1 

## CAUSE NO. 03-14-00560-CR IN THE COURT OF APPEALS, THIRD SUPREME JUDICIAL DISTRICT

_____________________ 

## CHRISTOPHER NEWBERRY

Appellant VS. THE STATE OF TEXAS

____________________ Cause No. C1CR-14-209349, Travis County, Texas, County Court at Law #5, Honorable, Nancy Hohengarten, presiding



## BRIEF FOR APPELLANT

Christopher P. Morgan State Bar No. 14435325 3009 N. IH 35 Austin, Texas 78722 (512) 472-9717 FAX: 472-9798 chrismorganlaw@cs.com ATTORNEY FOR APPELLANT ACCEPTED 03-14-00560-CR 5574630 THIRD COURT OF APPEALS

AUSTIN, TEXAS 6/8/2015 12:00:00 AM JEFFREY D. KYLE

CLERK2

NAME OF PARTIES/ATTORNEYS CHRISTOPHER NEWBERRY Appellant CHERYL HINDERA Attorney for Appellant at trial SBOT NO. 24007367 4425 SOUTH MOPAC, #107 AUSTIN, TEXAS 78735 CHRISTOPHER P. MORGAN Attorney for Appellant on appe al SBOT 14435325 3009 N. IH 35 Austin, Texas 78722 J. MICHAEL OHUERI Assistant County Attorney at trial SBOT NO. 24072529 P. O. BOX 1748 AUSTIN, TEXAS 78767 JENNIFER COLLITY Assistant County Attorney at trial SBOT NO. 24062974 P. O. BOX 1748 AUSTIN, TEXAS 787673

TABLE OF CONTENTS PAGE NAME OF PARTIES/ATTORNEYS 2 TABLE OF CONTENTS 3 INDEX OF AUTHORITIES 5
STATEMENT OF THE CASE 8 POINTS OF ERROR 8 ARGUMENT AND AUTHORITIES 9 POINT OF ERROR NO. ONE: THE EVIDENCE IS INSUFFICIENT. 9 A. Evidence. 9 1. Ebony Knox. 9 2. SX-5 (the 911 calls). 9 3. APD Officer Joseph Poswalk. 10 4. Justin Giddings. 14 5. SX-8 (police videos). 18 6. Appellant Christopher Newberry. 19 B. Arguments. 25

1. No direct evidence. 26 2. Appellant did not admit driving or driving while intoxicated. 28

3. Murray v. State. 34 4. Insufficient to prove driving or operating. 364 5. Insufficient to prove, if driving, that he was intoxicated when doing so. 38
POINT OF ERROR NO. TWO: THE TRIAL COURT REVERSIBLY ERRED BY DENYING APPELLANT’S MOTION FOR MISTRIAL. 40 A. Record. 40 B. Argument. 49 1. By eliciting this evidence the State violated appellant’s rights to due process, fair trial and the presumption of innocence. 49 2. The trial court erred by denying the motion for mistrial. 51

a. Severity of the misconduct. 52 b. Curative measures. 52 c. Conviction was not a certainty. 55 3. The error was not harmless beyond a reasonable doubt. 55
PRAYER FOR RELIEF 56 CERTIFICATE OF SERVICE 56 CERTIFICATE OF WORD COUNT 565

INDEX OF AUTHORITIES PAGE Cases Archie v. State, 340 S.W.3d 734(Tex.Crim.App.2011) 53 Arocha v. State, No. 12-14-00042-CR(Tex.App.-Fort W orth, December 11, 2014)[unpublished]. 31, 32, 33 Avants v. State, 170 Tex.Crim. 308, 340 S.W.2d 817( 1960) 36 Ballard v. State, 757 S.W.2d 389(Tex. App.-Hou[1 st ]1988) pet. ref’d 30, 32, 40 Barton v. State, 882 S.W.2d 456(Tex.App.-Dallas 199 4) no pet. 40 Brooks v. State, 323 S.W.3d 893(Tex.Crim.App.2010) 25 Brown v. State, 877 S.W.2d 869(Tex.App.-San Antonio 1994) no pet. 49, 50, 51, 52, 55, 56 Bucek v. State, 724 S.W.2d 129(Tex.App.-Fort Worth1 987) no pet. 31, 33 Chaloupka v. State, 20 S.W.3d 172(Tex.App.-Texarkan a 2000), pet. ref’d 39 Coble v. State, 330 S.W.3d 253(Tex.Crim.App.2010) 51 Deck v. Missouri, 544 U.S. 622, 630, 125 S.Ct. 2007 (2005) 50 Emerson v. State, 880 S.W.2d 759(Tex.Crim.App.1994) 36 Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691 (1 976) 50 Feinberg v. State, No. 05-06-01367-CR(Tex.App.-Dall as, November 20, 2007)[unpublished] 40 Folk v. State, 797 S.W.2d 141(Tex.App.-Austin1990) pet. ref’d 31, 32, 33 Geick v. State, 349 S.W.3d 542(Tex.Crim.App.2011) 26 Hacker v. State, 389 S.W.2d 860(Tex.Crim. App.2013) 30 Hamilton v. State, No. 14-08-00175-CR(Tex.App.-Hou[ 14 th ] 2010)[unpublished] 51, 53, 54 Hanson v. State, 781 S.W.2d 445, 446(Tex.App.-Fort Worth 1989), abated

790 S.W.2d 656(Tex.Crim.App.1990) 31, 33 Hawkins v. State, 135 S.W.2d 72(Tex.Crim.App.2004) 56 Hearne v. State, 80 S.W.3d 677(Tex.App.-Hou[1 st ]2002) no pet. 37 Holloway v. State, 446 S.W.3d 847(Tex.App.-Texarkan a 2014) no pet. 50, 52 Hooper v. State, 214 S.W. 3d 9(Tex.Crim.App.2007) 266

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781(19 79) 25 Keenan v. State, 700 S.W.2d 12(Tex.App.-Amarillo198 5) no pet. 36 Kuciemba v. State, 310 S.W.3d 460(Tex.Crim.App.2010 ) 37, 38 Madden v. State, No. 02-08-007-CR(Tex.App.-Fort Worth2009)[unpublished] 53 Malik v. State, 953 S.W.2d 234(Tex.Crim.App.1997) 2 6 Mendoza v. State, 1 S.W.3d 829(Tex.App.-Corpus Chri sti 1999) pet. ref’d 56 Milam v. State, 976 S.W.2d 788(Tex.App.-Hou[1 st ]1998) pet. ref’d 39 Murray v. State, No. PD-1230-14(Tex.Crim.App., Apri l 15, 2015). 26, 34 Murray v. State, 440 S.W.3d 927(Tex.App.-Amarillo20 14), rev’d , No. PD-1230-14(Tex.Crim.App., April 15, 2015) 34 Oliver v. State, 999 S.W.2d 596(Tex.App.-Hou[14 th ] 1999) pet. ref’d 49, 52, 54 55 Onyekachi v. State, No. 05-12-00519-CR(Tex.App.-Dal las 2013)[unpublished] 31, 33 Pierce v. State, 234 S.W.3d 265(Tex. App.-Waco2007) pet. ref’d 50, 52, 53 Randle v. State, 826 S.W.2d 943(Tex.Crim.App.1992) 50, 52, 55 56 Rodriguez v. State, No. 01-08-01038-CR(Tex.App.-Hou [1 st ]September 29, 2009)[unpublished] 40 Scillitani v. State,315 S.W.3d 542(Tex.Crim.App.201 0) 39 Scillitani v. State, 297 S.W.3d 498(Tex.App.-Hou[14 th ] 2009), rev’d , 315 S.W.3d 542(Tex. Crim.App.2010) 33 Sharper v. State, 22 S.W.3d 557(Tex. App.-Texarkana 2000) no pet. 50, 53 State v. Pringle, No. 12-12-00286-CR(Tex.App.-Tyler, June 23, 2013)[unpublished] 50 Threet v. State, 157 Tex.Cr.R. 497, 250 S.W.2d 200( 1952) 31 Wiseman v. State, 223 S.W.3d 45(Tex.App.-Hou[1 st ]2006) pet. ref’d. 52, 55, 56 Wright v. State, 932 S.W.2d 572(Tex.App.-Tyler1995) no pet. 37, 39 Youens v. State, 988 S.W.2d 404(Tex.App.-Hou[1 st ]1999) no pet. 397

Zavala v. State, 89 S.W.3d 134(Tex.App.-Corpus Chri sti 2002) no pet. 33 Statutes, Rules & Publications Tex.CodeCrim.Proc ., Art. 2.03(b) 49 Art. 38.03 50 Art. 37.07, Secs. 4 54 Tex.PenalCode, Sec. 49.04(a) & (b) 8 Tex.R.App.Proc., Rule 44.2(a) 55 Texas DWI Detection and Standardized Field Sobriety Test Program: Student Manual(Revised 01/ 2002) 358 CAUSE NO. 03-14-00560-CR IN THE COURT OF APPEALS, THIRD SUPREME JUDICIAL DISTRICT

_____________________ CHRISTOPHER NEWBERRY

Appellant VS. THE STATE OF TEXAS

____________________ Cause No. C1CR-14-209349, Travis County, Texas, Cou nty Court #5,

Honorable, Nancy Hohengarten, presiding

____________________ BRIEF FOR APPELLANT TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: COMES NOW, CHRISTOPHER NEWBERRY, appellant, and sub mits his brief in Travis County Cause No. C1CR-14-209349, an d shows:

STATEMENT OF THE CASE On or about August 7, 2014, on plea of not guilty, a jury convicted appellant of driving while intoxicated, a class B misdemeanor. Tex.Penal Code , Sec. 49.04(a) & (b). The court assessed sentence of 120 days Travis County jail, no fine. Motion for New Trialapparently was timely filed. Notice of Appealwas filed prematurely on August 28, 2014, and Amended Notice of Appealwas filed October 14, 2015 (correcting defendant’s name in the body of the Notice ). The reporter's record was filed December 16, 2014. After extensions of time to file, the brief was filed June 8, 2015. POINTS OF ERROR POINT OF ERROR NO. ONE: THE EVIDENCE IS INSUFFICIEN T.9

POINT OF ERROR NO. TWO: THE TRIAL COURT REVERSIBLY ERRED BY DENYING APPELLANT’S MOTION FOR MISTRIAL.

