NO CR IN THE COURT OF APPEALS FIFTH SUPREME JUDICIAL DISTRICT DALLAS, TEXAS KEITH DOUGLAS ROANE. vs. THE STATE OF TEXAS,

Transcription

1 APPELLANT REQUESTS ORAL ARGUMENT NO CR IN THE COURT OF APPEALS FIFTH SUPREME JUDICIAL DISTRICT DALLAS, TEXAS KEITH DOUGLAS ROANE, vs. THE STATE OF TEXAS, Appellant, Appellee. On Appeal from County Court at Law No. 3, Collin County, Texas Trial Court Cause No APPELLANT S BRIEF WM. RANDELL JOHNSON LAW OFFICES OF WM. RANDELL JOHNSON 2809 REGAL ROAD, STE. 100 PLANO, TX VOICE: 972/ FAX: 972/ ATTORNEY FOR APPELLANT, KEITH DOUGLAS ROANE

2 NO CR IN THE COURT OF APPEALS FIFTH SUPREME JUDICIAL DISTRICT DALLAS, TEXAS KEITH DOUGLAS ROANE vs. THE STATE OF TEXAS IDENTITY OF PARTIES AND COUNSEL The following is a complete list of all parties to the trial court s judgment appealed from herein, and the names and addresses of all trial and appellate counsel: 1. Keith Douglas Roane, Appellant (Defendant in the court below): 2. Appellant s Counsel: Trial (Retained): Darren McDowell, SBOT # Christopher Hoover, P.C. 520 Central Expressway, Suite 112 Plano, Texas Phone: 972/ Appeal (Court Appointed): Wm. Randell Johnson, SBOT # Law Offices of Wm. Randell Johnson 2809 Regal Road, Suite 100 Plano, TX Phone: 972/ Facsimile: 972/ Appellee s Counsel Trial: Donnie Perales, SBOT # John R. Roach, SBOT # Collin County District Attorney s Office 2100 Bloomdale Road, Suite McKinney, TX Phone: 972/ Facsimile: 214/ Appeal: John R. Rolater, Jr., SBOT # John R. Roach, SBOT # Collin County District Attorney s Office 2100 Bloomdale Road, Suite McKinney, TX Phone: 972/ Facsimile: 214/ i

3 TABLE OF CONTENTS IDENTITY OF PARTIES... i TABLE OF CONTENTS... ii INDEX OF AUTHORITIES... iii CASE IN BRIEF...1 STATEMENT OF THE CASE...2 STATEMENT REGARDING ORAL ARGUMENT...4 ISSUES PRESENTED...4 POINT OF ERROR NO. 1 THE EVIDENCE IS LEGALLY INSUFFICIENT TO SHOW THAT APPELLANT WAS DRIVING WHILE INTOXICATED. POINT OF ERROR NO. 2 THE EVIDENCE IS FACTUALLY INSUFFICIENT TO SHOW THAT APPELLANT WAS DRIVING WHILE INTOXICATED. STATEMENT OF FACTS...5 SUMMARY OF THE ARGUMENT...10 ARGUMENT...11 POINT OF ERROR NO. 1, RESTATED...11 POINT OF ERROR NO. 2, RESTATED...11 PRAYER...21 APPENDIX...22 ii

4 INDEX OF AUTHORITIES Cases Page Coleman v. State, 704 S.W.2d 511(Tex. App.--Houston [1st Dist.] 1986, pet. ref'd) Harvey v. State, 135 S.W.3d 712 (Tex. App.-Dallas 2003, no pet.) Jackson v. Virginia, 443 U.S. 307 (1979)...11 Johnson v. State, 517 S.W.2d 536 (Tex. Crim. App. 1975)...14 Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000)...11, 15 Sanders v. State, 119 S.W.3d 818 (Tex. Crim. App. 2003)...11 Scillitani v. State, th CR (Tex.App. Houston [14 Dist.], decided September 30, 2009, pet. filed)... 10, Stoutner v. State, 36 S.W.3d 716 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd) , 13, 14 Thomas v. State, 3 S.W.3d 89 (Tex. App.-Dallas 1999) aff'd, 65 S.W.3d 38 (Tex. Crim. App. 2001)...11 Weaver v. State, 721 S.W.2d 495 (Tex. App.--Houston [1st Dist.] 1986, pet. ref'd) , 13, 14 Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000)...11 Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)...11, 15 iii

5 INDEX OF AUTHORITIES (Continued) Statutes Page TEX. PENAL CODE ANN (2)(A)(Vernon 2003)...12 TEX. PENAL CODE ANN (2)(B)(Vernon 2003) TEX. PENAL CODE ANN (Vernon 2003)...1, 12 TRAP TRAP 25.2(e)...4 iv

6 NO CR IN THE COURT OF APPEALS FIFTH SUPREME JUDICIAL DISTRICT DALLAS, TEXAS KEITH DOUGLAS ROANE, vs. THE STATE OF TEXAS, Appellant, Appellee. On Appeal from County Court at Law No. 3, Collin County, Texas Trial Court Cause No APPELLANT S BRIEF TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: KEITH DOUGLAS ROANE respectfully submits this Brief on Appeal in the above-styled and numbered cause in due time, manner and form. Pursuant to T.R.A.P. 3.2, KEITH DOUGLAS ROANE is referred to herein as Appellant and the STATE OF TEXAS is referred to as the State. THE CASE IN BRIEF The Charge... Driving While Intoxicated (Tex. Penal Code 49.04) The Plea... Not Guilty The Verdict... Guilty (Judge) The Sentence Days, Probated for One Year; $600 Fine (Judge) -1-

