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 CLERK2 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) 892-99333 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 t o be convicted of a criminal offense when the trial was fundamentally u nfair, including for untruthful testimony? Argument.............................................................................. 5 Prayer................................................ .................................. 22 Appendix.............................................................................. 244 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).....................1 5 Earhart v. State , 823 S.W.2d 607, 616 (Tex. Crim. App. 1991) cert. granted, judgment vacated, 509 U.S. 917, 113 S. Ct. 302 6, 125 L. Ed. 2d 715 (1993)..21 Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App.1989)..........................1 5 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. r ef'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)............... ...... 215

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.6 STATEMENT OF THE CASE This is an appeal from a conviction for Driving Whi le Intoxicated (First), on January 23, 2014. After a review for fundamental e rror, 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 Ja nuary 8, 2015. Appellant filed a Motion for Rehearing on January 2 3, 2015. The Motion for Rehearing was overruled on February 9, 2015. A Mot ion 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 th e 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 t o be convicted of a criminal offense when the trial was fundamentally u nfair, including for untruthful testimony?

ARGUMENT STANDARD

“ Any doubt as to whether an offense has been committ ed 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.-San7

Antonio, 2006). The Court’s duty to administer jus tice 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; oa ths 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 wa nt 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 administ ered in a form calculated to awaken the witness' conscience and impress the witn ess' 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 nu mber identified in the Index to Vol.1: CR1:(page numbers). Supplements wil l 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”.8

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 t o be convicted of a criminal offense when the trial was fundamentally u nfair, including for untruthful testimony? SUMMARY The Judge was biased and recused herself after tria l and ruling Cooper’s Motion to Suppress, so the trial was fundamentally unfair. The Arresting Officer (AO) had his radar unit in s tationary 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 traff ic stop was not valid. The arrest was not for an offense: Without any ind ication 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 offic er 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 th e 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 Alcohol9

Content (BAC) that he was intoxicated, instead of a mouth alcohol content. Convictions have to based upon the truth of the te stimony and evidence; otherwise, the judicial system is fundamentally unf air. The ability to convict upon lies makes the system no better than the witch tria ls. JURISDICTION The plain language of the statute conferring jurisd iction on the statutory county court appears to deny jurisdiction over matt ers 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.Go v. Code. The offense with which Mr. Cooper was charged is alleged to have bee n committed on that public highway. RR Vol.9, State’s Exhibit 6 at p.1 (“Locat ion 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 t his 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 Co de. Both concern a public highway. § 25.0003(a), (b), Tex. Gov. Code. THE JUDGE After denying Mr. Cooper’s Motion to Suppress and p residing over his jury trial, the Trial Court Judge recused herself. CR1 5 89. The Court’s Findings of Fact (CR1 543-545) demonstr ate that the Court10

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 M r. 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 subjec t 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 cle ar that it did not refer this case to the trial court to determine whether a ppeallant desired to prosecute this appeal before allegedly determining it only on fund amental error. Rule 38.8(b), Tex.R. App.P. FAILURE TO TELL THE TRUTH IS A STRUCTURAL ERROR, an d so is ARRESTING PERSONS FOR THINGS THAT ARE NOT CRIMES If people can be convicted of crimes on the fantas tic imaginations of others, the system means nothing, so the truth must be stru ctural. We have a constitutional and statutory edict to ensure that t he truth is told. Tex.Const.Art.1, Sec.5; Rule 603, Tex.R.Evid.11

This case involves the Arresting Officer holding f ast 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 Coop er’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 hi s own vehicle, then arrested Mr. Cooper not for suspicion of any offens e, but for refusing to perform road side field sobriety tests. That is not even an offense. It also involves the State’s Expert Witness testif ying that the breath test had to be conducted after a 15 minute waiting period du e 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 convict ed 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 al cohol 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 wa s driving north on the service road.12

One tuning fork calibrates the police radar in stat ionary mode. RR 204:2-16; RR 204:20-25; RR Vol.9, State’s Exhibit 7 at page 2 1. 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 r adar 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 vehi cle, 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 neve r manually switched his radar unit to mobile mode. RR 72:4-8; RR 31:3-10. AO bel ieved that his radar unit automatically toggled from stationary mode to movin g mode without any intervention by him. RR 72:4-8 (the radar automati cally 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 7 2:9-19; RR Vol.9, State’s13

Exhibit 7 at pages 8-9, and 23. The Court of Appeals determines from the totality o f 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. r ef'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 de pending on whether one believes his arrest report on August 13, 2011; test imony 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 conduct ed an investigative detention. Mr. Cooper declined to participate in S tandard Field Sobriety Tests (SFST’s) (RR 37:17-19) and blow in a Portable Breat h Test (PBT) device. RR 37:20-25. It was Van Alstyne Police Department’s S tandard 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 loc ked 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 SF ST’s. ALR 28:7-10.14

