVES JURYWITHOUT AN ATTORNEYRedfearn v. State, 26 S.W.3d 729 (Tex.App.-Fort Worth 2000, no pet.).Defendanttried to quash enhancement paragraphs because he had not been appointed an attorneyprior to waiving the right to a jury. Court points out that under 1.13(c) of Texas Code of CriminalL2I

Procedure that right applies only to felony pleas.See A/so Moore v. State. 976 S. W.2d 696 (Tex.App.-Beaumont 1996, no pet.).U. DWI SENTENCE MUST INCLUDE JAIL TIMEState v. Maqee, 29 S.W.3d 639 (Tex.App.-Houston [1"tDist.] 2000, pet ref'd).Judgment reversed where judge sentence defendant charged with first offense DWI to pay a $250fine with no confinement in jail. Statute clearly requires a minimum 72 hours confinement in jail.V. ILLEGAL SENTENC ENFORCEABLE IF DEFENDANT ASKED FOR IT ORAGREED TO ITMapes v. State, 187 S.W.3d 655 (Tex.App.-Houston [14th Dist.] 2006, pdr filed).Srnce defendant had enjoyed the benefit of a /esser sentence under his prior conviction pursuantto plea agreement, he was estopped from asserting on appealthat because one of his prior drivingwhile intoxicated (DWI) convictions was void for imposition of a sentence that was less than theminimum sentence required under the statutory range, the Trial Court was precluded from findingdefendant guiw of current felony DWI charges.Ex Parte Shoe, 137 S.W.3d 100 (Tex.App.-Fort Worth January 15,2004), rehearing overruled(Mar 18, 2004), petition for discretionary review granted (Nov 10, 2004), petition for discretionaryreview dismissed (Oct 10,2007).Though the defendant's plea bargain which sentenced him to jail but did nof assess any fine wasillegal, he could not later complain about a sentence that he requested, accepted the benefit fromwhen he entered in the plea agreemenl.W. EXPUNCTION WILL NOT ALWAYS RENDER UNDERLYING FACTS OF CASEINADMISSIBLEPUNISHMENT PHASEDotv v. State, 2005 WL 1240697 (Tex.App.-Austin May 26,2005)(mem.op., Not designated forpublication), pet. dism'd, improvidently granted, No. PD-1159-05, 2007 WL 841112(Tex. Crim.App.2007X Not designated for publication).ln the punishment phase of an Intoxication Manslaughter case, the evidence of Defendant's baddriving, appearance, admission of drinking, and result of FSIs was held to be admissible. ThattheDefendant was arrested was held to be inadmissible. This was the case even though the DWI casein question resulted in an acquittal and the case u/as expunged. The officer said ttis testimony wasbased on his memory and not on the records.122

X. FELONY DWI CAN BE THE UNDERLYING FELONY IN A "FELONY MURDER''CHARGE'Jonesv. State, 2008 WL 2579897 (Tex.App.-Houston [14 Dist.] 2008, pdr filed).In upholdingthisfelony murder conviction, the court rejected all of the defendanf'spornfs. The Courtfound that the underlying DWI was properly considered as a felony, that there was no need to allegea culpable mentalsfafe, and that felony murder and intoxication manslaughter were not in parimateria.Mendoza v. State, 2006 WL 2328508 (Tex.App.-El Paso, 2006, pdr ref'd) (not designated forpublication).ln affirming this felony murder conviction, the Court held that since felony DWI is not a |esserincludedoffense of manslaughter, felony DWI may be the underlying felony for the offense of felonymurder. lt further held that when felony DWI is the underlying felony, the State is not required toprove a culpable mentalsfafe as felony DWI requires no such proof.Strickland v. State,193 S.W.3d 662 (Tex.Ap.-Fort Worth 2006, pdr ref'd).Ihis case involved an offender who in the course of committing a felony DWI drove the wrong waydown a highway and crashed into an oncoming vehicle, killing the front seaf passenger. Thedefense argued that the proper charge was "intoxication manslaughter" and that the State wasbarred from proceeding by the doctrine of "pari materia." ln rejecting that argument, the Court ofAppeals found that the felony murder statute and intoxication manslaughterequired differentelements of proof. Penalties for felony murder and intoxication manslaughter were different;although both statutes seryed general purpose of imposing criminal responsibility for death andpreventing homicide, their objectives were nof so closely related as to justify interpreting sfafufestogether, and statutes were not enacted with common purpose.Lomax v. State, 233 S.W.3d 302 (Tex.Crim.App.2007), habeas relief denied,2008 WL 5085653(Tex.App.-Houston [14th Dist.] 2008, pet. ref'd).Ihis case involved an offender who in the course of commifting felony DWI was speeding, weavingin and out of traffic, tail-gating and engaging in aggressive driving which resulted in a crash and adeath. The defense raised a number of arguments against the state's decision to charge thedefendantwithfelonymurder. Therssuesrarsedwere:theindictmentfailedtoallegeamentalstate,that felony driving while intoxicated merges with felony murder, insufficient evidence he committedan "act clearly dangerous to human life,"-all of which were rejected by the Court of CriminalAppeals.1,23

Hollin v. State,227 S.W.3d 117 (Tex.App.-Houston [1" Dist.] 2006, pet. ref'd).Ihis case involved a charge of fetony murder where the underlying felony was a felony DWl. Thefelony murder and intoxication manslaughter sfafufes were not in pari materia, and accordingly,defendant's conduct, namely killing someone with his vehicle while he was driving under theinfluence, was not exclusively governed by the offense of intoxication manslaughter, and thereforeit was within Sfafeb discretion to charge defendant with felony murder; penalties for felony murderand intoxication manslaughter were different, the two statutes were not contained in the sameIegislative acts, intoxication manslaughter and felony murder did not require same elements of proof,and the sfafufes were not intended to achieve same purpose.Y. DWI WCHILD CAN BE THE UNDERLYING FELONY IN A FELONY MURDERCHARGEBioon v. State, 252 S.W.3d 360 (Tex.Crim.App.2008).The defendantwas convicted of felony murder, intoxication manslaughter and manslaughter. TheCourt drsmissed the intoxication manslaughter and manslaughter as it found they were the sameas the felony murder for double jeopardy purposes. The Court rejects the argumenthat the chargecould not stand because fhe Sfafe failed to allege or prove a mentalsfafe. lt further rejected theargumenthat the act clearly dangerous was not done in furtherance of the underlying felony of DWIw/Child. Court of Criminal Appeals affirmed.Z. INVOLUNTARY MANSLAUGHTER PRIOR MAY NOT BE USED TO ENHANCE ADWI TO A FELONYEx Parte Roemer, 215 S.W.3d 887 (Tex.Crim.App.,2007).Defendant's prior conviction for involuntary manstaughter which was an "offense relating to theoperating of a motor vehicle while intoxicated," could be used to enhance his offense of driving whileintoxicated (DWI) from a C/ass B misdemeanorto a C/assA misdemeanor, but could not, by itself,be used to enhance his DWI offense to a felony; to raise DWI to a felony. The statute requiredeither a prior conviction for intoxication manslaughter, not involuntary manslaughter as was usedin this case. Louviere v. State abrogated by this opinion.XXV. COLLATERAL ESTOPPEL/DOUBLE JEOPARDYA. JUSTICE COURT FINDINGSState v. Groves, 837 S.W.2d 103 (Tex.Crim.App. 1992).Justice court finding that police did not have probable cause fo sfop vehicle will not have estoppeleffect on sfafe's subseguent DWI prosecution.1-24

B. PROBATION REVOCATION HEARINGSFuentes v. State, 880 S.W.2d 857 (Tex.App.- Amarillo 1gg4, pet. ref'd).Ex Parte Weaver, 880 S.W.2d 855 (Tex.App.-Fort Worth 1994, no pet.).Where new DWI is alteged in petition to revoke but waived prior to revocation hearing there is nocollateral estoppel when court does not find sufficient evidence to revoke.NOTE: HAD IT NOT BEEN WAIVED AND A NEGATIVE FINDING BEEN ENTERED AS TO DWIALLEGATIONlN THE PETITION THATWOULD PRECLUDE FURTHERPROSECUTION OF THEDWI CHARGE UNDER EX PARTE TARVER , 725 S.W .2d 195 (TEX. CR|M. APP. 1986).C. ALR HEARINGS_NO DOUBLE JEOPARDY1. ALR SUSPENSIONS BASED ON BREATH TESTSEx Parte Tharp, 935 S.W.2d 157 (Tex.Crim.App. 1996).In this case there was an ALR license suspension based on the defendant's having a breath testresult of .10 or greater. Court held that there was no double jeopardy as the ALR disposition did notconstitute "pu n i sh me nt. "2. ALR SUSPENSIONS BASED ON BREATH TEST REFUSALSEx Parte Anthonv, 931 S.W.zd 664 (Tex.App.-Dallas, 1996 pet. ref'd).Ex Parte Williamson , 924 S.W.2d 414 (Tex.App.-San Antonio 1996, pet. ref'd).Ex Parte Vasquez, 918 S.W.2d 73 (Tex.App.-Fort Worth 1996, pet ref'd).When the ALR suspension rs based on a breath test refusal, the "same elements" Blockburqer testis not mef so there is no double jeopardy. The Court found the elementhat differs was that in theALR suspension hearing, it must be proven that the defendant had an opportunity to and refusedto submit to a breath test.Johnson v. State, 920 S.W.2d 692 (Tex.App.-Houston [1st Dist] 1996, pet. ref'd).Court found no double jeopardy. Ihis case involved a refusalto give a breath sample and the Courtfound that the Blockburqer "same elements fesf" was not met.Ex Parte Pee, 926 S.W.2d 615 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd).DWI is nof a /esser included offense of having license suspended.L25

D. ALR HEARINGS: NO COLLATERAL ESTOPPELRevnolds v. State, 4 S.W.3d 13 (Tex.Crim.App.1999).Ex Parte Dunlap, 963 S.W.2d 954 (Tex.App.-Fort Worth 1998, no pet.).State v. Anderson,974 S.W.2d 193 (Tex.App.-San Antonio 1998, no pet.).Ex Parte Richards, 968 S.W.2d 567 (Tex.App.-Corpus Christi 1998, pet. ref'd).Adopts the holding and logic of Brabson as precedent. Ihrs case, unlike Brabson, did involve ahearing under the new "ALR" statute.State v. Brabson, 966 S.W.2d 493(Tex.Crim.App.1998).Based upon a finding that the district attorney and DPS are not the same parties for administrativecollateral estoppel, the Court found that collateral estoppel did not preclude the district attorneyfrom litigating fhe rssue of probable cause after the administrative judge found that there was noprobable cause for the sfop. (Nofe; fhis was not a hearing under the new ALR statute.)Ex Parte Serna, 957 S.W.2d 598 (Tex.App.-Fort Worth1997, pet. ref'd).(After granting fhe sfafeb motion for rehearing en banc, the courtwithdrew its May 8, 1997, opinionand judgment in which it held that collateral estoppel did prevent the State from attempting to provea breath test that had previously been excluded during an ALR hearing and held as follows.) TheSfafe rs nof barred by "collateralestoppel"from relitigating the rssue of the admissibility of the breathtest. "The legislature did not intend that a decision made in a civil, administrative, remediallicensesuspension hearing could be used to bar the State from prosecuting drunk drivers."Ex Parte Elizabeth Avers, 921 S.W.2d 438 (Tex.App.-Houston [1st Dist] 1996, no pet.).Judge at ALR hearings made finding of fact that there was no reasonable suspicion to support thestop of the defendant. ln holding that there was no collateral estoppel, the court reasoned thatprobable cause determinationsALR hearings are made on the basr's of the information availableat the time of the arrest and do not consider facfs coming to light after the arrest, including the factthat accused refused to give a specimen. Therefore there can be no issue preclusion. Court reliedheavily on the Neayes opinion.Holmberg v. State, 931 S.W.2d 3(Tex.App.-Houston [1st Dist.] 1996, pet. ref'd).Same holding as in the Ayers case cited above. The defense argument was that the court's relianceon Neaves as a precedent was misplaced as the new license revocation process, unlike the old one,provides for a full and fair hearing. In rejecting that argument, the court points out that the holdingin Neaves was not dependent on the procedure, but rather on the fact that the "ultimateissue(s) ofultimate fact are, nevertheless different" between the two proceedings.126

Ex Parte McFall, 939 S.W.2d 799 (Tex.App.-Fort Worth 1997, no pet.).Even though at an ALR hearing the judge found that DPS did not prove by a preponderance of theevidence that there was a reasonable suspicion fo sfop the defendant and denied the petition tosuspend her license, this did not bar the State on double jeopardy or collateral estoppel groundsfrom subsequently prosecuting the defendant for DWl.Church v. State,942S.W.2d 139 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd).ALR judge's finding that DPS did not prove defendant was operating a motor vehicle and denial ofmotion to suspend license did not bar prosecution of DWI based on collateral estoppel.Todd v. State, 956 S.W.2d777 (Tex.App.-Waco 1997, pet. ref'd).Administrative law judge's determination of "no probable cause" in license suspensrbn proceedingdid not collaterally esfop trial court from relitigating probable cause issue rn criminal proceeding.Primary basis for ruling was that license suspension was not "punishment."E. NO DOUBLE JEOPARDY BAR TO PROSECUTING DEFENDANT FOR BOTH1. DWI & DWLSState v. Rios, 861 S.W.2d 42 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd).A defendant can be prosecuted for both DWLS and DWI when they arise from the same criminalepisode without violating the rule against double jeopardy.2. DWI & FSRAState v. Marshall,814 S.W.2d 789 (Tex.App.-Dallas 1991) pet. ref'd).A defendant can be prosecuted for both FSRA and DWI when they arise from the same criminalepisode without violating the rule against double jeopardy.3. FELONY DWI & INTOXICATION ASSAULTRowe v. State,2004 WL 1050693 (Tex.App.-Dallas 2004, pet. ref'd) (Not designated forpublication).Under the Blockburger test, defendant's claim of double jeopardy fails. Intoxication assault differsfrom felony DWI in that it requires a showing that defendant caused serious bodily injury to another.Felony DWI differs from intoxication assault in that it requires proof of two prior DWI convictions.1-27

4. DWI & CHILD ENDANGERMENTBaqbv v. State,2OOT WL 704931 (Tex.App.-Fort Worth 2007, no pet.) (not designated forpublication).ln determining there was no double jeopardy violation in prosecuting this defendant with both DWIand Endangering a Child, the Courtfound thatthe child endangerment charge permifted convictionunder multiple theories that were not present in the driving while intoxicated charge. After applyingthe Blockburger test, the Court held that each charging instrument requires proof of an additionalelement that the other does not. Therefore, there has been no double jeopardy violation.Ex Parte Walters. 2006 WL 1281076 (Tex.App.-Fort Worth 2006) (not designated forpublication)(pet. ref'd. ).Because the offense of driving while intoxicated requires proof of an additional elemenf -tciJ1 gpublic place" that the offense of endangering a child does not, it is not a /esser included offense ofendangering a child, and the two offenses are not the same for double jeopardy purposes.State v. Guzman, 182 S.W.3d 389 (Tex.App.-Austin 2005).Prosecution for child endangermenthat was based on allegation that defendant drove whileintoxicated with child under age 15 aspassengerwas not barred by prohibition against doublejeopardy after defendant pled guilty to DWl. DWI did not require proof that defendant intentionally,knowingly, recklessly, or with criminal negligence placed child in imminent danger of death, injuryor physicalor mental impairment.F. OCCUPATIONALDRIVER'SLICENSE/ALRSUSPENSIONSState Ex Rel. Gilfeather, 937 S.W.2d 46 (Tex.App.-Fort Worth 1996, no pet.).County criminal court, which had no civil jurisdiction, had no authority to grant an occupationaldriver's license to a defendant when the defendant had not been convicted of the DWI case fromwhich the suspension arose and case was still pending in that court.G. NO CONFLICT BETWEEN "DUI'' AND "DV\|I'' STATUTEFindlav. State, I S.W.3d 397 (Tex.App.-Houston [14tn Dist.] 1999, no pet.).There is no conflict between the DWI and DUlsfafufes and it was proper for the Sfafe fo opt toprosecute under the DWI statute rather than the DUI statute even though defendant was under 21years of age.L28

