PD-0197-15
IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
JESSICA NICOLE NANCE APPELLANT
V. THE STATE OF TEXAS, APPELLEE MOTION FOR REHEARING IN CAUSE NUMBER CR1101695 IN THE COUNTY COURTAT LAW NO. 1 OF HUNT COUNTY, TEXAS MOTION FOR REHEARING PURSUANT TO TRAP 79.2(C) TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: Comes NOW the Appellant and submits this Motion for Rehearing pursuant to the provisons of the Texas Rules ofAppellate Procedure TRAP 79.2C insupport of her request forthe forMotion for rehearing. Themotion isgrounded on a substantial intervening circumstance which are specified in this Motion. This motion is also made in good faith and not for delay. 

# RECEIVED INe COURTOFCRIMINALAPPEALS JUN 03 2015 

### AbeiAcosta,C(erkIDENTITY Of PARTIES AND COUNSEL Pursuant to Texas Rule of Appellate Procedure 38.1, the undersigned counsel of record certifies that the following persons have an interest in the outcome of this case. These representations are made so that the Justices of this Honorable Court can evaluate whether they are disqualified to serve or should recuse themselves from participation in the decision of this case. APPELLATE: Jessica Nicole Nance PO. 8ox211362 Bedford, Texas 76095

APPELLATE ATTORNEY: Jason A. Duff 2615 Lee Street P.O. Box 11 Greenville, Texas 75403

Appellee: The State of Texas by and through Joel D. Littlefield Jeffery Kovach

Hunt County Attorney 4th Floor Hunt County Courthouse 2500 Lee Street Greenville, Texas 75401INDEX OF AUTHORITIES CASES

Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010) 

### Clayton v. State, 235 S.W.3d 772 (Tex.Crim.App. 2007) Gilliand v. State, 2011WL 3862861 

### (Tex.App.—Texarkana 2011) Hartsfield v. State, 305 S.W.3d 859 

### (Tex.App.—Texarkana 2010) Hooper v. State, 214 S.W.3d 9 

### (Tex.App.—Texarkana 2007) Jackson v. Virginia, 433 U.S. 307 (1979) Johnson v. State, 517 S.W..2d 536 (Tex.Crim.App.1975) 

### Gonzales v. State, 369 S.W.3d 851,854 (Tex. Crim. App. 2012) 

### Haynes v. State, 475 S.W.2d 739,741 (Tex. Crim. App. 1971) Kentucky v. King, 131 S.Ct. 1849,1856 (2011) 

### Mincey v. Arizona, 437 U.S. 385, 390 (1978) (quoting Katz v. United States, 389 U.S. 347, 357 (1967))TABLE OF CONTENTS 

### Identity ofthe Parties and Counsel Table ofContents Index ofAuthorities 

### Statement ofthe Case Issues Presented Statement ofthe Facts 

### Summary ofthe Argument Prayerfor Relief 

## Certificate ofcompliance of typeface and word count Certificate ofServiceGonzales, 369 S.W.3d at 854 

## Brayv. State, 597 S.W.2d 763, 765 n.l (Tex. Crim. App. (Panel Op.] 1980) (quoting McDonald v. United States, 335 U.S. 451,455 (1948)) Johnson v. United States, 333 U.S. 10,17 (1948) Jones v. United States, 357 U.S. 493,499 (1958). 

## McGee v. State, 105 S.W.3d 609,615 (Tex. Crim. App. 2003). 

## Hudson v. State, 588 S.W.2d 348,351 (Tex. Crim. App. 1979) (quoting United 

## States v. Chadwick, 433 U.S. 1,9 (1977), abrogated on othergrounds byCalifornia v. Acevedo, 500 U.S. 565,568-80 (1991) (internal quotation marks omitted)). United States v. Martinez-Fuerte, 428 U.S. 543,565 (1976); see also Beckv. Ohio 379 U.S. 89, 96 (1964) 

## Clayv. State, 391S.W.3d 94,100 n.21 (Tex. Crim. App. 2013) (quotingWayne R. LaFave, 2Search and Seizure: A Treatise on the Fourth Amendment §4.3(b), at511 (4th ed. 2004))). 

