1 

PD-0330-15 

COURT OF CRIMINAL APPEALS OF TEXAS 

JAY SANDON COOPER 

V. 

STATE OF TEXAS 

PETITION FOR DISCRETIONARY REVIEW 

FILED BY JAY SANDON COOPER 

ON APPEAL FROM 

THE COUNTY COURT AT LAW NO.2, GRAYSON COUNTY, TEXAS 

CASE NO. 2011-2-1391. 

THE FIFTH COURT OF APPEALS AT DALLAS, TEXAS 

CASE NO. 05-14-00089-CR.

JAY SANDON COOPER, PRO SE 

1520 JANWOOD DRIVE 

PLANO, TEXAS 75075 

 (972) 358-8999 

NO FAX 

jaysandoncooper@gmail.com 

APPELLANT 

ORAL ARGUMENT 

REQUESTED

PD-0330-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 5/22/2015 11:16:05 PM

Accepted 5/26/2015 10:30:21 AM

ABEL ACOSTA

CLERK
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IDENTITY OF JUDGE, PARTIES AND COUNSEL 

TRIAL COURT JUDGE: The Honorable Carol M. Siebman 

 County Court at Law No.2, Grayson County, Texas 

PARTIES and COUNSEL: 

Appellant: Jay Sandon Cooper 

Counsel: Jay Sandon Cooper, Pro Se

 1520 Janwood Dr. 

 Plano, Texas 75075 

 (972) 358-8999 

 No Fax 

Trial: J. Richard Dunn 

Texas Bar Card No. 00783995 

108 S. Crockett 

 Sherman, Texas 75090 

(903)893-5535 

Appeal: Pro Se

Appellee: State of Texas 

Joe Brown 

Criminal District Attorney 

Grayson County, Texas 

Counsel: 

Trial: Michael S. Kelly 

Texas Bar Card No. 24055767 

200 S. Crockett, Ste. 116A 

Sherman, Texas 75090 

Appeal: Karla R. Hackett 

 Texas Bar Card No. 01923400 

200 S. Crockett, Ste. 116A 

Sherman, Texas 75090 

Phone: (903) 813-4361 

Fax: (903) 892-9933 
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TABLE OF CONTENTS 

Identity of Judges, Parties, and Counsel.......................................... 2 

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

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

Statement Regarding Oral Argument.............................................. 4 

Statement of the Case................................................................ 5 

Statement of Procedural History................................................... 5 

Grounds for Review.................................................................. 5

ISSUE 1. Did the Trial Court have Jurisdiction? 

ISSUE 2. Was the Judge Biased? 

ISSUE 3. Did the Appellate Court Follow the Process? 

ISSUE 4. Does our judicial system permit a person to be convicted of a 

criminal offense when the trial was fundamentally unfair, including for 

untruthful testimony? 

Argument.............................................................................. 5 

Prayer.................................................................................. 22 

Appendix.............................................................................. 24 

 
4 

INDEX OF AUTHORITIES 

Cases Page 

Abdygapparova v. State, 243 S.W.3d 191, 209 (Tex.App.-San Antonio, 2007)..10 

Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003).....................7 

City of Houston v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502, 

96 L.Ed.2d 398 (1987).............................................................10 

Davis v. State, 61 S.W.3d 94, 99 (Tex.App.-Amarillo, 2001).......................21 

Davis v. State, 947 S.W.2d 240, 242-244 (Tex.Crim.App.1997)....................15 

Drago v. State, 553 S.W.2d 375, 377–78 (Tex.Crim.App.1977).....................15 

Earhart v. State, 823 S.W.2d 607, 616 (Tex. Crim. App. 1991) cert. granted, 

 judgment vacated, 509 U.S. 917, 113 S. Ct. 3026, 125 L. Ed. 2d 715 (1993)..21

Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App.1989)..........................15 

Hinojosa v. Dretke, No. CIV. SA-01-CA-136-RF, 

2004 WL 2434353, at 6 (W.D. Tex. Sept. 30, 2004) ........................20 

Mahaffey v. State, 316 S.W.3d 633 (Tex.Crim.App.2010). ...........................7 

Powell v. State, 5 S.W.3d 369, 375 (Tex.App.-Texarkana 1999, pet. ref'd) ........13 

State v. Duran, 396 S.W.3d 563, 569 (Tex.Crim.App.2013)......................... 15 

State v. Elias, 339 S.W.3d 667, 674 (Tex.Crim.App.2011)...........................15 