7 STATEMENT OF THE CASE 1 2 This is a misdemeanor DWI case in which the trial judge, sitting without a jury, found the Appellant guilty based upon the testimony of a single witness that did not see the Appellant operating a vehicle and that did not know when or how much alcohol Appellant had to drink. Appellant was tried, convicted and 3 4 sentenced on the same date, August 15, CR 1: 2, 27; RR Appellant s motion for new trial was timely filed on August 31, 2005 (CR 1: 31), after which it was denied on October 28, 2005 (CR 1: 31). 5 Notice of appeal was initially filed on November 29, CR 1: 38. However, the trial court s certification of Appellant s right to appeal was not issued until January 6, CR 1: 40. Appellant requested preparation of the record on January 11, 2006 (CR 1: 42), and again, on March 21, 2006 (CR 1: 52) but according to this Court s order dated April 29, 2006, the record had not been prepared and filed as 6 of that date. CR 1: 63. A show cause hearing was ordered and held on May 11, CR 1: 3, 71. The trial court entered findings of fact, including a finding that Appellant desired to prosecute his appeal and that 1 Trial was in the County Court at Law No. 3 for Collin County, Texas, the Honorable Ron Chapman, siting by assignment as presiding judge in place of the elected judge, the Honorable John O. Barry. 2 Appellant waived trial by jury. CR 1: 26; RR 4. 3 Appellant was sentenced to 60 days confinement in the county jail, probated for one year with a fine of $ The entire trial took less than an afternoon to complete and ended at 2:34 p.m. RR Appellant was not represented by counsel at this time and thereafter continued to proceed pro se until the undersigned attorney was appointed by the trial court on August 20, CR 1: 5 6 The clerk s record contains copies of a court reporter s certification which refers to August 15, Vol. 1...[page] 71 and which is dated October 23,

8 the record had not been prepared or filed by the court reporter because Appellant neither ordered nor 7 requested it from her. CR 1: 71. On May 31, 2006, this Court ordered the court reporter to prepare the record. CR 1: 96. However, on August 8, 2006, a memorandum opinion was issued finding that [a]lthough Appellant s November 29, 2005 notice of appeal was filed within the fifteen-day period provided by Rule 26.3, appellant did not file an extension motion in this Court with the same fifteen-day period. CR 1: 98. Appellant s appeal was ordered dismissed for want of jurisdiction. CR 1: 99, 100. Mandate issued on October 27, CR 1: 109. On November 28, 2007, Appellant was ordered placed on community supervision in accordance with the trial court s prior judgment of sentence and conviction. CR 1: 112. On May 27, 2009, Appellant filed application for writ of habeas corpus pursuant to TEX. CODE CRIM. PROC , asserting among other things ineffective assistance of trial counsel in failing to advise him as to the effect of the judgment and his rights, duties and obligations on appeal. CR 1: 129. More specifically, Appellant asserted that his trial counsel gave a late notice of appeal but failed to request an extension of time in which to file that late notice. CR131. A hearing was held on the writ, after which the writ was granted by order of the trial court dated July 7, CR 1: The trial court s order specifically provided that Appellant may file an out-of-time appeal by filing his notice with the County Clerk within thirty days of the signing of this order. Id. Accordingly, Appellant timely gave notice of appeal on July 31, (CR 1: 145). Later, after obtaining court appointed counsel on appeal, Appellant secured the trial court s certification of his right to appeal on August 20, CR 1: 145, 147. On August 24, 2009, Appellant s court appointed counsel 7 The record includes a request for preparation of the reporter s record that purports to have been directed to the clerk and the reporter. This request is file-stamped March 21, CR 1:

9 thereafter filed a request with the clerk of the trial court asking that copies of said notice and certification be forwarded to clerk of this Court as required under TRAP 25.2(e). CR 2: 1-2. The clerk s record was filed on September 1, Appellant filed a request for extension of time 8 to file the reporter s record on September 24, This request also asked in the alternative for the record from the Appellant s initial appeal to be adopted as the reporter s record for purpose of the instant appeal number. This request for alternative relief was granted and Appellant s brief was ordered filed within thirty days of said order (i.e., on or before November 5, 2009). This brief on appeal is timely submitted by Appellant and requests reversal of the judgment, sentence and conviction in the trial court below. in this case. REQUEST FOR ORAL ARGUMENT Pending receipt and review of the State s reply brief, Appellant respectfully requests oral argument ISSUES PRESENTED POINT OF ERROR NO. 1 THE EVIDENCE IS LEGALLY INSUFFICIENT TO SHOW THAT APPELLANT WAS DRIVING WHILE INTOXICATED. POINT OF ERROR NO. 2 THE EVIDENCE IS FACTUALLY INSUFFICIENT TO SHOW THAT APPELLANT WAS DRIVING WHILE INTOXICATED. 8 The reporter s record was purportedly due on September 25, 2009, and was filed on that date but there was apparently a problem with that record. On October 6, 2009, the record from the Appellant s initial attempt at appeal was ordered transferred to this appeal number and Appellant s brief was ordered filed within thirty days of said order. -4-