When Officer Olivares did not obtain any clues of D WI (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; R R Vol.9, State’s Exhibit 6 (Arrest Report p.3, last ¶). Mr. Olivares testified, “It’s standard operating pr ocedure...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 speed ing; had a smell of alcohol coming from his vehicle and breath; and sli ghtly 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 obt ain his driving license and insurance, exit his vehicle and walk to the rear, a ll without exhibiting signs of intoxication. RR Vol.9, State’s Exhibit 6 (Arrest Report p.3) The State adduced no evidence that slightly red eye s were in any way related to being intoxicated. Mr. Cooper was arrested afte r 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 des cribed this arrest as for refusing15

the SFST’s and PBT “since he was not giving [Office r Olivares] a chance to determine if [Mr. Cooper] was able to operate a mot or vehicle safely.” RR Vol.9, State’s Exhibit 6 (Arrest Report p.3, last ¶). First, a lawful arrest or detention requires reason able suspicion. Davis v. State, 947 S.W.2d 240, 242-244 (Tex.Crim.App.1997); citin g Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App.1989). The standard i s 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 bein g committed?” State v. Duran , 396 S.W.3d 563, 569 (Tex.Crim.App.2013) emphasis ad ded. THE BREATH TEST BTO Certification The person with a key to the Intoxilyzer 5000 was D eputy Windon. RR 126:8-16. Deputy Windon became a certified Breath Test Operator in February 2009. RR 121:8-23. His certification expired at tw o (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 tes t on Mr. Cooper in August,
2011. Q. Okay. And so, do you know when you would have be en last certified in order to be able to operate the intoxi lyzer? A. I was recertified, I believe my last certificate expired October of 2011.16

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 certi fication 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 Fore nsics. 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 Gray son 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 result s” were obtained after waiting only two (2) minutes (RR 130:1-4; 134:9-22)

. There were four samples of Mr. Cooper’s breath with in a ten (10) minute period. RR Vol.9, State’s Exhibits 5 and 3. The fi st 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 at17

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 samp les were rejected by the machine for being .026 apart. RR 166:20-25. After waiting 15 minutes inside the intoxilyzer roo m (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 t hree (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 bega n a second test, in which he provided two (2) consecutive samples of hi s breath. RR Vol.9, State’s Exhibit 5. The Intoxilyzer 5000 rejected the sampl es because they were more than .02 apart. RR 163:2-16. According to the TS, who i nstructs 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 admi nistered within 15 minutes of an incident of mouth alcohol. RR 183:6 to 184:2. M outh 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 i n close proximity. RR 151:3- 17. The second test concluded at 1:55 a.m. RR Vol. 9, State’s Exhibit 5. The18

results were indicative of an incident of mouth alc ohol (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 Oliv ares radioed his dispatcher before approaching Mr. Cooper’s parked v ehicle. 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 t raffic 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 disagreeme nt), 15-minutes required before the next breath test. RR 159:6 to 160:1. No netheless, Julie Evans testified that the breath test results (RR Vol.9, State’s Exh ibit 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 proxim ity 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 Br eath Test Operators wait 15 minutes after evidence of mouth alcohol before admi nistering 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 foole d. 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 a gainst 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 (wai ting 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 i ntoxilyzer 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 egreg ious that it rises to constitutional dimensions. See Jasper, 61 S.W.3d at 421; Blue, 4120

S.W.3d at 130. Fundamental errors exist when rights are violated that are considered so fundamental to the proper functio ning 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 whe n it knowingly uses perjured testimony at trial or allows untrue t estimony to go uncorrected. To succeed in showing a due process vi olation from the use of allegedly perjured testimony, a defendant ha s the burden of establishing that (1) the witness in question actua lly gave false testimony, (2) the falsity was material in that the re was a reasonable likelihood that it affected the judgment of the jur y, and (3) the prosecution used the testimony in question knowing that it was false. For use of perjured testimony to constitute constit utional error, the prosecution must have knowingly used the testimony to obtain a conviction. In order for allegations of perjured te stimony to constitute a due process violation, a defendant “must show tha t the prosecution knowingly presented materially false evidence to th e jury.” For the perjury to be material, there must have been a reas onable likelihood that the false testimony could have affected the ju dgment 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 again st 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 fi rst be able to say, with some objective basis in the record, that the great weight and21

preponderance of the (albeit legally sufficient) evidence contra dicts the jury's verdict before it is justified in exerci sing its appellate fact jurisdiction to order a new trial.
Watson v. State , 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) emphas is 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) (empha sis 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 commit ted 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 o f. 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 h aving committed no crimes. Then, he was convicted having committed no crime. T he State’s own evidence proves his innocence.22 CONCLUSION AND PRAYER WHEREFORE , Appellant requests that this Court of Criminal Ap peals grant his Petition and afterwards reverse and rende r 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 n o 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 COOPER23 CERTIFICATE OF SERVICE A true and correct copy of the foregoing and attac hed 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 Cooper24 APPENDIX
TAB 1 1. Opinion of the Fifth District Court of Appeals...... ....................Pass Im 2. Opinion on Rehearing......................................................Pass ImPD
- 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

- 00 089

- CR

. JAY SANDON COOPER, PRO SE 1520 JANWOOD DRIVE PLANO, TEXAS 75075 (972) 358

- 8999 NO FAX jaysandoncooper@gmail.com APPELLANTAffirmed 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, Ju stice 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 ja il and a $2,000 fine. The trial court sentenced appellant in accordance with the jury’s verdict. Appellant f iled a notice of appeal, and he thereafter chose to represent hi mself on appeal. The reporter’s re cord 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 additiona l 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 Septem ber 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 T EX

. R. A PP

. P. 38.8(b)(4). Appellant neither f iled a brief nor responded to the Court’s order. Accordingly, the appeal is submitted without briefs. Absent briefs, no issues are be fore us. Finding no fundamental error, we affirm the trial court’s judgment.

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. P. 47 140089F.U05 /Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE–3– 

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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 Br own participating. Based on the Court’s opin ion 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

O RDER 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