State v. Gutierrez ( 2011 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 30,873 10 RALPH GUTIERREZ, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 Lisa C. Schultz, District Judge 14 Gary K. King, Attorney General 15 Santa Fe, NM 16 for Appellee 17 Chief Public Defender 18 J.K. Theodosia Johnson 19 Santa Fe, NM 20 for Appellant 21 MEMORANDUM OPINION 22 KENNEDY, Judge. 23 Defendant appeals his convictions for aggravated DWI and speeding. We 24 proposed to affirm in a notice of proposed summary disposition, and Defendant filed 1 a memorandum in opposition. Having considered the arguments raised by Defendant 2 in his memorandum and remaining unpersuaded, we affirm his convictions. 3 In his docketing statement, Defendant raised four issues of asserted error. We 4 proposed to affirm on all four in a notice of proposed summary disposition. In his 5 memorandum in opposition, Defendant reasserts all four issues. [MIO 2-7] However, 6 he splits his second issue into two separate issues which requires him to renumber his 7 assertions into five issues. [MIO 3-7] His second issue is now confined to his claim 8 that the district court erred in allowing the State to present the testimony of Officer 9 Garcia that corn nuts are used as a masking agent to evade DWI. [MIO 3-4] His third 10 issue is now confined to his contention that Officer Garcia lacked reasonable 11 suspicion to request Defendant to perform field sobriety tests. [MIO 4-5] Both of 12 these contentions were asserted in Defendant’s docketing statement as part of his 13 second issue and Defendant’s memorandum in opposition does not raise any new 14 concerns or arguments on either issue. [MIO 3-5] Moreover, in his memorandum in 15 opposition, Defendant fails to rebut any of the analysis contained in our notice of 16 proposed summary disposition. [MIO 2-7] 17 Therefore, for the reasons set forth in our notice of proposed summary 18 disposition, we affirm Defendant’s convictions. 2 1 IT IS SO ORDERED. 2 ___________________________________ 3 RODERICK T. KENNEDY, Judge 4 WE CONCUR: 5 _________________________________ 6 CELIA FOY CASTILLO, Chief Judge 7 _________________________________ 8 MICHAEL E. VIGIL, Judge 3