10 STATEMENT OF FACTS The state s entire case consisted of the testimony of a single witness, the arresting officer, Daren 9 10 Whitman, together with copies of the DWI Statutory Warning, Appellant s drivers license and roadside and intoxilyzer room videos. The following is a brief summary of the facts as testified to by said witness. Additional facts and evidence are summarized infra where necessary to a discussion of Appellant s individual points of error. On direct examination, Daren Whitman testified he has been a police officer with the City of Allen for three years, prior to which he worked in law enforcement in El Paso County for two years. RR 5. Whitman is assigned to the patrol division. Id. He is certified for SFSTs and is an SFST instructor. RR 5-6. He also has a proficiency certificate for horizontal gaze nystagmus. RR 5. Whitman was on duty around 3:00 a.m. on September 12, 2004 and was dispatched to 807 Idlewood for a major accident call. RR 6. When he arrived, he found the vehicle in question in the alley together with the people that had called in the accident report. Id. A female was sitting in the vehicle; a male was 9 State s Exhibit 1. This piece of paper is not evidence of driving or of intoxication and provides no proof whatsoever as to any essential element of the state s case against Appellant. 10 State s Exhibit 2. Similar to the statutory warning, this copy of Appellant s drivers license is not evidence of driving or of intoxication and provides no proof whatsoever as to any essential element of the state s case against Appellant. 11 State s Exhibit No.s 3 and 4, respectively. These videotapes do not show Appellant driving, nor do they show his state of sobriety or intoxication at the time he was allegedly driving. Indeed, there is no evidence in this case to show when Appellant allegedly drove, if at all, in relation to when he allegedly drank alcohol, if at all. Thus, it cannot be deduced whether these videos are sufficiently related in time to said alleged acts so as to be evidence of Appellant s state of sobriety or intoxication a the time of said alleged acts. 12 This summary is not intended as an affirmation or admittance of said testimony. -5-

11 standing outside of the vehicle. Id. Whitman believed the vehicle was a Ford Bronco that had the roof removed. RR 7. Whitman made contact with both the female that was inside the vehicle and with the male that was standing outside the vehicle. The male was identified as Keith Appellant; the female was identified as 13 Shannon Layman. RR 7. Whitman claims Appellant stated that he and Layman had been four-wheeling in some fields in a friend s Bronco, Layman had been ejected from the vehicle, and then he drove them back to the location, and from there he called RR 8. Whitman could smell an odor of alcoholic beverage on Appellant s breath and observed him to have poor balance, slightly slurred speech and red watery eyes. RR 8-9. Appellant said he had been drinking. Whitman observed signs of intoxication and began the SFST battery. RR 9. Whitman performed the horizontal gaze nystagmus. Id. Whitman observed three clues in each eye for a total of six clues. RR 11. Four clues indicate intoxication. Id. Next, Whitman administered the nine-step walk and turn. RR 12. Whitman observed four clues; the decision point for this test is two clues. RR 15. Whitman then performed the one-leg stand. RR 16. Whitman observed three clues out of four; the decision point is two clues. RR 17. Following this test, Whitman administered a portable breath test, after which he advised Appellant he 14 was under arrest for DWI. Id. The basis of the arrest was his smell of an alcoholic beverage on his breath, signs of intoxication [, his statement that he had been driving, and] that the field sobriety tests all give an indication that he shows all the signs of intoxication. RR Whitman then opined that 13 Whitman testified that the Layman was a 16-year old juvenile (RR 7) but it was revealed later on cross-examination of Whitman that Layman was actually 21 years old. RR Appellant objected that anything based on the PBT is inadmissible, and though there was not a definitive ruling on the objection, the results of the PBT were not testified to and were not disclosed in the evidence admitted at trial. RR

12 Appellant had lost his mental and physical faculties by drinking beer at the house he was at. He was at a parry [sic]. RR 19. Whitman did not give Appellant any Miranda warnings until they got back to the Allen jail. RR 19. Whitman read Appellant the DIC-24 statutory warning, a copy of which was admitted into evidence as State s Exhibit 1. RR 19, 20. Appellant did not provide a breath or blood sample after Whitman read the 15 DIC-24. RR State s Exhibit 2 was identified as a true and correct copy of the Texas driver s license that Whitman took from Appellant. RR Whitman identified State s Exhibits 3 and 4, respectively, as copies of video recordings of his initial contact with Appellant, and later, in the intoxilyzer room. RR The latter was admitted without objection but Exhibit 3, the recording of the initial contact, was admitted subject to objection and with the understanding that the portion where the PBT was administered would be excluded and would not be 16 considered by the judge. Direct examination of Whitman ended with Whitman stating that he told Appellant he was confiscating Appellant s driver s license because it was going to be suspended due to Appellant refusing to give a breath specimen. RR 24. On cross-examination, Whitman admitted that he did not know when Appellant was driving, that the vehicle was parked when Whitman arrived and that Appellant was not in the vehicle when he arrived on the scene. RR 25. Whitman did not know where they had been four-wheeling or if it was on public or private land. RR 26. Appellant was not evasive. Id. He said he was at a party and there was a lot of 15 While Whitman answered no when he was asked if Appellant provided a breath or blood sample after Whitman read the DIC-24, it appears from the form itself that only a breath sample was requested, and thus, Appellant was never given an opportunity to provide or decline to provide a blood sample. See RR and State s Exhibit Appendix A consists of a time-indexed summary of the video recording of Whitman s initial detention of Appellant. -7-