H. NO CONVICTION FOR BOTH INTOXICATION ASSAULT AND AGGRAVATEDASSAULT SBIBurke v. State, 6 S.W.2d 312 (Tex.App.-Fort Worth 1999) vacated and remanded by 28 S.W.3d545 (Tex.Crim.App. 2000) opinion withdrawn and substitute opinion submitted 80 S.W.3d 82(Tex.App.-Fort Worth 2002).Defendant was convicted upon a plea of guilty to both Aggravated Assault SBI and lntoxicationAssau/f. The Court of Appeals found that double jeopardy barred convictions in both cases andvacated the Aggravated Assault conviction finding that lntoxication Assault and Aggravated Assaultwere in "pari materia" so both convictions could not stand and further finding that lntoxicationAssau/f being the more specific provision, would control. [The doctrine of "Pari Materia" states thatwhen a general provision conflicts with a specific provision, the provisions shou/d be construed, ifpossib/e, so that effect is given to both and if they cannot be reconciled, the specific controls.l (6S.W.3d 312, Tex.App.-Fort Worth 1999).The Court of Criminal Appeals found that provisions were not "pari materia" and that neither wascontrolling over the other. The Court did not disturb the holding that double jeopardy barredconvictions under both charges. Ihe Sfafe had discretion as to which offense to prosecufe. Casewas remanded back to Court of Appeals. [28 S.W.3d 545 (Tex.Crim.App.2000)].Upon remand, the Court of Appeals maintained thatthe Intoxication Assaultconviction should standand the Aggravated Assault conviction should be reversed by finding that the plea in the AggravatedAssau/f case was involuntary, remanding it for a new trial. /80 S. W.3d 82 (Tex.App.-Fort Worth2002)1. The Court found that the issues of double jeopardy would not properly be before ft unlessor until the State chose to re-try the Defendant on the Aggravated Assault SBI charge.I. EFFECT OF LOSING ONE BT THEORY AT FIRST TRIAL ON SUBSEQUENTTRIALEx Parte Crenshaw, 25 S.W.3d761(Tex.App.-Houston [1$ Dist.] 2000, pet. ref'd).Where Court held Bf resu/fs were inadmissible in the course of jury trial and then granted a mistrial.State could retry defendant for DWI and could rely on fhe loss of faculties theory but could not relyon the 0.10 alcohol concentration theory.J. COLLATERAL ESTOPPEL BARS INTOXICATION MANSLAUGHTER TRIAL ONDIFFERENT INTOXICANTEx Parte Tavlor, 101 S.W.3d 434 (Tex.Crim.App.2002).After being acquitted of lntoxication Manslaughter where the theory of intoxication alleged wasalcohol, the State tried to proceed on another case, different victim, and now adding marijuana asa possrb/e source of intoxication. Collateral Estoppel barred State from relitigating ultimate rssueof intoxication, regardless of whefher Sfate alleged differentype of intoxicant.t29

K. NO DOUBLE JEOPARDY WHERE FAULTY UNDERLYING DWI PRIORALLEGATION DENIES COURT JURISDICTIONGallemore v. State, 2Q10 WL 1509775 (Tex.App.-Fort Worth 2010) (Not designated forpublication).After an open plea of guilty to felony DWI and at a later punishment hearing, the defense pointedout that one of the underlying DWI's that was alleged to make the charge a felony was a subsequentnot a previous conviction. The defense asked to be sentenced for the misdemeanor DWI. TheCourt instead granted a mistrial after stating it had no jurisdiction in the case. The State then reindictedand replaced the defective prior with a good one. The defense filed a writ stating thatdouble jeopardy had attached in the former proceeding. The Court of Appeals held that doublejeopardy principles do not forbid multiple trials of a single criminal charge if the first trial resulted ina mistrial that (1) was justified under the manifesf necessify doctrine; or (2) was requested orconsented to by the defense, absent prosecutorial misconduct which forced the mistrial. Ihis casefell under "manifest necessity" because the trial court did not have jurisdiction.XXVI. PUTTING DEFENDANT BEHIND THE WHEELA. DEFENDANT STATEMENT THAT HE WAS DRIVER = SUFFICIENTLYCORROBORATEDNieschwietz v. State, 2006 WL 1684739 (Tex.App.-San Antonio 2006, pet. ref'd).In this case, the defendant challenged the sufficiency of the evidence to establish that he wasdrivinq on a public highway while intoxicated, because his extrajudicial confessrbn on the videotape(that he was making aturn when the other car hit him) was not corroborated by other evidence. TheCourt found that the defendant's admission in the videotape that he was driving the vehicle wassufficiently corroborated by his presence at the scene, the vehicle insurance documents listing himas owner of the vehicle, and the officer's opinion based on his investigation that defendant was thedriver.Frye v. State ,2004 WL 292660 (Tex.App.-Dallas 2004, no pet.) (Not designated for publication).Trooper who was dispatched fo scene of accident saw defendant leaning against bed of pickuptruck. Asked if he was okay, the defendant replied he was "going too fast to negotiate the cornerand he wrecked the vehicle." He did not say how long he had been at the scene. He appearedintoxicated and admitted to having had some beers while he was fishing earlier that day. No fishingequipment was observed in the vehicle. Court found that the officer's testimony and the stationhouse video provided sufficient corroboration of his statement he was driving.Youens v. State, 988 S.W.2d 404 (Tex.App.-Houston [1"tDist.] 1999, no pet.).Where defendant uras seafed in truck with engine running, his statement at the scene that he wasdriving the truck when the accident happened and further statementhat 20 to 25 minutes hadelapsed since the accident occurred provided sufficient basrs for jury to find defendant was drivingwhile intoxicated.IJU

Walker v. State, 701 S.W.2d 2 (Tex.App.-Corpus Christi 1985, pet. ref'd).Statement by defendantto officer at accident site that he was driver sufficient evidence to prove hewas driver.Bucek v. State ,724 S.W.2d 129 (Tex.App.-Fort Worth 1987, no pet.).Defendant'statementthat he wasthe driver may be sufficientwhen other corroborating evidenceis available.Folk v. State , 797 S.W ,2d 141 (Tex.App.-Austin 1990, pet. ref'd).Provided there is other evidence that a "crime was commin"a" tn" identification of the defendantas the perpetrator (i.e., statementhat he was drivef may rest alone upon his confession. ln anyevent, proof that car was registered to person defendant lived with = sufficient corroboration.B. SUFFICIENTCORROBORATIONOF'DRIVING/OPERATING''Ledet v. State, 2009 WL 2050753 (Tex.App.-Houston[1" Dist.] 2009) (Not designated forpublication).Police dispatchereceived approximately 15 reports of a disabled car blocking fwo lanes of trafficon the freeway. When officer arrived at the scene around 6:00 a.m., he saw that the car wasperpendicular to the flow of traffic, blocking two of the freeway's four lanes, located approximatelya quarter mile ftom the nearest freeway exit ramp and 200 to 300 yards from the nearest freewayentrance ramp. Defendant was unconscious and sifting in the driver's seat, which was in the "laidbackposition." The car's engine was running, the transmssion was in the "park" gear, and thedriver's window was down. Defendant smelled of alcohol and eventually woke up after officeradministered two "sternum rubs." Defendant refused to take field-sobriefy fesfs, and admitted oncross-exa/nination he had no idea how long the car had been stopped on the freeway, whether hehad driven the car, or if anotherpassenger had been in the car before he arrived atthe scene.Court held evidence was sufficient and cites to other cases that remind us that "reasonablehypothesis" standard is gone.Villa v. State, 2009 WL 2431511 (Tex.App.-Amarillo 2009, pet. ref'd).Defendant's vehicle was found parked in the landscaped area of the apartment complex withheadlights on, engine running and defendant sitting behind the wheel with his head resting againstthe steering wheel. Defendant argues that his vehicle was in park and that no one saw him start,shift, or otherwise operate the vehicle. The Court rejected this argument pointing out that eventhough there was no direct evidence to show defendant drove the car to its resting place, there waslegally and factually sufficient circumstantial evidence that he did so.1-3 1

Watson v. State, 2008 WL 5401497 (Tex.App.-Fort Worth 2008, pet. filed).ln this case a taxicab driver testified that he observed a vehicle driving erratically on the date inquestion and reported the incident to the police. An officer in the vicinity testified that he found avehicle matching the description given by the taxi driver stopped on a grassy median with thedefendant slouched over in the driver's seat with the lights on and engine running. Citing the Dentoncase, the Court sfafed that it rejected the contention that to operate a vehicle within the meaningof the statute, the driver's personal effort must cause the automobile to either move or not move.Purposely causing or restraining actual movement is not the only definition of "operating" a motorvehicle. ln this case there was sufficient proof of "operating" a motor vehicle.Dornbusch v. State, 262 S.W.3d 432 (Tex.App.-Fort Worth 2008, no pet.).Where defendant's vehicle was found in back of restaurant parking lot with headlights on, enginerunning, radio playing loudly, and defendantwas sitting in driver's seat either asleep or passed out,and there was testimony indicating that vehicle was not in park and that the only thing keepingvehicle from moving was the curb - then that was sufficient evidence that he was "operating" hismotor vehicle.Vasquez v. State,2007 WL2417373 (Tex.App.-Corpus Christi 2007, no pet.).Officer found defendant asleep in the driver's seat of his vehicle with the engine running, the gearin "park," and the headlights on. The vehicle was situated in the center of two eastbound lanes ona public roadway. After officer approached the vehicle, he proceeded to open the driver's side door,and as he leaned inside the car to turn off the engine, he noticed a strong odor of alcohol ondefendant's breath and person. Appellantwas unresponsive atfirst but ultimately woke up and wasdetermined to be intoxicated. Evidence held to be sufficient proof of operating.Carteqena v. State , 2A06 WL 278404 (Tex.App.-Houston [14th Dist.] 2006) (Not designated forpublication).Case where officer first spotted defendant's vehicle parked on the shoulder of the roadway anddefendant standing next to it urinating. Driver's seaf was empty and his wife was in the frontpassenger seat. Held that his statementhat he was driving was sufficiently corroborated.Farmer v. State,2006 WL 3844169 (Tex.App.-Fort Worth Dec 28, 2006, pet.ref'd).Officer noticed a car on the shoulder that had its hazard lights on. He testified that a femaleappeared to be changing a flat tire. He and another trooper stopped fo see if the female neededassrsfanceandnoticedsheappearedtobeintoxicated. Inattackingthesufficiencyoftheproofthatthe defendant operated her vehicle, she points to the fact that there was no evidence that the car'sengine was running or had been running before the troopers approached the car, that neithertrooper testified that the vehicle's hood or engine compartment was warm, that there was noevidence to show how long the car had been parked in the access road before the troopers saw it,that the state failed to offer any evidence that she was the owner of the car, that no urifnessesL32

testified that they saw her operate the car, and that there was no evidence to link her physical sfafeat the scene of the arresto her physical state at the time of the alleged driving. The defendant hadtold the officers she was on her way home from Denton. This statement was sufficient corroboratedby the evidence that the troopers had stopped to help the defendant about ten miles outside ofDenton. The defendant's car, with the flat tire, was in the middle of the lnterstate seruice road. Thetroopers noted that the defendant's hazard lights were flashing and that the keys were in the ignition.Although the troopers remained at the scene for an ertended period of time, no one besidesdefendant approached the car. The Court held that this evidence sufficiently corroborated thedefendant's extrajudicial admission that she was on her way home from Denton and was thereforeoperating a motor vehicle.Younq v. State, 2005 WL 1654763 (Tex.App.-Fort Worth 2005) (Not designated for publication).Defendant's extra judicial statementsthat he consumed sixto eightbeers, that he drove the vehicleon the freeway and lost control were sufficiently corroborated by testimony he was found nert b thevehicle, parked on shoulder of roadway, facing wrong direction, smelled of alcohol, and failed orrefused various sobriefy fesfs.Claiborne v. State, 2005 WL 2100458 (Tex.App.-Fort Worth, 2005) (Not designated forpublication).Mfnesses saw appellant's car being driven erratically. One witness saw appellant walking awayfrom the driver's side door minutes after he saw the car being driven. Additionally, appellant walkedawayfrom police officers and into a grocery store afterthe police called outto him. Afterthe officersfound appellant, he led them to the car that witnesses had seen driving erratically. Under fhesefacts, the Court held that there was sufficient proof that the defendant "operated" a motor vehicle.Newell v. State, 2005 WL 2838539, (Tex.App.- Fort Worth, 2005, no pet.) (not designated forpublication).At 3:05 a.m., police officersfoun defendant asleep in the driver's seat of hisvehicle with the enginerunning, the gear in "park," the headlights on, and his foot on the brake pedal. The car was on theshoulder of the l-20 ramp directly over the southbound lanes of Great Southwest Parkway, an areawhere it is generally unsafe to park. Upon awakening the defendant, it was determined he wasintoxicated. Defendant claimed that there was insufficient proof of operating the vehicle becauseno witness saw defendant drive the vehicle to the location or knew how long he had been parkedthere, how long he had been intoxicated, or if anyone e/se had driven the car. Court of Appeals heldevidence was sufficient. The Texas Court of Criminal Appeals has held that "ftl to find operationunder [the DWI] standard, the totality of the circumstances musf demonstrate that the defendanttook action to affect the functioning of [the] vehicle in a manner thatwould enable the vehicle's use."Although driving always involves operation of a vehicle, operation of a vehicle does not necessarilyalways involve driving.133

Peters v. Texas Department of Public Safetv, 2005 WL 3007783 (Tex.App.-Dallas 2005, nopet.)(Not designated for publication).Suspecfound asleep in driver's seat of a car parked in a field near highway frontage road (recorddoes not speak to whether car was running). It took several attempts to wake suspecf who wasobserved to have bloodshot eyes, slurred speech, and odor of alcohol. Officer noted there wasdamage to front end of car. Defendant admitted he had been drinking all night. Refused to do FSIsand refused to give breath sample. The above was held to be sufficient probable cause to arrestsuspecf for DWl.Benedict v. State, 2004 WL 2108837, (Tex.App.-Fort Worth, 2004).Citizen called dispatch regarding susplcious vehicle parked in roadway for almost two hours withits lights on. The vehicle was stopped in the roadway with its keys in the ignition and in drive. Thetwo front tires were on rims. When officer arrived, he observed that the car was in a lane of trafficup against an island median, the engine was running, the car was in gear, the headlights were on,and appellant's foot was on the brake. The officer testified that damage she observed on the car'swheels uras consrsfent with the wheels scraping the curb, and it appeared the car had been drivenon its rims. Court found evidence was sufficient on issue of operating. ln response fo the argumentthat the car's mechanical condition prevented its being driven, the Court held that the State did nothave to prove that appellant drove or operated a fully-functional car.Yokom v. State, 2004 WL 742888 (Tex.App.-Fort Worth 2004, pdr ref'd) (Not designated forpublication).On the issue of whetherthe State proved "operating." The officerfound the defendant in his parkedvehicle with motor running and slumped over the wheel of the car. He also found him to beintoxicated and the defendant admitted to consuming alcohol earlier. There were no opencontainers in the car. The court held that regardless of whether the defendant operated his truckin the officer's presence, a rational trier of fact could have found beyond a reasonable doubt that heoperated his truck prior to the officer's arrival and that he was intoxicated when he did so.Freeman v. State, 69 S.W.3d 374 (Tex.App.-Dallas 2002).Officer found defendant in her Ford Explorer with its right front tire against a curb, its motor running,the gear in the "drive" position, and its lights on. He tried to rouse fhe sleeping woman in the driver'sseat, but she did not respond at first. Ultimately, he woke her up and arrested her for DWl. TheCourtfound thatthe circumstantial evidence indicated thatthe defendant, while intoxicated, exertedpersonal effort upon her vehicle by causing the motor to be running, the lights to be on, and byshifting the gear to drive. Further, as the result of her effort, the vehicle's wheel rested against thecurb of a public street. Conviction affirmed.Hearne v. State, 80 S.W.3d 677 (Tex.App.-Houston [1't Dist.] 2002, no pet.).Defendant's truck was parked in a moving lane of traffic on a service road. His head was restingon one hand and leaning againsthe driver's side window. The other hand was near his waist. TheL34

engine was running; gearshift was in park. He was not touching the accelerator or brake pedals.The officer did nof see the defendant exert any action to attempto control the truck. Court held thatthere was sufficient proof of "operating" citing Denton and Barton.Chaloupkd v. State,20 S.W.3d 172 (Tex.App.-Texarkana, April 18, 2000, pet ref'd),The followingfactswere held to be sufficient underthe NewPosf-Geesa "legal sufficiency" standard.Two witnesses obseryed defendant driving erratically-at one point driving into adjoining lane andhitting another vehicle and then continuing to drive off at a high rate of speed. One witness got thelicense number of the defendant's vehicle. Police with aid of license number and notice thatdefendant was in a rest area found defendant in rest area. A witness at rest area noticed defendantget out of his vehicle with two beer bottles and a sack and noted he was stumbling and had difficultywith his balance and proceeded to urinate in public. When officer arrived at scene, defendant wassitting on a bench and drinking beer and was obviously intoxicated. Defendantfailed FSTs and wasarrested for DWl. Resf area was a couple miles from scene of collision. Good discussion of oldstandard that required the "reasonable hypothesis" analysiswhich was replaced in Geesa v. State,820 S.W.2d 154 (Tex.Crim.App. 1991).Hernandez v. State, 13 S.W.3d 78 (Tex.App.-Texarkana 2000, no pet.).ln DWI accident, evidence that showed vvifness placed defendant on the driver's side of a pickuptruck that belonged to him immediately after the accident, was sufficient evidence for jury to find hewas driving. This was the case even though defendantold the police at the scene and later on thetape that someone other than himself was driving and no wifness could testify that they sawdefendant driving.Purvis v. State, 4 S.W.3d 118 (Tex.App.-Waco 1999, pet ref'd).Defendant was found by civilian wifness in his pickup in a ditch, with truck 4ights on. Defendant waspassed out on floorboard with feet on driver side and head on passenger srde. No one else in thearea. Evidence at the scene appeared to show path truck traveled from the road. Defendantadmitted driving, appeared intoxicated and failed HGN-sufficientevidence under NewPosf- GeesaStandard and oral admission that defendant was driving was sufficiently corroborated.Gowans v. State, 995 S.W.2d787 (Tex.App.-Houston [1"'Dist.] 1999, pet. ref'd).Here the facts were that the defendant while driving left the highway and drove onto lP's privatedriveway, striking the car lP was sitting in, causing his death. The defendant argued that since thecar that he struck was on private property, the State failed to prove the public place element. TheCourt held that evidence that he drove on public highway prior to accident was sufficient.Milam v. State, 976 S.W.2d 788 (Tex.App.-Houston [1"'Dist.] 1998, no pet.).1)2)defendant was found asleep in his car in which he was the sole occupant;engine was running and his foot was on the brake;1_35