State v. Johnson, 198 S.W.3d 795, 797 (Tex. App.-San Antonio, 2006)..........6 21 

Stearns v. State, No. 13-05-112-CR, 

2007 WL 2142651, at 1 (Tex. App. July 26, 2007) not pub’d.................20 

Thomas v. State, 919 S.W.2d 427, 430 (Tex.Crim.App.1996).................. 6, 21 

Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006)..................... 21 
5 

STATUTES AND RULES 

U.S. Const. Amend I........................................................................10 

Texas Constitution Article I, §5...................................................... 7, 10 

§ 25.0003(a), (b), Tex. Gov. Code. ........................................................9 

§ 25.0932, Tex.Gov. Code..................................................................9 

§ 545.351, Tex. Transp. Code..............................................................9

§724.019, Texas Transportation Code....................................................18 

§724.062, Texas Transportation Code. ..................................................18 

Rule 38.8(b), Tex.R. App.P................................................................10

Rule 603, Texas Rules of Evidence................................................... 7, 10 

STATEMENT REGARDING ORAL ARGUMENT 

Appellant requests oral argument. 
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STATEMENT OF THE CASE 

This is an appeal from a conviction for Driving While Intoxicated (First), on 

January 23, 2014. After a review for fundamental error, the judgment was 

affirmed by the Fifth Court of Appeals at Dallas. 

STATEMENT OF PROCEDURAL HISTORY 

The Fifth Court of Appeals opinion was issued on January 8, 2015. 

Appellant filed a Motion for Rehearing on January 23, 2015. The Motion for 

Rehearing was overruled on February 9, 2015. A Motion to Extend Time to file 

this Petition was granted on March 27, 2015. 

GROUNDS FOR REVIEW / STATEMENT OF QUESTIONS 

(Petitioner did not have access to the record at the time the Petition was prepared) 

ISSUE 1. Did the Trial Court have Jurisdiction? 

ISSUE 2. Was the Judge Biased? 

ISSUE 3. Did the Appellate Court Follow the Process? 

ISSUE 4. Does our judicial system permit a person to be convicted of a 

criminal offense when the trial was fundamentally unfair, including for 

untruthful testimony? 

ARGUMENT 

STANDARD 

“Any doubt as to whether an offense has been committed should be 

resolved in favor of the accused.” Thomas v. State, 919 S.W.2d 427, 430 

(Tex.Crim.App.1996); State v. Johnson, 198 S.W.3d 795, 797 (Tex. App.-San 
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Antonio, 2006). The Court’s duty to administer justice outweighs its duty to be 

consistent. Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003). 

Questions of law are reviewed by this Court de novo. Mahaffey v. State, 316 

S.W.3d 633 (Tex.Crim.App.2010). 

STATUTES AND RULES 

Texas Constitution Article 1, §5 

Witnesses not disqualified by religious beliefs; oaths and affirmations

No person shall be disqualified to give evidence in any of the Courts of this State 

on account of his religious opinions, or for the want of any religious belief, but all 

oaths or affirmations shall be administered in the mode most binding upon the 

conscience, and shall be taken subject to the pains and penalties of perjury.

Rule 603, Texas Rules of Evidence 

Before testifying, every witness shall be required to declare that the witness will 

testify truthfully, by oath or affirmation administered in a form calculated to 

awaken the witness' conscience and impress the witness' mind with the duty to do 

so. 

RECORD REFERENCES 

All references to the Reporter’s Record (RR) are to Volume (Vol.) 7, unless 

otherwise stated. References to the RR follow this format: page number “:” lines. 

Eg. 38:5-12 is RR Vol.7, page 38 at lines 5-12. 

 Citations to the Clerk’s Record are to the page number identified in the 

Index to Vol.1: CR1:(page numbers). Supplements will be identified by original 

documents. 

 The ALR hearing (Administrative License Revocation) was placed in the 

record along with the Motion to Suppress. It will be referred to as “ALR”. 
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ISSUE 1. Did the Trial Court have Jurisdiction? 

ISSUE 2. Was the Judge Biased? 

ISSUE 3. Did the Appellate Court Follow the Process? 

ISSUE 4. Does our judicial system permit a person to be convicted of a 

criminal offense when the trial was fundamentally unfair, including for 

untruthful testimony? 

 

SUMMARY 

The Judge was biased and recused herself after trial and ruling Cooper’s 

Motion to Suppress, so the trial was fundamentally unfair. 