ARGUMENT AND AUTHORITIES POINT OF ERROR NO. ONE: THE EVIDENCE IS INSUFFICIEN T. The information alleged in relevant part that appel lant “on or about June 9, 2014, did then and there operate a motor ve hicle in a public place in Travis County, Texas, while intoxicated.” RR3-2-3. Appellant pleaded not guilty. RR3-3. A. Evidence. 1. Ebony Knox. Knox testified she was custodian of records for the Austin Police Department (‘APD’). RR3-8-9. The State then introd uced copies of recordings of three 911 calls as State’s Exhibit (‘SX’) 5 , which she described as “callers stating that there was a drunk driver,” “d escribed... the vehicle that he was driving,” and “the street was Mesa.” RR3-9-1 1. On cross she added that the calls came in between “1600 to about 1735” hours, 4 to 5:35 p.m.; the first around 4:23, the second “around the same time, a couple minutes difference, maybe. And then the third... about an hou r later.” RR3-12-13. 1

2. SX-5 (the 911 calls). SX-5 was played for the jury at RR3-11. All three 911 calls were from females. 2 None identify or describe the driver, or contain anything

1 / The State originally said there were 2 calls on i t, Knox testified it was 3. RR3-10-11. It also elicited that the ‘factors’ used to connect th e calls to one incident are “[w]hat's in the call, the description of the vehicle, the location of the -- and the location.” RR3-11.10

identifying appellant as the driver. The first two put the car turning onto Mesa and into Summit Assisted Living. The first st ated she was “pretty sure there was a drunk driver in front of” her, in a Mar oon jeep, license plate BMT5040, and described the driving as inter alia “swerving”, “almost hitting the curb” twice and “he hit the guardrail, ran off the road four times”. The third was from a receptionist at Summit Assiste d Living on Mesa, saying inter alia a brown jeep was parked over the sidewalk and “someone just told us he looks like he’s on drugs or drunk... he’s still in the vehicle”. She went to look for herself, and on returning saidshe was told “he is not in the vehicle and the person who reported this just s aid he was out stumbling around, so he may have gone behind our building.” There is no indication she saw if anyone was in the Jeep, or asleep in it.

3. APD Officer Joseph Poswalk. APD officers Poswalk and McBride were the first to arrive at 5715 Mesa Drive in Austin, “[s]ometime around 6:00 p.m.” RR3-25, 29. 3 That was in response to “a suspicious person call, of a jeep parked over a sidewalk at, I believe, a retirement home at this addre ss, with the driver still

2 / There was no other information identifying the fi rst two callers and the second refused to give her name. 3 / By time of trial, Poswalk had been an peace offic er a “little over two and a half years”, including 8 months at the academy. RR3-14-15. Posw alk’s in-car video shows a timestamp for that of 7:02 pm (19:02); McBride’s shows a time-stamp of about 5:45 pm, but there is nothing showing how accurate those were.11

inside.” RR3-23. “[T]here was a jeep parked,” in th e first parking space in the parking lot “like the call said, over the sidew alk.” RR3-23-24. He testified this was a public place. RR3-29. The State then introduced and published four photos as SX-1 to 4. RR 3-24-25. They show a Jeep, plate number BMT5040, p arked in a marked space with the front half over a sidewalk. SX-1 al so shows the retirement building, separated from the sidewalk by a hedge an d lawn, and much of the rest of the lot and other parked vehicles. SX-2-4 also shows a road a good distance to the east, separated from the parking lo t by a large lawn-type area, and part of the driveway. See also , RR3-23. 4 McBride walked “up to the driver's side door”, Posw alk walked “to the passenger side door.” RR25-26. McBride said th ere “was someone inside”, and “knocked on the window until the defenda nt woke up.” RR3-26. Appellant “was very wet, either sweaty, or what. H e was drooling on himself and he had his keys in his lap.” RR3-26. He thought the passenger side window was “rolled down slightly.” Id

. See also , SX-2. They did not see appellant driving, and the keys fo r the Jeep were on appellant’s lap. RR3-33.

4 / Google Earth satellite photo actually shows that road is a driveway coming off Mesa.12

They “had him step out” of the jeep “and sit on the curb.” RR3-27. Appellant did not have “trouble getting out... But taking the small walk to the curb, he had impaired balance.” Id . He “did appear impaired, like — he definitely wasn't a ll there. His speech was very — you couldn't even make it out. I t kind of came and went. Like he'd speak clearly and then he'd ki nd of mumble.” Id

. Poswalk then related “a message” he received “from another officer” while driving to Mesa, about “a call previously, before I had gotten to work, ... of a purple or brown jeep heading, I believe, westbound on 2222, that had struck a guardrail or wall. This officer had tried to find i t and never did. So when this call came out, he sent me a message, Hey, you know, this is more than likely the vehicle from earlier.” RR3-27. He added that, at some point, McBride cont acted “the person that had called ... to see if he could come and identify the d river.” RR3-28. The State asked if they confirmed “this was, in fact, the vehicle”, and Poswalk said they had him “drive by” and “take a look at th e defendant, ... So when he drove by, he immediately said, Yeah, that's him. ” Id

. 5 After reviewing SX-1-4, Poswalk testified that ther e “was some” damage to the Jeep “on the back right bumper. ... the re looks like a scratch

5 / On cross, Poswalk identified this person as Robin Brown, a male, “Somehow he ended up being — we had his number from dispatch as a wit ness.” RR3-31. It is clear from the recordings that all 911 callers were in fact female , so he was not one.13

on the right front bumper. But” couldn’t tell whether the damage was there prior or not” or had anything to do with “graz[ing] ” a guardrail. RR3-31-
32. 6 They decided to have appellant perform standardizedfield sobriety tests (SFSTs) and waited for officers Giddings and Adams “to come up and take the investigation from there.” RR3-28. 7 Poswalk remained there after they arrived, but did not participate in “ conducting the SFSTs”. RR3-30. Nor did he testify that appellant was intoxicated. 8 After appellant was arrested, a search of the jeep produced “two open beer cans” inside in the center console, and “a sma ll cooler with, I think,

6 / “A. Yeah. It depends. He was going westbound. So it would have been that right side, if he was in the right lane, which, again, I don't kno w. In that area, there are quite a few guardrails and cement walls, as well. Whether he ha d grazed or — you know, I couldn't tell you. It's possible that that damage came from the wall. It's possible that it was there prior. I couldn't tell you whether that was definit ively guardrail damage or something else.” RR3-32-33. 7 / “Officer Adams, who [was] the field training offi cer for Officer Giddings,” contacted them and asked if Giddings could do the SFSTs. RR3- 28-29. Poswalk did not recall how long they took, it was more than a couple of minute s. RR3-29. 8 / He did testify that officers get training at the academy on detection of intoxication and a 3 month field training period with another officer after graduation. RR3-15-16. That includes training and certification on the SFSTs (horizontal gaze nystagmus test (HGN), walk-and-turn and one-leg stand). RR3-16-17. The d efense did not object when the State moved “to qualify him as an expert in conducting th e standardized field sobriety tests” (‘SFST’). RR3-17. He said inter alia the HGN has 6 possible clues (3 in each eye), and “four or more clues” on the HGN means “it's 80 perc ent or more chance that they're intox-icated, above the legal limit.” RR3-20. He a dded that “from my experience, you don't see too much vertical gaze nystagmus just fro m alcohol. Usually, there's something else in the system that can trigger the vertical ga ze nystagmus.” RR3-20. He also said officers look for “2 or more” clues on the walk-and -turn, and “[t]wo of four” on the oneleg stand indicate intoxication RR3-22-23.14

three more cold beers inside of it.” RR3-30. “[S]o me of them had a little bit left in them. I think there was one that was comple tely empty.” RR3-33. He also “had his tools in there. He said he was a sub contractor, so there was a lot of tools” and some clothes. Id . He had said he was at work that day. Id

. 9

4. Justin Giddings. Giddings graduated the academy on March 22, 2014, about 2 and a half months before this incident. RR3-34-35. He wa s called to do the SFSTs. RR3-36. 10 His video shows he arrived about 6:15 p.m. See , SX8(#181547). See also , RR3-40. Giddings thought appellant’s clothes “were sort of disorderly”, but agreed it was “possible, if you're working construc tion, to be disheveled like” that. RR3-38, 63. When he spoke with him, Gi ddings “smelled a faint odor of alcohol”, “speech was slurry and kind of mu mbled”, and “eyes were glassy and watery. And his pupils were very restric ted”. RR3-38. He asked appellant “a standard list” of questions, “standard to myself”. RR3-38-39. In reply, appellant estimated th e time as “six o’clock,