3)4)evidence showed car had been at the location less than 5 minutes:when awakened, defendant put car in reverse=sufficient evidence defendant "operated" his car.Kerr v. State, 921 S.W.2d 498 (Tex.App.-Fort Worth 1996, no pet. h.).Held that there was sufficient factual corroboration of defendant's statementhat he was driver toprove he "operated the motor vehicle." Namely, that witness heard a car sliding into gravel andimmediately came outside of his house and saw defendant get out of the car which was in the ditch.State v. Savaqe, 933 S.W.2d 497 (Tex.Crim.App. 1996).1)2)3)4)5)6)police found defendant's truck stopped on entrance ramp of highway;defendant sitting behind the wheel asleep;his feet were on floorboard;headlights were on and engine was running;gearshift was in park;no empty alcoholic beverage containers were in car.Wriqht v. State, 932 S.W.2d 572 (Tex.App.-Tyler 1995, no pet.).Basis for stop came over radio dispatch where concerned citizen observed the bad driving and gotclose enough fo see there was only one person in the vehicle and then lost sight of defendant whodrove away. Officer found vehicle that matched description stopped in the roadway with his foot onthe brake pedal. Even though citizen could not identify driver in court, it was held there was enoughproof for jury to find defendant was the same person driving.Denton v. State, 911 S.W.2d 388 (Tex.Crim.App.1995).To find "operation" of a motor vehicle, the totality of the circumstances musf demonstrate that thedefendantook action to affect the fuhctioning of his vehicle that would enable the vehicle's use.Starting the ignition and rewing the accelerator was sufficient. Court rejected argument that so/neactual movement was required and cited Barton.Barton v. State,882 S.W.2d 456 (Tex.App.-Dallas 1994, no pet.).Officer found vehicle standing still in roadway with gngine idling. Motorist was alone in earlymorning hours and was asleep behind wheelwith feet on clutch and brake. When aroused by policeofficer, motorist immediately exerted personal effort to control truck and affect functioning byengaging clutch, changingears, and reaching to start engine which had been turned off by officer.Discussion of the rejection of the "reasonable hypothesis standard" rejected in Geesa. Looking atthe totality of the circumstances, Court held the evidence was sufficient. In so finding, the Courtexplained: "We do not accepthe contention that to operate a vehicle within the meaning of thestatute, the driver's personal effort must cause the automobileeither move or not move."136

Turner v. State , 877 S.W .2d 513 (Tex.App.-Fort Worth 1994, no pet.).1) police respond to accident scene;2) defendant standing next to car;3) steam coming from hood of car;4) electricity transformer appeared to have been hit andelectricity went out about 15 minutes before;5) defendant admitted driving.Ihis case held that defendant's admission of driving, though not sufficient by itself, need only becorroborated by some other evidence.Nichols v. State, 877 S.W.2d 494 (Tex.App.-Fort Worth 1994, pet. ref'd).1) witness viewed defendant drive away from party in an intoxicated state;2) 20 minutes later defendant's vehicle found abandoned along side of the road, and thedefendant was standing 30 feet away from it.Ray v. State, 816 S.W.2d 97 (Tex.App.-Dallas 1991, no pet.).Defendantfound in hisvehicle with engine running, stopped crossw'se behind truck, slumped behindsteering wheel, foot on brake pedal holding car in place while transmssrbn in drive = sufficient.Lopez v. State, 805 S.W.2d 882 (Tex.App.-Corpus Christi 1gg1, no pet.).1) officer obserued defendant move from driver's seaf to rear seat upon stopping his vehicle;2) defendant found in rear seat feigning sleep;3) officer had encountere defendant on previous stop attempting this same ruse.Pope v. State, 802 S.W.2d 418 (Tex.App.-Austin 1991, no pet.).1)2)s)4)defendant's truck found stopped in roadway;engine was running and lights were on;truck belonged to defendant;defendant sitting behind steering wheel.Bovle v. State,778S.W.2d 113 (Tex.App.-Houston [14th Dist.] 1989, no pet.).1)2)3)4)5)defendant's car was stopped in traffic;defendant was not asleep;defendant had her foot on brake pedal;car was in gear and engine running;no other person around car.1-37

Revnolds v. State,744S.W.2d 156 (Tex.App.-Amarillo 1987, pet. ref'd).1)2)s)4)5)6)defendant's car was halfway in a ditch;defendant was alone:defendant was behind the wheel;defendant's feet were on the floorboard under steering wheel;driver's door closed;defendant admitted he was driving.Yeary v. State,734 S.W.2d 766 (Tex.App.-Fort Worth 1987, no pet.).1)2)s)4)5)defendant's vehicle involved in two car accident;no one but defendant in cab of truck;defendant only person in vicinity of accident;windshield missing from truck and lying on top of defendant;defendantold witness he wanted to get back up & drive truck.Bucek v. State ,724 S.W.2d 129 (Tex.App.-Fort Worth 1987, no pet.).1)2)3)4)5)6)confessed he was the driver of vehicle;defendant present at scene of accident;his car was only other car on road;approached victim almost immediately disclaiming fault;defendant was only other person present;told his doctor he had hit his head in mv collision.Keenan v. State, 700 S.W.2d 12 (Tex.App.-Amarillo 1985, no1) defendant observed sitting behind wheel of car;2) defendant slumped over;3) car sitting partially in main traffic lane;4) exhaust fumes seen coming from car.Green v. State, 640 S.W.2d 645 (Tex.App.-Houston [14th Dist.] 1982, no pet.).1)2)3)4)5)single vehicle accident;wfness arrived at scene of crash as soon as he heard it;wifness found defendant lying in front seat near steering wheel;defendant positioned with his feet near steering wheel and head near passenger side;nobody else in the car.IJb

C. INSUFFICIENTCORROBORATIONOF'DRIVING/OPERATING''Texas Department of Public Safety v. Allocca, 301 S.W.3d 364 (Tex.App.-Austin 2009).Court of Appeals found under the following facts that motorist was not "operating" ltis vehicle whileintoxicated, for purposes of suspen sion of license for refusal of fesf. He was found sleeping in thecar with the front seat reclined, the car in park, the lights off, and the engind running (per suspect)solely for the purpose of air conditioning, while parked in a parking lot behind his place ofemployment.Hanson v. State, 781 S.W.2d 445 (Tex.App.-Fort Worth 1990). Appealabated, 790 S.W.2d 646(Tex.Crim.App. 1990).1)2)3)4)one car accident;defendant found standing next to wrecked car;defendant did not appear to be injured;defendant admitted to the police that she had been driving.Reddie v. State , 736 S.W.2d 923 (Tex.App.-San Antonio 1987, pet. ref'd).1) defendant found slumped over wheel of car;2) intoxicated;3) motor running & car in gear.Note: But see Barton cited above.Ford v. State, 571 S.W.2d 924 (Tex.Crim.App. 1978).1)2)3)4)5)6)officers arrived at intersection of public/private road;defendant's truck found 15-20 feet off roadway;another car and 3 other people already at scene;no one inside the truck;upon inquiry defendant admitted he was driver;no other evidence truck had traveled on road.D. EVIDENCE OF INTOXICATIONTIME DEFENDANT WAS DRIVING1. INSUFFICIENTSchillitaniv. State, 2009 WL 3126332 (Tex.App.-Houston [14s Dist.]2009).Ihis is a case where defendant had driven his vehicle off the road and into a ditch, and officerS f/rsfcontact with him was after the accident. Court held that though the evidence suppods a finding thedefendant was intoxicated at the accidenf scene upon the officer's arrival, the lack of evidenceconcerning how recently the vehicle was driven and how much time elapsed between the accidentand the officer's arrival, left insufficient evidence to support the jury's verdict which was orderedreversed and a judgment of acquittal rendered.1-39

McCaffertv v. State, 748 S.W.2d 489 (Tex.App.-Houston [1't Dist] 1988, no pet.).Where officer arrived at the scene of the accident one hour and twenty minutes after it occurred anda witness testified defendant did not appear intoxicated at the time of the crash, there was noextrapolation evidence. More than two hours passed before the defendant gave a breath test, andfhe Sfafe failed to establish that the defendant was not drinking in the time period following the crashand before the officer arrived = insufficient evidence defendanf was "intoxicated while driving."Reasonable hypothesistandard was applied. NOTE: This is a Pre-Geesa opinion.2.SUFFICIENTStoutner v. State, 36 S.W.3d716 (Tex.App.-Houston [1"'Dist] 2001, pdr refused).The defendantried to argue that McCaffertv was controlling. The Court distinguished fhis casefrom McCaffertv asfollows: ln this case, there were fifteen to twenty minutesthat passed from thetime of crash to time officer arrived. Blood sample was taken twenty minutes after the arrest (fiftyminutes after officer's arrival). Extrapolation evidence was offered. No alcoholic beveragecontainers were noticed near defendant. The testimony that defendant did not appear to beintoxicated to another officer who obserued him upon arriving at the scene was not drsposdtve asthe officer was a car length away from the defendant at the time and was not focused on thedefendant. Sfafe was n of required to exclude every other reasonable hypothesis except defendant'sguilt as that standard was discarded by Geesa. Evidence found to be sufficienthat defendant wasintoxicated while operating a motor vehicle.June 11, 2008.XXVII. CONDITIONS OF PROBATION . LIMITATIONSA. STAY OUT OF BARS-CHANGE JOB = OKLacy v. State, 875 S.W.2d 3 (Tex.App.-Tyler 1994, no pet.).Requiring defendant to stay out of bars and taverns or similar places, preventing defendant'scontinuing current employment, held to have a reasonable relation to crime and defendant'scriminality.B. DENIAL OF PROBATION DUE TO LANGUAGE BARRIER-PROPERFlores v. State, 904 S.W.2d 129 (Tex.Crim.App. 1995).Defendant was convicted of DWI and sentenced by the judge to jail in large part because he spokeonly Spanish, and there were no appropriate rehabilitation programsfor Spanish speakers. Decisionheld not to violate defendant's rights as u/as rationally related to legitimate government interest.L40

XXVIII. NO J.N.O.V. IN CRIMINAL CASESSavaoe v. State, 933 S.W.zd 497(Tex.Crim.App. 1996).Trialjudge has no authority to grant a j.n.o.v. in criminal case. lt can grant a motion for new trialbased on insufficiency of the evidence but when it does, State can appeal.XXIX. COURT OF APPEALS SHOULD NOT RE.WEIGH EVIDENCEPerkins v. State, 19 S.W.3d 854 (Tex.App.- Waco, April 19, 2000, pet. denied).Officer came upon car parked in the middle of the road. Firefightertestified that defendant seemedintoxicated. There were beer cans in back seat noted by one officer and not by another officer.Officer noted strong odor of alcoholic beverage on defendant's breath, slurred speech, disoriented,refused to give sample. Defendant admitted only one beer and no evidence he had more. Courtof Appeals improperly re-weighed evidence, including how good defendant looked on videotape andsubstituted its findings for those of the jury and reversed. Case went to Court of Criminal Appealswhich granted PDR and pointed out correct standard in 993 S.W.2d 116 (Tex.Crim.App. 1999).Upon rehearing, Court of Appeals found evidence factually sufficient and affirmed the conviction.XXX. MISDEMEANOR APPEAL BOND CONDITIONSGradv v. State, 962 S.W.2d 128 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd).Courts have no authority to put conditions on misdemeanor appeal bonds that are not provided forby statute. ln this case, the conditions that the defendant: 1) submit to random UA; 2) placeinterlockdevice on vehicle; 3)home confinement; 4) electronic monitoring were upheld. Conditionthat he attend AA was held to be invalid.Ex Parte Leverett, 2006 WL 279388 (Tex.App.-Dallas 2006) (Not designated for publication).The following conditions imposed on appeal bond after misdemeanor DWI conviction were held tobe proper:1)2)3)4)5)6)Commit no offense against the laws of Texas or any other state or the United Sfafes;Consume no alcoholic beverages;Report in person to the pretrial release supervising officer (hereinafter"supervisingofficer')of the Grayson County Community Superursion and Corrections Department, beginning onthe date of this order, and one time per month thereafter;Pay a monthly supervisory fee in the amount of $20.00 to the Grayson County CommunitySupervision and Corrections Department;Remain within Grayson County, Texas, unless express permission to leave said county isgranted by the supervising officer or by the Court;Submit a specimen of breath or blood as directed from time to time by the superuising officerfor the detection of alcohol in the defendant's body and pay any and allfees assocrafedtherewith:4 A414I

7)8)e)1a)11)Operate no motor vehicle with any detectable amount of alcohol in the defendant's body;Submit a specimen of breath or blood for analysis to determine the alcohol concentration inthe defendant's body upon the request of any peace officer as authorized by law;Have installed on the motor vehicle owned by the defendant, or on the vehicle most regularlyoperated by the defendant, an ignition interlock device, approved by the Texas Departmentof Public Safety, fhaf uses a deep lung breath analysis mechanism to make impracticaltheoperation of a motor vehicle if ethyl alcohol is detected in the breath of the operator. Suchdevice shall be installed on the appropriate vehicle, at the defendant's expense, within 30days from the date of this order;Provide proof of installation of such ignition interlock device to the superuising officer on orbefore the 3dh day after the date of this order; andOperate no motor vehicle that is not equipped with an ignition interlock device.XXXI. INTERLOCK DEVICESA. AS A PRE.TRIAL BOND CONDITIONEx Parte Elliot, 950 S.W.2d 714 (Tex.App.-Fort Worth 1997, pet. ref'd).Court held that 17.441 is not unconstitutional, and that the judge did not abuse his discretion inordering an interlock device as a condition of bond in this case.B. AS A CONDITION OF PROBATIONState v. Lucero, 979 S.W.2d 400 (Tex.App.-Amarillo 1998, no pet.).A triat court may waive (as a condition of probation) the installation of a deep lung device underArticle 42.12, Section 13 (i), upon making a finding that to do so would not be in the "best interestof justice."C. AS PROOF OF PROBATION VIOLATIONKavlor v. State, I S.W.3d 205 (Tex.App.-San Antonio 1999, no pet.).ln this case, the State proved a defendant had violated the probation condition that he not consumealcohol by calling a system administrator from an interlock company to interpret readings gatheredfrom interlock device installed on suspecf's car. The witness was able to distinguish fhose readingscaused by other subsfances from those caused by alcoholic beverages. The proof was held to besufficient even though the State was unable to present evidence that the defendant was the personwho actually blew into the device.r+z

XXXII. JUDGE MAY CHANGE JURY SENTENCE OF JAIL TIME TO PROBATIONlvey v. State,277 S.W.3d 43 (Tex.Crim.App. 2009).This was a DWI trial where the defendant went to the jury for punishment and deliberately failed tofile a sworn motion with the jury declaring that he had never before been convicted of a felonyoffense in this or any other state, thus rendering himself ineligible for a jury recommendation. TheTury assessed his punishment at $2000 fine and thirty-five days in jail. After conferring informallywith the jury off the record, the judge announced she would suspend the imposition of theappellant's sentence, place the defendant on community supervision for a period of two years, andsuspend all but $500 of the fine. The trial judge also imposed a thirty day jail term and arequirementhat the appellant complete 60 hours of community seruice as conditions of thecommunity supervrsrbn . The issue on appealwaswhether a trial court can suspend a jury-assessedpunishment and order community supervision when the jury itself could not have recommendedcommunity superuision. The Court of Criminal Appeals held it was not error for the trial court in thiscase fo place the appellant on community superuision even though the yury assessed hispunishment and did not recommend it. It was within the discretion of the trial court under Article42.12, Section 3, to do so, so long as the appellant met the criteria for community superuisionspelled out there.143

INDEX10 YEAR RULE 120ALRHEARTNGS ..:::.::....:...:... 6, 10, 13,ee, 101,12sAPPEAL BOND CONDITIONS . . 141BLOODTEST 60,81BREATH TEST 58BREATH TEST PREDICATE 59CHARGING INSTRUMENT 1,111CITY VS. COUNTY-WIDE JURISDICTION 17COLLATERAL ESTOPPEL.. 124CONDITIONSOFPROBATION... 140DEADLY WEAPON 101Dtc-23 & DIC-24 WARNINGS 61DOUBLEJEOPARDY... 124DPS RECORDS . 109DRIVER'S LICENSE SUSPENSION . . 101DWI ROADBLOCKSELEMENTS. . . .ENHANCEMENTSENTRAPMENTDEFENSE .EXPERTTESTIMONY ...556089392EXTRANEOUS OFFENSES34EXTRAPOLATION75FELONY DWI .FSRAHOSPITAL RECORDSHOT PURSUIT . .11278518IMPEACHING POLICE OFFICER43INFORMATION . .1I NSTRUMENT CERTI FICATIONINTERLOCK DEVICES59142JUDGMENTANDSENTENCE... 110JURYARGUMENT ... 106JURYCHARGE 97MANDATORY JAIL TIME 118MIMNDAWARNINGS.... 60MOBILEVIDEOCAMERATAPE ......39NECESSITY DEFENSE 93OBSERVATIONPERIOD... 71OCCUPATIONAL DRIVER'S LICENSE 128OPENCONTAINER... 116PORTABLE ALCOHOL SENSOR DEVICES 30PRIORS 108PROBAT]ON ELIGIBLE 108PUBLIC PLACE 1QUALIFIEDTECHNICIAN ......841"44

REFERENCE SAMPLE 80REFUSALTOPERFORMFST'S ......35STATEMENTSBYDEFENDANT .. 45STIPULATE 112SURREPTITIOUS AUDIO RECORDINGS . . 37SYNERGISTICHARGES . 99TRAFFIC VIOLATIONS 6URINEVEHICLE STOP 9VIDEO 33VOIR DIRE . 3L45