 The Arresting Officer (AO) had his radar unit in stationary mode while he 

was moving toward Cooper, thus adding the speed of his vehicle to the speed of 

Mr. Cooper’s vehicle. So, the reason for the traffic stop was not valid. 

 The arrest was not for an offense: Without any indication that Mr. Cooper 

was not safe to drive, he was arrested for failure or refusal to participate in 

roadside field sobriety tests to convince the officer that Mr. Cooper was safe to 

drive. 

 The breath test on which Mr. Cooper was convicted was administered after 

the intoxilyzer machine gave an error indicating the presence of “mouth alcohol”. 

The DPS standard requires that the operator wait 15 minutes before administering 

the next test to let the mouth alcohol dissipate. Instead, the BTO waited only 2 

minutes, fooling the machine into a result that Mr. Cooper had a Blood Alcohol 
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Content (BAC) that he was intoxicated, instead of a mouth alcohol content. 

 Convictions have to based upon the truth of the testimony and evidence; 

otherwise, the judicial system is fundamentally unfair. The ability to convict upon 

lies makes the system no better than the witch trials. 

JURISDICTION 

The plain language of the statute conferring jurisdiction on the statutory 

county court appears to deny jurisdiction over matters concerning public highways, 

such as U.S. 75. § 25.0003(a), (b), Tex. Gov. Code. The County Court at Law 

No.2 is a statutory county court. § 25.0932, Tex.Gov. Code. The offense with 

which Mr. Cooper was charged is alleged to have been committed on that public 

highway. RR Vol.9, State’s Exhibit 6 at p.1 (“Location of Incident SB HWY 75”). 

Mr. Cooper contends that the County Court at Law No.2 of Grayson County, 

Texas had no jurisdiction to hear or preside over this case where the traffic stop 

was allegedly for speeding (§ 545.351, Tex. Transp. Code) and the charge was 

Driving While Intoxicated. Sec. 49.04, Tex.Penal Code. Both concern a public 

highway. § 25.0003(a), (b), Tex. Gov. Code. 

THE JUDGE 

After denying Mr. Cooper’s Motion to Suppress and presiding over his jury 

trial, the Trial Court Judge recused herself. CR1 589. 

The Court’s Findings of Fact (CR1 543-545) demonstrate that the Court 
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denied Mr. Cooper’s Motion to Suppress based on Mr. Cooper’s protected speech. 

U.S. Const. Amend I; City of Houston v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502, 

96 L.Ed.2d 398 (1987). The Trial Judge’s personal attacks contained in her 

findings and conclusions (CR1:543-545) demonstrate that the Judge should have 

recused herself before trial and before ruling on Mr. Cooper’s Motion to Suppress. 

Instead, the Judge recused herself post-trial. CR1:589. Because the Trial Judge 

should have recused herself, and did not, the trial was fundamentally unfair. Mr. 

Cooper is entitled to an impartial judge by the U.S. Constituion, and a violation of 

that right is a structural error that is not subject to a harm analysis. Abdygapparova 

v. State, 243 S.W.3d 191, 209 (Tex.App.-San Antonio, 2007) (citations omitted). 

DID THE COURT OF APPEALS CONSIDER THIS CASE WITHOUT

FOLLOWING RULE 38.8(b), Tex.R. App.P.? 

 The Court of Appeals’ Opinion (Tab 1) makes it clear that it did not refer 

this case to the trial court to determine whether appeallant desired to prosecute this 

appeal before allegedly determining it only on fundamental error. Rule 38.8(b), 

Tex.R. App.P.

FAILURE TO TELL THE TRUTH IS A STRUCTURAL ERROR, and so is 

ARRESTING PERSONS FOR THINGS THAT ARE NOT CRIMES 

 If people can be convicted of crimes on the fantastic imaginations of others, 

the system means nothing, so the truth must be structural. We have a 

constitutional and statutory edict to ensure that the truth is told. Tex.Const.Art.1, 

Sec.5; Rule 603, Tex.R.Evid. 
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 This case involves the Arresting Officer holding fast to his imagination that 

his radar was in moving mode while it was actually in stationary mode, so that the 

speed of his vehicle was added to the speed of Cooper’s vehicle. Even confronted 

with the manual of how the radar works, the officer did not vary. 

 The officer stopped Mr. Cooper for the speed of his own vehicle, then 

arrested Mr. Cooper not for suspicion of any offense, but for refusing to perform 

road side field sobriety tests. That is not even an offense. 