9 / McBride was not present during trial as he “no longer at the department” and had “moved out of state.” RR3-31. 10 / He was a certified SFST practitioner. Id . His training consisted of “a 40-hour week dedicated to SFSTs” at the academy, “lectures. We r ead from the manual. And we also did a hands-on application at the end of the week.” Id . At the time of this stop, he was “about two full months” into 3 month field training, Adams was his training supervisor. RR3-37, 42. See also , RR3-63-64.15

when it was more around 6:30”, and later “began say ing he thought it was 4:00 to 4:30, closer to that time.” RR3-40-41. He said “he was heading home”, gave the address only as “In Austin”, “said he was coming from work”, “left at 2:00” and “came straight from work and did not stop anywhere”, but “that's when the time started changing a little.” RR3-39, 41. His last meal was a “breakfast sandwich... that morni ng”, he denied drinking alcohol, and “said he had about two gallons... of water that day while working.” RR3-40-41. Giddings had him do the SFSTs (HGN, walk-turn, 1-le g).RR3-37, 45. It “didn't seem like” appellant had done them befor e. RR3-64. He said he saw all three clues in each eye on the HGN, “vertic al nystagmus” and “swaying”, “[s]ix out of eight” clues on the walk-a nd-turn, and “[f]our out of four” on the one-leg. RR3-47, 52. 11 No alcoholic beverages where found on appellant, bu t Adams and Poswalk did find “two open and a couple of closed... taller sized beer cans”, “probably 24 ounces” in the Jeep. RR3-42-43. SX-6, 7 and 8 were introduced at RR-43-45. SX-6 is a photo of the parked jeep , SX-7 is a ‘screen capture’ from the police video showing officers with 5 beers cans, SX-8 is a copy of the police video recordings.

11 / He explained the tests and related the instructio ns he gave appellant at RR3-46-53.16

Once his investigation was finished, Giddings made a “judgment call” appellant “was driving while intoxicated.” RR3-52-5 3. At that time, Adams asked “if he would provide ... a portable breath samp le” (PBT). RR3-53-54. Appellant declined. Id

. 12 The State then elicited that when Giddings first ap proached him, appellant “was cooperative, able to talk to” but “v ery quickly became very agitated”, and by the time they asked for the PBT h is attitude was “[v]ery aggressive in a way”, “He kept asking, for instance — during one point, h e asked if we wanted him to do cartwheels, as well. And it was ju st — it was hard to keep his attention. And at one point, he did admit that he has trouble with authority. And he apologized for it. A nd it was just — he'd be cooperative for a couple seconds and then g o back and forth.” RR3-54. He opined that, from his experience, such “sudden changes in attitude” may be an indication of intoxication. Id

. After he refused the PBT, appellant was handcuffed and searched “incidental to arrest”, producing a “couple of tool s and a pocketknife”. RR 3-54-55. He was placed in the back of Giddings car, who “read him the DIC-24”, “provided a copy” and “told him he could f ollow along with it.”

12 / Giddings said “that's by policy. We are required to ask them if they will give that or not.” Id . He explained “[i]t's a preliminary breath sample . So it's not as accurate as the Intoxilyzer that's at the jail, but it does provide a sample that is close to what the actual blood alcohol concentration is.” Id

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RR3-55. 13 Appellant listened at first, but then repeatedly interrupted, with profanity “several times”. Id

. Appellant did say he would provide a sample when th ey got to the jail. Id . However, he refused when the intoxilyzer operato r asked, and “began to become very aggressive with the jailers”, “the jailers take him up to do the intake process, at which time he starts g etting mouthy with them,” to the point where “he was kept in handcuffs and pl aced in a solitary cell, by himself”, when RR3-55-56, 60. The State then published the recording from Gidding s’ car on SX-8. RR3-56-59. 14 See , 5, post

. On cross, Giddings testified he did not see appella nt driving, or even behind the wheel, when he arrived “he was sitting o n the sidewalk behind his vehicle.” RR3-61. The day “was cloudy, kind of overcast”, “maybe in the 80s”. RR3-63. He did not physically touch any cans and did not know if they were warm or cold, but “the other officers said they were cold to the touch, and two of them were opened and half empty.” RR3-62. He also related how appellant had said ‘something l ike "Mesa Drive. Oh, that's where I am"’, when they were leaving, an d “[s]eems like he did

13 / Giddings explained the DIC-24 is “basically letti ng the subject know their rights and everything. And at the end, you're asking for a sample of their breath or blood.” RR3-55. 14 / At one point while playing it the State pointed o ut some swaying by appellant, which Giddings estimated was “a couple inches.” RR3-58-59

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not know where he was at the time”. RR3-65. Appell ant “said he was coming from work that day”, and the tools police took from his pocket could have been used in his work. RR3-66.

5. SX-8 (police videos). While the DVD introduced as SX-8 has 4 videos on it , the State only laid the predicate for Giddings’ video (#181547): “Q Do you recognize that Exhibit 8. A Yes, sir. It is a copy of our video from that – my video from my patrol vehicle from this case. RR3-44. Indeed, from his testimony, it appears no one knew the other videos were on SX-8. His is also the only video th e State published to the jury. RR3-56-59. There was no mention during trial that there were other videos or they were on the it. 15 There is no transcript in the record, so the follow ing is as best as appellate counsel can do. The numbers for each entry post are approximate time stamps. Putting evidence on intoxication asid e, the statements by appellant that seem most relevant are thus:

15 / Of the four videos on SX-8, only Giddings and McB ride’s (#174346) contain relevant information. McBride was not available for trial, having moved out of State. Poswalk was not asked to authenticate SX-8 or anything on i t, but only SX-1-4. RR3-14-33. It is not clear he could have done so. His video (#19031 1) is less than 2 minutes long and only has the audio at the beginning of McBride’s wh ere the officers talk about the keys not being in the ignition. Officer Witt’s (#174806 ) seems merely a poorer quality recording of some of the audio also on McBride’s.19

-@18:19:30 “O: How did you end up here? A: Um, driving? O: So you were driving but what brought you to end up at this location? A: I have no a/c in my vehicle, hot, this day I’m w orking a lot... I really, really don’t know. I’m being honest with y ou.” -@18:48:55 “A: No one seen me drive. I did not dri ve either... Somebody drove me, dropped me off.” The State rested after Giddings’ testimony. Id

. Appellant’s motion for directed verdict was denied. RR3-67.

6. Appellant Christopher Newberry. Appellant admitted he is the person in the video an d was “intoxicated” at that time. RR3-80. See also , RR3-85. He testified he resided in Austin on June 9, 2014. RR3-71. He “had very littl e sleep” that night, because he was up until 3:00 a.m., working on his J eep. RR3-69. He had it inspected at 8:00 a.m., then drove to the construct ion and recycling business he worked at near Lakeway, “started about 9:00-ish, probably”. RR3-70- 75. 16 It is “hard physical labor”, done outside. RR3-69 . It “was very hot and humid that day. It was in the high 90s.” RR3-71 . Two gallons of water was a normal amount for him to drink during work. R R3-71. He “was extremely tired the whole day.” RR3-70. He thought he stopped work “probably about 3:30”, but was “really

16 / “[I]t's still in Austin, but it's literally like two blocks from Lakeway.” RR3-72.20

foggy” about that because he “started drinking at n oon” since he had planned to sleep in a cabin the company had there rather than drive home. RR3- 70, 71. 17 He had a 24-ounce beer and said he “wasn't drinki ng a lot; ... Almost as much as my body actually, I'd say, goes through alcohol wise, you know, with water also.” RR3-73-75. About two o’clock, a coworker, Juan, “got a call”, “he said that a girlfriend called him... and that he wanted to go into Au stin... but he doesn’t have a vehicle.” RR3-74. See also , RR3-70. 18 The call “was probably about one an hour” after he started drinking. RR3-75. Ju an had also been drinking, but appellant decided to let him drive. RR3-75 -76. He was not sure what time they left. RR3-76. On redirect, he estim ated 3:30, but it could have been 3 or 4. RR3-108. He insisted Juan was driving, not him. RR3-77. He testified that on the video the officer “asked, ‘Where were you going?’ I told him where I was going. He asked later on, ‘How did you get here?’ And I didn 't know how to answer the question. I hesitated, and I said drivi ng. That's like

17 / “It was because I'd been up all night and I agree d with Ann that I was going to crash and burn that day, just finish what I was doing, lo ad up the trucks, and just go to sleep. I wasn't planning on leaving Lakeway.” RR3-74. 18 / Appellant described Juan as “an illegal alien, bu t he's worked for Ann for over five years. And he got deported. He's been back for ab out six months.” RR3-74. He did not know Juan’s last name. Id

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asking a bird how does it go south? Flying. I did n't say I was driving. I was not driving the vehicle.” Id . He said he did not drive because he “was intoxic ated. And []had a CDL and clean driving record for over 14 years. I do n ot drive intoxicated. I was not going to drive intoxicated.” Id

. 19

. Juan was supposed to drive him to his house, and th en “was going to either take a bus or his girlfriend was going to co me get him.” RR3-79-80. “He's well trusted. He's worked for Ann for over fi ve years. She has two company vehicles; he drives both of them. He ' s just not legally able to drive. So it really doesn't matter whether he gets a DWI or not. He just gets deported. He always comes back. ” RR3-77-78. Appellant said he was sitting on “the passenger sid e” and went to sleep at some point. RR3-78. He started on a beer before that, but did not drink much: “Not really. I opened one. And it satin the console because I went to sleep. ... Juan was drinking. That's why th ere was two.” RR3-81. He did not recall the drive to Mesa or know how the y got there, as he was asleep. RR3-78. “I do not recall anything. I mean, I crashed hard. I went to sleep. The next thing I remember, actually, is waking up. He was not — he was not in the driver's side. I was pouring sweat. Keys were in the ignition and the window was up on his side. And th e door's kind of