TABLE OF AUTHORITIESAbbrinq v. State, 882 S.W.2d 914 (Tex.App.-Fort Worth 1994, no pet.) . . 109Abemathv. State, 963 S.W.2d 822 (Tex.App.-San Antonio 1998, pet. refd) . . . . 46Adams v. State, 67 S.W.3d 450 (Tex.App.-Fort Worth 2002, pet. refd.) . . . 97Adams v. State,808 S.W. 2d250, (Tex.App.-Houston [1"tDist.] 1991, no pet.) . . . . . . 88,92Adamsv. State,969S.W.2d 106(Tex.App.-Daltas 1998, no pet.) . ...... 39Addinqton v. State, 730 S.W.2d 788, 789-90 (Tex.App.-Texarkana, pet. refd) . . . 112Aquirrev. State,928S.W.2d 759(Tex.App.-Houston [1ath Dist.]1996, no pet.) . ........ 2Aquirre v. State, 948 S.W.2d 377 (Tex.App.-Houston [14th Dist.] 1997, pet. refd) . . . . 39, 60Akins v. State ,2007 WL 1847378 (Tex.App.-Houston [14s Dist] 2007, no pet.) . . . . . . . . . 35Albertv.State,659S.W.2d41 (Tex.App.-Houston [14th Dist]1983, pet. refd) . ........ 10Alexanderv. State,949 S.W.2d 772(Tex.App.-Dallas 1997, pet. refd) . ........ 43Afford v. State, 22 S.W.3d 669 (Tex.App.-Fort Worth 2000, pet. refd) 48,49Aliff v. State,627S.W.2d 166(Tex.Crim.App.1982) ....... 83Aliffv. State,955 S.W.2d 891 (Tex.App.-El Paso 1997) . . . . . . 95,96Allen v. State, 849 S.W.2d 838 (Tex.App.-Houston [1"1 Dist] 1993, pet. refd) . . . . . 40Anderson v. State, 110 S.W.3d 98 (Tex.App.-Dallas 2003, reh. overruled) . . . . . . 117**:::'1*ii::?|?.(:::.'iii-::.*.*liiilll:::::]:T:""",)j):::::::ii'::'':::::Anderson v. State, 866 S.W.2d 685 (Tex.App.-Houston [lst Dist.] 1993, pet. refd) . . . . . . 50Andrews v. State, 79 S.W.3d 649 (Tex. App.- Waco 2002, pdr refd) . . . . 15Annisv. State,578 S.W.2d 406 (Tex.Crim.App. 1979) . . . . . 70Armendarizv.State, 123S.W.3d401 (Tex.Crim.App.2003) ....... 17Amoldv.State,971 S.W.2d588(Tex.App.-Dallas1998, nopet.).. ...... 32Article14.03(qx1) ...16Atkins v. State,990 S.W.2d 763 (Tex.App.-Austin 1999, pet. refd) . . : . . . 99Atkinson v. State, 871 S.W.2d 252 (Tex.App.-Fort Worth 1994, rev'd, 923 S.W.2d 21 (Tex.Crim.App. 1996) . . . . 98,100Bachickv. State,30 S.W.3d 549 (Tex.App.-FortWorth 2000, pet. refd) ........ 17Badqett v. State, 42 S.W.3d 136 (Tex.Crim.App. 2001). . . . . 81Baqbvv. State,2007WL704931(Tex.App.-FortWorth 2007,no pet.)(notdesignatedforpublication) .... ... 128J-+O

Baqheri v. State, 119 S.W.3d 755 (Tex.Crim.App.2003) . . . . 78Baker v. State, 177 S.W.3d 113 (Tex.App.-Houston [1$ Dist.] 2005, no pet.) . . . . . 42Bakerv. State,519 S.W.2d 437 (Tex.Crim.App. 1975) . . . . 108Bakerv. State,879 S.W.2d 218 (Tex.App.-Houston [14th Dist] 1994, pet. refd) . . . . . ... 41Barfield v. State,63 S.W.3d 446 (Tex.Crim.App.2001) . . . . 112Banaza v. State" 733 S.W. 2d 379 (Tex.App.-Corpus Christi, 1987, pet. granted) affd 790 S.W. 2d 654(Tex.Crim.App.June20,1990) ... 35,55Bartlett v. State, 270 S.W.3d 147 (Tex.Crim,App. 2008) . . . 104Barton v. State, 948 S.W.2d 364 (Tex.App.-Fort Worth 1997, no pet.) 57, 136Bass v. State, 64 S.W.3d 646 (Tex.App.-Texarkana 2001, pet. refd) . . . . . 21Bass v. State,723 S.W.2d 687 (Tex.Crim.App. 1986) . . . . . . 69Battle v. State, 989 S.W.2d 840 (Tex.App.*Texarkana 1999, no pet.) . . . . 121Beard v. State,5S.W.3883(TA-Eastland 1999), permanentlyabated in 108S.W.304(TCA-2003), opinionwithdrawnin 2003 WL21398347 (TA-Eastland, June 18, 2003) (unpublished). fCase was permanently abated due to death. Thebodyof opinioncanbefoundat http://www.cca.courts.state.tx.us/opinions/028200.htm)..... . 74,76Beardenv.State,2000WL 19638(Tex.App.-Houston[1stDist.]2000) . ........ 95Beaslev. State, 810 S.W.2d 838 (Tex.App.-Fort Worth 1991) . . . . . 96, 106Beck v. State, 651 S.W.2d 827 (Tex.App.-Houston [1"tDist.] 1983, no pet.) . . . . . . 88Beeman v. State,86 S.W.3d 613, (Tex.Crim.App. 2002) . . . . 89Bell v. State, 2005 WL 503647 (Tex.App.-Fort Worth 2005, pet. refd)(mem. op., not designated for publication)105Bellv. State, 201 S.W.3d 708 (Tex.Crim.App., 2006) . . . . . 114Bell v. State, 881 S.W.2d 794 (Tex.App.-Houston [14th Dist.] 1994) . . . . . . 83Benedict v. State, 2004 WL 2108837, (Tex.App.-Fort Worth, 2004) . . . . . 134Bennett v. State , 723 S.W .2d 359 (Tex.App.-Fort Worth 1987, no pet.) . . . 82Berqnerv. State,2008WL 4779592 (Tex.App.-FortWorth2008, no pet.) .. ..... 68Bhaktav. State, 124S.W.3d738(Tex.App.-Houston [1 Dist.],2003, pdrrefd) . ........ 80Bicev. State,17 S.W.3d354(Tex.App.-Houston [1"tDist.]2000, reh ovenuled) ........ 19Biederman v. State,724S.W.2d 436 (Tex.App.-Eastland 1987, pet. refd) . . . . . . 118Biqon v. State, 252 S.W.3d 360 (Tex.Crim.App.2008) . . 88;124Biomson v. State,1996 WL 627374 (Tex.App.-Austin 1996, no pet. (Not designated for publication) . . . . . 94Blackwell v. State, 2005 WL 548245, (Tex.App.-Austin 2005) (Not designated for publication) . . . . . . 85, 87Blessinq v. State, 927 S.W.2d 266 (Tex.App.-El Paso 1996, no pet.) . . . . 1081-41

Block v. State, 1997 WL 530767 (Tex.App.-Houston [14th Dist.] 1997, pet.refd) (Not designated for publication) . 65Blok v. State, 986 S,W.2d 389 (Tex.App.-Houston [1st Dist.] 1999, pet. refd) . . . 100Blumenstetter v. State, 135 S.W.3d 234 (Tex.App.-Texarkana 2004, no pet.) . . . . 82Bluntv.State,724s.W.2d 79(Tex.Crim.App. 1987) ....... 85Boes v. State,2004WL1685244 (Tex.App.-Austin 2004) ...... 102Booherv. State,668 S.W.2d 882 (Tex.App.-Houston [1st Dist] 1984, pet. refd) . . . . . . . . 99Bookmanv.State,2008WL3112713(Tex.App.-Waco,2008, reh.overruled) .. . ..... 66Bossv. State,778S.W.2d 594(Tex.App.-Austin 1989, no pet.) .. ....... 73Bowerv. State, 77 S.W.3d 514 (Tex.App.-Houston [1"tDist.] 2002,pe|refd) . . . . 119Bovlev. State,778S.W.2d 113(Tex.App.-Houston [14th Dist.]1989, nopet.).. ....... 137Bradfordv.State,230S.W.3d719(Tex.App.-Houston[14thDist.]2007,nopet.).. ..... 100Broadnaxv. State,995 S.W.2d 900 (Tex.App.-Austin 1999, no pet.) . . . . . 81Brother v. State, 166 S.W.3d 255 (Tex.Crim.App. 2005), cert. denied,546 U.S. 1150 (2006) . . 10,17Brown v. State, 716 S.W.2d 939 (Tex.Crim.App. 1986).[reversed on othergrounds] . . . . . 109Brown v. State. 290 S.W.3d 247 (Tex.App.-Fort Worth 2009, reh. denied, pdr refd) . . . . . 95Brvant v. State, 187 S.W.3d 397 (Tex.Crim.App.2005) . . . . 114Bucekv.State,724s.w.2d129(Tex.App.-FortWorth1987,nopet.)Buchanan v. State, 911 S.W.2d 11(Tex.Crim.App. 1995) . . 116Burhalterv. State,642 S.W.2d 231 (Tex.Crim.App. 1982) . . . 83Burke v. State, 6 S.W.2d 312 (Tex.App.-Fort Worth 1999) vacated and remanded by 28 S.W.3d 545 (Tex.Crim.App.2000)opinionwithdrawn and substitute opinion submitted 80 S.W.3d 82 (Tex.App.-FortWorth 2002) ........ 129Burke v. State, 930 S.W.2d 230 (Tex.App.-Houston [14th Dist.]'1996, pet. refd) . . . . . . 2,35Burkeft v. State, 179 S.W.3d 18 (Tex.App. San Antonio 2005, reh. overruled) . . . . 104Burkhart v. State, 2003 WL 21999896 (Tex.App.-Dallas, 2003, no pet.) (Not designated for publication)Bumsv. State,807 S.W.2d 878 (Tex.App.-Corpus Christi 1991, pet. refd) . . . 83,87Carrasco v. State , 712 S.W .2d 120 (Tex.Crim.App. 1986) . . . 30Carroflv. State,51 S.W.3d 797 (Tex.App.-Houston [1$ Dist.]2001, pet. refd) . . . 115Carteqena v. State, 2006 WL 278404 (Tex.App.-Houston [14th Dist.] 2006) (Not designated for publication) . . . 132Castillo v. State, 913 S.W.2d 529 (Tex.Crim.App.1995) . . . . . 4Castillo v. State, 939 S.W.2d 754 (Tex.App.-Houston [14th Disq 1997 pet. refd) . . . . 43,107Cavazos v. State, 969 S.W.2d 454 (Tex.App.-Corpus Christi 1998, no pet.) . . . . . . 84t48

Chafoupka v. State, 20 S.W.3d 172 (Tex.App.-Texarkana, April 18, 2000, pet refd) . . . . 135Chauncev. State, 837 S.W.2d 179 (Tex.App.-El Paso 1992), affd., 877 S.W.2d 305 (Tex.Crim.App. 1994) . . . 100Chilman v. State, 22 S.W.3d 50 (Tex. App.-Houston [14th Dist] 2000, pet. refd.) . 14,30,32Chunnv. State,923S.W.2d 728(Tex.App.-Houston [1stDist.]1996, pet.refd) .... ...... 2Churchv.State,942S.W.2d139(Tex.App.-Houston[1stDist.]1997,pet.refd). ...... 127Claibome v. State, 2005 WL 2100458 (Tex.App.-Fort Worth, 2005) (Not designated for publication) . . . . . . . . . 133Clark v. State, 728 S.W.2d 484 (Tex.App.-Fort Worth, vacated and remanded on other grounds,753 S.W.2d 371(Tex.Crim.App.1987),onremand781 S.W,2d954(Tex.App.-FortWorth1989,nopet.) ........33Clarkv.State,933S.W.2d332(Tex.App.-CorpusChristi1996, nopet.) ........ 85Colev. State,611 S.W.2d 79(Tex.Crim.App.1981) ...... 111Collinsv. State,829S.W.2d894(Tex.App.-Dallas 1992, no pet.) . ...... 19Combestv. State,953 S.W.2d 453 (Tex.App.-Austin 1997). On remand 981 S.W.2d 958 (Tex.App.-Austin 1998).Same holdinq ......83Comptonv.State, 120S.W.3d375(Tex.App.-Houston[1'tDist.]2003,pet.refd). ...... 53Cookv. State,2006WL 1633250 (Tex.App.-Tyler2006) (Notdesignated forpublication) ....... 58Cook v. State, 63 S.W.3d 924 (Tex.App.-Houston [14th Dist.] 2002, pet. refd) . . . . 20Cooperv. State,961 S.W.2d 229(Tex.App.-Houston 1"tDist.l1997, petrefd) . ........ 31Corbin v. State,85 S.W.3d 272,(rex.Crim.App. 2002) . . . . . 15Corpus v. State, 931 S.W.2d 30 (Tex.App.-Austin 1996), pet. dism'd, 962 S.W.2d 590 (Tex.Crim.App. 1998) 85Crittendonv.State,899S.W.2d668(Tex.Crim.App.1995) ........ 18Crockerv. State,260 S.W.3d 589 (Tex.App.-Tyler2008, no pet.) .. ..... 120Cunninqham v. State,2004WL2803220 (Tex.App.-San Antonio, December08,2004) (Not designated for publication)24Cunninqham v. State, 966 S.W.2d 811 (Tex.App.-Beaumont 1998, no pet.) . . . . . 14Curl v. State, 199 WL 33757096 fl-ex.App.-Corpus Christi 1999) .Curtin v. State, 2006 WL 347025 (Tex.App.-Corpus Christi 2006) . . . . . . . 96Curtis v. State, 209 S.W.3d 688, (Tex.App.-Texarkana, 2006, pdr granted). Reversed: Curtis v. State, No. PD-1820-06,2007 WL 317541 (Tex.Crim.App.2007). Conviction affirmed Curtis v. State, No. 06-05-00125-CR, 2008 WL 707285(Tex.App.-Texarkana,2008). .....20Daricek v. State, 875 S.W.2d 770 (Tex.App.-Austin 1994, pet. refd) . . . . . 74Davidson v. State, 2010 WL 118776 (Tex.App.-Dallas 2010) (Not designated for publication) . . . . 45Davisv. State,2006WL 2194708, No. 14-03-00585-CR(Tex.App.-Houston [14'" Dist.]2006) . ......... 4Davis v. State, 949 S.W.2d 28 (Tex.App.-San Antonio 1997, no pet.) . . . . . 971,49

Davis v. State, 964 S.W.2d 352 (Tex.App.-Fort Worth 1998, no pet.) . . . . 102Daw v. State, 67 S.W.3d 382 (Tex.App.-Waco, 2OO1) . . . 103Dawkins v. State, 822 S.W. 2d 668, 671 (Tex.App.-Waco, 1991, pet. refd) . . . . . . 34, 35, 55De Manqin v. State, 700 S.W.2d 329 (Tex.App.-Houston [1st Dist] 1985) affd. 787 S.W.2d 956 (Tex.Crim.App. 1990)61Defeon v. State, 2006 WL 1063765 (Tex.App.-Dallas 2006) (Not designated for publication) . . . : 44Denton v. State, 911 S.W.2d 388 (Tex.Crim.App.1995) . . . . 1363*='llll Y ii ll (llliii ::*::11:' ?:::: ii iiii): lll l l iiilf llll llT lll ::%?Doqav. State, 101 S.W.3d 614 (Tex.App.-Houston [1$ Dist.] 2003, no pet.) . . . . . 17Doneburq v. State, 44 S.W.3d 651 (Tex.App.-Fort Worth 2001, pdr refd.) . . . . . . 116Dornbusch v. State, 262 S.W.3d 432 (Tex.App.-Fort Worth 2008, no pet.) . . . . . . 132Dorsche v. State, 514 S.W.2d 755 (Tex.Crim.App. 1974) . . . 71Dotvv. State,2005WL 1240697 (Tex.App.-Austin May26,2005)(mem.op., Notdesignated forpublicaiton), pet. dism'd,improvidentlygranted,No.PD-1159-05,2007WL841112(Tex.Crim.App.2007)(Notdesignatedforpublication122Douthittv. State,127 S.W.3d 327 (Tex.App.-Austin 2004,no pet.) .. ..... 71Dowfer v. State, 44 S.W.3d 666 (Tex.App.-Austin 2001, pet. ref d.) . . . . . . 12Dovle v. State, 2008 WL 597450 (Tex.App.-Houston [1 Dist.], 2008 pdr refd) . . . 105Drapkin v. State,781 S.W.2d 710 (Tex.App.-Texarkana 1989, pet. refd) . . . . . 60,98Drichas v. State, 175 S.W.3d 795 (Tex.Crim.App.2005) on remand 187 S.W.3d 161 (Tex.App.-Texarkana 2006) pdrgranted, judgment vacated by 210 S.W.3d 644 (Tex.Crim.App. 2006) on remand to 219 S.W.3d 471(Tex.App.-Texarkana 2007 pet. ref d) .Dumas v. State, 812 S.W.2d 611 (Tex.App.-Dallas 1991, pet. refd) . . . 34,43Dunkelberq v. State, 276 S.W.3d 503 (Tex.App.-Fort Worth, 2008, pet. refd) . . . . 19Durhanv.State,710S.W.2d 176(Tex.App.-Beaumont1986,nopet.).. ........ 38Duneftv.State,36S.W.3d205(Tex.App.-Houston(14thDist.)2001,nopet.).. ........ 88Dvarv. State,125 S.W.3d 460 (Tex.Crim.App., April 24,2003). . . . . . 31Dvev. State,2003W1361289(Tex.App.-ElPaso2003)(notdesignatedforpublication).. ..... 89Ehrhartv. State.9 5.W.3d929(Tex.App.-Beaumont2000,reh. overruled) ....... 22Elliotv. State,908S.W.2d 590(Tex.App.-Austin'1995, pet. refd) . ...... 32Ellisv. State,86S.W.3d 759(Tex.App.-Waco 2002,pet. refd) . ........ 51Ellisv.State,99S.W.3d783(Tex.App.-Houston[1 Dist.]2003,petrefd. . ...... 11Emerson v. State,880 S.W.2d 759 (Tex.Crim.App. 1994)1_50

