PD-0252-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/6/2015 3:06:11 PM

Accepted 4/9/2015 9:07:11 AM

ABEL ACOSTA

CLERK IN THE TEXAS 

COURT OF CRIMINAL APPEALS 

NO. PD-0252-15 

(Court of Appeals No. 02-14-00039-CR) 

BARCLAY EDWARD BERDAN, 

Petitioner 

vs. 

THE STATE OF TEXAS, 

State 

APPELLANT'S 1sT AMENDED PETITION FOR DISCRETIONARY 

REVIEW 

OF THE SECOND COURT OF APPEALS' OPINION AND JUDGMENT IN 

CAUSE NO. 02-14-00039-CR ON APPEAL FROM COUNTY CRIMINAL 

COURT NO. 9 OF TARRANT COUNTY, HON. BRENT A. CARR 

PRESIDING. 

Tim Choy 

State Bar No. 24056721 

204 W. Central Ave. 

Fort Worth, TX 76164 

Ph: (817) 625-5582 

Fax: (817) 625-5881 

Email: tim@timchoylaw.com 

COUNSEL FOR PETITIONER 
IDENTITY OF PARTIES AND COUNSEL 

The Parties to the trial Court's Judgment are: 

Barclay Edward Berdan, II 

A resident of the City of Fort Worth 

c/o Tim Choy, Attorney At Law 

204 West Central Ave. 

Fort Worth, Texas 79601 

Counsel are: 

Tim Choy 

Attorney At Law 

204 West Central Ave. 

Fort Worth, Texas 79601 

The State of Texas 

Hon. Debra Windsor, 

Chief of Appeals 

Tarrant CountyOffice of 

the Tarrant County District Attorney 

401 West Belknap Street 

Fort Worth, Texas, 76196 

Hon. Brent A. Carr. 

County Criminal Court 9 

gth Floor, Justice Center 

401 West Belknap Street 

Fort Worth, Texas, 76196 

Hon. David L. Richards 

Tex. State Bar No. 16945500 

3001 West 5111 Ste. 800 

Fort Worth, Texas 76107 

2 

Defendant/Petitioner 

Defense Counsel 

Prosecution 

Judge Presiding 

Former Defense Counsel 
Hon. Lisa McMinn 

Office of the State Prosecutor 

Supreme Court Bldg. 

Austin, Texas 

TABLE OF CONTENTS 

State ofTexas 

Identity of Parties and Counsel.. ........................................................................ 2 

Table of Contents ... ...... .. ... .. .. ....... .. . .. ... . .. . .. ... .. ... ..... ..... ... . .... ........ 3 

Index of Authorities ............................................................................................ 4 

Statement Regarding Oral Argument. ................................................................ 5 

Statement of The Case ... ..................................................................................... 5 

Statement of Procedural History ............................................ ............................ 6 

Question Presented for Review .......................................................................... 6 

Whether the Court of Appeals was conect in its analysis and determination 

that the evidence was legally sufficient to support Mr. Berdan's conviction for the 

offense of Driving While Intoxicated? 

Reason for Review, Arguments and Authorities .............................................. 6 

The Court of Appeals has decided a significant issue of Texas law that has 

not been, but should be, decided by this Court, to-wit: whether a breath test refusal, 

coupled with a field-sobriety test refusal, is sufficient to support a conviction for 

Driving While Intoxicated, where the defendant admits to drinking alcohol? 

Prayer ................ .............................................................. ................................. 7 

Certificate of Service ......................................................................................... 8 

Court of Appeals' Opinion and Judgment. ......................................... Appendix 

3 
INDEX OF AUTHORITIES 

Texas Appellate Court Cases 

Barclay Edward Berdan, II v. State of Texas, 

No. 02-14-00039-CR, Jan. 22, 2015 (Memorandum Opinion on Rehearing) 

(Unpublished) ........................... .............................................. ........................... 6 

Jackson v. Virginia, 

443 U.S. 307,319,99 S.Ct. 2781,2789 (1979); Dobbs v. State, 134 S.W.3d 

166, 170 (Tex. Crim. App. 2014) ................................. ..................................... 6 

Huffman v. State, 

No. 02-13-00175-Cr, 1014 WL 3696132, (Tex. FortWorth July 24, 2014, 

no pet.) ......... .......................................... ....... ...... ......... ... ................ 7 

RULE 

TEX. R. APP. P. 66.3(b ) .. ..... .. ... ......... .. ........ .. .... ..... .............................. 5 

4 
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL 

APPEALS: 