19 / He explained that is a “Commercial Driver's Licen se”, and he had “[f]ourteen years with a clean record.” Id . See also, RR3-109-11022

messed up on the driver's side of the jeep. I neve r got out of the jeep. That's what also made me wonder about the 9-1-1 vid eo. Someone stumbling around drunk. That had to be Juan becaus e I never got out of the jeep. I moved into the driver's side. The reason I say that I never got out of the vehicle is because the door's — it's on the video. I told the officer that the door gets stuck. So any way, I got to the driver's side without getting out of the vehicle to roll the window down and that's when I clipped the keys--” RR3-79. As for “the guardrail stuff, I have no ide a. I was asleep anyway so I have no idea about any of it.” Id

. 20 He testified he had no idea how long the Jeep was p arked “because I fell asleep and I didn't know how long I was asleep .” RR3-80-81. Asked where Juan went, he replied: “I only know from late r, is that he went and visited someone there in the complex.” RR3-81-82. 21 Asked why there was cool beer in the car after two hours, he said: “As the officer stated, there was a cooler with ice in it in the vehicle.” RR3- 82. He had “no idea” if the beers in the console w ere cool: “I have no idea. I quit drinking for a while. I was sleeping.” RR3- 83. He agreed that he was in the driver’s seat and had the keys in his lap when the officers woke him. Id . He explained he had

20/ He explained that the passenger door is stuck bec ause of problems with its handle and not for some other reason. Id

. 21 / While the State objected, it was after the answer, they did not request an instruction to disregard or strike and the court did not do so sua sponte . RR-82. He also twice tried to say that Ann and Juan told him Juan drove there andleft him in the jeep, but the State’s hearsay objections were sustained. RR3-78, 80.23

“climbed over the seat to roll the window down. Th ere's a lot of defects in the jeep. ... You have to literally push a gainst the glass and roll it down. And I had to be in the driver's side seat to roll the window down.” Id

. He said the damage to the Jeep “happened months ago .” RR3-84. “It was a cement pylon or bridge I backed into at the river, almost two months ago. And as you can see in the picture, thi s taillight's been replaced. It's not the same as the other. It's qu ite obvious it's a very old accident.” Id

. He did not repair the bumper because he “didn't fee l it was necessary.” Id

. On cross, the State elicited that there were a lot of details he did not remember, and he had to “speak with other people... s uch a Juan” to refresh his recollection. RR3-85-86. He added that “the on ly reason” he “could say as to why I was there was by finding out why Juan d rove there, and he was there to visit someone there.” RR3-85. When the St ate expressed skepticism that he crossed to the driver’s seat, he replie d: “I was covered with sweat, as you can see in the video. I was dying of sweat.” RR3-86. It then opened the line of questioning addressed in Point of Error No.
Two , post . Ultimately, it was allowed to prove he had a pri or felony bribery conviction. RR3-99-100. Appellant conceded he did not mention Juan or Ann t o the officers.24

RR3-100. 22 He said he told them he “didn't know how I got th ere,” and added: “All I know, I was driven there. That's the answer. How did I get to where I was, I don't know because I didn't--” Id . He agreed memory loss is consistent with intoxication “on occasion”, but add ed “with sleeping too”. RR3-101. He also agreed “dislocation” is consisten t with intoxication. Id

. He acknowledged that when the officers asked how he got there, he only said “driving”. Id . He did not think that would have been a good opportunity to mention Juan or Ann. RR3-102. 23 He admitted it had been “[c]lose to” 60 days since the incident, he had hadthat time to think about whether to testify, what he would say and what migh t be favorable and unfavorable. RR3-102-104. He agreed it would be “pre tty favorable” if the jury believe he was not driving. RR3-104-105. He testified he did not understand Giddings was goi ng to conduct a DWI investigation when he first came to him, “not at that time. I thought that I was — he actual ly asked — I wanted to see if he had the ability to drive. I didn't kn ow if I was going to be charged with a PI or not.

... He did not state that I was being charged with a DW I at the beginning of that.” RR3-105. He was aware he suspected he was intoxica ted. RR3-105-106.

22 / When he asked if they wanted to know the reason, the prosecutor replied ‘no’. Id 23 / The State again said “no” when he asked if they w anted to know why. Id

.25

He conceded he had an opportunity to give what he thought was a favorable or unfavorable answer when Giddings asked if he hadconsumed any alcohol and he told him he had not. RR3-106-107. On re-direct, he testified he was in condition to s afely drive at noon that day and “probably could have” at two o’clock, “but it would have been beyond the legal limit, which is pretty -- .08 is o ne beer.” RR3-107. He agreed he was in no condition to drive when the offic ers arrived, but was asleep, not driving and had no intent to operate a vehicle at that time. RR3- 108. He did not mention Juan to the officers “Because I didn't want him — for one thing, I didn' t want him getting charged with a DWI if he was around. It came up in the 9-1-1 video that someone was drunk and stumbling. As the jury c an see, I was intoxicated, but I was not inebriated to the point of falling down drunk, is the way the lady called it in on the third and last9-1-1 call. That was probably Juan. He would go to jail if I wo uld have said anything.”

... And I wasn't considering myself — I thought the law, at the time, was if you're in your vehicle with the keys out of the ignition, you get a PI, not a DWI.” RR3-108-109. 24 B. Arguments. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781(19 79), provides the standard for sufficiency. See , Brooks v. State, 323 S.W.3d 893, 894-95(Tex.

24/ Both sides then rested and closed. RR3-110.26

Crim.App.2010). The evidence is viewed in the ligh t most favorable to the verdict to determine if a rational trier of fact co uld find each essential element beyond a reasonable doubt. Jackson, 99 S.Ct. a t 2789; Brooks , 323 S. W.3d at 899. 25 The factfinder resolves conflicts in testimony, w eighs the evidence and draws reasonable conclusions from basi c facts. Murray v. State, No. PD-1230-14(Tex.Crim.App., April 15, 2015 ). Appellate courts “determine [if] the necessary inferences are reason able based upon the combined and cumulative force of all the evidence w hen viewed in the light most favorable to the verdict.” Id . The fact finder’s resolution of conflicts in the evidence must be rational and inferences dra wn reasonable. Hooper v. State, 214 S.W.3d 9, 15-16(Tex.Crim.App.2007). A c onclusion reached by speculation may not be completely unreasonable, butis not sufficient to support a reasonable finding beyond reasonable doub t. Id . That there is only ‘some evidence’ supporting guilty inferences o n each element is not sufficient. Jackson expressly rejected the ‘no evi dence’ test. Brooks , 323 S.W.3d at 916-17 (Cochran concurring).

1. No direct evidence.

25 / Sufficiency is measured on a hypothetically corre ct jury charge. Malik v. State, 953 S.W.2d 234, 240(Tex.Crim.App.1997). That is one ac curately setting out the law, authorized by the charging instrument, not unnecessarily increasing the State’s burden of proof or restricting theories of liability, and adequatel y describes the particular offense tried. Geick v. State, 349 S.W.3d 542(Tex.Crim.App.2011).27

The first two 911 calls were at about 4:23 p.m. Atthat time, appellant’s jeep was seen being driven recklessly, then turning onto Mesa and at the Summit, where it was later found parked. Neith er caller identified or described the driver. At least one speculated about a ‘drunk driver’, but neither actually had any basis to attribute a cause to the driving. As defense counsel argued, the second caller used “they” a num ber of times in her description, suggesting she might have seen multipl e occupants. RR3-114. The third 911 call came in around 5:30 p.m., over a n hour after the jeep was last seen moving. 26 The woman reported another person told her it was parked where and in the manner officers found i t. Almost immediately, after she went out to look for herself, she relatedthat she did not get close to the vehicle but did not see anyone in it, and “the person who reported this” said he was “stumbling around” but she did no t see anyone so they might have “gone behind” the building. Poswalk and McBride arrived around 6 p.m., or about1 hour and 40 minutes after the jeep was seen moving. The engine was not running and there is no evidence it was hot or operated during that time. No occupants can be seen in the jeep on the video, let alone in the driver’s seat. Nothing

26 / Knox said it was “about an hour” after the second911 call, Poswalk said he and McBride arrived at Summit about 6 p.m., “probably 2 0 minutes or so” after dispatch called them. RR3-12-13, 23-24.28

indicates the officers saw anyone in it until they were standing near it, when McBride indicated there “was someone inside”. Appe llant was in the driver’s seat, asleep, with the keys in his lap, appare ntly slumped over in such a way he could not be seen until they got close. There is no direct evidence he had been driving at any time since 9:00 a.m. or when he might have been intoxicated. While Poswalk testified he contacted a caller, who “drove by” and “said, Yeah, that’s him”, it is obvious he was mistaken or overstated that. All three call ers were female, the person Poswalk spoke to was male. Neither caller who saw the driving saw the driver, the third caller never saw any driving or o perating, and that call shows thejeep was parked when first reported there. Further, Poswalk related he asked the person to drive by and confirm “thi s was, in fact, the vehicle ”, so he was identifying the jeep, not the person.