Emiqh v. State, 916 S.W.2d 71 (Tex.App.-Houston [1st Dist] 1996, no pet.) . . . . . 107Enqlund v. State, 907 S.W.2d 937 (Tex.App.-Houston [1st Dist] 1995) affirmed 946 S.W.2d 64 (Tex.Crim.App. 1997)110Enriquez v. State, 56 S.W.3d 596 (Tex.App.-Corpus Christi, August 9, 2001 ) reh overruled (October 4, 2001 ,) pet. ref d)90Erdman v. State,861 S.W.2d 890 (Tex.Crim.App. 1993) . . . . 68Erickson v. State, 13 S.W.3d 850 (Tex.App.-Austin 2000, pet. refd) . . . . . . 1Evans v. State, 2006 WL 1594000 (Tex.App.Houston [14tn Dist.] 2006, pdr refd) . . . 4'lEvans v. State, 690 S.W.2d 112 (Tex.App.-El Paso 1985, pet. refd) . . . . . 93Ewerokeh v. State, 835 S.W.2d 796 (Tex.App.*Austin 1992, pet. refd) . . . . . . . . . 67Ex Parte Anthonv, 931 S.W.2d 664 (Tex.App.-Dallas, 1996 pet. refd) . . . 125Ex Parte Crenshaw, 25 S.W.3d 761 (Tex.App.-Houston [1't Dist.] 2000, pet. refd) . . . . . 129Ex Parte Dunlap, 963 S.W.2d 954 (Tex.App.-Fort Worth 1998, no pet.) . . 126ExParteEfizabethAvers,92l S.W.2d438(Tex.App.-Houston [lstDist] 1996, nopet.) . ...... 126Ex Parte Elliot, 950 S.W.2d 714 (Tex.App.-Fort Worth 1997, pet. refd) . . 142ExParteJamai|,904S.W.2d862(Tex.App._HouSton[1stDist]1995,pet'refd).Ex Parte Leverett, 2006 WL 279388 (Tex.App.-Dallas 2006) (Not designated for publication) . . . 141Ex Parte McFall, 939 S.W.2d 799 (Tex.App.-Fort Worth 1997, no pet.) . . 127Ex Parte Pee, 926 S.W.2d 615 (Tex.App.-Houston [1st Dist.] 1996, pet. refd) . . . 125Ex Parte Richards, 968 S.W.2d 567 (Tex.App.-Corpus Christi 1998, pet. refd) . . 126ExParte Roemer,215S.W.3d 887(Tex.Crim.App.,2007) ....... 124ExParteRoss,522s.W.2d 214(Tex.Crim.App. 1975) ...... 2Ex Parte Sema, 957 S.W.2d 598 (Tex.App.-Fort Worth1997, pet. refd) . . 126ExParteSenato,3S.W.3d41 (Tex.Crim.App.1999) ...... 121Ex Parte Shoe, 137 S.W.3d 100 (Tex.App.-FortWorth January 15,2004), rehearing overruled (Mar 18, 2004), petitionfor discretionary review granted (Nov 10, 2004), petition for discretionary review dismissed (Oct 10, 2007) . . . . . 122ExParteTavlor, l0lS.W.3d434(Tex.Crim.App.2002) .....: ....129Ex Parte Tharp, 935 S.W.2d 157 (Tex.Crim.App. 1996) . . . 125ExParteVasquez,918S.W.2d73(Tex.App.-FortWorth 1996, petrefd).. ..... 125Ex Parte Walters. 2006 WL 1281076 (Tex.App.-Fort Worth 2006) (not designated for publication)(pet.refd.) . . . 128ExParteWeaver,880S.W.2d 855(Tex.App.-FortWorth 1994, no pet.) ....... 125ExParteWifliamson,924S.W.2d414(Tex.App.-SanAntonio 1996, pet. refd) . ....... 1251_51_

Farmer v. State,2006 WL 3844169 (Tex.App.-Fort Worth Dec 28, 2006, pet.ref d) . . . . . . 132Ferouson v. State,2 S.W.3d 718 (Tex.App.-Austin 1999, no pet.) .Ferqusonv.State,573S.W.2d516(Tex.Crim.App.1978) ........ 10Fernandezv. State,306 S.W.3d 354 (Tex.App.-FortWorth 2010) ....... 19Femandez v. State, 915 S.W.2d 572 (Tex.App.-San Antonio 1996, no pet.) . . . . . . 30Fierrov.State,969S.W.2d51(Tex.App.-Austin1998,nopet.)'Findlav. State, I S.W.3d 397 (Tex.App.-Houston [14th Dist.] 1999, no pet. . . . . 128Finle v. State, 809 S.W.2d 909 (Tex.App.-Houston [14th Dist.] 1991, pet. refd) . . . . 50, 69Fischerv. State,252 S.W.3d 375 (Tex.Crim.App.2008) . .. . 41Flecherv. State,298 S.W.2d 581 (Tex.Crim.App. 1957) . . . . 31Flores v. State,904 S.W.2d 129 (Tex.Crim.App. 1995) . . . . 140Florida v. J.L.. 529 U.S. 266, 1205.Ct.1375,146 L.Ed.2d 254 (2000) . . . . . 10Flowersv. State,220S.W.3d 919(Tex.Crim.App.2007) ...,.. ... 109Foqle v. State, 988 S.W.2d 891 (Tex.App.-Fort Worth 1999, pet. refd) . . . 58Folkv.State,797S.W.2d141 (Tex.App.-Austin1990,pet.refd). ...... 131Ford v. State,571 S.W.2d 924 (Tex.Crim.App. 1978) . . . . . 139Ford v. State,158 S.W.3d 488 (Tex.Crim.App., March 9,2005) . . . . . 25Fortev. State,707s.W.2d89(Tex.Crim.App.1986) ....... 76Forte v. State,759 S.W.2d 128 (Tex.Crim.App. 1988) . . . . . . 61Fosterv. State,297 S.W.3d 386 (Tex.App.-Austin 2009, pet. granted) . . . . 30Fowler v. State, 2007 WL 2315971 (Tex.App.-San Antonio 2007, pet. ref d) (not designated for publication)Fowlerv. State,266 S.W.3d 498 (Tex.App.-FortWorth 2008, pet. refd) ........ 20Fowler v. State, 65 S.W.3d 116 (Tex.App.-Amarillo 2001, no pet.) . . . . . . . 57Foxv. State,900 S.W.2d 345 (Tex.App.-FortWorth 1995), pef. dism'd, improv. granted,930 S.W.2d 607 fiex.Crim.App.1ee6l). ......13Francov.State,82S.W.3d425(Tex.App.-Austin 2002,pet. refd) . ...... 67Franksv. State,241 S.W.3d 135(Tex.App.-Austin 2007,pet. refd) . ..... 15Freeman v. State, 69 S.W.3d 374 (Tex.App.-Dallas 2002) . . . . . . 134Freeman v. State, 733 S.W.2d 662, 663-64 (Tex.App.-Dallas 1987, pet. refd) . . . 112Frohv.State,2006WL1281086(Tex.App.-FortWorth,2006. May11,2006,nopet.)(Notdesignatedforpublication)45Frve v. State, 2004 WL 292660 (Tex.App.-Dallas 2004, no pet.) (Not designated for publication)130t52

Fuentesv.State,880S.W.2d857(Tex.App.-Amarillo1994,pet.refd). ....... 125Fulenwiderv. State, 176 S.W.3d 290 (Tex.App.-Houston [1 Dist.]2004 . . . . . 79, 100Gabrish v. State, 2009 WL 2605899 (Tex.App.-Corpus Christi 2009) (Not designated for publication) ...10Gaddis v. State, 753 S.W.2d 396 (Tex.Crim.App. 1988) 70, 106Gaiewskiv. State,944S.W.2d450 (Tex.App..-Houston [14th Dist]1997, no pet) .. ..... 20Gallardo v. State, 2010 WL 99011 (Tex.App.-Amarillo 2010) (Not designated for publication) . . . . . . . . . 117Galleqosv. State,776S.W.2d 312 (Tex.App.-Houston [1stDist.] 1989, no pet.) .. ...... 87Gallemore v. State, 20l0 WL 1509775 (Tex.App.-Fort Worth 2010) (Not designated for publication) . . . . . . . . . 130Gallowavv.State,778S.W.2d 111(Tex.App.-Houston [14th Dist.] 1989, nopet.).. ..... 47Gallups v. State, 151 S.W.3d 196 (Tex.Crim.App., December 08, 2004) . . . . . . 31,32Gamboav. State,774S.W.2d 111(Tex.App.-FortWorth 1989, pet. refd) ....... 37Gamez v. State, 2003 WL 145554 (Tex.App.-San Antonio, 2003) (not for pub.) . . . 80Ganskvv. State,180 S.W.3d 240(Tex.App.-FortWorth 2005, pet refd) ........ 12Garcia v. State, 112 S.W.3d 839 (Tex.App.-Houston [1ath Dist]August 7,2003, no pet.) . . . . . .. 76Garcia v. State, 874 S.W.2d 688 (Tex.App.-El Paso 1993, pet. refd) . . . . . 97Garcia v. State, 95 S.W.3d 522 (Tex.App.-Houston [1"1 Dist.] 2002, no pet.) .: . . . 86Garner v. State, 779 S.W.2d 498 (Tex.App.-Fort Worth 1989) pet. refd per curiam, 785 S.W.2d 158 (Tex.Crim.App.1990) .Garrett v. State, 851 S.W.2d 853 (Tex.Crim.App.1993) . . . . . . 4Gaza v. State, 794 S.W.2d 530 (Tex.App.-Corpus Christi 1990, reh. overruled) . . . . . . . . 41Gassawav. State, 957 S.W.2d 48 (Tex.Crim.App. 1997) . . . 36Gattisv. State,2004WL 2358455 (Tex.App.-Houston [14th Dist.] 200a)(Notdesignatedforpublication) ... .... 82Geesa v. State,820 S.W.2d 154 (Tex.Crim.App. 1991) . . . . 135Gentile v. State, 848 S.W.2d 359 (Tex.App.-Austin 1993, no pet.) . . . . . . 110Getts v. State, 155 S.W.3d 153 (Tex.Crim.App.2005) . . . . . 120Gibson v. State, 952 S.W.2d 569 (Tex.App.-Fort Worth 1997, no pet.) . . . 109Gibson v. State,995 S.W.2d 693 (Tex.Crim.App. 1999) . . . 113Gifford v. State, 793 S.W.2d 48 (Tex.App.-Dallas 1990), pet. dism'd, improvidently granted, 810 S.W.2d 225(Tex.Crim.App. 1991) ....... 97Giqliobianco v. State, 210 S.W.3d 637 (Tex.Crim.App 2006) . . . . . . 76Glauser v. State, 66 S.W.3d 307 (Tex.App.-Houston [1"t Dist] 2000, pdr ref d). . . . . . . . . . . 5Glover v. State, 870 S.W.2d 198 (Tex.App.-Fort Worth 1994, pet. refd) . . . 11153

Gomez v. State, 35 S.W.3d 746 (Tex.App.-Houston [1$ Dist.] 2000, pet refd) . . . 107Gonzales v. State, 2010 WL 1687773 (Tex.Crim.App. 2010) . . . . . 117Gonzalesv.State,5Sl S.W.2d690(Tex.Crim.App. 1979) ........ 48Gonzalez v. State, 967 S.W.2d 457 (Tex.App.-Fort Worth 1998, no pet.) . . . . . . . . 64Gordonv.State,16l S.W.3d 188(Tex.App.-Texarkana2005, nopet.) . ....... 113Gowans v. State, 995 S.W.2d 787 (Tex.App.-Houston [1"t Dist.] 1999, pet. refd) . . . . . . . 135Gradv v. State, 962 S.W.2d 128 (Tex.App.-Houston [1st Dist.] 1997, pet. refd) . . . . . . . . 141Graham v. State, 710 S.W.2d 588 (Tex.Crim.App. 1986) . . . 59Granberry v. State, 745 S.W.2d 34 (Tex.App.-Houston [14th Dist.] 1987) pet. refd, per curiam, 7585.W.2d284(Tex.Crim.App.1988) .......36Gratis v. State,2004WL 2358455 (Tex.App.-Houston [14 District] October 21, 2004)(Not designated for publication)81Grav v. State, 152 S.W.3d 125 (Tex.Crim.App. 2006) . . . . . . 99Grav v. State, 986 S.W.2d 814 (Tex.App.-Beaumont 1999, no pet.) . . . . . . 33Green v. State, 640 S.W.2d 645 (Tex.App.-Houston [14th Dist.] 1982, no pet.) . . . . .. . . 138Gressettv. State,669 S.W.2d 748(Tex.App.-Dallas 1983), affd,723S.W.2d 695 (Tex.Crim.App. 1986)....... 69Griffith v. State,55 S.W.3d 598 (Tex.Crim.App.2001) . . . 33,35Grissettv.State,STlS.W.2d922(Tex.Crim.App.1978) ...:.. ....98Growe v. State, 675 S.W.2d 564 (Tex.App.-Houston [14th Dist.] 1984, no pet.) . . . . . . . . . 59Gullaftv. State,74S.W.3d 880(Tex.App.-Waco 2002,no pet.) .. ....... 50Hackett v. State, 2003 WL 21810964 (Tex.App.-Fort Worth, 2003, no pet.) (Not designated for publication) 39, 50Hailevv.State,87S.W.3d118(Tex.Crim.App.2002)cert.denied,s38U.S.1060(2003) ........89Halbrook v. State, 31 S.W.3d 301 (Tex.App.-Fort Worth 2000, pet. refd.) . . . . 35, 36Hall v. State, 297 S.W.3d 294 (Tex.Crim.App. 2009). . . . . . . 23Hallv. State, 619 S.W.2d 156 (Tex.Crim.App. 1980) . . . . . . 111Hallv. State,649S.W.2d 627(Tex.Crim.App.1983) ....... 69Hammett v. State, 713 S.W.2d 102 (Tex.Crim.App. 1986) . . . 44Hanson v. State, 781 S.W.2d 445 (Tex.App.-FortWorth 1990). Appeal abated, 790 S.W.2d 646 (Tex.Crim.App. 1990)139Hardie v. State, 588 S.W.2d 936 (Tex.Crim.App. 1979) . . . . . . 2Hardie v. State, 807 S.W.2d 319 (Tex.Crim.App. 1991) . . 33, 34Hardv v. State, 2005 WL 1845732(Tex.App.-Corpus Christi, Aug. 4, 2005)(Not designated for publication) . . . . . 661,54

Harkev. State, 785 S.W.2d 876 (Tex.App.-Austin 1990, no pet.) . . . . . . 3,4Haneltv.State,725s.W.2d208(Tex.Crim.App. 1986) ..... 59Hanis v. State, 713 S.W.2d 773 (Tex.App.-Houston [1"tDist.] 1986, no pet.) . . . . . 19Harrison v. State,205 S.W.3d 549 (Tex.Crim.App.2006) . . . 65Harrisonv.State,766S.W.2d600(Tex.App.-FortWorth1989, pet. refd) ....... 63Harrisonv. State,788S.W.2d 392 (Tex.App.-Houston [1stDist.]1990, no pet.) . ....... 47Hartmanv.State,2S.W'3d490(Tex.App.-SanAntonio1999,pet.refd.).Hartman v. State,946 S.W.2d 60 (Tex.Crim.App. 1997) . . . . 73Hawesv.State, 125S.W.3d535(Tex.App.-Houston[1"tDist.],2002,nopet.).. .........9Hawkins v. State, 865 S.W.2d 97 (Tex.App.-Corpus Christi 1993, pet. refd) . . . . . 72Heard v. State, 665 S.W.2d 488 (Tex.Crim.App. 1984) . . . . 99Hearne v. State, 80 S.W.3d 677 (Tex.App.-Houston [1"t Dist.] 2002, no pet.) . . . . 134Held v. State,948 S.W.2d 45 (Tex.App.-Houston [14th Dist.] 1997, pet. refd) . . . . 20Hefm v. State, 295 S.W.3d 780 (Tex.App.-Fort Worth 2009) . . . . . 104Hendersonv. State, 14S.W.3d409(Tex.App.-Austin2000, no pet.) .. ...... 73,74Hernandezv.State,107S.W.3d41 (Tex.App.-SanAntonio2003, pet. refd.) . ....:. 46,58Hernandezv. State, 109 S.W.3d 491 (Tex.Crim.App.2003) . .. . . . 112Hernandezv.state, 13S.W.3d78(Tex.App.-Texarkana2000, nopet.).. ...... 135Hemandezv.State,842S.W.2d294(Tex.Crim.App.1992) ...... 101Hemandezv. State,983S.W.2d867(Tex.App.-Austin 1998, pet. refd).. ....... 22Henerav.State,11S.W.3d412(Tex.App.-Houston[1"tDist.]2000,pet. refd) . ......... 1Hessv. State,224S.W.3d 511(Tex.App.-FortWorth 2007)rehearing overruled, pdr. refused) ....... 104Himev.State,998S.W.2d893(Tex.App.-Houston,[14thDist.]1999,pet.refd). ....... 10Hocuttv. State,927 S.W.2d 201 (Tex.App.-FortWorth 1996, pet. refd) . . 103Holland v. State , 622 S.W .2d 904 (Tex.App.-Fort Worth 1981, no pet.) . . . 33Hollen v. State, 117 S.W.3d 798 (Tex.Crim.App. 2003) . . . . 112Hollinv.State,227S.W.3d 117(Tex.App.-Houston[1"tDist.]2006,pet.refd) . .. 124Hof loman v. State, 1995 WL 17212433 (Tex.App.-Eastland 1995) (Not designated for publication) . . . . . . . . . . . 56Hoffowavv. State,698S.W.2d 745(Tex.App.-Beaumont 1985, pet. refd) . ...... 71Holmberqv.State,93l S.W.2d3(Tex.App.-Houston [1stDist.]1996, pet. refd) . ...... 126Holt v. State, 887 S.W.2d 16 (Tex.Crim.App. 1994)155

