This decision was not selected for publication inthe New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-g enerated errors or other deviations from the official paper version filed by the Supreme Court. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3 v. No. 35,825 4 JESSE J. TORRES, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Marci E. Beyer, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 Will O’Connell, Assistan t Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 GARCIA, Judge. 17
{1} Pursuant to a conditional plea agreement, Defendant appeals from his DWI 18 conviction. We previously issued a second notice of proposed summary disposition 192 in which we proposed to affirm. Defe ndant has filed a second memorandum in 1 opposition. After due consideration, we re main unpersuaded. We therefore affirm. 2
{2} The pertinent background information was set forth in our first notice of 3 proposed summary disposition. We will avoid undue repetition here, and focus instead 4 on the content of the second memorandum in opposition. 5
{3} Defendant continues to argue that the di strict court erred in denying his motion 6 to dismiss premised on a violation of the six-month rule. [SMIO 1] In his first 7 memorandum in opposition, Defendant asserted that trial counsel orally argued below 8 that the magistrate court coul d have (1) held jury selec tion as scheduled on September 9 1, 2015, (2) scheduled the trial for a later date that month “days or even weeks after 10 jury selection”, and (3) heard Defendant’s motions in between, thereby giving the 11 State sufficient time to prepare a response. [MIO 3-5] In our second calendar notice, 12 we erroneously construed Defendant’s memorandum as raising an argument not 13 preserved below. [CN 2] We agree with Defendant that we must accept assertions as 14 to what arguments were preserved as true at this stage. [SMIO 2] See Udall v. 15 Townsend , 1998-NMCA-162, ¶ 3, 126 N.M. 251, 968 P.2d 341 (stating that the 16 appellate court’s will not accept the factual a ssertions in the docketing statement if the 17 record on appeal shows otherw ise). We nevertheless affirm. 18
{4} It is well established that, under double jeopardy principles, “the [s]tate is 193 barred from appealing when a defendant is acquitted by the trial court no matter how 1 egregiously erroneous the trial court’s ruling[.]” State v. Lizzol , 2007-NMSC-024, 2 ¶ 15, 141 N.M. 705, 160 P.3d 886. Further, “whether a defendant [is] acquitted 3 depends on whether the trial court’s ruling, however labeled, correctly or incorrectly 4 resolve[s] some or all of the factual elements of the crime.” Id. ¶ 7. Here, Defendant’s 5 motion to exclude sought the suppression of all of the evidence gathered as a result 6 of his traffic stop; [RP 37-40] thus, an erroneous ruling thereon by the district court 7 in Defendant’s favor would have necessarily resolved all factual elements of his DWI 8 charge and denied the St ate the right to appeal. See Lizzol , 2007-NMSC-024, ¶¶ 7, 15. 9 Therefore, we hold that the district court did not err in refusing Defendant’s invitation 10 to deny the State its right to appeal the court’s rulings on Defendant’s motions. As we 11 explained in our first calendar notice, the need for an extension was caused by 12 Defendant, and so the State could not have protected against the loss of its right to 13 appeal through “ordinary experience or prudence.” See Rule 6-506 (NMRA) 14 (committee commentary); see also State v. Nunez , 2000-NMSC-013, ¶ 28, 129 N.M. 15 63, 2 P.3d 264. (“In a jury trial, jeopardy attaches at the point when a jury is 16 impaneled and sworn to try the case.”). 17
{5} As to the remaining issues on appeal, the second memorandum in opposition 18 presents no new arguments. [SMIO 4] 194 {6} Accordingly, for the reasons stated above and in our notices of proposed 1 summary disposition, we affirm. 2
{7} IT IS SO ORDERED. 3

__________________ ______________ 4 TIMOTHY L. GARCIA, Judge 5 WE CONCUR: 6

_______________________________ 7 LINDA M. VANZI, Chief Judge 8

_______________________________ 9 M. MONICA ZAMORA, Judge 10