## State v. Robinson, 334 S.W.3d 776, 778-79 (Tex. Crim. App. 2011) (footnotes omitted) 

## Robinson, 334 S.W.3d at780 (Cochran, J., concurring); Ford v. State, 158 S.W.3d 488,492 (Tex. Crim. App. 2005). 

## Robinson, 334 S.W.3d at779; Amadorv. State, 221 S.W.3d 666, 672-73 (Tex. Crim. App. 2007). 

## Bray, 597 S.W.2d at765 n.l (quoting McDonald, 335 U.S. at456). Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). 

## Crane v. State, 786 S.W.2d 338, 346 (Tex. Crim. App. 1990) STATUTES and RULESTexas Penal Code 49.04 

### Rule 44.2(a) of the Texas RulesofAppellate Procedure See TEX. R. APP. P. 44.2(a) 

### Hernandez v. State, 60S.W.3d 106 (Tex. Crim. App. 2001) Snowden v. State, 353 S.W.3d 815,821 (Tex. Crim. App. 2011).

End Notes: 1 Adams, R., &Victor, M. (1993). Principles ofNeurology, 5th edition. McGraw-Hill, Inc.: NewYork 2 Burns, M.,& Anderson, H.( 1995). A Colorado validation study of the standardizedfield sobriety (SFST) battery. Final Report.Colorado Department ofTransportation. 3 Burns, At, &Dloquino, T.( 1997). A Florida validation study ofstandardized field sobrietytest (S.F.S.T. battery. Florida Department of Transportation. 4 De Myer, W. Neuroanatomy. Williams &Wilkins, Baltimore. 5 DWIdetection and standardizedfield sobriety testing Student manual.(1995). NHTSA, U.S. Department ofTransportation. 6 DWIdetection and standardizedfield sobriety testing Instructor manual. (1995). NHTSA, U.S. Department ofTransportation. 7 Elliot. C, & Murray. A. (1998). Repeatability ofbody sway measurements; day-to-day variation measured by)sway magnetometry. Physiol. Meas.19,1S9-164. 8 Lee, D..&Lishman, J. (1975). Vision -the most efficient source of proprioceptive information for balance control. Symposium international de posturegraphie, 83-93. 9 Mills, K., & Bisgrove, E. (1983). Body sway and dividedattention performance under the influenceofalcohol: Dose-responsedifferences between males and females. Alcohol Clincial and Experimental Research, 7(4), 393-397. 10 Nardone, A., Tarantola,J., Giordano, A., &Schieppati, M. (1997). Fatigue effects on body balance. Electroencephalographyand clinical Neurophysiology, 105,309-320.STATEMENT OF THE CASE 

### This is an appeal ofthejudgmentand sentence in acriminal case for the County Court at Law Number 1 in Hunt County, Texas. Appellant Plead Guilty to the crime ofDriving while Intoxicated 

### Second. (RR Vol. 3p.8) Appellantfiled in the trial court an election to punishmentto be made bythe trial court on August 12th, 2013. The court ordered apre-sentence investigation. Appellant was 

### assessed asentence ofimprisonmentfor Two Hundred Fifty (250) days in the Hunt CountyJail, $0.00 fine, and $433.00 in court costs on October 14th, 2013 by the trial court. Motion for New Trial was 

### timely filed on November4th, 2013 in the trial court and has yetto be heard. Thecourt reporter's record was filed on April 26th, 2013. Appeal was affirmed on November 10th, 2014. Motion for 

### rehearing was filed on November 12th, 2014. Motion was granted on November25th, 2014. Motion for rehearing was overruled on 1/6/15. Petition for discretionary review was filed on 4/17/15. PDR was refused on 5/13/2015.ISSUES PRESENTED Point ofError One: Defendant's Fourth Amendment rights were violated when theofficers failed toobtain a search warrant. Point ofError Two: Trial court erred in theadmissibility, utilization and refutation oftheState's evidence concerning field-sobriety test. Point oferror Three: 

### Trial court erred in allowing TrooperGoodwin totestify that there isacertain level of intoxication that can bedetermined bythe HGN.Statement ofthe facts Appellant pled guiltyto Driving While Intoxicated, Second . (RR Vol. 3 p.8). The trial court admonished Appellant ofthe charge and the range ofpunishment. (RR Vol. 3p.8-IS). The trial court then admonished the Appellant that the State was seeking to enhance his punishment range from a Class B misdemeanor to a Class A misdemeanor. (RR Vol. 3 p.8-15). The court informed Appellant that she had the rightto have a presentence investigation and ordered it done. (CR Vol. 1 p. 195). Duringthe sentencing hearing the State moved to admit Exhibits 1-6 which included the roadside videos, intoxilizer videos and her test results and records obtainedfrom criminal records from Dallas County. Without objection from the Defense the trial court admitted them. (RRVol. 3 p. 25). Both sides presented arguments and the Court came back with a sentence oftwo hundred and fifty days in jail. (RR Vol. 5p. 113-125).