Howardv.State,744S.W.2d640(Tex.App.-Houston[14thDist.]1987,nopet.).. ...... 56Howe v. State, 2009 WL 264797 (Tex.App.-Dallas 2009) (Not designated for publication) . . . . . . 97Huffman v.State,746 S.W.2d 212(Tex.Crim.App. 1988) . . . . 35Huqhes v. State. 2008 WL 4938278 (Tex.App.-Fort Worth 2008, pet.ref d) . . . . . . 29Hulit v. State, 982 S.W.2d 431 (Tex. Crim. App. 1998) . . . . . 14Human v. State, 749 S.W.2d 832 (Tex.Crim.App. 1988) . . . 111Hunt v. State, 848 S.W.2d 764 (Tex.App.-Corpus Christi 1993, no pet.) . . . 72Huttov.State,977S.W.2d855(Tex.App.-Houston[14thDist.]1998,nopet.).. ........ 47lcke v. State, 36 S.W.3d 913 (Tex.App.-Houston [1"1 Dist.] 2001, pet. refd) . . . . . . 23In reStat exrel. Hilbiq, S85 S.W.2d 189 (Tex.App.-SanAntonio 1998). ....... 115f rion v. State, 703 S.W.2d 362 (Tex.App.-Austin 1986, no pet.) . . . . . . 37, 43lvevv. State,277S.W.3d43(Tex.Crim.App.2009) ....... 143Jacques v. State, 2006 WL 3511408 (Tex.App.*Texarkana Dec 07, 2006) (not designated for publication) . . 86Jamailv. State, 787 S.W.2d 380 (Tex.Crim.App. 1990) . . . . . 61Jessupv. State,935S.W.2d 508(Tex.App.-Houston [14th Dist.]1996, pet. refd) . ...... 62Jimenez v. State, 981 S.W.2d 393 (Tex.App.-San Antonio 1998, pdr. refd) . . . . . 118Johnson v. State, 2005 WL 3244272 (Tex.App.*Fort Worth 2005, pdr refd)(Not designated for publication) 40Johnson v. State, 725 S.W.2d 245 (Tex.Crim.App. 1987) . . 121Johnson v. State, 747 S.W.2d 451 (Tex.App.-Houston [14th Dist.] 1988, pet. refd) . . . . . . 34Johnson v. State, 833 S.W.2d 320 (Tex.App.-Fort Worth 1992, pet. refd) . . . . . . . . 5Johnson v. State, 913 S.W.2d 736 (Tex.App.-Waco 1996, no pet.) . . . . . . 75Johnson v. State,920 S.W.2d 692 (Tex.App.-Houston [1st Dist] 1996, pet. refd) . . . . . . 125Jonesv. State,2008WL 2579897 (Tex.App.-Houston [14 Dist.]2008, pdrfiled) . ...... 123Jones v. State, 795 S.W.2d 171 (Tex.Crim.App. 1990) . . . . . 34Jonesv.State,796S.W.2d183(Tex.Crim.App. 1990) .... 110Jones v. State, 80 S.W.3d 686 (Tex.App.-Houston [1"t Dist] 2002, no pet.). . . . . . . 40Jonesv. State,949S.W.2d 509(Tex.App.-FortWorth 1997, no pet. h.) ... ..... 30Jordv v. State, 969 S.W.2d 528 (Tex.App.-Fo( Worth 1998, no pet.) . . . . 117Kaldisv.State,926S.W.2d771 (Tex.App.-Houston[lstDist] 1996, pet. refd) . ........ 42Kaliszv. State,32 S.W.3d 718 (Tex.App.-Houston (14th Dist.l2000, pet. refd). . ........ 34Kapuscinskiv. State,878S.W.2d248(Tex.App.-SanAntonio 1994, pet. refd) . ........ 56t56

Kaufmanv. State,632S.W.2d685(Tex.App.-Eastland 1982, pet. refd) . ....... 84Kavlor v. State, I S.W.3d 205 (Tex.App.-San Antonio 1999, no pet.) . . . . 142Keenan v. State,700 S.W.2d 12 (Tex.App.-Amarillo 1985, no pet.) . . . . . 138Kellv v. State. 824 S.W.zd 568 (Tex.Crim.App. 1992) . . . . . . 22Kennedvv.State,264S.W.3d372(Tex.App.-Houston[1 Dist.],2008,reh.overruled,pet.refd.) ....... 79Kennedvv.Texas Departmentof PublicSafetv,2OOgWL 1493802 (Tex.App.-Houston [1"tDist.]2009) . ....... 70Kennemur v. State, 280 S.W.3d 305 (Tex.App.-Amarillo 2008,reh. ovenuled, pet. refd) . . . . . 71,84Kercho v. State, 948 S.W.2d 34 (Tex.App.-Houston [14th Dist.] 1997, pet. refd) . . . . . 59,74Kerr v. State, 921 S.W.2d 498 (Tex.App.-Fort Worth 1996, no pet.) . . 50, 136Kerrv. Texas Departmentof Public Safetv,973 S.W.2d 732 (Tex.App.-Texarkana 1998, no pet.). . ..... 72Kessler v. State, 2010 WL 1137047 (Tex.App.-Fort Worth 2010) (Not designated for publication) . . . . . . 29Kimballv. State,24S.W.3d 555(Tex.App.-Waco2000, no pet.) . ....... 11Kinqv. State,732 S.W.2d 796(Tex.App.-FortWorth 1987, pet. refd) ...... ..... 1Kirkham v. State,632 S.W.2d 682 (Tex.App.-Amarillo 1982, no pet.) . . . . . . 3Kirsch v. State, 276 S.W.3d 579 (Tex.App.-Houston [ 1$ Dist.] 2008) affld 306 S.W.3d 738 (Tex.Crim.App. 2010)Kirsch v. State, 306 S.W.3d 738 (Tex.Crim.App.2010) . . . . 106Klepperv. State,2009WL 384299 (Tex.App.-FortWorth2009) . ........ 28Knappv.State,942S.W.2d176(Tex.App.-Beaumont1997,pet.refd). ........85Knisfevv. State,81 S.W.3d 478 (Tex.App.-Dallas 2002,pet. refd.) . . . . . . 83Koteras v. State, 2010 WL 1790808 (Tex.App.-Houston [14th Dist.] 2010) (Not designated for publication) . . . . . . 14Kruqv. State,86S.W.3d 764(Tex.App.-ElPaso 2002) . ........ 25Kuciemba v. State, 2010 WL 2077174 (Tex.Crim.App. 2010) . . . . . . 12Kunkel v. State, 46 S.W.3d 328 (Tex.App.-Houston [14th Dist.] March 8, 2001, pet.refd.) . . . 24,31Lacv v. State, 875 S.W.2d 3 (Tex.App.-Tyler 1994, no pet.) . . . . . 140Lane v. State, 933 S.W.2d 504 (Tex.Crim.App. 1996) . . . . . . 38Lanev.State,951 S.W.2d242(Tex.App.-Austin 1997,nopet.) .. ....... 62Lavton v. State,280 S.W.3d 285 (Tex.Crim.App.2009, reh. denied) . . . . . . 49Lealv. State, 782 S.W.2d 844 (Tex.Crim.App. 1989) . . . . . . 38Ledet v. State, 2009 WL 2050753 (Tex.App.-Houston [1't Dist.] 2009) (Not designated for publication) . . 131Leonard v. State, 923 S.W.2d 770 (Tex.App.-Fort Worth 1996, no pet.) . . . . 4L57

Leos v. State, 883 S.W.2d 209 (Tex.Crim.App. 1994) . . . . . 33Levereft v. State, 2007 WL 1054140 (Tex.App.-Dallas, 2007, no pet.) . . . . 52Lewis v. State, 72 S.W.3d 704 (Tex.App.-Fort Worth 2002, pet. refd) . . . . 46Lewis v. State, 933 S.W.2d 172 (Tex.App.-Corpus Christi1996, pet. refd) . . . . 41, 44Lewis v. State, 951 S.W.2d 235 (Tex.App.-Beaumont 1997, no pet.) . . . . . . 2Liles v. State, 2009 WL 3152174 (Tex.App.-Houston [1"t Dist.] 2009) (Not designated for publication) . . . . . . . . . 51Loar v. State, 627 S.W.2d 399 (Tex.Crim.App. [panel op] 1981) . . . 46Loqanv. State, 757 S.W.2d 160(Tex.App.-SanAntonio 1988, nopet.).. ....... 37Lomaxv. State,233S.W.3d 302 (Tex.Crim. App.2007), habeasrelief denied,2008W L5085653(Tex.App.-Houston [14thDist.l2008,pet.refd) ......123Lonq v. State, 649 S.W.2d 363 (Tex.App.-Fort Worth 1983, pet. refd) . . . . 92Lonsdalev. State,2006WL2480342(Tex.App.-ElPaso,2006, pet. refd).. ..... 55Lopez v. State, 805 S.W.2d 882 (Tex.App.-Corpus Christi 1991, no pet.) . . . 109,137Lopezv.State,936S.W.2d332(Tex.App.-SanAntonio 1996, pet. refd). ....... 31Lorenz v. State,176 S.W.3d 492 (Tex.App.-Houston [1 Dist.] 2004, pdr ref d) . . . . . 54Lovv.State,982S.W.2d616(Tex.App.-Houston[1$Dist.]1998,nopet.).. ..... 33Lvnch v. State,687 S.W.2d 76 (Tex.App.-Amarillo 1985, pet. refd) . . . . . . 87Maddoxv. State,705S.W.2d 739(Tex.App.-Houston [lstDist] 1986), pet. dism'd,770 S.W.2d 780 (Tex.Crim.App. 1988)99Mahaffevv.State,937S.W.2d51 (Tex.App.-Houston[1"tDist], 1996, nopet.). . ....... 117Maibauer v. State, 968 S.W.2d 502 (Tex.App.-Waco 1998, pet. refd) . . . . . 112, 115Malkowskv v. Texas Department of Public Safetv, 53 S.W.3d 873 (Tex.App.-Houston [1"t Dist.] 2001, pet. denied)Mann v. State, 13 S.W.3d 89 (Tex.App.-Austin 2000, Affirmed other grounds 58 S.W.3d 132 (Tex.Crim.App. 2001)38Mann v. State,525 S.W.2d 174 (Tex.Crim.App. 1975)11Mannv. State,58S.W.3d 132 (Tex.Crim.App.2001) ...... 101Manninq v. State, 114 S.W.3d 922 (Tex.Crim.App.2003) . . . . 79Manorv. State,2006WL 2692873 (Tex.App.-Eastland,2006, no pet.). . ..... 37,92Mapesv. State, 187S.W.3d655(Tex.App.-Houston [14th Dist.]2006, pdrfiled) . ...... 122Markevv.State,996S.W.2d226(Tex.App.-Houston[14thDist.]1999,nopet.).. ....... 42Martin v. Department of Public Safetv, 964 S.W.2d 772 (Tex.App.-Austin 1998, no pet.) . . . . . 64,76Martin v. State, 200 S.W.3d 635, (Tex.Crim. App. 2006) . . . 1131s8

Martin v. State,724 S.W.2d 135 (Tex.App.-Fort Worth 1987, no pet.) . . . . 70Martin v. State, 84 S.W.3d 267 (Tex.App.-Beaumont 2002, pet refd) . . . . 113Martinez v. State, 2005 WL 787075 (Tex.App.-El Paso 2005) . . . . . 62Massiev.State,744S.W.2d314(Tex.App.-Dallas1988,pet.refd). .. 47,58Matav. State,46 S.W.3d 902 (Tex.Crim.App.2001) ....... 78Mathieu v. State,992 S.W.2d 725 (Tex.App.-Houston [1"tDist.]1999, no pet.) 30,35Maxwell v. State, 253 S.W.3d 309 (Tex.App.-Fort Worth, 2008, pet. refd) . . . . 54, 60Mavsonet v. State, 91 S.W.3d 365 (Tex.App.-Texarkana, October 16,2002, pet. refd) . . . 23McBride v. State, 946 S.W.2d 100 (Tex.App.-Texarkana 1997, pet. refd) . . . . . . . 63McCaffertvv.State,748S.W.2d489(Tex.App.-Houston[1'tDist]1988,nopet.).. ..... 140McCo v. State, 877 S.W.2d 844 (Tex.App.-Eastland 1994, no pet.) . . . . . . 2McGintv. State, 740 S.W.2d 475 (Tex.App.-Houston [1st Dist.] 1987, pet. refd) . . . . 1, 100McKinnonv. State,2004W1878278 (Tex..App.-Dallas2004, pet. refd)(Notdesignatedforpublication) ........ 4McKinnon v. State, 709 S.W.2d 805 (Tex.App.-Fort Worth 1986) . . . . . 60, 96Mclainv. State,984S.W.2d 700(Tex.App.-Texarkana 1998, pet. refd) . ....... 63McRae v. State, 152 S.W.3d 739 (Tex.App.-Houston [1"tDist.] December 02,2004, pet. refd) . . . . . . 52,53Mendoza v. State, 2006 WL 2328508 (Tex.App.-El Paso, 2006, pdr refd) (not designated for publication) 123Meverv. State,78S.W.3d505(Tex.App.-Austin 2002,pe1. refd) . ...... 38Milam v. State,976 S.W.2d 788 (Tex.App.-Houston [1't Dist.] 1998, no pet.) . . . . 135Millerv.State,341 S.W.2d440(Tex.Crim.App. 1960) ...... 99Mills v. State, 99 S.W.3d 200 (Tex.App.-Fort Worth 2002, pet. refd.) . . . . . 23Mirelesv.State,9s.W.3d 128(Texas1999). ...... 76Mitchell v. State, 187 S.W.3d 113 (Tex.App. -Waco 2006, pet. refd) . . . . . 10Mitchellv. State,821 S.W.2d 420 (Tex.App.-Austin 1991, pet. refd) . . . . . 81Modv v. State, 2 S.W.3d 652 (Tex.App.-Houston [14th Dist.] 1999, pet refd) . . . . . 69Moncivais v. State , 2002WL 1445200 (Tex.App.-San Antonio 2002, no pet.) (Not designated for publication) . . 94Moorev. State.916S.W.2d696(Tex.App.-Beaumont1996, nopet.)..... ..... 122Moorev.State,981 S.W.2d701 (Tex.App.-Houston [1"tDist.]1998, pet. refd) . ........ 69Moreno v. State, 124 S.W.3d 339, (Tex.App.-Corpus Christi2003, no pet.) . . . . . . 26Morrisv.State,897S.W.2d528(Tex.App.-ElPaso 1995, nopet.).. ..... 47Mosqueda v. State, 936 S.W.2d 714 (Tex.App.-Fort Worth 1996, no pet.). . . . . . 1161_59

Mulderv. State,707 S.W.2d 908 (Tex.Crim.App. 1986) ... 117Murphvv'State,44S'W.3d656(Tex.App'-Austin2001,nopet.)..Munav v. State, 245 S.W.3d 37 (Tex.App-Austin 2007, pet. refd) . . . . . . . 86Neaves v. State, 767 S.W.2d 784 (Tex.Crim.App. 1989) . . . . 98Nebesv'State,743s.w.2d729(Tex.App._Houston[1stDist.]1987,nopet.)..Nelson v. State, 149 S.W.3d 206 (Tex.App.-Fort Worth 2004) 96, 103Ness v. State, 152 S.W.3d 759 (Tex.App.-Houston [1 District] December 2,2004, pet. refd.) . . . . 66Nevarez v. State, 671 S.W.2d 90 (Tex.App.-El Paso 1984, no pet.) . .Newbenvv.State,552S.W.2d457(Tex.Crim.App.1977) ........ 48Newellv. State, 2005 WL 2838539, (Tex.App.- Fort Worth, 2005, no pet.) (not designated for publication) 133Nichols v. State,877 S.W.2d 494 (Tex.App.-FortWorth 1994, pel refd) ....... 137Nieschwietz v. State, 2006 WL 1684739 (Tex.App.-San Antonio 2006, pet. refd.) . . . . . . 130Nottinqhamv. State,908S.W.2d585(Tex.App.-Austin 1995, nopet.).. ..... 62,83Novesv.State,2007WL 470452 (Tex.App.-Houston [14thDist.]2007)(notdesignatedforpublication)......... 93Nunez v. State ,2007 WL 1299241 (Tex.App.-Fort Worth 2007 , no pet.) (not designated for publication) ... 106Ochoav.State, 119S.W.3d825(Tex.App..-SanAntonio2003). ....... 101Ochoa v. State, 481 S.W.2d 847 (Tex.Crim.App.1972) . . . . . 44Ocho? v. State, 994 S.W.2d 283 (Tex.App.-El Paso 1999, no pet.) . . . . . . 22Oqdenv.State,2004WL314916(Tex.App,.Austin2004)(Notdesignatedforpublication).... ... 30Oquntopev.State, 177S.W.3d435(Tex.App.*Houston[1"tDist.]2005,nopet.) .. ...... 54Oliphant v. State, 764 S.W.2d 858 (Tex.App.-Corpus Christi 1989, pet. refd) . . . . 13Opo v. State, 36 S.W.3d 158 (Tex.App.-Houston [1"tDist.] 2000, pet. refd) . . . . . . 33Orona v. State, 52 S.W.3d 242 (Iex.App.-El Paso 2001, no pet.) . . . 112, 115Orrick v. State, 36 S.W.3d 622 (Tex.App.-Fort Worth 2000) . . . . . . 43Ottov. State,2008WL 313942 (Tex.Crim.App.2008, reh. denied) ....... 105Owen v. State, 905 S.W.2d 434, 437-39 (Tex.App.-Waco 1995, pet. ref d) . . . . . 70,76, 100O'Connellv. State, 17 S.W.3d 746 (Tex.App.-Austin 2000, no pet.) . . . . . . 51O'Keefev.State,981 S.W.2d872(Tex.App.-Houston[1"tDist]1998,nopet.).. ........ 62O'Nealv.State,999S.W.2d826(Tex.App.-Tyler1999,nopet.). ....... 76Paqe v. State, 125 S.W. 3d 640 (Tex.App.-Houston [lstDist] 2003, pet. refd) . . . . 40Parks v. State, 666 S.W.2d 597 (Tex.App.-Houston [1st Dist.] 1984, no pet.) . . . . . 601_ 60