 It also involves the State’s Expert Witness testifying that the breath test had 

to be conducted after a 15 minute waiting period due to the machine determining 

that mouth alcohol was present between two samples taken from Mr. Cooper. Yet, 

the test results showed that Mr. Cooper was convicted for a result obtained without 

that wait time, and the condemning sample was taken after only two (2) minutes. 

Yet, the State’s expert testified that the test was conducted properly. So, Mr. 

Cooper was convicted of mouth alcohol, not blood alcohol content. 

 This is a case of actual innocence. 

THE TRAFFIC STOP 

Cooper was stopped for allegedly driving in excess of the speed limit as he 

drove south on the freeway toward an officer who was driving north on the service 

road. 
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One tuning fork calibrates the police radar in stationary mode. RR 204:2-16; 

RR 204:20-25; RR Vol.9, State’s Exhibit 7 at page 21. The Training Officer (TO) 

confirmed that by reviewing the manufacturer’s user manual. RR 204:20-25; RR 

Vol.9, State’s Exhibit 7 at page 21. To test the radar for use in moving mode 

requires the officer to use two (2) tuning forks at the same time. Id. The TO said 

the radar unit had to be tested every shift. RR 198: 21-25. 

The TO also testified that operating the radar unit in stationary mode while 

the patrol vehicle is moving toward the target vehicle, in this case Mr. Cooper, 

would add the speed of the patrol car to the speed of Mr. Cooper’s vehicle. RR 

208:20 to 209:16. 

It was Officer Olivares’ (AO) routine to only check the radar unit using one 

(1) tuning fork. RR 29:9-16, 69:13 to 82:6. He did not testify that he checked the 

radar on August 12, 2011. RR 84:3 to 85:9. AO never manually switched his radar 

unit to mobile mode. RR 72:4-8; RR 31:3-10. AO believed that his radar unit 

automatically toggled from stationary mode to moving mode without any 

intervention by him. RR 72:4-8 (the radar automatically switches from stationary 

to moving mode); RR 31:3-10 (“[I]t’s all calculated for you. Once it’s on, it’s on, 

you don’t have to push any other buttons...”). AO was not able to testify that the 

radar unit was attached to the Vehicle Speed Sensor (VSS) to enable automatic 

toggling between stationary and moving modes. RR 72:9-19; RR Vol.9, State’s 
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Exhibit 7 at pages 8-9, and 23. 

The Court of Appeals determines from the totality of the circumstance 

whether the traffic stop was reasonable for a police officer who used due caution. 

Powell v. State, 5 S.W.3d 369, 375 (Tex.App.-Texarkana 1999, pet. ref'd) (internal 

citations omitted) emphasis added. 

THE ARREST 

Mr. Cooper was not arrested for any offense, he was arrested for not 

performing field sobriety tests (SFST’s). 

What informed Officer Olivares’ decisions varies depending on whether one 

believes his arrest report on August 13, 2011; testimony on February 21, 2012, at 

the Administrative License Revocation (ALR) hearing; or testimony at trial on 

January 22, 2014, none of which are the same. 

After the initial contact, Officer Olivares conducted an investigative 

detention. Mr. Cooper declined to participate in Standard Field Sobriety Tests 

(SFST’s) (RR 37:17-19) and blow in a Portable Breath Test (PBT) device. RR 

37:20-25. It was Van Alstyne Police Department’s Standard Operating Procedure 

to arrest persons who refuse to participate in the SFST’s. ALR 27:24 to 28:1. Mr. 

Cooper was handcuffed and seatbelted inside the locked police car. RR 38:5-12. 

Officer Olivares called his supervisor at home. ALR 28:1-2. He confirmed the 

practice of arresting persons for not performing SFST’s. ALR 28:7-10. 
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When Officer Olivares did not obtain any clues of DWI (RR 44:16-24), he 

arrested Mr. Cooper for not participating in SFST’s, because Officer Olivares was 

unable to determine whether Mr. Cooper was safe to drive. RR 39:13-18; RR 

Vol.9, State’s Exhibit 6 (Arrest Report p.3, last ¶). The AO did not determine that 

Mr. Cooper was “not safe to drive.” RR 39:13-18; RR Vol.9, State’s Exhibit 6 

(Arrest Report p.3, last ¶). 

Mr. Olivares testified, “It’s standard operating procedure...if you 

refuse standard field sobriety tests, that you are placed under arrest.” ALR 

27:24 to 28:1. There was nothing else previous to the final arrest to cause Officer 

Olivares to believe Mr. Cooper was intoxicated. ALR 32:21-24. 