13 juveniles there that had been drinking, and that he had been drinking. RR Whitman did not know when Appellant had been drinking and had not asked Appellant for an exact time frame. RR 27. Whitman did not know if Appellant had one beer right before Whitman made contact with him or beers earlier in the night or anything like that. Id. There is no way for Whitman to tell whether or not someone is intoxicated based on the odor of an alcoholic beverage. Id. As for slurred speech, Whitman has no personal knowledge of Appellant s normal speech pattern. RR 27, 28, 29. Whitman did not ask Appellant if he had any speech impediments. RR 28. The odor of alcohol detected by Whitman was not strong. RR 29. Whitman s contact with Appellant as on September 12, 2004; Whitman s TCLEOSE certification of proficiency in horizontal gaze nystagmus was on September 30, RR Whitman acknowledged that the DWI Detection and Standardized Field Sobriety Tests Manual provides that if any one of the standardized field sobriety test elements is changed, the validity is compromised. RR 32, The location used for the walk and turn test was a driveway that had a slight incline. RR 42. Whitman could not remember whether Appellant said we or she drove us over there [to the alley] but Appellant did indicate she [Layman] fell out of the driver s seat, and then he said he drove them back. RR 46. Whitman identified the flashing lights [that could be seen in the background on the video of the initial stop] were probably the EMS. RR 47. Whitman disagreed as to whether the video showed him making one pass (during the HGN test) or two passes as required by proper protocol (RR 48-49) but he admitted that he only went one second out and one second in during the passes but that the standardized testing procedure calls for two seconds out and two seconds in (RR 49). Whitman also admitted that he told Appellant good job after walk-and-turn test just to keep Appellant going (RR 50-51) and that he told -8-

14 Appellant I m about to release you in order to trick him in to giving a breath specimen [for the PBT] because he was trying to gather more evidence. RR 51. The State rested after Whitman s testimony was concluded. RR 58. Then Appellant rested (RR 58), after which the judge asked if there were two tapes to be viewed and whether he needed to view them (RR 58-59). State s Exhibit 4, the intoxilyzer room tape, was then played in open court, after which the court asked for argument but the State requested to be allowed to reopen the evidence to call Officer Whitman as 17 a rebuttal witness. RR 59. The court allowed the state to reopen, over Appellant s objection. RR At this time, Whitman was permitted to testify as to what the unidentified caller allegedly told the dispatcher when the accident call was phoned in despite Appellant s objections. RR 60, 61. Whitman was the State s only witness. Appellant did not take the stand or present any witnesses or evidence. 17 One of the tapes, State s Exhibit 3 - the video recording of the initial contact, had already been played during the examination of Officer Whitman. -9-

15 SUMMARY OF THE ARGUMENT Point of Error No. 1: The evidence is not legally sufficient to show that Appellant operated a motor vehicle while intoxicated because there is no independent evidence of (1) how recently the vehicle in question was driven by Appellant or (2) how much time elapsed between when he drove the vehicle and the th arrival of law enforcement authorities. Scillitani v. State, CR (Tex.App. Houston [14 Dist.], decided September 30, 2009, pet. filed) Here, the State did not present any evidence as to when Appellant drove in relation to the point in time when he came into contact with Officer Whitman and, according to Whitman, was determined to be in a state of intoxication. Indeed, Whitman admitted that he did not know when Appellant was driving, or when Appellant had been drinking (he did not ask him for an exact time frame), or if Appellant had one beer right before Whitman made contact with him, or multiple beers earlier in the night or anything like that. RR 26, 27. Consequently, the evidence is legally insufficient to show that Appellant was intoxicated while driving. Accordingly, the case should be reversed and rendered. Point of Error No. 2: The evidence is not factually sufficient to show that Appellant was intoxicated, or that he operated the vehicle in question in a public place, or that he was intoxicated at the time he operated the vehicle in a public place. The evidence of intoxication in this case was weak, at best, and was contradicted by evidence equally consistent with sobriety as with intoxication. The evidence as to whether Appellant operated the vehicle in a public place was equivocal, at best. Finally, there was no evidence that Appellant was actually intoxicated at the time he drove the vehicle in a public place and is contradicted by evidence from which it could properly be concluded that if he was intoxicated, he drank after he drove, not before. Accordingly, the case should be reversed and remanded. -10-

16 ARGUMENT AND AUTHORITIES POINT OF ERROR NO. 1, RESTATED THE EVIDENCE IS LEGALLY INSUFFICIENT TO SHOW THAT APPELLANT WAS DRIVING WHILE INTOXICATED. POINT OF ERROR NO. 2, RESTATED THE EVIDENCE IS FACTUALLY INSUFFICIENT TO SHOW THAT APPELLANT WAS DRIVING WHILE INTOXICATED. Standard of Review and Applicable Law In a legal sufficiency challenge, this Court is required to review the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). In a factual sufficiency challenge, this Court is required to view the evidence in a neutral light to determine whether the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). If evidence supporting the verdict, when considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, the evidence is insufficient. Id. Similarly, when evidence exists both to support the verdict and contrary to the verdict, the evidence supporting the verdict is insufficient if it is so weak that the beyond-a- reasonable-doubt standard could not have been met. Id. at 485. Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.). And the fact finder is free to accept or reject any or all of the evidence presented by either side. Thomas v. State, 3 S.W.3d 89, 92 (Tex. App.-Dallas 1999), aff'd, 65 S.W.3d 38 (Tex. Crim. App. 2001). To obtain a conviction for DWI, the State was required to prove beyond a reasonable doubt that -11-