Patelv.State,2009WL1425219(Tex.App.-FortWorth2009)(Notdesignatedforpublication)... ..... 87Peckv. State,753 S.W.2d 811 (Tex.App.-Austin 1988, pet. refd) . . . . .. 111Peddcordv.State,942S.W.2d 100(Tex.App.-Amarillo 1997, nopet.).. ........ 32Pedenv.State,2004WL2538274(Tex.App.-Houston[1 Dist.]2004,pdrrefd) . ....... 79Penle v. State, 2 S.W.3d 534 (Tex.App.-Texarkana 1999, pet. refd) . . . . . . . . . 87Perezv. State, 124 S.W.3d 214 (Tex.App.-FortWorth 2002, no pet.) . . . . 115Perkins v. State, 19 S.W.3d 854 (Tex.App.- Waco, April 19, 2000, pet. denied) . . 141Perrv v. State, 991 S.W.2d 50 (Tex.App.-Fort Worth 1998, pet. refd) . . . . . 57Pesina v. State, 676 S.W.2d 122 (Tex.Crim.App.198a) . . . . . 83Peters v. Texas Department of Public Safetv, 2005 WL 3007783 (Tex.App.-Dallas 2005, no pet.)(Not designated forpublication) ........134Phifer v. State, 787 S.W.2d 395 (Tex.Crim.App. 1990) . . . . 110Phillips v. State, 964 S.W.2d 735 (Tex.App.-Waco 1998, pet. granted in part) 992 S.W.2d 491 (Tex.Crim.App. 1999)4s.W.3d122(Iex.App.-Waco1999). ...115Pipkin v. State, 114 S.W.3d 649 (Tex.App.-Fort Worth 2003, no pet.) . . . . 10Platero v. State, 1995 WL 144565 (Tex.App.-Houston [14th Dist.] 1995) pdr refd (Not designated for publication)37Platten v. State, 2004 WL 100399 (Tex.App.-Tyler 2004, pdr refd) (Not designated for publication) . . . . . 92Pfessinqerv. State,536 S.W.2d 380 (Tex.Crim.App. 1976) . .. .. . 111Plouff v. State, 192 S.W.3d 213 (Tex.App.-Houston [14 Dist.],2006) . . 52,54Ponce v. State, 828 S.W.2d 50 (Tex.App.-Houston [1st Dist.] 1991, pet. refd) . . . . . . . . . . 59Pope v. State, 207 S.W.3d 352 (Tex.Crim.App. Nov. 15, 2006) . . . . 107Pope v. State, 802 S.W.2d 418 (Tex.App,-Austin 1991 , no pet.) . . . . . . . . 137Porterv. State,969S.W.2d 60(Tex.App.-Austin 1998, pet. refd) . ...... 30Pospisif v.State,2003WL 4443092(Tex.App.-Texarkana2008, nopet.) . ...... 11Poulos v. State, 799 S.W.2d 769 (Tex.App.-Houston [1st Dist.] 1990, no pet.) . . . . . . . . . . 39Prafte v. State, 2008 WL 5423193 (Tex.App.-Austin 2008, no pet.) . . . . . . 45Pratte v. State, 2008 WL 5423193 (Tex.App.-Austin 2008) . . . . . . . . 3Preston v. State,983 S.W.2d 24 (Tex.App.-Tyler 1998, no pet.) . . . 16Price v. State, 2006 WL 1707955 (Tex.App.-Austin 2006, pet. denied) (Not designated for publication) . . . . . . . . 50Price v. State, 59 S.W.3d 297 (Tex.App.-Fort Worth 2001, pet. refd) . . . 76,100,107Purvis v. State, 4 S.W.3d 118 (Tex.App.-Waco 1999, pet refd) . . . . . . . . 1351-61-

Quinnev. State, 99 S.W.3d 853 (Tex.App.-Houston [14th Dist.] 2003, no pet.) . . . . . . 50,52Quinones v. State, 592 S.W.2d 933 (Tex.Crim.App. 1980), cert. denied, 101 S. Ct. 256. (19S0) . . . 38Rafaelfiv. State,881 S.W.2d 714 (Tex.App.-Texarkana 1994, pet. refd) . . . . . 12,35Raqan v. State,642 S.W.2d 489 (Tex.Crim.App. 1982) . . . . . 48Railsbackv. State,95S.W.3d473(Tex.App.-Houston [1$Dist] 2002,pet. refd.) . ...... 58Ramos v. State, 124 S.W.3d 326 (Tex.App.-Fort Worth 2003, pet. refd) . . . . . 82, 83Rawlinqs v. State, 602 S.W.2d 268 (Tex.Crim.App. 1980) . . 110Rav v. State, 749 S.W.2d 939 (Tex.App.-San Antonio 1988, pet. refd) . . . 1 ,97, 100Rav v. State, 816 S.W.2d 97 (Tex.App.-Dallas 1991, no pe!.) . . . . 137Read v. State, 955 S.W.2d 435 (Tex.App.-Fort Worth 1997, pet. refd) . . . 118Reaqanv. State,968S.W.2d571 (Tex.App.-Texarkana 1998, pet. refd).. ...... 58Reardon v. State, 695 S.W.2d 331 (Tex.App.-Houston [1st Dist.] 1985, no pet.) . . . . . . . 100Reavis v. State, 84 S.W.3d 716 (Tex.App.-Fort Worth, 2002, no pet.) . . . . 40Reddie v. State, 736 S.W.2d 923 (Tex.App.-San Antonio 1987, pet. refd.) . . . . . 139Redfearn v. State, 26 S.W.3d 729 (Tex.App.-Fort Worth 2000, no pet.) . . 121Reed v. State,2010WL 851424 (Tex.App.-FortWorth 2010) (Notdesignatedforpublication) ... ...... 29Reed v. State, 916 S.W.2d 591 (Tex.App.-Amarillo, 1996, pet. refd) .Reha v. State,99 S.W.3d 373 (Tex.App.-Corpus Christi2003) . . . . 24Reidweq v. State, 981 S.W.2d 399 (Tex.App.-San Antonio 1998, pdr. refd) . . 88, 100Revnolds V. Statd, 163 S.W.3d 808 (Tex.App. Amarillo 2005) affirmed other grounds 204 S.W.3D 386 (Tex.Crim.App.2006) . ...... 53Revnoldsv. State,204S.W.3d 388(Tex.Crim.App.2006) ........ 80Revnoldsv. State,4S.W.3d 13(Tex.Crim.App.1999) ..... 126Revnoldsv.State,744S.W.2d 156(Tex.App.-Amarillo1987,pet.refd) . ...... ...... 138Revnolds v. State, 902 S.W.2d 558 (Tex.App.-Houston [1st Dist.] 1995, pet. refd) . . . . . . 30Rhodes v. State, 945 S.W.2d 115 (Tex.Crim.App. 1997) . . . . 49Richardson v. State , 2004 WL 292662 (Tex.App.-Dallas 2004, no pet.) (Not designated for publication) . . 109Richardsonv.,State,39S.W.3d634(Tex.App.-Amarillo2000,no pet.) . ........ 26Rivera v. State, 957 S.W.2d 636 (Tex.App.-Corpus Christi 1997, pet. refd) . . . . . 115Rizo v. State, 963 S.W.2d 137 (Tex.App.-Eastland 1998, no pet.) . . . . . . 117Robles v. State, 85 S.W.3d 211 (Tex.Crim.App. 2002) . . . . 112L62

Rodriquezv.State, 631 S.W.2d515(Tex.Crim.App. 1932) ....... 58Rodriquezv. State, 18 S.W.3d 228 (Tex.Crim.App.2000) . . . 99Rodriquez v. State, 2005 WL 2313567 (Tex.App.-El Paso 2005, no pet.) (Not designated for publication) 93Rodriquez v. State, 31 S.W.3d 359 (Tex.App.-San Antonio 2000, pet. refd) . . . . 115Romo v. State, 577 S.W.2d 251 (Tex.Crim.App. 1979) . . 16, 31Rousev.State,651 S.W.zd 736(Tex.Crim.App. [panelop.] 1983) ........ 56Rowe v. State, 2004 WL 1050693 (Tex.App.-Dallas 2004, pet. refd) (Not designated for publication) . . . 127Rowlandv. State,983S.W.2d 58(Tex.App.-Houston (1sDist.)1998, pet. refd) . ....... 62Rov v. State, 608 S.W.2d 645 (Tex.Crim.App. [panel op.] 1980) . . . . 33Ruiz v. State, 907 S.W.2d 600 (Tex.App.-Corpus Christi 1995, no pet.) . . . 16Sanders v. State, 936 S.W.2d 436 (Tex.App.-Austin 1996, pet. refd) . . . . . . 2Sandovalv. State 17 S.W.3d 792, (Tex.App.-Austin,2000, pet. refd.) . . . . 66Savase v. State, 933 S.W.2d 497(Tex.Crim.App. 1996) . . . 141Sawver v. State, 2008 WL 3877701 (Tex.App.-Austin 2008).Schaum v. State,833 S.W.2d 644 (Tex.App.-Dallas 1992, no pet.) . . . . . . 62Schillitaniv. State, 2009 WL 3126332 (Tex.App.-Houston [14h Dist.] 2009) . . . . . 139Scott v. State, 564 S.W.2d 759 (Tex.Crim.App. 1978) . . . . . . 48Seaton v. State, 718 S.W.2d 870 (Tex.App.-Austin 1986, no pet.) . . . . . . 110Sequra v. State, 826 S.W.2d 178 (Tex.App.-Dallas 1992, pet. refd) . . . . . . 30Shaferv. State,919 S.W.2d 885 (Tex.App.-FortWorth 1996, pet. refd) . . . 93Shaub v. State, 99 S.W.3d 253 (Tex.App.-Fort Worth 2003, no pet.) . . . . . 57Shepherd v. State, 915 S.W.2d 177 (Tex.App.-Fort Worth 1996, pet. ref d) . . . 47 , 69Shirlevv.TexasDepartmentof PublicSafetv,974S.W.2d321 (Tex.App.-SanAntonio 1998, no pet.) ......... 63Sierra v. State, 280 S.W.3d 250 (Tex.Crim.App. 2009) . . . . 101Sims v. State, 735 S.W.2d 913 (Tex.App.-Dallas 1987, pet. refd) . 1, 33, 100Sinqleton v. State, 91 S.W.3d 342 (Tex.App.-Texarkana,2002) . . . 30Skinner v. State. 2006 WL 1420388 (Tex.App.-Tyler 2006) (not designated for publication) . . . . . 82Sledqe v. State,1994 WL 247961(Tex.App.-Dallas June 9, 1994, no pet.)(Not designated for publication) .Smith v. State, 1 S.W.3d 261 (Tex.App.-Texarkana 1999, pet refd) .1051.19Smith v. State, 12 S.W.3d 149 (Tex.App.-El Paso 2000, pet. refd) . . . . . . 112Smith v. State, 158 S.W.3d 463 (Tex.Crim.App.2005) . . . . . 113163

Smithv. State,65S.W.3d332 (Tex.App.-Waco2001, no pet.).. ..... 50,51Smithv.State,866S.W.2d731 (Tex.App.-Hcjuston[14thDist.]1993,nopet.) . ........ 73Smithevv. State,850 S.W.2d 204 (Tex.App.-FortWorth 1993, pet. refd) ....... 97Snokhousv. State,2010 WL 1930088(Tex.App.-Austin 2010)(Notdesignatedforpublication) .. ...... 49Sparksv. State,943S.W.2d 513(Tex.App.-FortWorth 1997, pet. refd) ........ 92Spauldinqv. State,896S.W.2d587(Tex.App.-Houston [lstDist]1995, nopet.) .. ..... 109Spebarv.State, l2lS.W.3d61 (Tex.App.-SanAntonio,September3,2003,nopet.) ....89Spence v. State, 2009 WL 3720179 (Tex.App.-Fort Worth 2009, pet refd) (Not designated for publication) 94Spradlinqv. State,628S.W.2d 123(Tex.App.-Beaumont1981, pet. refd).. ..... 49St.Clairv.State,101 S.W.3d737(Tex.App.-Houston[1"tDist.]2003,pet.refd). ....... 119Stamper v. State, 2003 WL 21540414 (Tex.App.-Dallas 2003). . . . 95Stanberqv.State,989S.W.2d847(Tex.App.-Texarkana 1999, pet. refd).. ..... 44Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App. 2001) . 3,70Staninv. State.2005WL 3343875 (Tex.App.-FortWorth 2005) . ........ 29State ExRel. Gilfeather,937S.W.2d46(Tex.App.-FortWorth 1996, no pet.) .. ....... 128Stateof Texas ExRel. SteveC. Hilbiq,985S.W.2d 189(Tex.App.-SanAntonio, 1998, no pet.) .. ..... 120State v. Adkins, 829 S.W.2d 900 (Tex.App.-Fort Worth 1992, pet. refd) . . . . . . . . 10State v. Alderete, 2010 WL 1634580 (Tex.App.-El Paso 2010) . . . . 12State v. Amava, 221 S.W.3d 797 (Tex.App.-Fort Worth 2007, pdr refd) . . . 67State v. Anderson, 974 S.W.2d 193 (Tex.App.-San Antonio'1998,no pet.) . . . . . 126State v. Arend, 2005 WL 994710 (Tex.App.-Fort Worth 2005, pet. ref d.) (Not designated for publication)State v. Aniaqa, 5 S.W.3d 804 (Tex.App.-San Antonio 1999, pet. refd) .2021Statev. Barbernell,257S.W.3d248(Tex.Crim.App.2008) ......... 1State v. Binqham,921 S.W.2d 494 (Tex.App.-Waco 1996 pet. refd) . . . . . 84State v. Brabson, 966 S.W.2d 493(Tex.Crim.App.1998) . . . 126State v. Brvant, 161 S.W.3d 758 (Tex.App.-Fort Worth 2005, no pet.) . . . . 27State v. Camacho,827 S.W .2d 443 (Tex.App.-San Antonio 1992, no pet.) . . . . . 111State v. Carter, 2005 WL 2699219 (Tex.App.-Fort Worth 2005, pdr refused) (Not designated for publication) . . 28State v. Carter, 810 S.W.2d 197 (Tex.Crim.App. 1991) . . . . . 56Statev.Cernv,28S.W.3d796(Tex.App.-CorpusChristi2000,nopet.). ........ 21Statev. Davis,792S.W.2d751 (Tex.App.-Houston [14th Dist.] 1990, nopet.).. ........ 341CA