 The arrest report stated that Mr. Cooper was speeding; had a smell of 

alcohol coming from his vehicle and breath; and slightly red eyes. RR Vol.9, 

Exhibit 6 (Arrest Report p.3). “Alone”, these are not signs of intoxication. RR 

60:12-20. Officer Olivares observed Mr. Cooper obtain his driving license and 

insurance, exit his vehicle and walk to the rear, all without exhibiting signs of 

intoxication. RR Vol.9, State’s Exhibit 6 (Arrest Report p.3) 

The State adduced no evidence that slightly red eyes were in any way related 

to being intoxicated. Mr. Cooper was arrested after he refused to perform SFST’s 

and blow in a Portable Breath Tester (PBT). RR Vol.9, State’s Exhibit 6 (Arrest 

Report p., last 3¶¶). Officer Olivares further described this arrest as for refusing 
15 

the SFST’s and PBT “since he was not giving [Officer Olivares] a chance to 

determine if [Mr. Cooper] was able to operate a motor vehicle safely.” RR Vol.9, 

State’s Exhibit 6 (Arrest Report p.3, last ¶). 

First, a lawful arrest or detention requires reasonable suspicion. Davis v. 

State, 947 S.W.2d 240, 242-244 (Tex.Crim.App.1997); citing Garza v. State, 771 

S.W.2d 549, 558 (Tex.Crim.App.1989). The standard is an objective one. State v. 

Elias, 339 S.W.3d 667, 674 (Tex.Crim.App.2011); See also Drago v. State, 553 

S.W.2d 375, 377–78 (Tex.Crim.App.1977). “Would a reasonable officer in the 

same situation believe a crime had been or was being committed?” State v. Duran, 

396 S.W.3d 563, 569 (Tex.Crim.App.2013) emphasis added. 

THE BREATH TEST 

BTO 

Certification 

The person with a key to the Intoxilyzer 5000 was Deputy Windon. RR 

126:8-16. Deputy Windon became a certified Breath Test Operator in February 

2009. RR 121:8-23. His certification expired at two (2) years (February 2011). RR 

122:11-17. He was next certified in October 2011. RR 122:18-22. So, his 

certification was expired when he performed the test on Mr. Cooper in August, 

2011. 

Q. Okay. And so, do you know when you would have been last 

certified in order to be able to operate the intoxilyzer? 

A. I was recertified, I believe my last certificate expired October of 

2011. 
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Q. Okay, And so, when --in August of 2011, were you a certified 

breath test operator? 

A. Yes, sir. 

RR 122:18-22. 

Deputy Windon testified that his training and certification as a BTO was not 

issued by the State, but by a private company that the State did not show was 

authorized to train and certify BTO;s: Fondren Forensics. RR 121:16-18. 

TS / Certification 

The Technical Supervisor (TS) testified that it was her responsibility to 

provide training and certification to BTO’s in Grayson County, including Deputy 

Windon. RR 146:10-24. 

TS / Breath Test Results 

Deputy Windon testified: 

A. “[T]hen [I] begin my 15-minute waiting period. 

Q. What is that for? 

A. To make sure there is no residual alcohol inside their mouth. 

RR 123:22 to 124:1. 

Deputy Windon testified that the “valid test results” were obtained after 

waiting only two (2) minutes (RR 130:1-4; 134:9-22). 

There were four samples of Mr. Cooper’s breath within a ten (10) minute 

period. RR Vol.9, State’s Exhibits 5 and 3. The fist two were taken by 1:55 a.m. 

RR Vol.9, State’s Exhibit 5. The first registered .164 and the second registered 

.138. RR 166:8-21. The third sample was taken at 2:02 a.m. RR Vol.9, State’s 

Exhibit 3. The third sample registered .15. Id. The fourth sample was taken at 
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2:05 a.m. Id. The fourth sample was measured at .153. Id. Although taken in close 

proximity (RR 134:14-22), the first and second samples were rejected by the 

machine for being .026 apart. RR 166:20-25. 

After waiting 15 minutes inside the intoxilyzer room (RR 123:17-23), Mr. 

Cooper provided a sample of his breath to determine his blood alcohol content 

(BAC). RR Vol.9, State’s Exhibit 4. The first of three (3) tests ended at 1:48a.m. 

(one (1) hour and 52 minutes after the initial stop). RR. Vol.9, States Exhibit 4. 

The first breath sample was deficient either as to the length of time Mr. Cooper 

blew or the pressure. RR 154:5-7; 177:24 to 178:3. 