17 Appellant was intoxicated while operating a motor vehicle in a public place. See TEX. PENAL CODE ANN (a) (Vernon 2003). A person is considered intoxicated if that person does not have the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of those substances or any other substance into the body or by having an alcohol concentration above 0.08 or more in his breath, blood, or urine. TEX. PENAL CODE ANN (2)(A)-(B) (Vernon 2003). For there to be legally sufficient evidence that appellant operated a motor vehicle while intoxicated, there must be independent evidence of (1) how recently the vehicle was driven or (2) how much time elapsed between the accident and the arrival of law enforcement authorities. Scillitani v. State, CR th (Tex.App. Houston [14 Dist.], decided September 30, 2009, pet. filed), citing Stoutner v. State, 36 S.W.3d 716, 721 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd) and Weaver v. State, 721 S.W.2d 495, 498 (Tex. App.--Houston [1st Dist.] 1986, pet. ref'd). If law enforcement officers do not observe an accused operating a motor vehicle, evidence that the accused was intoxicated when law enforcement officers arrived on the scene, alone, does not establish that the accused was intoxicated at the prohibited time - while the accused was operating a motor vehicle in a public place. Id., citing Stoutner, 36 S.W.3d at 721 and Weaver, 721 S.W.2d at 498. Absent evidence in the record establishing the time of the accident or of the accused's 18 The State s information charged Appellant with driving while intoxicated under two theories: (1) the introduction of alcohol into the body and (2) the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body. CR 1: 6. See TEX. PEN. CODE ANN (2)(A)(Vernon 2003). However, there was no evidence or even any suggestion by the State at trial that Appellant acted under the influence of any drugs or controlled substances. Instead, the only theory of intoxication that was pursued or presented by the State was that of intoxication by alcohol. -12-

18 driving in a public place, the evidence is legally insufficient to show that the accused drove while he was intoxicated. [footnote omitted]. Id., citing Stoutner, 36 S.W.3d at 721; Weaver, 721 S.W.2d at Like Scillitani, there is no direct or circumstantial evidence in the instant case to establish the necessary temporal link between Appellant's driving and his alleged intoxication. Appellant acknowledged only that he had a little bit of alcohol to drink and that he drove the Bronco from some fields to the alley, but there is absolutely no evidence of any kind whatsoever as to when Appellant drank alcohol in relation to when he drove. The record does not contain any evidence to establish how soon after Appellant drove Officer Whitman arrived in the alley. When Officer Whitman arrived in the alley, Appellant was standing outside the vehicle. There is no evidence that the vehicle was running or that the engine or radiator was warm to the touch or that would otherwise indicate that the Bronco had been driven recently. Nor is there any evidence in the record as to when Appellant drank alcohol in relation to when he drove the Bronco. Officer Whitman speculates that Appellant was drinking with some other minors at a party that was going on in a nearby house. Appellant could have drank alcohol after driving to the alley just as easily as he could have drank alcohol before driving the Bronco to the alley. Since there is no evidence as to when Appellant drank alcohol in relation to when he drove the Bronco, there is no evidence that he was driving while intoxicated. Nor is there any evidence to show the approximate time of Appellant's driving in relation to Appellant's alleged state of intoxication at the time he came into contact with Officer Whitman. There is no evidence in the record as to when the accident while four-wheeling occurred; the distance between the location of the accident and the alley; the time of the call regarding the accident; whether if the call was made from the accident location or the alley or in route from the accident to the alley; and/or how long Appellant had been waiting in the alley before the police arrived (i.e., how long it had been since he -13-

19 drove the Bronco to the alley, if in fact, he did drive it at all). Nor is there any evidence in the record to even show if the Bronco had been recently driven (e.g., motor running, radiator warm to touch, water dripping from AC, etc.). In short, there simply is no direct or circumstantial evidence to show that Appellant was driving while intoxicated. Even assuming arguendo that there is evidence in the record that supports a finding that Appellant was intoxicated in the alley upon Officer Whitman s arrival, neither this evidence nor any other evidence introduced at trial constitutes independent evidence of (1) how recently the Bronco was driven or (2) how much time elapsed between when Appellant drove the Bronco and Officer Whitman's arrival. See Stoutner, 36 S.W.3d at 721; Weaver, 721 S.W.2d at 498. Under the applicable standard of review, the evidence is legally insufficient to support the trier of facts determination that Appellant was intoxicated while operating a motor vehicle. See Johnson v. State, 517 S.W.2d 536, 538 (Tex. Crim. App. 1975); Coleman v. State, 704 S.W.2d 511, 512 (Tex. App.--Houston [1st Dist.] 1986, pet. ref'd); Stoutner, 36 S.W.3d at 721. A review the evidence in the light most favorable to the prosecution confirms that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt because there is no evidence that Appellant was intoxicated at the time he allegedly drove the Bronco from the field where they had been four-wheeling to the alley where he first came into contact with Officer Whitman. Therefore, this Court should sustain Appellant's first issue challenging the legal sufficiency of the evidence to support his conviction for driving while intoxicated. Appellant s conviction should be reversed and judgment of acquittal rendered for Appellant. In the event this Court disagrees with Appellant s legal sufficiency challenge, Appellant would further show that his conviction should nevertheless be reversed because the evidence is factually insufficient to support the judge s guilty verdict. In a factual sufficiency challenge, this Court is required -14-