State v. Duqas, 2009 WL 2356665 (Tex.App.-Houston [14th Dist.] 2009, pet. refd) (Not designated for publication)90State v. Duke, 59 S.W.3d 789 (Tex.App.-Fort Worth 2001, pet. refd)State v. Franco, 180 S.W.3d 219 (Tex.App.-San Antonio 2005, pdr refused).State v. Fudqe, 42 S.W.3d 226 (Tex.App.-Austin, 2001, no pet.) .State v. Ganett. 22 S.W. 3d 650 (Tex.App.-Austin, 2000, no pet.)State v. Gaza, 2005 WL 2138082 (Tex.App.-San Antonio 2005)(not for pub.)State v. Gerstenkorn, 239 S.W.3d 357 (Tex.App.-San Antonio 2007, no pet.) .State v. Gonzales, 850 S.W.2d 672 (fex. App.-San Antonio 1993, pet. refd) . .State v. Groves, 837 S.W.2d 103 (Tex.Crim.App. 1992)State v. Guzman, 182 S.W.3d 389 (Tex.App.-Austin 2005). .State v. Guzman, 240 S.W.3d 362 (Tex.App.-Austin 2007, pdr ref d) .State v. Hardv, 963 S.W.2d 516 (Tex.Crim.App. 1997)State v. Huddleston, 164 S.W.3d 711 (Tex.App.-Austin, 2005) .State v. Hurd, 865 S.W.2d 605 (Tex.App.-Fort Worth 1993, no pet.)State v. Johnson, 219 S.W.3d 386 (Tex.Crim.App.2007)State v. Johnston, 305 S.W.3d 746 (Tex.App.-Fort Worth 2009)State v. Kellv, 204 S.W.3d 808 (Tex.Crim.App., 2006)State v. Kloecker, 939 S.W.2d 209 (Tex.App.-Houston [1st Dist.] 1997, no pet. h.)State v. Kraqer, 810 S.W.2d 450 (Tex.App.-San Antonio 1991, pet. refd) .State v. Kurtz, 152 S.W.3d 72 (Tex.Crim.App., 200a)State v. Laird, 38 S.W.3d 707 (Tex.App.-Austin 2000, pet. refd) .State v. Liendo, 980 S.W.2d 809 (Tex.App.-San Antonio 1998, no pet.) . .117771055805772124128198521852891891859158585State v. Lucero, 979 S.W.2d 400 (Tex.App.-Amarillo 1998, no pet.) . . . . . . . 118, 142State v. Luxon, 230 S.W.3d 440 (Tex.App.-Eastland 2007, no pet.) . .State v. Lvons, 820 S.W.2d 46 (Tex.App.-Fort Worth 1991, no pet.) . .State v. Maqee, 29 S.W.3d 639 (Tex.App.-Houston [1"tDist.] 2000, pet refd) .State v. Marshall, 814 S.W.2d 789 (Tex.App.-Dallas 1991) pet. ref d) . .State v. McGuffev, 69 S.W.3d 654 (Tex.App.-Tyler 2002, no pet.) .State v. McMonis, 2006 WL 1452097 (Tex.App. Fort Worth 2006, pet. refd) (Not designated for publication) . . .State v. Mechler, 153 S.W.3d 435 (Tex.Crim.App.2005)28601221271121677L65

State v. Melendes, 877 S.W.2d 502 (Tex.App.-San Antonio 1994, pet. refd) .State v. Mova, 877 S.W.2d 504 (Tex.App.-San Antonio 1994, no pet.) . .State v. Murphv,2007 WL 2405120 (Tex.App.-Fort Worth 2007, no pet.) (not designated for publication)State v. Nailor, 949 S.W.2d 357 (Tex.App.-San Antonio 1997, no pet.) .State v. Neel, 808 S.W.2d 575 (Tex.App.-Tyler 1991, no pet.) .7172275660State v. Neeslev,196 S.W.3d 356 (Tex.App..-Houston [1"tDist.] 2006, pdr granted).ReversedStatev. Neeslev,239S.W.3d780(Tex.Crim.App.2007) ....... 90Statev. Nelson,228S.W.3d899(Tex.App.-Austin 2007,no pet.) . ...... 10State v. Parson, 988 S.W.2d 264 (Tex.App.-San Antonio 1998, no pet.) . . . . . . . . 31Statev.Reed,888S.W.2d117(Tex.App.-SanAntonio1994,nopet.)......:. ........ 72Statev. Revna,89S.W.3d 128(Tex.App.-CorpusChristi2002, nopet.) ........ 48State v. Rios, 861 S.W.2d 42 (Tex.App.-Houston [14th Dist.] 1993, pet. refd) . . . 127Statev. Rudd.255S.W.3d293(Tex.App.-Waco2008) . ........ 32Statev.Sailo,910S.W.2d184(Tex.App.-FortWorth1995,pet.refd) ....10State,v.Sanchez,925S.W.2d371 (Tex.App.-Houston[1stDist.]1996,pet. refd) ........ 2State v. Savaqe, 933 S.W.2d 497 (Tex.Crim.App. 1996) . . . 136State v. Schaeffer, 839 S.W.2d 113 (Tex.App.-Dallas 1992, pet. refd) .Statev.Sells,798S.W.2d865(Tex.App.-Austin1990,nopet.).. ....... 69Statev.Serano,894S.W.2d74(Tex.App.-Houston[14thDist]1995,nopet.).. ........ 68State v. Stevenson, 958 S.W.2d 824 (Tex.Crim.App. 1997) . . . . 46,49State v. Stolte, 991 S.W.2d 336 (Tex.App.-Fort Worth 1999, no pet.) . . . . . 10Statev.Subke,918S.W.2d 11(Tex.App.-Dallas 1995pet. refd) ........ 48Statev.Tarvin,972s.W.2d910(Tex.App.-Waco1998,pet.refd). ...... 22Statev.Vasquez, 140S.W.3d758(Tex.App.-Houston[14h Dist.]2004,no pet.).. ..... 117Statev.Waldrop,T S.W.3d 836(Tex.App.-Austin 1999, no pet.) .. ...... 47State v. Wheeler, 790 S.W.2d 415 (Tex.App.-Amarillo 1990, no pet.) . . . . . . . . . . 112Statev. Woodard,2010 WL 1268035 (Tex.App.-FortWorth 2010) (Notdesignated forpublication) .... ....... 27State v. Zeno, 44 S.W.3d 709 (Tex.App.-Beaumont 2001, pet. refd) . . . . . 25Stevenson v. State, 895 S.W.2d 694 (Tex.Crim.App. 1995) on remand, 920 S.W.2d 342 (Tex.App.-Dallas 1996, no pet.)73Stewart v. State, 129 S.W.3d 93 (Tex.Crim.App. 2004)Stoker v. State, 170 S.W.3d 807 (Tex.App.-Tyler, 2005, no pet.) .75251-66

Stone v. State, 685 S.W.2d 791 (Tex.App.-Fort Worth 1985), affd 703 S.W.2d 652 (Tex.Crim.App. 1986) 9,98Stovall v. State, 140 S.W.3d 712 (Tex.App.-Tyler 2004) (reh. overruled)Streff v. State,890 S.W.2d 815 (Tex.App.-Eastland 1994, pet. refd) .. . . 11'lStrickland v. State,193 S.W.3d 662 (Tex.Ap.-Fort Worth 2006, pdr refd.) . . . . . . 123Strinqer v. State, 2003 WL 21283181 (Tex.App.-Fort Worth, June 5, 2003, pet. refd.) (Not designated for publication)35Stronq v. State, 87 S.W.3d 206 (Tex.App.-Dallas, 2002, pet. refd) . . . . . . 103Subirias v. State, 278 S.W.3d 406 (Tex.App.-San Antonio 2009, pdr refd.) . . . . . . 91Summersv.State,172S.W.3d102(Tex.App.-Texarkana2005,nopet.).. ..... 119Suttonv. State,899S.W.2d682(Tex.Crim.App.1995) ;..... ..... 99Sweenevv. State,6S.W.3d 670(Tex.App.-Houston [1"tDist.]1999, pet. refd.) . ....... 18Tamez v. State, 11 S.W.3d 198 (Tex.Crim.App.2000) . . . . . 112Tanner v. State, 875 S.W.2d 8 (Tex.App.-Houston [1st Dist] 1994, pet. refd) . . . . 110Tapp v. State, 108 S.W.3d 459 (Tex.App.-Houston [14th Dist.] 2003, pet refd) . . . . . . . . . . 86Tavlor v. State, 2006 WL 1649037 (Tex.App.-Austin 2006, pet. refd) (Not designated for publication) . . 52,53Tennerv. State, 680 S.W.2d 629 (Tex.App.-Corpus Christi 1984, pet. refd) . . . 108Texas Department of Public Safetv v. McGlaun, 51 S.W.3d 776 (Tex.App.-Fort Worth 2001, pet. denied) . . . . . . 64TexasDepartmentof PublicSafetvv.Allocca,30l S.W.3d 364(Tex.App.-Austin2009) . ...... 139Texas Department of Public Safetu v. Butler, 960 S.W.2d 375 (Tex.App.-Houston [14th Dist.] 1998, no pet.). . . . 63Texas Department of Public Safet v. Duqsin, 962 S.W.2d 76 (Tex.App.-Houston [1st Dist.] 1997, no pet.)Texas Department of Public Safet v. Hindman, 989 S.W.2d 28 (Tex.App.-Fort Worth't999, no pet.) . . . . . . . . . . 22Texas Department of Public Safetv v. Jaurequi, 176 S.W.3d 846, (Tex.App.,-Houston [1 Dist.], 2005, rev. denied)62TexasDepartmentof PublicSafetvv. Latimer,939S.W.2d240(Tex.App.-Austin 1997, nopet.) . ...... 63Texas Departmentof Publicsafetvv. Mitchell,2003WL 1904035 (Tex.App.-FortWorth 2003) . ....... 65Texas Department of Public Safetv v. Rolfe, 986 S.W.2d 823 (Tex.App.-Austin 1999, no pet.) . . . . . . . . . 67Texas Department of Public Safetv v. Sanchez. 82 S.W.3d 506 (Tex.App.-San Antonio 2002, no pet.) . . . . . . . . . 70Texas Department of Public Safetv v. Struve.79 S.W.3d 796 (Tex.App.-Corpus Christi, 2002, pet. denied) . . . . . 65TexasDeoartmentof PublicSafetvv.Thomas,985S.W.2d567(Tex.App.-Waco1998, nopet.). ...... 64Texas Department of Public Safetv v. Thompson, 14 S.W.3d 853 (Tex.App.-Beaumont 2000, no pet.) . . . . . . . . . 76Texas Dept. of Public Safefu v. Bennoit, 994 S.W.2d 212 (Tex.App.-Corpus Christi 1999, pet. denied) . . . 63Texas Dept. Of Public Safetv v. Gonzales, 2008 WL 4657528 (Tex.App.-San Antonio, 2008) . . . . 26r67

TexasDept. APublicSafetvv.Moore.175S.W.3d270 (Houston [ls Dist.]2004, nopet.). .... ........ 93Texas Dept. Of PublicSafetuv. Nielsen, 102 S.W.3d 313(Tex.App.-Beaumont,2003, no pet.) .. ...... 54Texas Deot. of Public Safetv v. Walter, 979 S.W.2d 22 (Tex.App.-Houston [14th Dist.] 1998, no pet.) . . . . . . . . . . 63Texas v. McCrary, 986 S.W.2d 259 (Tex.App.-Texarkana 1998, pet. refd) . . . . . . . 19Thibaut v. State, 782 S.W.2d 307 (Tex.App.-Eastland 1989, no pet.) . . . . . 56Thomas v. State, 990 S.W.2d 858 (Tex.App.-Dallas 1999, no pet.) . . . . . . 70Thurmanv.State,36l S.W.2d96(Tex.App.-Houston [lstDist]1993nopet.) .. ..... 85,86Tietz v. State, 2008 WL 372464 (Tex.App.-San Antonio 2008) . . . 114Toddv. State,956S.W.2d 777(Tex.App.-Waco 1997, pet. refd).. ..... 127Tones v. State, 109 S.W.3d 602 (Tex.App.-Fort Worth 2003, no pet.) 84, 100Tones v. State, 2000 WL 34251147 (Tex.App.-Corpus Christi 2000, no pet. (Not designated for publication) . . . . 94Townsend v. State,813 S.W.2d 181 (Tex.App.-Houston [14th Dist] 1991, pet. refd) . 13,36Tracev v. State, 350 S.W.2d 563 (Tex.Crim.App. 1961) . . . . 56Trahan v. State, 16 S.W.3d 146 (Tex.App.-Beaumont 2000, no pet.) . . . . . 25Troff v. State, 882 S.W.2d 905 (Tex.App.-Houston [1st Dist.] 1994, pet. refd) . . . . . . . . . 116H*i::iT:::::::il:t"it ::i*:ii'Yl,:'???:'ill'lllllT:iT::::::1':'i:i'i?:"3Tumer v. State, 877 S.W.2d 513 (Tex.App.-Fort Worth 1994, no pet.) . . . . . . 58, 137Turpin v. State,606 S.W.2d 907 (Tex.Crim.App. 1980) . . . . . 61Urquhart v. State, 128 S.W.3d 701 (Tex.App.-El Paso 2003, reh. overruled, pet. ref d) . . . 66Valenti v. State, 49 S.W.3d 594 (Tex.App.-Fort Worth 2001, no pet.) . . . . 110Valentichv. State,2005W11405801 (Tex.App.-FortWorth 2005)(Notdesignatedforpublication) ........... 16Vaflesv.State,817S.W.2d 138(Tex.App.-ElPaso 1991, nopet.).. ..... 43Vanderhorst v. State, 52 S.W.3d 237 (Tex.App.-Eastland 2001) . . . . . 10, 115Varqasv.State,2Tl S.W.3d338(Tex.App.-SanAntonio2008, nopet.) . ...... 104Vasquezv. State,2007WL2417373 (Tex.App.-Corpus Christi2007,no pet.) . . ....... 132Verboisv.State,909S.W.2d140(Tex.App.-Houston[14thDist]1995,nopet.). ....... 71Vickers v. State, 878 S.W.2d 329 (Tex.App.-Fort Worth 1994, pet. ref d) . . . . . . . . 36Villa v. State, 2009 WL 2431511 (Tex.App.-Amarillo 2009, pet. refd) . . . . 131Villareal v. State, 2008 WL 4367616 (Tex.App.-Houston [1"1 Dist] 2008, no pet.) . .. . . . . . . IVrba v. State,151 S.W.3d 676 (Tex.App.-Waco, October 27,2004, pdr refd.) . . . . . 3168

Wasner v. State, 720 S.W.2d 827 (Tex.App.-Texarkana 1986, pet. refd) . . . . . . . . 65Walker v. State, 701 S.W.2d 2 (Tex.App.-Corpus Christi 1985, pet. ref d) . . . . . . 131Wallace v. State, 2005 WL 3465515 (Tex.App.-Texarkana Dec 20, 2005, pdr dismissed) (Not designated for publication)25Wallace v. State, 707 S.W.2d 928 (Tex. App.-Texarkana 1986), affd,782 S.W.2d 854 (Tex.Crim.App. 1989) . . .Waltersv.State,757S.W.2d41 (Tex.App.-Houston[14thDist.]1988,nopet.) .. ...... 116Wanickv. State,634 S.W.2d 707,709 (Tex.Crim.App. 1982) ... 30,32Washburn v. State. 235 S.W.3d 346, (Tex.App.-Texarkana 2007, no pet.) . . . . 63, 83Washinqton v. State, 350 S.W.2d 924 (Tex.Crim.App. 1961) . . . . . 118Watson v. State, 2008 WL 5401497 (Tex.App.-Fort Worth 2008, pet. filed) . . . . . 132Weaver v. State, 87 S.W.3d 557 (Tex.Crim.App.2002) . . . . 119Websterv.State,26S.W.3d 17(Tex.App.-Waco2000, pet. refd) ....... 51Wehrinqv. State,276S.W.3d 666(Tex.App.-Texarkana2008, no pet.).. ....... 24Weslev v. State, 997 S.W.2d 874 (Tex.App.-Waco 1999, no pet.) . . . . . . 118White v. State, 125 S.W.3d 41 (Tex.App.Houston [14s Dist.]2003) . . . . . . 104White v. State, 634 S.W.2d 81 (Tex.App.-Austin 1982, no pet.) . . . . . . . . 108Willv. State, 794 S.W.2d 948 (Tex.App.-Houston [1st Dist.] 1990, pet. refd) . . . . '112Williams v. State, 116 S.W.3d 788 (Tex.Crim.App. October 1, 2003) . . . . . . 42Williamsv. State,2A04WL434622 (Tex.App.-Dallas2004, pet. refd.) (Notdesignatedforpublication) ........ 82Williams v. State, 2010 WL 745785 (Tex.App.-Fort Worth 2010) (Not designated for publication) . . . . . . 106Wifliamsv. State,946S.W.2d432 (Tex.App.-FortWorth 1997, no pet.) .. ..... 102Williams v. State, 946 S.W.2d 886 (Tex.App.-Waco 1997, no pet.) . . 37, 109Wilf iamson v. State, 46 S.W.3d 463 (Tex.App.-Dallas 2001, no pet.) . . . . 117Winborn v. State,2007 WL 1711791 (Tex.App.-Austin 2007, pdr refd) . . . 10Woodall v. State, 2008 WL 3539997 (Tex.App.-Austin 2008 pet. refd) (not designated for publication) .. 101Woodruff v. State,899 S.W.2d 443 (Tex.App.-Austin 1995, pet. refd)Wriqhtv.State,7S.W.3d148(Tex.Crim.App. 1999) rev'donremand,18S.W.3d245(Tex.App.-Austin2000,pet.refd). . ...... 13Wriqhtv. State,932S.W.2d572(Tex.App.-Tyler1995, nopet.).. ...... 136Yatesv. State, 1 S.W.3d 277 (Tex.App.-FortWorth 1999, pet. refd) . . . . . 39Yeaqerv. State, 104 S.W.3d 103 (Tex.Crim.App.2003) . . . . . 18Yearv v. State, 734 S.W.2d 766 (Tex.App.-Fort Worth 1987, no pet.) 87, 1381-6937

Yokomv.State,2004WL742888(Tex.App.-FortWorth2004,pdrrefd)(Notdesignatedforpublication).104,134Youens v. State, 988 S.W.2d 404 (Tex.App.-Houston [1"tDist] 1999, no pet.) . . . . . . 51, 130Younq v. State, 2005 WL 1654763 (Tex.App.-Fort Worth 2005) (Not designated for publication) . . . . . . 133Zimmer v. State, 989 S.W.2d 48 (Tex.App.-San Antonio1998, Rehearing overruled 1999, pet. refd) , ... 108Zimmerlee v. State,777 S.W.2d 791 (Tex.App.-Beaumont 1989, no pet.) . . . . . . 110Zinqerv. State,932 S.W.2d 511 (Tex.Crim.App.1996) ...... 4110

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