2. Appellant did not admit driving, or driving whil e intoxicated. Appellant testified he was not the driver, but a pa ssenger while Juan drove from Lakeway to the Summit, where Juan “went and visited someone” while he continued sleeping in the jeep. At o ne point, he woke from the heat and moved into the driver’s seat to try an d lower that window. It was June. He testified it was hot and humid, he th ought in the 90s;29

Giddings said it was in the 80s. 27 He and the officers testified he was sweating heavily. SX-6 seems to show that window down abit, SX-2 and 3 show the passenger window partly rolled down. Near the end of Giddings’ video, appellant appears to say: “No one seen me drive. I did not drive either... Somebody drove me, dropped me off.” @18:48:55. Therefore, the State’s argument that his testimony was the first time he mentioned being a passenger is incorrect. It is true he said this when in the police car and not to the officers, but there is no thing indicating he knew it was being recorded and, as the saying goes, the tru th is often said in private. See e.g , Luke 12:3. 28 Giddings testified appellant told him he was “headi ng home” from Lakeway, “left at 2:00 p.m.” and “came straight fro m work and did not stop anywhere”. But that is not a statement that he was driving, as opposed to someone else, only about the direction and path tak en by the car. The only possible statement otherwise appears to be thus:

27 / If McBride’s video is considered (though appellan t argues it was and should not be) at about 17:48, appellant is heard to say “Oh god its hot!”, about 18:06:30 an officer agrees to let him get water from the jeep saying, “It’s ho t out like you said, wouldn’t want you to get dehydrated.” 28 / Or to move to the more profane, he testified he d id not want to accuse Juan (“I didn’t want him getting charged with a DWI if he was aroun d. ... He would go to jail if I would have said anything”), and believed he himself facedonly a public intoxication because he was not driving. RR3-108-109.30

-@18:19:30 “O: How did you end up here? A: Um, driving? O: So you were driving but what brought you to end up at this location? A: I have no a/c in my vehicle, hot, this day I’m w orking a lot... I really, really don’t know. I’m being honest with y ou.” But that is vague and ambiguous. It is merely a st atement of the means by which he “end[ed] up there”, i.e. by conveyance in a motor vehicle. It no more necessarily means he was the driver than someo ne saying they flew means they were the pilot. When the officer then a sked again how he ended up at that specific location, he replied “really, r eally, don’t know. I’m being honest with you.” That seems to contradict the inf erence the State tried to draw. The officer easily could have but apparently did not follow up to make the meaning plain. It is much less clear than his other extrajudicial statement: “I did notdrive either... Somebody drove me...” Cf ., Ballard v. State, 757 S.W.2d 389, 390-391 & n.1(Tex. App.-Hou[1 st ]1988) pet. ref’d. 29 In addition, that extrajudicial statement does not appear to be corroborated. A defendant’s extrajudicial confession is not sufficient without other evidence that tends to establish the offense’ s corpus delicti. Hacker v.

29 / Appellant also testified that he did not mean it to be a statement that he was driving: “I didn’t say I was driving. I was not driving the ve hicle.” RR3-77. In addition, if McBride’s video is considered (though appellant arg ues it was and should not be) at about 17:57:20, the officer comments that appellant got s weaty from “driving around in the heat” but he twice replies “No.’31

State, 389 S.W.2d 860, 865(Tex.Crim.App.2013). The corpus delicti of DWI is 1) driving a motor vehicle, 2) in a public p lace, 3) while intoxicated. A corroborated confession “may only be used in aid of evidence supporting an element of the corpus delicti. It may not be us ed to supply that element of the corpus delicti.” Hanson v. State, 781 S.W.2d 445, 446(Tex.App.-Fort Worth1989), abated

790 S.W.2d 656(Tex. Crim.App.1990). When the proo f in a DWI case is 1) a vehicle was driven/operated a nd 2) defendant was intoxicated, proof of the corpus delicti is incomplet e without also showing 3) the defendant was the one who drove/operated it. Thus, “the evidence is insufficient to establish th e ‘corpus delicti’ of driving while intoxicated when the only evidence th at the” defendant “was driving was his own extrajudicial confession.” Buce k v. State, 724 S.W.2d 129, 130(Tex.App.-Fort Worth1987) no pet. See also , Onyekachi v. State, No. 05-12-00519-CR(Tex.App.-Dallas2013)[unpublished ]; Folk v. State, 797 S.W.2d 141, 143-144(Tex.App.-Austin1990) pet. r ef’d; Hanson, 781 S.W.2d at 446; Threet v. State, 157 Tex.Cr.R. 497, 250 S.W.2d 200, 200 (1952). A court “must reverse a DWI conviction whe n the evidence fails to corroborate an extrajudicial confession that the de fendant was driving.” Arocha v. State, No. 12-14-00042-CR(Tex.App.-Fort W orth, December 11, 2014)[unpublished].32

This Court appears to say the contrary in Folk, 797 S.W.2d at 144. But, it also appears to be the only appellate courtso holding. Appellant argues that holding was unnecessary and erroneous. It was unnecessary because the officer in Folk independently confirmedthe details of the accident, thus corroborating the statement. See , Arocha and Bucek , supra . It also seems erroneous if it means an extrajudicia l statement defendant was the driver need not be corroborated when it is the essential link between proof a vehicle was driven and the defendant was in toxicated to prove defendant thereby committed DWI. There is no proof of the corpus delicti in that case unless driving by the defendant is pro ved. There seems to be no other evidence appellant was d riving or operating the jeep when it was last seen moving almost 2 hours earlier. The callers did not see or describe the driver. Despite Poswal k’s loose language, whoever drove by after they detained appellant could n ot have identified him as the driver . That person was male, but those who saw the driv ing were female. The only person it could have been was the one the third caller referenced, but they did not see the car until it w as already parked there over an hour. Nothing connected any observed damage to the driving, as Poswalk said.33

Hanson held corroboration was absent where the evid ence showed police investigated an accident where a car stuck autility pole, they found defendant on the shoulder of the road beside it, an d she told them she was driving and admitted drinking 3 beers. The court r eversed because “[t]he State did not introduce any other evidence to show” she “drove the car.” Id ., at 447. The evidence corroborating extrajudicial statements in other cases does not appear to be present. See e.g. , Arocha, supra ; Bucek724 S.W.2d at 130; also , Onyekachi, supra; cf., Scillitani v. State , 297 S.W.3d 498, 501 (Tex.App.-Hou[14 th ]2009), rev’d , 315 S.W.3d 542(Tex.Crim.App.2010). 30 In Folk, supra , this Court states that the car “was registered to the person with whom” defendant “lived is some evidence corroborating” his “admission that he was driving the car on the nightin question.” 797 S.W.2d at 144. Appellant did testify he owned the Jeep. But, he would argue that
alone should not constitute corroboration. Zavala v. St ate, 89 S.W.3d 134, 137 & n.5(Tex.App.-Corpus Christi2002) no pet., cit ing Folk held the evidence defendant was buying and took possession o f the car, along with “the condition of the vehicle” was sufficient corro boration.

30/ Holding a false denial of drinking alcohol by def endant did “not constitute independent evidence”.34 3. Murray v. State. There are a long line of cases dealing with suffici ency for DWI on facts like these. Those finding sufficient evidenc e appear to have more than is present in this case. A recent case is Murray v. State, No. PD-1230-14(Te x.Crim.App., April 15, 2015). The Court stated: “The sole quest ion for our review is whether ‘a driver who is passed out behind the whee l of a running vehicle [is] ‘operating’ it for purposes of DWI?” Slip at 2. It did not answer that, but did find the evidence sufficient for operating. Slip at 2 n.1 & Meyer, J, dissenting. That defendant was found alone, asleep in the seat of his pickup, parked partly on an improved shoulder and partl y in a driveway, with the engine running, the transmission in park and th e radio on. He was “very intoxicated” and admitted having drunk “a little.” There was no one else in the vehicle, no evidence of anyone else in the area , and no alcoholic substances or containers were found in the vicinity

. The court of appeals held the evidence insufficientto prove he “operated his vehicle while intoxicated.” Murray v. Stat e, 440 S.W.3d 927, 929 (Tex.App.-Amarillo2014). The Court of Criminal App eals disagreed: “Based on Appellant’s admission that he had been dr inking, [the officer’s] testimony that Appellant appeared ‘very intoxicated’ and the fact that no alcoholic beverages were found in the vicinity, a factfinder could have reasonably inferred that Appe llant consumed35

alcoholic beverages to the point of intoxication so mewhere other than where he was found. Furthermore, because Appellantwas the only person found in the area, a factfinder could have a lso reasonably inferred that Appellant drove his vehicle to the lo cation at which he was found after drinking to intoxication.” Murray does not resolve appellant’s case because, f irst, that vehicle’s engine operating when defendant was found intoxicat ed in it, while the jeep was not being operated in any way when appellant wa s seen in it or for over an hour and a-half before that. Thus, unlike Murra y, there is no basis to infer it was driven or operated recently, and thus fr om his later presence in it that he must have been the one recently driving it, or from his being intoxicated at 6:00 p.m. that he must have driven it whil e intoxicated almost 2 hours earlier. Second, in Murray the Court repeatedly noted “no al coholic beverages were found in the vicinity”, while in appellant’ s case the officers found 2 empty 24-ounce beers in the center console and 3 un opened beers in a cooler in the jeep. Two 24-ounce beers are equivalent to 4 ‘regular’ sized, and enough to cause intoxication when drunk in an hour and a-half. See , Texas DWI Detection and Standardized Field Sobriety Test Program: Student Manual(Revised 01/ 2002) at II-13, 16. 31 There is no basis to infer from his

31 / A 12-ounce beer, 4-ounce glass of wine and shot o f whiskey “are all the same”, have about one-half ounce of ethanol. A 175-pound man w ho drinks four 12-ounce beers on an empty stomach will have a blood alcohol content “ab ove 0.08”, “it doesn’t take very36

being found intoxicated in the jeep that he must ha ve driven it there after drinking to intoxication. 32 Third, in Murray the defendant was found on the sho ulder of a rural highway, with no one else in the vicinity. In contrast, appellant was found in a busy, full parking lot by a large residential home, and testified Juan had told him he drove there and went to visit someone. Rather, than being no one else around, the video shows many others even i n the hour or so the officers were there. Arguably there is some eviden ce supporting inferences there was another person in or near the car near th e time of the third call, as defense counsel argued.