Two (2) minutes later (RR 130:1-4), Mr. Cooper began a second test, in 

which he provided two (2) consecutive samples of his breath. RR Vol.9, State’s 

Exhibit 5. The Intoxilyzer 5000 rejected the samples because they were more than 

.02 apart. RR 163:2-16. According to the TS, who instructs BTO’s to obtain 

certification to operate the Intoxilyzer machines (RR 146:10-15), an “02” 

disagreement is caused by the measurement of mouth alcohol instead of BAC. RR 

163:2-16. The DPS requires that a test not be administered within 15 minutes of 

an incident of mouth alcohol. RR 183:6 to 184:2. Mouth alcohol can result from 

belching (RR 179:20 to 180:3) or regurgitating the contents of the stomach (RR 

159:6-23) and fool the machine when the tests are in close proximity. RR 151:3-

17. The second test concluded at 1:55 a.m. RR Vol.9, State’s Exhibit 5. The 
18 

results were indicative of an incident of mouth alcohol (RR 163:2-16) requiring a 

15-minute waiting period. RR 183:6 to 184:2. 

The third test began two (2) minutes later (RR 130:1-4), with the two (2) 

samples for that test both obtained in the next ten (10) minutes, by 2:05 a.m (RR 

Vol.9, State’s Exhibit 3), two (2) hours and nine (9) minutes after the initial traffic 

stop. RR Vol.9, State’s Exhibit 6 (Arrest Report p.1). 

The incident began to be recorded when Officer Olivares radioed his 

dispatcher before approaching Mr. Cooper’s parked vehicle. RR 34:22-25; ALR 

37:12-19. The Texas Legislature has stated that it is not reasonable to take a breath 

or blood sample more than two (2) hours after the traffic stop. RR 184:9-15; 

§724.019, §724.062, Texas Transportation Code. 

TS’ Testimony 

The Trial Court described Julie Evans as an expert witness. RR 190:3-5, :11-

12.

Breath Tests 

The Texas Department of Public Safety has developed Rules for the 

administration of intoxilyzer examinations by BTO’s. RR 183:6-9. 

 After an incident of mouth alcohol (.02 disagreement), 15-minutes required 

before the next breath test. RR 159:6 to 160:1. Nonetheless, Julie Evans testified 

that the breath test results (RR Vol.9, State’s Exhibit 3) were proper. RR 160:21-

24; 163:1-7. The State presented this test result first. So, the State knew of the 

falsity. 
19 

The reason samples are .02 apart is because of the measurement of “mouth 

alcohol”, instead of a deep lung sample reflective of Blood Alcohol Content 

(BAC). RR 163:2-16. Tests that are in close proximity can fool the machine. RR 

151:3-17. The Technical Supervisor testified that it is a rule implemented by the 

Texas Department of Public Safety that certified Breath Test Operators wait 15 

minutes after evidence of mouth alcohol before administering an intoxilyzer 

examination. RR 183:6-9; RR 159:10-23. Waiting 15 minutes after an incident of 

mouth alcohol prevents the machine from being fooled. RR 151:6-17. Mouth 

alcohol can result from belching (RR 179:20 to 180:3) or regurgitation of the 

contents of one’s stomach. RR 159:6-23. According to the Technical Supervisor, 

the 15-minute protocol is to prevent or safeguard against inaccurate test results 

from the presence of mouth alcohol. RR 183:6 to 184:2. After an 02 disagreement, 

“start the clock over...” RR 159:20-23. 

Although the test was incorrectly administered (waiting only 2 minutes 

instead of 15 minutes to clear mouth alcohol), Ms. Evans testified for the State that 

Mr. Cooper would have a BAC about the same as the intoxilyzer test (allegedly 

.015) at the time he was driving. RR 169:13-21. 

An appellate court may, however, “tak[e] notice of fundamental errors 

affecting substantial rights although they were not brought to the 

attention of the [trial] court.” Tex.R. Evid. 103(d); see Jasper v. State,

61 S.W.3d 413, 420 (Tex.Crim.App.2001); Blue, 41 S.W.3d at 132. 

No objection is required when the error is so egregious that it rises to 

constitutional dimensions. See Jasper, 61 S.W.3d at 421; Blue, 41 
20 

S.W.3d at 130. Fundamental errors exist when rights are violated that 

are considered so fundamental to the proper functioning of our 

adjudicatory process that they cannot be forfeited, i.e., they are not 

extinguished by inaction alone. Blue, 41 S.W.3d at 131. For an 

accused to lose a fundamental right, he or she must expressly 

relinquish that right. Id.; Nunez v. State, 117 S.W.3d 309, 319 

(Tex.App.-Corpus Christi 2003, no pet.). 

