PD-0197-15

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS JESSICA NICOLE NANCE, APPELLANT
V. THE STATE OF TEXAS, APPELLEE MOTION FOR REHEARING INCAUSE NUMBER CR 1101695 IN THE COUNTY COURTAT LAW NO. 1 OF HUNT COUNTY, TEXAS MOTION FOR REHEARING

TO THE HONORABLEJUSTICES OF THE COURT OF APPEALS: 

### Comes Now the Appellant and submits this Motion for Rehearing pursuant 

### to the provisions oftheTexas Rules ofAppellate Procedure in Support of her request for the judgment of conviction to be overturned in Cause CR 1101695.



# RECEIVED IN COURTOFCRIMINALAPPEALS 

## MAY 29 2015IDENTITY OF PARTIES AND COUNSEL Pursuant to Texas Rule of Appellate Procedure 38.1, the undersigned counsel of record certifies that the following persons have an interest in the outcome of this case. These representations are made so that the Justices of this Honorable Court can evaluate whether they are disqualified to serve or should recuse themselves from participation in the decision of this case.
APPELLATE: Jessica Nicole Nance
PO. Box 211362 Bedford, Texas 76095

APPELLATE ATTORNEY: Jason A. Duff
2615 Lee Street P.O. Box 11 Greenville, Texas 75403

Appellee: The State ofTexas by and through Joel D. Littlefield Jeffery Kovach

Hunt County Attorney 4th Floor Hunt County Courthouse
2500 Lee Street Greenville, Texas 75401TABLE OF CONTENTS 

### Identity ofthe Parties and Counsel Table ofContents Index ofAuthorities Statement ofthe Case Issues Presented Statement ofthe Facts 

### Summary ofthe Argument Prayerfor Relief 

### Certificate ofcompliance oftypeface and word count Certificate ofServiceINDEX OF AUTHORITIES CASES

Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010) Clayton v. State, 235 S.W.3d 772 (Tex.Crim.App. 2007) Gilliand v. State, 2011WL 3862861 

### (Tex.App.—Texarkana 2011) Hartsfield v. State, 305 S.W.3d 859 

### (Tex.App.—Texarkana 2010) Hooper v. State, 214 S.W.3d 9 (Tex.App.—Texarkana 2007) Jackson v. Virginia, 433 U.S. 307 (1979) Johnson v. State, 517 S.W.2d 536 (Tex.Crim.App.1975) Gonzales v. State, 369 S.W.3d 851,854 (Tex. Crim. App. 2012) 

### Haynes v. State, 475 S.W.2d 739, 741 (Tex. Crim. App. 1971) Kentucky v. King, 131 S.Ct. 1849,1856 (2011) Mincey v. Arizona, 437 U.S. 385, 390 (1978) (quoting Katz v. United States, 389 U.S. 347, 357 (1967))Gonzales, 369 S.W.3d at 854 

## Brayv. State, 597 S.W.2d 763, 765 n.l(Tex. Crim. App. [Panel Op.] 1980) (quoting McDonald v. United States, 335 U.S. 451,455 (1948)) Johnson v. United States, 333 U.S. 10,17(1948) Jones v. United States, 357 U.S. 493,499 (1958). 

## McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). 

## Hudson v. State, 588 S.W.2d 348, 351 (Tex. Crim. App. 1979) (quoting United 

## States v. Chadwick, 433 U.S. 1, 9(1977), abrogated on othergrounds by California v. Acevedo, 500 U.S. 565,568-80 (1991) (internal quotation marks omitted)). United States v. Martinez-Fuerte, 428 U.S. 543, 565 (1976); see also Beckv. Ohio, 379 U.S. 89, 96 (1964) 

## Clay v. State, 391 S.W.3d 94,100 n.21 (Tex. Crim. App. 2013) (quoting Wayne R. LaFave, 2Search and Seizure: A Treatise on the Fourth Amendment § 4.3(b), at511 (4th ed. 2004))). 

## State v. Robinson, 334 S.W.3d 776, 778-79 (Tex. Crim. App. 2011) (footnotes omitted) 

## Robinson, 334 S.W.3d at780 (Cochran, J., concurring); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). 

## Robinson, 334 S.W.3d at779; Amadorv. State, 221 S.W.3d 666, 672-73 (Tex. Crim. App. 2007). 

## Bray, 597 S.W.2d at765 n.l (quoting McDonald, 335 U.S. at456). Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). 

## Crane v. State, 786 S.W.2d 338, 346 (Tex. Crim. App. 1990) STATUTES and RULESTexas Penal Code 49.04 

### Rule 44.2(a) ofthe Texas Rules ofAppellate Procedure See TEX. R. APP. P. 44.2(a) Hernandez v. State, 60S.W.3d 106 (Tex. Crim. App. 2001) Snowden v. State, 353 S.W.3d 815, 821 (Tex. Crim. App. 2011).