4. Insufficient to prove driving or operating. Avants v. State, 170 Tex.Crim. 308, 340 S.W.2d 817( 1960), found insufficient “to show that the appellant drove the automobile” evidence when the officer “first saw the appellant, she was slumped down in the front seat of an automobile... that had been involved in an accident w ith another automobile on a public street; and that she was alo ne in the automobile with the doors close and its right frontbadly damaged.” Keenan v. State, 700 S.W.2d 12, 14(Tex.App.-Amarill o1985) no pet.,

much alcohol to impair someone: ‘a couple of beers’ can do it.” This Court can take judicial notice of this. See and cf., Emerson v. State, 880 S.W.2d 759(Tex.Crim.App.1994 ). 32/ Giddings also testified “the other officers said th ey were cold to the touch”, Poswalk said the 3 in the cooler were cold.37

distinguished Avants: “in that case there was no te stimony that the defendant was alone in the vehicle prior to the collisio n.” There is likewise no evidence appellant “was alone in the vehicle prior to the collision.” Nor are the other facts on which Keenan relied present (wit ness saw defendant in drivers seat on road with “exhaust coming from the tailpipe” “a couple of minutes” before collision). In Kuciemba v. State, 310 S.W.3d 460, 462(Tex.Crim. App.2010), the defendant admitted driving at the time of the accid ent and the court noted he was found behind the wheel at the scene, still b leeding “support[ing] an inference that the accident had occurred a short ti me previously.” Id . at 463. Hearne v. State, 80 S.W.3d 677, 680(Tex.App.-Hou[1 st ]2002), states: “that the truck was in a moving lane of traffic, th e engine was running,” defendant “was in the driver’s seat, the truck was registered to” defendant, “and no other person was nearby, the fact finder co uld reasonably infer that appellant was ‘operating’ his truck.” Wright v. State, 932 S.W.2d 572(Tex.App.-Tyler1995) no pet., found sufficient evidence defendant was the driver where a witness watched the car being driven until police arrived and saw the d river was the only occupant and person to get out after it stopped, and po lice saw him in the driver’s seat of the stopped car with his foot on the brake. Id ., 574-575.38 5. Insufficient to prove, if driving, that he was i ntoxicated when doing so. Kuciemba reaffirmed that “there must be a temporal link between the a (sic) defendant’s intoxication and his driving”, but it can be supported by circumstantial evidence. 310 S.W.3d at 462. Thus, it is not sufficient merely that he is found intoxicated and in his car, even i f the evidence on driving was sufficient. 33
Kuciemba was found intoxicated in the driver’s seatof a truck involved in a one-car rollover. He told police he had fallen asleep. The evidence was held sufficient because 1) “[b]eing intoxicated at the scene of a traffic acci dent in which the actor was a driver is some circumstantial evidence that the actor’s intoxication cause the accident, and the inference of causation is even stronger when the accident is a one-car collision w ith an inanimate object” 2) no alcoholic beverages or containers were foundin the truck or at the scene, 3) lack of skid marks indicated a failure to brake which was some evidence the accident was caused by intoxication, 4 ) he was found behind the wheel at the scene, visibly still bleeding “sup port[ing] an inference that the accident had occurred a short time previously”, and 5) a BAC “more than twice the legal limit found in a sample taken at the scene, supports an

33 / Unlike appellant’s case, there was no question in Kuciemba defendant had been driving, the issue was when in relation to his bein g found intoxicated.39

inference either that” the accident (and thus drivi ng) was recent or “he had been intoxicated for quite a while.” “ The combination of these facts is sufficient ...” Id ., at 461-463. See also , Scillitani v. State, 315 S.W.3d 542 (Tex.Crim.App.2010). In Chaloupka v. State, 20 S.W.3d 172(Tex.App.-Texarkana2000), pet. ref’d, the court stated: “The State had to prove not that Chaloupka was into xicated when the state trooper arrived, but that he had been intoxic ated while driving on a public roadway. The trooper’s testimony alone presents no proof that Chaloupka was driving while intoxicated. Howe ver, it constitutes a part of an accumulation of evidence.” Id ., at 175. It was held sufficient because the car was followed after the collision to a rest area only a few miles away wher e defendant was seen getting out on the driver’s side. Id., at 174-175. Appellant did not admit driving after drinking, the jeep’s engine was not running, and the keys were not even in the igni tion. It was parked in a parking lot, well off the road. It had been there almost 2 hours. He did nothing to attempt to operate it when the officers wo ke him. Compare also , Youens v. State, 988 S.W.2d 404, 407-408(Tex.App.-H ou[1 st ]1999) no pet.; Milam v. State, 976 S.W.2d 788, 789(Tex.App.-Hou[1 st ]1998) pet. ref’d; Wright, 932 S.W.2d at 574.While he owned the Jeep, there is no logic in that40

making it more or less probable he was DWI. Drivin g someone else’s car would not make it less probable. 34
POINT OF ERROR NO. TWO: THE TRIAL COURT REVERSIBLY ERRED BY DENYING APPELLANT’S MOTION FOR MISTRIAL. 1. Record. The following occurred before the jury during State ’s cross of appellant (at RR3-86-: “Q Well, let's talk about what happened since this arrest. Since this arrest, you've been in jail , haven't you? A Yes, sir. Q Okay. And that's been on a parole hold , correct? A That's been for this.
MS. HINDERA: Your Honor — THE COURT: Please approach.

34 / See also , Ballard, supra , holding it insufficient where the defendant was f ound slumped, unconscious and intoxicated in the driver’ s seat of a car parked on the side of a highway opposite a gas station, with the engine was running. He admitted he had operated a motor vehicle, and had been drinking butdenied being intoxicated. “There was no testimony concerning how long the car had be en parked...; how long” defendant “had been intox-icated; how long” he “had been in the car; who had parked the car; whether” defendant “was intoxicated before or at th e time the car was parked; or the ownership of the car.” 757 S.W.2d at 390-391. Some cases discount Ballard as based on the defunct‘alternate reasonable hypothesis’ construct. See e.g. , Rodriguez v. State, No. 01-08-01038-CR(Tex.App.-H ou[1 st ] September 29, 2009)[unpublished]; Feinberg v. State , No. 05-06-01367-CR(Tex.App.- Dallas, November 20, 2007)[unpublished]; Barton v. State, 882 S.W.2d 456, 458(Tex. App.-Dallas1994) no pet. But, the opinion itself d oes not mention the construct or appear to use its reasoning. In addition, those cases fin d sufficient evidence for operating at the time of intoxication because of facts like the engi ne running, often with the car in gear and defendant’s foot on the brake, and usually in the road or on the shoulder, if not more facts suggesting operating then or shortly before. See , Rodriguez, Feinberg , Barton , all supra .41

(At the Bench, on the record.)

THE COURT: That's inadmissible. MR. OHUERI: Your Honor, it can be — we can go under the felony conviction, Your Honor. THE COURT: Not for just any reason. MR. OHUERI: It goes to the truthfulness, Your Honor

. THE COURT: He hasn't been asked whether he was truthful. And you're not supposed to just ask if they're incarcerated. You can -- it's only to show a pertinent trait of his characte r, or motive, opportunity, intent, preparation, plan, knowledge, identity, mistaken – MR. OHUERI: It's willing to go to his motivation to be a — THE COURT: No, that's not the kind of motivation — that's not what that's about. No, that's not what it's about. Now, I really can't allow you to go down that road. MS. HINDERA: The door was not opened, I don't belie ve — THE COURT: Well, no, it was not. It was definitely not. And it could be serious error. So the appropriate w ay to do this is to — well, first continue to ask him the regular questions. If you have evidence that he is not being truthful, and so mehow it relates to a previous offense, I don't — I'm looking at this. MR. OHUERI: Your Honor, a felony conviction can be used for impeachment purposes. THE COURT: Not — not necessarily. Not necessarily. I pulled this out because I was afraid that's where you migh t be going.” RR3-86-88. The jury was excused and things continued thus:42 “THE COURT: So you're looking — okay. So you're loo king at which — well, I'm looking at Rule 404. Okay. You'r e looking at impeachment. MR. OHUERI: Yes, Your Honor. Your Honor, on inciden ts like this — THE COURT: You've got to give me the rule. MR. OHUERI: Yes, Your Honor. It's Rule 609(a). THE COURT: I'm looking at — sorry. Here we go. (Short pause.) Okay. The way you go about doing that, one, you're not supposed to refer to him being in jail. That's cardina l Rule, okay. That's why we have them dressed out. What you would do — y ou have to actually ask him if he has been convicted. And at this point, I think we ought to do it outside the presence of the jury. And you have to — do you have a record of that conviction? Do you hav e the — MR. OHUERI: All I have right now, Your Honor, is hi s criminal history. THE COURT: Okay. Okay. So — MR. OHUERI: But also, Your Honor, although this was not stated on the record, prior to trial, at the bench, defense counsel did mention that she wanted to get into everything, inc luding the criminal history. And that's why I felt there was some licen se with that; that statement was made. THE COURT: I don't remember her saying that she wan ted — I think — I think that Ms. — she said that her clientwanted to — wanted everything out in the open. I don't recall her quite saying -- MS. HINDERA: I think that was with regard to the — THE COURT: — the jury selection. MS. HINDERA: -- video.43 THE COURT: So let's go ahead and just have a little quick hearing off the record -- I mean on the record, out side the presence of the jury. And I need you to ask those questions with regard to a felony conviction.” RR3-88-89. Defense counsel then moved for a mistrial: “MS. HINDERA: And, Your Honor, I'd be moving for a mistrial at this point. I think the jury has been p rovided with information that, even if it's — if they're instructed n ot to consider it, then they are still hearing that he's incarcerated, he's been incarcerated since June 9, which suggests that he's not been eli gible for a bond or bail, that he's on parole. It could be for anything from another DWI to murder. And I don't think that the jury will have a , I guess, an unbiased mind, at this point, going in to the verdict pha se because of the introduction of questions that are now unanswered. THE COURT: Here's what I'm going to do. I'm not sur e if that's reversible error or not. I mean, obviously, I can i nstruct the jury to disregard that information. I don't know whether — and so I'm not prepared to rule on your motion right this minute. Let's go ahead and hear this testimony and then I n eed to give it a little thought. MR. OHUERI: Your Honor, as to that, as far — just u nder Rule 609, as far as the prejudicial and probative value, of course, yes, Your Honor, it is prejudicial to show that he's in jail. But the probative value goes to the defendant's version of the facts. He essentially opened up a new story about an individual named Juan. THE COURT: Well, that's all appropriate for cross-e xamination. And I don't think necessarily having the conv iction makes it more probative that his story is false. But let's g o ahead and hear this first. RR3-89-90.44