Stearns v. State, No. 13-05-112-CR, 2007 WL 2142651, at 1 (Tex. App. July 26, 

2007) not pub’d. 

A state denies a criminal defendant due process when it knowingly 

uses perjured testimony at trial or allows untrue testimony to go 

uncorrected. To succeed in showing a due process violation from the 

use of allegedly perjured testimony, a defendant has the burden of 

establishing that (1) the witness in question actually gave false 

testimony, (2) the falsity was material in that there was a reasonable 

likelihood that it affected the judgment of the jury, and (3) the 

prosecution used the testimony in question knowing that it was false. 

For use of perjured testimony to constitute constitutional error, the 

prosecution must have knowingly used the testimony to obtain a 

conviction. In order for allegations of perjured testimony to constitute 

a due process violation, a defendant “must show that the prosecution 

knowingly presented materially false evidence to the jury.” For the 

perjury to be material, there must have been a reasonable likelihood 

that the false testimony could have affected the judgment of the jury. 

Hinojosa v. Dretke, No. CIV. SA-01-CA-136-RF, 2004 WL 2434353, at 6 (W.D. 

Tex. Sept. 30, 2004) not pub’d. (citations omitted) emphasis in orig. 

When the fact finders (judge or jury) decided against the great weight and 

preponderance of the evidence, the Court of Appeals should exercise its appellate 

fact jurisdiction and order a new trial. 

We have always held that an appellate court must first be able to say, 

with some objective basis in the record, that the great weight and 
21 

preponderance of the (albeit legally sufficient) evidence contradicts 

the jury's verdict before it is justified in exercising its appellate fact 

jurisdiction to order a new trial. 

Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) emphasis in original 

(overruling Zuniga v. State, 144 S.W.3d 477, 483 (Tex. Crim. App. 2004). 

[I]f there is a reasonable hypothesis other than the guilt of the 

accused, then it cannot be said that guilt has been established beyond 

a reasonable doubt. 

Earhart v. State, 823 S.W.2d 607, 616 (Tex. Crim. App. 1991) (emphasis in 

original) cert. granted, judgment vacated, 509 U.S. 917, 113 S. Ct. 3026, 125 L. 

Ed. 2d 715 (1993). 

“Any doubt as to whether an offense has been committed should be resolved 

in favor of the accused.” Thomas v. State, 919 S.W.2d 427, 430 

(Tex.Crim.App.1996); State v. Johnson, 198 S.W.3d 795, 797 (Tex. App.-San 

Antonio, 2006).

HARM 

Appellant has shown harm by the errors complained of. Consequently, this 

Court cannot but hold that the trial court's error was harmful under Texas Rule of 

Appellate Procedure 44.2(a).” Davis v. State, 61 S.W.3d 94, 99 (Tex.App.-

Amarillo, 2001). Cooper was stopped and arrested having committed no crimes. 

Then, he was convicted having committed no crime. The State’s own evidence 

proves his innocence. 
22 

CONCLUSION AND PRAYER

WHEREFORE, Appellant requests that this Court of Criminal Appeals 

grant his Petition and afterwards reverse and render judgment or remand to the trial 

court for further proceedings consistent with this Court’s opinion.

 Respectfully submitted, 

 /s/ Jay Sandon Cooper

Jay Sandon Cooper 

1520 Janwood Dr. 

Plano, Texas 75075 

(972)358-8999 

 NO FAX 

 JaySandonCooper@gmail.com 

APPELLANT 

CERTIFICATE OF COMPLIANCE

This Brief complies with the requirements of Rule 9.4(i)(2)(D) because it is 

produced on a computer in a conventional typeface no smaller than 14-point except 

for footnotes, which are no smaller than 12-point; and contains 3,672 words. 

/s/ Jay Sandon Cooper

JAY SANDON COOPER 
23 

CERTIFICATE OF SERVICE

 A true and correct copy of the foregoing and attached documents were 

electronically served to the following recipients, if that option was available 

through the electronic filing manager, and if not, it was mailed to Appellee’s 

counsel on May 22, 2015: 

Joe Brown, 

Criminal District Attorney 

Grayson County, Texas 

Karla R. Hackett 

Texas Bar Card No. 01923400 

200 S. Crockett, Ste. 116A 

Sherman, Texas 75090 

Phone: (903) 813-4361 

Fax: (903) 892-9933 

and in accordance with Rules 68.11 and 79.7, Tex.R.App.P., in the same manner it 

was provided to: 

Lisa C. McMinn 

State Prosecuting Attorney 

P. O. Box 13046 

Austin, Texas 78711-3046 

Telephone: (512) 463-1660 

Fax: (512) 463-5724 

information@spa.texas.gov

and 10 paper copies will be delivered to the Clerk of this Court of Criminal 

Appeals within three (3) business days as required by the Rules. 