20 to view the evidence in a neutral light to determine whether the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). If evidence supporting the verdict, when considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, the evidence is insufficient. Id. Similarly, when evidence exists both to support the verdict and contrary to the verdict, the evidence supporting the verdict is insufficient if it is so weak that the beyond-a- reasonable-doubt standard could not have been met. Application of this standard of review to the evidence in this case once again requires that the jury s verdict reversed. Evidence is Insufficient to Show Appellant was Intoxicated: In this case, there is evidence that Appellant was not intoxicated at the time of his detention by Officer Whitman. State s Exhibits 1 and 2 are not evidence of intoxication and are not proof of any essential element of the State s case. Viewed in a neutral light, Exhibits 3 and 4 do more to contradict the verdict than to support it. Neither video shows any obvious signs of intoxication. Despite Officer Whitman s testimony to the contrary, the initial detention video shows Appellant perform the walk and turn test without any obvious problems despite being asked to perform the test on an inclined surface. Appellant does even better on the one leg stand test, again, despite being asked to perform the test on an inclined surface. Additionally, the initial detention video appears to support defense counsel s suggestion during cross-examination of Whitman that Whitman did 19 not perform the HGN test properly. Appellant asked intelligent questions and gave legitimate reasons for 19 Since it appears the test was not properly performed, and in light of the fact it appears that Officer Whitman did not get his HGN certification until three weeks after he arrested Appellant, Officer Whitman s testimony regarding the HGN test is unreliable from the standpoint of a Kelly- Daubert-Robinson analysis and should disregarded accordingly. Certainly, it is not reliable evidence of intoxication, and even though not objected to at trial, it is scientifically infirm and should not be relied on as proof of intoxication. -15-

21 his reluctance to submit to the PBT in the alley or to give a breath sample in the intoxilyzer room because of his understanding and belief that such tests are unreliable and is indicative of sober reflection and thought. In any event, the video recordings do not reflect slurred speech or difficulty standing or difficulty following instructions but if viewed neutrally, appear to show Appellant with his normal mental and physical faculties. And there is comment that was caught on the video recording of the initial detention where Whitman tells Appellant good job after the walk-and-turn test. State s Exhibit 3 at 03:05:14. Whitman testified that he was just trying to get Appellant to keep going but it certainly seems as if he was commending Appellant for his performance on this particular test. RR Obviously, Whitman had doubts about whether Appellant was intoxicated because he told him Appellant was about to release him, after which Whitman asked Appellant to blow into a PBT. State s Exhibit 3 at 03:07:20 & 03:07:45. Whitman claimed Appellant told him that the companion was driving while four-wheeling in a field and was ejected from the driver s seat, after which Appellant drove her to the alley, at which point Appellant 22 called to report the accident. RR 25. Assuming arguendo that Whitman s testimony in this regard was true and accurate, the fact remains that intoxicated drivers do not usually call 9-1-1, ask for assistance and then wait around for the police to arrive. Appellant s actions and his concern for his friend is once 20 What I am doing is making sure you are not intoxicated before you leave the scene...this is not the breathalyzer test..i am about to release you I need to make sure you are not intoxicated before I release you. 22 Whitman claimed that Appellant said he had just been driving the vehicle and called RR 25. However, no where in the video-recordings does Appellant say he had just been driving. Likewise, Whitman s use of the word ejected is just his speculation as no where in the video-recordings does Appellant say his companion was ejected from the Bronco. Instead, Appellant stated that his companion was driving and fell from her seat. RR 46; Exhibit A at 02:59:51. See Appendix at p

22 again indicative of mature reflection and sober thought. Moreover, the fact that Appellant was waiting in the alley for the police arrive is consistent with him being sober. Consistent with Appellant s admission of having had a little bit to drink, Officer Whitman conceded the odor of alcohol he detected was not strong. There was no evidence of any open, full or empty containers being found on or about Appellant or his companion. There is no evidence of any bad driving facts involving the Appellant (yes, there was an accident, but the evidence was that the companion was driving at the time of the accident, not Appellant). Whitman explained the basis of the arrest was his smell of an alcoholic beverage on his breath, signs of intoxication [, his statement that he had been driving, and] that the field sobriety tests all give an indication that he shows all the signs of intoxication. RR But there are other explanations besides intoxication for what Whitman observed. For example, there were the flashing lights and improper 23 procedures during the HGN which invalidated the results. In addition, to the extent that Appellant may have been unsteady, if at all, during the walk-and-turn and one-leg-stand tests, that may have been due more 24 to the dark conditions, flashing lights and unlevel ground. As for he odor of alcohol, the odor of alcohol 23 Whitman acknowledged that the DWI Detection and Standardized Field Sobriety Tests Manual provides that if any one of the standardized field sobriety test elements is changed, the validity is compromised. RR 32, Although Whitman disagreed as to whether the video showed him making one pass (during the HGN test) or two passes as required by proper protocol (RR 48-49), he admitted that he only went one second out and one second in during the passes but that the standardized testing procedure calls for two seconds out and two seconds in (RR 49). Given this testimony, an objective, rationale trier of fact would have disregarded the HGN as having been compromised. 24 Whitman admitted that the location used for the walk and turn test was a driveway that had a slight incline. RR 42. The video recording of the initial detention confirms that the area in question was dark, that there were flashing lights and that the tests were administered in an area where the driveway and alley appear to intersect and which looks to be unlevel. State s Exhibit 3. Again, given this testimony and evidence, an objective, rationale trier of fact would have disregarded the -17-