The State then took appellant on voir dire. 35
The discussion between trial court and counsels the n continued thus: “THE COURT: Okay. So the questions about whether he has a felony conviction, and, specifically, a conviction for bribery, I think could be relevant for impeachment. But the questio ns regarding his motivation to lie, I'm not persuaded. It's motive to commit the offense. It's not about motive to get up and not t ell the truth on the stand, is my understanding, okay, of — I don't thin k you can impeach him with why he desires to go to trial on this case . You can only impeach him with the actual felony conviction for b ribery, which is a crime of moral turpitude. So I can allow the testi mony that he has been convicted of bribery, but the whole line of qu estioning about him being on parole, and that being some sort of mo tivation to lie, I don't think you can — I'm not going to allow that. MR. OHUERI: Your Honor, the State will respectfullydisagree. But I think the issue of just bribery, that informa tion coming in, is fine at this point. The State can move on. THE COURT: We can look at it again later in another, you know, outside this trial. But I don't think that th at's admissible. MS. HINDERA: Your Honor, I would re-urge the mistrial because we can't take back from the jury the inform ation that he's already — that he's been in custody and that he's o n parole. And I —
MR. OHUERI: Your Honor — THE COURT: I ~ Go ahead.

35 / Eliciting that he had felony convictions in 2007 for bribery and “multiple” for burglary of a building, most recently in 2000. RR3-91. It a lso elicited that he was currently on parole for “burglary and bribery, both”, for “[a]bo ut four and a half more months I'll be finished.” Id . Finally. “just for” the prosecutor’s “view and u nderstanding”, it elicited that the Parole Board could revoke his parole, “Q A nd a negative outcome in this case could negatively affect the outcome of whether you' ll have to continue the rest of your sentence in jail, correct? A Correct.” RR3-91-92.45 MR. OHUERI: Your Honor, just with that, the prejudi ce comes from knowing that he has a conviction; the prejudic e doesn't come from parole. I think any speculation from — the jury might think this is a large legal basis that they don't have. The pr ejudice comes from the conviction; that evidence is already out. And a t this point, they don't even know what the crime is. We can let them know it's a crime of moral turpitude. Additionally, the fact that he got parole, Your Honor, showed that he had good behavior, to the ext ent that they are aware of the parole. THE COURT: Yeah. I don't think we need to go down that road. Because — well, we don't really know that for sure. Okay. I am — as to your motion, I'm going to deny i t because I don't have time to do much else. And my ruling stan ds that you are allowed to question him. I am going to tell the jury that they are to disregard the last — the last question from the pro secutor and the defendant's response. And then Mr. Ohueri can ask the question again, about whether he has any — a felony convicti on in 2007, I guess it's noted, for bribery. Okay? MS. HINDERA: And, Your Honor, we'll be able to go i nto — if you're going to allow it, that there haven't been a ny parole violations? I mean, if we're going to — THE COURT: We're not going into parole. MS. HINDERA: If you're going to allow the bribery t o come in, then his good works, as Mr. Ohueri said, is something that the jury would probably not really understand, because the t ypical juror's not going to understand parole, or being on parole, andrevocation of parole. So if Mr. Newberry has been out for how man y — THE WITNESS: Three years at this point. MS. HINDERA: Three years without any violations, I think that is at least going to his –46 THE COURT: Well, if you're saying — if you're not g oing to object to the admission of that evidence - - MS. HINDERA: If you're going to let in the, you kno w, going to say the bribery is allowable, then the parole -- the fact that he' s not been revoked from parole and he's been successful f or three years out in the world, I think is relevant. THE COURT: If you're not going to object to that, then I don't think we have — then there's really no objection. Because — MS. HINDERA: Well, I still object to the fact that he's been – THE COURT: Being held in jail.
MS. HINDERA: Yes. THE COURT: So, specifically, your objection, then, is only as to the fact that he is currently incarcerated.
MS. HINDERA: Yes. And I think since it's already out in front of the jury, we'll have to have some time to explain why, you know -- what the nature of parole is and how, by virtue of this very charge, that's what's holding him. And that until this case is resolved, which itcould have been, you know, with the 15-day offer , he's going to be held in for another 30 to 60, to maybe even 90 days, before par ole comes out to have a hearing for him. I mean — THE COURT: This is why I don't want to go down this road. It's a never-ending road. This is — and it's — none of it is relevant. His parole status — MS. HINDERA: Right. And I didn't bring it up. That' s why I didn't — whenever I was questioning him with Mr. Ne wberry, I did not bring it up. THE COURT: Exactly.47 His parole status is — it's — we don't know what al legations exist. You don't have anything from the parole offi cer. So we have nothing right now. We don't know if he's been picke d up on parole or not before, and we're not going to know that. And I think it's — so I'm going to stand on my ruling that we are not going i nto parole. The only testimony is whether or not he has had a prior felony conviction that could be used for impeachment purposes. MS. HINDERA: So you're allowing that in, but not al low me to question him as to the result of that bribery convi ction, his sentence? THE COURT: That he went to prison and he got out an d that he's out on parole? Boy. MR. OHUERI: Your Honor, the State's not going to ob ject to the limited leeway on that, as far as he was on par ole when he got out. The State's not going to object to that. The State understands and agrees with where you're coming from in going down the rabbit trail. But if it'll appease defense counsel, State's fine with that coming in. And State also — I won't follow up on that, Your Ho nor. THE COURT: You won't what? MR. OHUERI: I won't follow up on that, as far as th e parole issue. MS. HINDERA: But the bribery issue is going to be o ut, and it's all premised on the question regarding his bei ng in custody and being — THE COURT: Well, I'm going to tell them to disregar d that. And I understand what you're saying, that it's kind of hard to put that back in. But I — but I — I think I need to instructthe jury to disregard the response and let Mr. Ohueri start ove r. MS. HINDERA: Could we stipulate that he was on paro le and was successful on parole? No revocations until this —48 THE COURT: I don't know how we can — we don't know that. I don't know that the State would stipulate to thatbecause the State doesn't know that. MR. OHUERI: Yes, the State can’t stipulate to that. THE COURT: You can't stipulate to that. MR. OHUERI: I can't stipulate to that. MS. HINDERA: Maybe we need to recess for tomorrow s o I can get the parole officer up here. THE COURT: Well, I'm not going to do that. I'm not doing that. Definitely not doing that. We've got to go forward. Yeah. No, we're not going down that road right now. RR3-92-98. The trial court then ruled as follows: “THE COURT: Okay. So here's what I will say. I am s till denying Ms. Hindera's motion for a mistrial. My rul ing stands that the question about him being incarcerated is going to b e stricken and I'm going to instruct the jury to disregard that questi on and answer. You are, of course, now allowed to ask the question about his prior bribery conviction, prior felony bribery conv iction. You are not allowed to ask about parole. If Ms. Hindera wishes to raise that issue in her re direct, then that would open the door to your ability to further expound on his status on parole. ...” RR3-98-99. Once the jury returned the trial court instructed them thus: “THE COURT: Ladies and gentlemen of the jury, I'm g oing to ask that you disregard the last question and response . That would be49

Mr. Ohueri's question and Mr. Newberry's response. Mr. Ohueri, you may proceed.” RR3-99. The State’s cross then continued. B. Argument. 1. By eliciting this evidence the State violated ap pellant’s rights to due process, fair trial and the presumpti on of innocence. The State’s action was impermissible in two ways: 1 ) eliciting that appellant was incarcerated and had been “[s]ince th is arrest”, and 2) that it was because of “a parole hold” “for this” case. Th e trial court recognized
both were highly improper and prejudicial, and agreed w ith defense counsel that the door “was definitely not” opened. “Among the most precious rights afforded an accusedis the right to be tried before an impartial jury with the presumpt ion of innocence fully intact and free of prejudice.” Brown v. State, 877 S.W.2d 869, 870(Tex.App.-San An tonio1994) no pet. State actions that inform the jury the defendant is in custody violate the rights to due process, fair trial and the presumpti on of innocence because they are “indicia of guilt”, create “jury bias” and “prejudices a jury natural- [ly] feels from the inference that” his guilt has a lready been decided. See , Oliver v. State, 999 S.W.2d 596, 598-599(Tex.App.-H ou[14 th ] 1999) pet. ref’d; Brown, 877 S.W.2d at 871. See also , Tex.CodeCrim.Proc ., Arts. 2.0350