/s/ Jay Sandon Cooper

Jay Sandon Cooper 
24 

APPENDIX 

TAB 1 

1. Opinion of the Fifth District Court of Appeals..........................Pass Im 

2. Opinion on Rehearing......................................................Pass Im 
PD-0330-15

COURT OF CRIMINAL APPEALS OF TEXAS

JAY SANDON COOPER

V.

STATE OF TEXAS

TAB 1

ON APPEAL FROM 

THE COUNTY COURT AT LAW NO.2, GRAYSON COUNTY, TEXAS 

CASE NO. 2011-2-1391.

THE FIFTH COURT OF APPEALS AT DALLAS, TEXAS 

CASE NO. 05-14-00089-CR.

JAY SANDON COOPER, PRO SE

1520 JANWOOD DRIVE

PLANO, TEXAS 75075

(972) 358-8999

NO FAX

jaysandoncooper@gmail.com

APPELLANT
Affirmed and Opinion Filed January 8, 2015 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-14-00089-CR 

JAY SANDON COOPER, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the County Court at Law No. 2 

Grayson County, Texas 

Trial Court Cause No. 2011-2-1391 

MEMORANDUM OPINION 

Before Chief Justice Wright, Justice Myers, and Justice Brown 

Opinion by Chief Justice Wright 

A jury found Jay Sandon Cooper guilty of driving while intoxicated and assessed 

punishment at thirty’ days confinement in jail and a $2,000 fine. The trial court sentenced 

appellant in accordance with the jury’s verdict. Appellant filed a notice of appeal, and he 

thereafter chose to represent himself on appeal. The reporter’s record was filed on May 7, 2014. 

The clerk’s record was filed on May 13, 2014. On July 16, 2014, we ordered appellant to file his 

brief within thirty days. A supplemental clerk’s record was filed on September 11, 2014, and on 

September 12, 2014, we ordered appellant to file his brief by October 3, 2014. On September 

16, 2014, appellant filed a letter designating additional items for the clerk’s record. On October 

14, 2014, we received a supplemental clerk’s record with a letter from the Grayson County Clerk 

stating that the items requested were included in the September 11, 2014 supplemental clerk’s 
 –2– 

record, except for the documents for in camera inspection and the Bond Information were not 

filed as of record. On November 13, 2014, this Court ordered appellant to file his brief by 

December 1, 2014. We warned that failure to do so would result in submission, without further 

notice, of the appeal without briefs. See Lott v. State, 874 S.W.2d 687, 87–88 (Tex. Crim. App. 

1994); see also TEX. R. APP. P. 38.8(b)(4). Appellant neither filed a brief nor responded to the 

Court’s order. Accordingly, the appeal is submitted without briefs. 

Absent briefs, no issues are before us. Finding no fundamental error, we affirm the trial 

court’s judgment. 

Do Not Publish 

TEX. R. APP. P. 47 

140089F.U05 

 

/Carolyn Wright/ 

CAROLYN WRIGHT 

CHIEF JUSTICE 
 –3– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

JAY SANDON COOPER, Appellant 

No. 05-14-00089-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the County Court at Law 

No. 2, Grayson County, Texas 

Trial Court Cause No. 2011-2-1391. 

Opinion delivered by Chief Justice Wright, 

Justices Myers and Brown participating. 

 Based on the Court’s opinion of this date, we AFFIRM the trial court’s judgment. 

Judgment entered January 8, 2015. 
Order entered February 9, 2015

In The

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-14-00089-CR

JAY SANDON COOPER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 2

Grayson County, Texas

Trial Court Cause No. 2011-2-1391

ORDER

Before Chief Justice Wright and Justices Myers and Brown

The Court GRANTS appellant’s January 23, 2015 motion to exceed the word limit on his 

motion for rehearing. The motion for rehearing is filed as of the date of January 23, 2015.

We DENY appellant’s motion for rehearing.

/s/ CAROLYN WRIGHT

CHIEF JUSTICE