23 detected by Whitman was not strong (RR 29) and Whitman admitted he could not tell whether or not someone is intoxicated based on the odor of an alcoholic beverage (RR 27). Whitman also admitted on cross-examination that he did not know when Appellant was driving, that the vehicle was parked when Whitman arrived and that Appellant was not in the vehicle when he arrived on the scene. RR 25. Whitman did not know where they had been four-wheeling or if it was on public or private land. RR 26. Appellant was not evasive. Id. Whitman did not know when Appellant had been drinking and had not asked Appellant for an exact time frame. RR 27. Whitman did not know if Appellant had one beer right before Whitman made contact with him or beers earlier in the night or anything like that. Id. Finally, as for slurred speech, Whitman has no personal knowledge of Appellant s normal speech pattern (RR 27, 28, 29) and did not ask Appellant if he had any speech impediments. RR 28. In short, the so-called signs of intoxication allegedly observed by Whitman lack persuasive force as evidence of intoxication when viewed neutrally but are equally consistent with sobriety or factors other than lack of sobriety. Evidence is Insufficient to Show Appellant Drove on a Public Road: The evidence did not show that Appellant drove the vehicle on a public road while intoxicated. Aside from the evidence being unclear as to when in time Appellant was intoxicated, if at all, as it relates to when he was driving, the evidence is insufficient to show that he operated the Bronco on a public road while intoxicated: Q: Okay. And with regards to where they were four-wheeling, do you know where that was? A: He couldn t give me a definite area. He basically said the fields right by here. Q: Okay. Are you familiar with those fields or anything like that? A: He couldn t give me a definite area of where he was. Q: Okay. You don t know if that was public land or private land, do you? A: No. *** RR 26. HGN and FSTs as having been compromised. -18-

24 Evidence is Insufficient to Show Appellant was Intoxicated While Driving: Likewise, even assuming arguendo that Appellant may have been intoxicated at the time that Whitman confronted Appellant in the alley, there simply is no evidence that he was intoxicated when he operated the Bronco, regardless of whether it was on a public or private road. See Point of Error No. 1, supra,. Whitman did not see Appellant drive. Nor did any other witness testify that he saw Appellant drive. Appellant s statements that he had a little bit to drink and that he drove the Bronco from a nearby field to the alley does not establish that he drove while intoxicated. Appellant did not say when he drove or when he drank or that he drank alcohol before he drove or that he had just arrived at in the alley or that would in any other way support an inference that he had only been in the alley a short time before Whitman arrived on scene. There is no testimony or evidence to show how long the Bronco was in the alley or how long it had been since it was last operated (e.g., there was no evidence that the Bronco was running, or that the engine was hot, or even warm, or that the air conditioner was dripping water on the ground below the Bronco). Whitman opined that Appellant had lost his mental and physical faculties by drinking beer at the house he was at. He was at a parry [sic]. RR 19. While a review of the video recordings does not reveal any statements to this effect by Appellant, if it is assumed that there was a party at the house Appellant was at (i.e., in close proximity to the alley where Appellant parked the Bronco), it seems equally, if not more, likely that Appellant got beer from the party after getting back to the alley rather than at some point in time earlier in the evening (i.e., before going four-wheeling). But the bottom line is that Whitman essentially admitted he could not put Appellant behind the wheel while intoxicated: Q:...you don t have any personal knowledge actually as to my client s driving, do you? A: Other than him telling me that he was driving? Q: Right. You don t know when he was driving? A: No. The vehicle was parked when I got there. Q: And he was out of the car, correct? A: Correct. -19-

25 * * * Q: Okay. You don t have any time frame in which my client was driving this vehicle. You don t know if it happened at four o clock in the afternoon, or at 11 o clock at night, anything like that, do you? A: Other than from the statements that he had just driving the vehicle and called Q: Okay. And that was your impression on that was they were out four-wheeling; is that correct? [RR 25 ends] Q: Okay. And with regards to where they were four-wheeling, do you know where that was? A: He couldn t give me a definite area. He basically said the fields right by here. Q: Okay. Are you familiar with those fields or anything like that? A: He couldn t give me a definite area of where he was. Q: Okay. You don t know if that was public land or private land, do you? A: No. *** RR 26; RR 27. Q: You don t know when he had been drinking, do you? A: No. I didn t ask him for an exact time frame. Q: You don t know the drinking patterns which he had, do you? A: No. Q: Okay. You don t know if he had one beer right before you made contact with him, or beers earlier in the night or anything like that, do you. A: Correct. Again, the evidence in this case does more to contradict the verdict than to support it, and thus, what little evidence there is supporting the verdict, if any, is so weak that the beyond-a- reasonable-doubt standard could not have been met as to the essential elements of intoxication, public road and/or driving while intoxicated. Consequently, the evidence is insufficient to support the trial court s verdict. Appellant requests that the judgment of sentence and conviction against him in this matter be reversed. 25 See fn 22, supra. -20-