COMES NOW BARCLAY EDWARD BERDAN, II, by and through his 

attorney of record, Tim Choy, and pursuant to Rule 68, Texas Rules of Appellate 

Procedure, files this PETITION FOR DISCRETIONARY REVIEW, and for such 

Petitioner would show this Court as follows: 

STATEMENT REGARDING ORAL ARGUMENT 

This petition involves a novel question of state law concerning whether a 

defendant's conviction may be deemed legally sufficient where the primary 

evidence against him is a refusal to perform a standard field sobriety tests and a 

refusal to provide a breath sample. For that reason, Petitioner believes oral 

argument would assist the Court in arriving at its decision. 

STATEMENT OF THE CASE 

Appellant was convicted of the offense of Driving While Intoxicated 

following a one-vehicle accident occurring near a five-street intersection in Fort 

Worth. 

5 
STATEMENT OF PROCEDURAL HISTORY 

Petitioner seeks review of the Court of Appeals Judgment and Opinion in 

Barclay Edward Berdan, II v. State of Texas, No. 02-14-00039-CR, Jan. 22, 2015 ( 

Memorandum Opinion on Rehearing) (Unpublished). This Court granted Petitioner 

one extension of time in which to file this p.d.r., which it ordered due no later than 

today, March 25, 2015. 

QUESTION PRESENTED FOR REVIEW 

Whether the Court of Appeals was correct in its analysis and legal 

sufficiency determination when it held that failure to comply with requests to 

perform field sobriety tests and breath tests can be the primary factors 

supporting the verdict? 

REASON FOR REVIEW 

The Court of Appeals has decided a significant issue of Texas law that has 

not been, but should be, decided by this Court. 

DISCUSSION 

Mr. Berdan respectfully disagrees with the Fort Worth Court of Appeals' 

focus and emphasis on his field sobriety test refusal and breath test refusal in its 

determination and resolution of his legal sufficiency challenge. 

The Court correctly set forth the standard of review set forth in Jackson v. 

Virginia,443 U.S. 307,319, 99 S.Ct. 2781, 2789 (1979)(requiring review of 

evidence in light most favorable to the State). The mistake Mr. Berdan suggests 

was made by the Court of Appeals was its stated reliance on his failure to comply 

6 
with the investigating officer's request that he perform standard field sobriety tests, 

and a later request by law enforcement that he provide a specimen of his breath. 

Slip. Op. p. 3. While it is true that the trier of fact (here, the jury) can take the 

refusals as indicators of guilt, see Huffman v. State, No. 02-13-00175-Cr, 1014 WL 

3696132, (Tex. FortWorth July 24, 2014), to Petitioner's knowledge no case 

authority exists stating how strong those indicators can be. Here, although Mr. 

Berdan admitted having two drinks, and admitted driving the vehicle involved in a 

one car accident while executing a left hand turn at night on one of the most 

confusing intersections in the City of Fort Worth, there is scant evidence of guilt, 

unless heavy reliance is placed on his decision not to comply with field sobriety and 

breath test requests. Accepting this case for discretionary review would allow this 

Court to consider how much weight such refusals should have. 

PRAYER FOR RELIEF 

Petitioner prays that for the above reasons this Court grant discretionary 

revie, and order further briefing and oral argument on the issue presented. He 

further requests reversal of the lower court's decision and remand of his case for 

new trial. 

7 
Respectfully Submitted, 

204 West Central A venue 

Fort Worth, Texas 76164 

Phone: 817/625-5582 

CERTIFICATE OF COMPLIANCE 

The undersigned attorney certifies that this petition contains 1.097 words and 

complies in all other respects, including 14 point font, with T.R.A.P., Rule 

9.04(i)(3). 

CERTIFICATE OF SERVICE 

The undersigned, TIM CHOY, certifies that he has sent a 

copy of this document (in that it has been e-filed) with the appellate division of the 

Tarrant County District Attorney's Office, Hon. Debra Windsor, and with the Hon. 

Lisa McMinn, Office. of the State Prosecutng Attorney, Austin, Texas, this 61

h day 

of April, 2015. 

8 
APPENDIX 
COURT OF APPEALS 

SECOND DISTRICT OF TEXAS 

FORT WORTH 

NO. 02-14-00039-CR 

BARCLAY EDWARD BERDAN II 

v. 