(b) & 38.03. Thus, compelling a defendant to wear jail clothes d uring trial violates these rights because it communicates that he is in custody. See , Estelle v. Williams, 425 U.S. 501, 512-512, 96 S.Ct. 1691 (197 6); Randle v. State , 826 S.W.2d 943, 945-946(Tex.Crim.App.1992). The same i s true for use of restraints, e.g. handcuffs, shackles, etc. See , Brown, supra ; Deck v. Missouri , 544 U.S. 622, 630, 125 S.Ct. 2007 (2005). But, these rights are also violated when the State introduces or elicits evidence that defendant is in custody: it is not th e clothing or the restraints which violate these rights. Thus, eliciting eviden ce that the defendant was in jail during trial “can invalidate” these rights. Pierce v. State, 234 S.W.3d 265, 268 (Tex. App.-Waco2007) pet. ref’d. See also , Sharper v. State, 22 S.W.3d 557, 558-559(Tex. App.-Texarkana2000) no pet ., cf ., State v. Pringle, No. 12-12-00286-CR(Tex.App.-Tyler, June 23 , 2013)[unpublished], affirming suppressing video portion of statement sh owing defendant in jail clothes. This would seem particularly true of tell ing the jury that he has been in jail since the arrest for the alleged offen se. See , Holloway v. State, 446 S.W.3d 847, 855(Tex.App.-Texarkana2014) no pet.

. The evidence elicited by the State’s first question did precisely that: telling the jury appellant had been in custody sinc e his arrest on this case.51

The trial court was therefore correct to note in re sponse to appellant’s objection that “you’re not supposed to refer to him being in jail. That’s cardinal Rule”. Just as restraints during trial, proof appellant has been incarcerated since arrest creates “the prejudice a jury naturally feels from the infe rence that the court has already decided that the Defendant is not only guilty, but also dangerous and untrustworthy.” Brown, 877 S.W.2d at 871. It is likewise very prejudicial for the State to de liberately elicit that parole had placed a hold on him because of this cas e. It explicitly suggests that a state authority, the parole board, had deter mined he was guilty, as well as informing them that he was parole at the time of the incident. 2. The trial court erred by denying the motion for mistrial. Denial of a mistrial is reviewed on an abuse of dis cretion standard.
See , Coble v. State, 330 S.W.3d 253, 292(Tex.Crim.App. 2010). The test requires balancing three factors: 1) severity of th e misconduct (magnitude of the prejudicial effect), 2) curative measures by th e trial court (efficacy of any cautionary instruction), and 3) certainty of co nviction absent the misconduct (strength of the evidence supporting convic tion). See , Hamilton v. State, No. 14-08-00175-CR(Tex.App.-Hou[14 th ]2010)[unpublished](citing Archie v. State, 221 S.W.3d 695, 700(Tex.Crim.App.2 007)).52 a. Severity of the misconduct. The rights violated by this error are “bedrock”, “b asic component[s]” of and essential to a fair trial and due process of law. See , Oliver, 999 S.W. 2d at 598-99; Brown, 877 S.W.2d at 870; Randle , 826 S.W.2d at 945 & n.3; Wiseman v. State, 223 S.W.3d 45, 50(Tex.App.-Hou[1 st ]2006) pet. ref’d. It was flagrant, violating a “cardinal Rule” as the tr ial court put it. This was not merely an unanswered question or passing commen t. Compare , Holloway, 446 S.W.3d at 856. It was not ambiguous and was immediately followed by a question repeating that he was incarc erated and adding the parole hold. Compare , Pierce, 234 S.W.3d at 265. It was not otherwise admissible. Compare , Pierce, supra .

b. Curative measures. There was no curative instruction as to the evidence that appellant had been in jail since his arrest. The trial court did give an instruction to disregard but it was explicitly limited to “the last question and response”, which was only about the parole hold

. “THE COURT: Ladies and gentlemen of the jury, I'm g oing to ask that you disregard the last question and response . That would be Mr. Ohueri's question and Mr. Newberry's response. Mr. Ohueri, you may proceed.” RR3-99. It did not include the question and answer before that: i.e.,53

Q. Well, let’s talk about what happened since this arrest. Since this arrest, you’ve been in jail, haven’t you? A. Yes, sir.” When courts consider giving an instruction to disre gard a sufficient ‘cure’ it is because they ordinary presume a jury follows cautionary instructions. See , Archie v. State, 340 S.W.3d 734, 741(Tex.Crim.App .2011). But the corollary that juries only disregard what the court tells them to is also true. The instruction to disregard applied only to the parole hold and left the jury free to consider and use against appe llant that he had been incarcerated since arrest and the natural inferences from that that he had already been determined guilty, dangerous and untru stworthy. See and cf. , Hamilton, supra . The trial court did not even rule on the objecti on before the jury. This distinguishes case like Holloway, where it was only an unanswered question by the prosecutor and there was an extensive instructive specifically addressing it. 446 S.W.3d at 855-56. See also , Madden v. State, No. 02-08-007-CR(Tex.App.-Fort Worth2009[unpublishe d]; Pierce, 234 S.W.3d at 268; Sharper, 22 S.W.3d at 559. Further, the instruction given on the parole hold w as not sufficient to cure. The natural inference was that appellant had already been found guilty by a State agency and the defense offered in this trial already disproved.54

That bell is simply too loud to unring. The trial c ourt expressly refused all attempts by the defense to explain anything about p arole to minimize its prejudicial effect. RR3-94-99. It also refused a s hort continuance to secure testimony from the parole officer to do so. RR3-98. As was said in Oliver about a curative instruction on jail clothing: “The re is a point where we ‘should not be ignorant as judges of what we know a s men.” 999 S.W.2d at 599. Jurors can not be expected to know the intric acies of parole (e.g., a hold may not in fact require adjudication, the less er burden of proof for revocation, etc.). Indeed, the law recognizes that mention of parole c an be so prejudicial that, even after a guilty verdict, the jury in an applicable case must be instructed it may consider it only in an very narrow sense. See , Tex.Code Crim.Proc., Art. 37.07, Secs. 4. See also , Hamilton, supra . 36 In addition, unlike in Hamilton, the State did elicit evidence suggesting he was incarcerated because parole had already determined that he was guilty. Further, the State’ s cross after the instruction s tarted by reminding the jury that he had felony convictions, necessaril y echoing the parole infor-

36 / “However, the State had already elicited, withoutobjection or instruction disregard, testimony suggesting appellant had been in custody since his arrest. There, despite the trial court’s instruction, we cannot necessarily conclude the jury disregarded any reference to appellant’s incarceration.”55

mation. RR3-99. It twice elicited that he did not tell the officers about Juan or Ann when he was arrested, then repeated that it had been “[a]lmost two months” since the incident. RR3-100, 102. It then attempted to question him on what he and his attorney had spoken about, b ut objection to invading lawyer-client communications was sustained. RR3-102 . It’s next question again repeated “that 60 days” since arrest, but dre w another objection. RR3- 103. The remaining two pages of cross did not ment ion the time or days since arrest, but the point had been made in the pr eceding 4 pages.

c. Conviction was not a certainty. Appellant would argue conviction was not certain, e ven if the evidence is found legally sufficient. See , Point of Error No. 1, supra .

3. The error was not harmless beyond a reasonable d oubt This error is of constitutional dimension, violatin g appellant’s rights to due process, fair trial and the presumption of i nnocence. Thus, conviction must be reversed “unless the court determin es beyond a reasonable doubt that the error did not contribute to the conv iction or punishment.” Tex. RApp.Proc., Rule 44.2(a). See and cf. , Wiseman v. State, 223 S.W.3d at 51; Oliver, 999 S.W.2d at 600; Brown , 877 S.W.2d at 871; Randle , 826 S.W.2d at 946 & n.13. It seems highly unlikely error in denying a motion for mistrial would be harmless under Rule 44.2(a). The analysis for w hether that was error is56

similar to that for harmless constitutional error. See , Hawkins v. State, 135 S.W.2d 72, 77(Tex.Crim.App.2004). Thus, cases find ing harmless error tend to be those where the record suggested the jury was not aware of the complained of indicia of guilt. See , Brown, 877 S.W.2d at 871-72; Mendoza v. State, 1 S.W.3d 829, 830(Tex.App.-Corpus Christi 1999) pet. ref’d; compare , Wiseman, supra . See also , Randle, 826 S.W.2d at 946 [additional circumstances]. That is not the case here. PRAYER FOR RELIEF For the reasons stated, appellant asks the convicti on and sentence be set aside, an acquittal entered or the case be remandedfor a new trial. RESPECTFULLY SUBMITTED, /s/ Christopher P. Morgan Christopher P. Morgan State Bar N o. 14435325 3009 N. IH 35 Austin, Tex as 78722 (512) 472-9717 // FAX: 472-9798 chrismorgalaw@cs.com ATTORNEY FOR APPELLANT CERTIFICATE OF SERVICE: I, Christopher P. Morgan, hereby certify a true copy of the foregoing Motion was served on the Office of the County Attorney for Travis County, Texas on June 9, 2015, by mail to P.O. Box 1748, Austin, Texas 78767. /s/ Christopher P. Morgan Christopher P. Morgan CERTIFICATE OF WORD COUNT: I, Christopher P. Morgan, hereby certify the word count of this brief, excluding mat ters in Tex.R.App.Proc.,57

Rule 9.4(i)(1), is 15000 or less. /s/ Christopher P. Morgan Christopher P. Morgan