26 PRAYER WHEREFORE, PREMISES CONSIDERED, there being reversible error appearing in the record of the trial of this case, Appellant moves the Court to reverse the conviction and remand this cause to the trial court with an order to enter a judgment of acquittal or for further proceedings and/or grant such other relief, both general and specific, at law and in equity, for which Appellant is justly entitled and for which he will ever pray. Respectfully submitted: LAW OFFICES OF WM. RANDELL JOHNSON 1400 PRESTON ROAD, SUITE 340 PLANO, TEXAS VOICE: 972/ FAX: 972/ BY: WM. RANDELL JOHNSON SBOT NO: ATTORNEY FOR APPELLANT CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy and/or the original of this document was served on counsel for the State in this cause of action pursuant by delivery of same to said counsel by certified mail, hand-delivery, and/or facsimile transmission November 5, Wm. Randell Johnson -21-

27 State of Texas v. Keith Roane Time-Indexed Summary*of Video-Recording of Initial Detention [September 12, 2004] Time Actor Description/Statement 02:58:59 [Tape starts (view of empty alley; night)] *** 02:59:10 PO1...come over here and talk to me over here...yea the fire department just got here, they will be walking back here [Officer and Roane enter view of camera] 02:59:27 PO1 How much have you had to drink tonight? 02:59:31 PO1 Shrugging your shoulders doesn t tell me anything 02:59:34 KR A little bit. 02:59:36 PO1 Just a little bit. Ok, how old are you? KR 20 02:59:39 PO1 You re twenty? Ok, so you are an underage drinker, right? KR Yes 02:59:45 PO1 Ok, and where did y all drive from? 02:59:47 KR She drove us there to the hill over there PO1 Unhuh 02:59:51 KR Right down the street...the woods we were going off roading and stuff like that PO1 Ok. She fell out of the passenger s seat? 02:59:59 KR She was driving 03:00:01 PO1 Ok. Where were you? 03:00:02 KR...I was in the passenger s seat 03:00:03 PO1 Ok, and then you drove her back over here? 03:00:06 KR yeah, I was trying to teach her how to drive 03:00:11 PO1 Ok [pause] ok [pause] ok, I need to check your eyes KR PO1 Ok Ok, put your hands together and your feet together, ok? 03:00:17 PO1 Can you see the tip of my finger? 03:00:19 PO1 Do you wear glasses or contacts? *** *Times are approximate; statements are intended to be verbatim quotes but some variance may exist due to tape quality and/or poor playback sound during portions of video-disc. -22-

28 State of Texas v. Keith Roane Time-Indexed Summary*of Video-Recording of Initial Detention [September 12, 2004] Time Actor Description/Statement [Officer proceeds to administer HGN. Flashing lights can be observed reflecting off Roane s back, officer s face and surrounding structures while officer makes passes with his finger and shines flashlight in Roane s general direction.] 03:00:48 PO1 [to another officer or EMT perhaps] She s in the back seat of that Bronco over there...she s 16 years old 03:0054 PO1 [to Roane] Keep on following my finger, ok? 03:01:19 PO1...we re not done yet *** 03:01:31 PO1 Ok, stay right there [officer walks off camera] 03:02:00 03:02:04 03:02:08 PO1 [off camera - to Roane s female companion] Were you driving or was he driving? What s she saying?...you were in the passenger s seat?...ok, that s all I need [camera is turned away from alley toward the right] [off camera discussion between officers] 03:02:40 PO2 What do you need me to do? PO1 PO2 I need you to get her information...she s a juvenile...if we can How old is she? PO1 She is 16 *** 03:03:15 PO1...and also ask her again, I already asked her, she said she wasn t driving, this guy is trying to tell me he wasn t driving, ask her again where she was sitting and if she said she was driving, I need to make sure she tells you that 03:03:51 PO1 Ok come stand over here for me [officer and Roane enter picture from off camera] 03:03:55 PO1 Stand over here where my light is at 03:04:00 KR Ok 03:04:00 PO1 I need to do some field sobriety tests on you [Officer administers walk-and-turn test] *** 03:05:14 PO1 Ok, good job *Times are approximate; statements are intended to be verbatim quotes but some variance may exist due to tape quality and/or poor playback sound during portions of video-disc. -23-

29 State of Texas v. Keith Roane Time-Indexed Summary*of Video-Recording of Initial Detention [September 12, 2004] Time Actor Description/Statement 03:05:16 PO1 Ok, I got one more 03:05:19 [Officer administers one-leg-stand test] *** 03:05:36 KR I can t do that [stand on one leg]...i can t do that at all PO1 KR PO1 KR Why not? I just can t Ok, well we will try it anyway Ok...tried before but I cant...i told you I can t.. 03:06:05 [Roane performs one-leg-stand test ][03:06:05-28] PO1...you are almost there...ok, stop 03:06:30 PO1 Go over there and stand in front of my car [Officer and Roane walk out of view of the camera] 03:06:50 [Officer returns to view with PBT] [Roane initially declines PBT because he thinks they are illegal or unreliable and inadmissible in court] 03:07:20 PO1 What I am doing is making sure you are not intoxicated before you leave the scene...this is not the breathalyzer test..i am about to release you. 03:07:45 PO1...I need to make sure you are not intoxicated before I release you [Roane blows in PBT] *** 03:09:14 03:09: 55 [portion of tape excluded by Judge per defense objection][rr 24] *** 03:11:58 PO1 Ok, turn around and put your hands behind your back 03:12:04 PO1 You are under arrest for driving while intoxicated and causing an injury *** 03:12:04 [Tape ends] *Times are approximate; statements are intended to be verbatim quotes but some variance may exist due to tape quality and/or poor playback sound during portions of video-disc. -24-