APPELLANT 

THE STATE OF TEXAS STATE 

FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY 

TRIAL COURT NO. 1327699 

EN BANC MEMORANDUM OPINION1 

ON MOTIONS FOR REHEARING 

After reviewing appellant Barclay Edward Berdan ll's motion for rehearing 

and motion for rehearing en bane, we deny the motions, withdraw our November 

6, 2014 memorandum opinion and judgment, and substitute the following in their 

place. 

1

See Tex. R. App. P. 47.4. 
I. BACKGROUND 

Berdan went drinking with a friend in the West 7th Street area of Fort 

Worth. While driving home, Berdan hit a light post in an intersection causing 

the back of his truck to swing out, blocking a lane of traffic. Fort Worth Police 

Officer Brian White saw the accident happen and approached the truck. White 

testified that Berdan willingly stepped out of his car, and as Berdan got out, he 

stumbled backward. Berdan had bloodshot eyes, and White could smell alcohol 

on Berdan's breath. Berdan admitted that he "had a couple of drinks" at a 

nearby bar. After the initial observations of intoxication, White decided to 

conduct a field-sobriety evaluation. 2 White twice asked Berdan to perform the 

tests, but Berdan refused each time, without giving a reason. Believing that 

Berdan had lost the normal use of his mental and physical faculties due to the 

introduction of alcohol into his body, White arrested Berdan and took him to the 

City of Fort Worth jail. 3 In the parking lot of the jail, White read Berdan the 

required statutory warnings and asked Berdan to provide a breath sample. See 

Tex. Transp. Code Ann. § 724.015 (West Supp. 2014). He refused. Berdan 

would not sign the form indicating that he was refusing to provide a sample. A 

2

There are three different tests that the Fort Worth Police Department 

performs: the horizontal-gaze nystagmus, the walk and turn, and the one-leg 

stand. [3 RR 77] 

3

Before White took Berdan to the jail, MedStar EMS arrived to treat 

Berdan. He had no injuries that would have prevented him from performing the 

tests. The medical personnel noted, however, that Berdan smelled of alcohol 

and that Berdan had admitted to drinking alcohol. 

2 
jury convicted Berdan of driving while intoxicated, and the trial court assessed 

his punishment at ninety days' confinement, probated for twenty-four months, 

with a $600 fine. See Tex. Penal Code Ann. § 49.04 (West Supp. 2014). 

II. SUFFICIENCY OF THE EVIDENCE 

Berdan argues that the evidence was insufficient to show that he was intoxicated. 

In our due-process review of the sufficiency of the evidence to support a conviction, we 

view all of the evidence in the light most favorable to the verdict to determine whether any 

rational trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); 

Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). 

Intoxication is statutorily defined as "not having the normal use of mental or physical 

faculties by reason of the introduction of alcohol . . . or any other substance into the body." 

Tex. Penal Code Ann. § 49.01 (2)(A) (West 2011 ). A person's refusal of a request by an 

officer to submit to the taking of a specimen of breath or blood, whether the refusal was 

express or the result of an intentional failure to give the specimen, may be introduced into 

evidence at the person's trial and be considered as evidence of guilt. Tex. Transp. Code 

Ann.§ 724.061 (West2011); Huffman v. State, No. 02-13-00175-CR, 2014 WL 3696132, 

at *2 (Tex. App.-Fort Worth July 24, 2014, no pet.) (mem. op., not designated for 

publication). 

Berdan was driving erratically such that he drove his car into a light post. Berdan 

was stumbling when he got out of the car and had bloodshot eyes. He admitted he had 

been drinking. White testified that Berdan had lost the normal use of his physical and 

3 
mental faculties due to alcohol consumption and that Berdan refused to provide a breath 

sample. This evidence allowed the jury to draw the reasonable inference that Berdan was 

intoxicated at the time he was driving; thus, the evidence was sufficient to support his 

conviction for driving while intoxicated. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex. 

Crim. App. 2010); Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.-Houston [1st Dist.] 

2011, pet. refd); Coggins v. State, 160 S.W.3d 177, 180 (Tex. App.-Texarkana 2005, no 

pet.). We overrule Berdan's sole issue. 

Ill. CONCLUSION 

Having overruled Berdan's issue, we affirm the trial court's judgment. See Tex. R. 

App. P. 43.2(a). 

EN BANC 

DO NOT PUBLISH 

Tex. R. App. P. 47.2(b) 

DELIVERED: January 22, 2015 

4 

/s/ Lee Gabriel 

LEE GABRIEL 

JUSTICE