End Notes: 1 Adams, R., &Victor, M. (1993). Principles ofNeurology, Sth edition. McGraw-Hill, Inc.: New York 2 Burns, M.,& Anderson, H.( 1995). A Coloradovalidation study of the standardized field sobriety (SFST) battery. Final Report. Colorado Department ofTransportation. 3 Burns, At, &Dioquino, T.( 1997).A Florida validation study of standardized field sobriety test (S.F.S.T. battery. Florida Department of Transportation. 4 De Myer, W. Neuroanatomy. Williams &Wilkins, Baltimore. 5 DWIdetection and standardizedfield sobriety testing Student manual.(1995). NHTSA, U.S. Department ofTransportation. 6 DWIdetection and standardizedfield sobriety testing Instructor manual. (1995). NHTSA, U.S. Department ofTransportation. 7 Elliot. C, & Murray. A. (1998). Repeatability ofbody sway measurements; day-to-day variation measured by)sway magnetometry. Physiol. Meas.19,159-164. 8 Lee, D..& Lishman, J. (1975). Vision -the most efficient source ofproprioceptive information for balance control. Symposium international de posturegraphie, 83-93. 9 Mills, K., &Bisgrove, E. (1983). Body sway anddivided attention performance under the influence ofalcohol: Dose-response differences between males andfemales. Alcohol Clincial and Experimental Research, 7(4), 393-397. 10 Nardone, A., Tarantola, J., Giordano, A., &Schieppati, M. (1997). Fatigue effects on body balance. Electroencephalography and clinical Neurophysiology, 105,309-320.STATEMENT OF THE CASE 

### This is an appeal ofthejudgment and sentence in acriminal case for the County Court atLaw Number 1 in Hunt County, Texas. Appellant Plead Guilty to the crime ofDriving while Intoxicated 

### Second. (RR Vol. 3p.8) Appellantfiled in the trial court an election to punishmentto be made by the trial court on August 12th, 2013. The court ordered apre-sentence investigation. Appellant was assessed asentence ofimprisonmentforTwo Hundred Fifty (250) days in the Hunt CountyJail, $0.00 fine, and $433.00 in court costs on October 14th, 2013 by the trial court. Motion for New Trial was 

### timely filed on November4th, 2013 in the trial court and has yet to be heard. The court reporter's record was filed on April 26th, 2013. Appeal was affirmed on November 10th, 2014. Motion for 

### rehearing was filed on November 12th, 2014. Motion was granted on November 25th, 2014. Motion for rehearing was overruled on 1/6/15. Petition for discretionary review was filed on 4/17/15. PDR was refused on 5/13/2015.ISSUES PRESENTED Point ofError One: Defendant's Fourth Amendment rights were violated when theofficers failed toobtain a search warrant. Point ofError Two: Trial court erred in theadmissibility, utilization and refutation oftheState's evidence concerning field-sobriety test. Point oferror Three: Trial court erred in allowing TrooperGoodwin totestify that there is acertain level of intoxication that can bedetermined bythe HGN
.Statement ofthe facts Appellant pled guiltyto Driving While Intoxicated, Second . (RR Vol. 3 p.8). The trial court admonished Appellant ofthe charge and the range ofpunishment. (RR Vol. 3p.8-15). The trial court then admonished the Appellant that the State was seeking to enhance his punishment range from a Class B misdemeanor to a Class A misdemeanor. (RR Vol. 3 p. 8-15). The court informed Appellant that she had the rightto have a presentence investigation and ordered it done. (CR Vol. 1 p. 195). Duringthe sentencing hearing the State moved to admit Exhibits 1-6 which included the roadside videos, intoxilizer videos and her test results and records obtainedfrom criminal records from Dallas County. Without objection from the Defense the trial court admitted them. (RR Vol. 3 p. 25). Both sides presented arguments and the Court came back with a sentence oftwo hundred and fifty days in jail. (RR Vol. 5p. 113-125).SUMMARY OF THE ARGUMENT 

### Jessica Nicole Nance appeals from herconviction, on an open plea ofguilty, ofdriving while Intoxicated (DWI) second offense. Following a hearing onpunishment, the trial court sentenced Nance to 250days injail. Nance's appointed appellant counsel filed anAnders brief 

### in the matterdetailing the procedural history ofthe case, summarizing and analyzing thetrial evidence, and stating thathe found no meritorious issues toraise on appeal. Nance availed herselfofthe opportunity to file a pro se response. Nance contendsthat she received 

### ineffective assistance of counsel with respect toeach of the following issues: (1) Defendant's Fourth Amendment rights were violatedwhen the officersfailed to obtain a search warrant. (2) Trial court erred In the admissibility, utilization andrefutation of the State'sevidence 

### concerningfield-sobriety test. (3) Trial court erred in allowing Trooper Goodwin to testify that there isacertain level ofintoxication thatcan bedetermined bythe HGN
.