Ramirez, Miguel ( 2015 )

PD-0751-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
NO. PD-0751-15 Transmitted 7/31/2015 3:50:45 PM
Accepted 7/31/2015 4:23:25 PM
IN THE ABEL ACOSTA
CLERK
COURT OF CRIMINAL APPEALS
OF TEXAS
____________________________________________________
MIGUEL RAMIREZ, Appellant
v.
THE STATE OF TEXAS, Appellee
APPELLANT’S
PETITION FOR DISCRETIONARY REVIEW
No. 02-14-00386-CR
In the
Second District Court of Appeals at Fort Worth
____________________________________________________
On appeal from Cause Number CR-2013-01449-B
In County Criminal Court No. 2
of Denton County, Texas
Honorable Virgil Valenkamp, Judge Presiding
____________________________________________________
ROBERTO R. ALONZO
ALONZO LAW FIRM, P.C.
Attorneys at Law
400 South Zang Boulevard, Suite 810
July 31, 2015
Dallas, Texas 75208
Tel. (214) 941-8200
Fax (214) 941-8228
Email: alonzopc2003@yahoo.com
Attorney for Appellant
APPELLANT RESPECTFULLY REQUESTS ORAL ARGUMENT
1
IDENTITIES OF JUDGE, PARTIES AND COUNSEL
Pursuant to the provisions of Rule 68.4(a), Texas Rules of Appellate Procedure, a
complete list of the names of the trial judge, all parties and counsel are as follows:
Trial Judge: Hon. Virgil Valenkamp, County Criminal Court No.
2, Denton County, Texas
Parties: Miguel Ramirez, Appellant
State of Texas, Appellee
Attorneys for the Appellant: Rick Coen, Trial Counsel
Cohen & Cohen
12830 Hillcrest Rd., Suite 111
Dallas, TX 75230
Roberto R. Alonzo., Counsel on appeal,
400 S. Zang Blvd., Ste 810
Dallas, TX 75208
Attorneys for the State: Hon. Paul Johnson
Criminal District Attorney
1450 E. McKinney St.
Denton, Denton County, TX 76202
Jesse Davis and Britney Tomberlin,
Asst. Criminal District Attorneys, Trial Counsel
Catherine Luft, Asst. Criminal District Attorney,
State’s Counsel on Appeal
2
TABLE OF CONTENTS
IDENTITY OF JUDGE, PARTIES, AND COUNSEL ................................................ 2
INDEX OF AUTHORITIES............................................................................................ 4
STATEMENT REGARDING ORAL ARGUMENT.................................................... 5
STATEMENT OF THE CASE........................................................................................ 6
STATEMENT OF PROCEDURAL HISTORY............................................................ 7
QUESTION PRESENTED FOR REVIEW .................................................................. 7
QUESTION PRESENTED FOR REVIEW
WHETHER THE COURT OF APPEALS APPLIED THE CORRECT
LEGAL STANDARD REGARDING THE TRIAL COURT’S DENIAL OF
THE REQUESTED JURY CHARGE INSTRUCTION PURSUANT TO
ARTICLE 38.23, TEXAS RULES OF CRIMINAL PROCEDURE (3RR:
176). 1
ARGUMENT AND AUTHORITIES ………………………………………………... 7
PRAYER FOR RELIEF.................................................................................................. 11
CERTIFICATE OF SERVICE....................................................................................... 12
CERTIFICATE OF COMPLIANCE ............................................................................ 12
APPENDIX....................................................................................................................... 13
Ramirez v. State, No. 02-14-00386-CR (Tex. App. – Fort Worth, delivered April 30, 2015)
(Mem. Op.) (not designated for publication).
1
The Reporter’s Record is cited as “RR” preceded by the volume number and followed by the page number; the
Clerk’s Record is cited as “CR” followed by the page number; Defendant’s Exhibits are cited as “DX” followed by
the exhibit number.
3
INDEX OF AUTHORITIES
PAGE
Cases
Akins v. State, 202 S.W.3d 879 (Tex. App.—Fort Worth 2006, pet. ref’d).... 9
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)…………....…… 8
Givens v. State, 949 S.W.2d 449 (Tex. App.—Fort Worth 1997, pet. ref’d).. 9
Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007) ............................ 9
Ramirez v. State, No. 02-14-00386-CR (Tex. App. – Fort Worth, delivered
April 30, 2015) (Mem. Op.) (not designated for publication) ...................... 7
Renteria v. State, 206 S.W.3d 689 (Tex. Crim. App. 2006) ........................... 8
STATUTES AND RULES:
TEX.CODE CRIM.PRO. ART. 38.23(a) ............................................................... 7,9
TEX.CODE CRIM.PRO. ART. 14.01(a) ............................................................... 9
TEX.R.APP.PRO. 21.8(c) ................................................................................. 7
TEX.R.APP.PRO. 47.1 ..................................................................................... 8,11
4
STATEMENT REGARDING ORAL ARGUMENT
The Second District Court of Appeals has not properly applied the legal standard for the
inclusion of a jury instruction requested pursuant to Article 38.23 of the Texas Rules of Criminal
Procedure and oral argument will help to develop the application of the law to the unique facts of
this case.
5
NO. PD-0751-15
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
MIGUEL RAMIREZ, Appellant
v.
THE STATE OF TEXAS, Appellee
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
NOW COMES, Miguel Ramirez, Appellant in this cause, by and through his attorney,
Roberto R. Alonzo, and pursuant to the provision of Texas Rules of Appellate Procedure 66, et
seq., urges this Court to grant discretionary review, and in support will show as follows:
STATEMENT OF THE CASE
Appellant was charged by information for Driving While Intoxicated (CR: 6). A jury trial
was held and Appellant’s trial counsel entered a plea of not guilty on behalf of Appellant (2RR:
11). The jury returned a verdict of guilty as charged in the information (CR: 91) (3RR: 204).
Appellant waived jury punishment and after a trial on punishment, the trial court sentenced
Appellant to 120 days confinement but suspended the confinement and placed Appellant on
community supervision for 16 months with a fine $600 (CR: 84) (3RR: 208).
6
Appellant timely filed his Notice of Appeal (CR: 102). Appellant also timely filed his
Motion for New Trial; however, the motion was denied by operation of law (CR: 95, 98). See,
Rule 21.8(c), TEX. R. APP. PRO.
STATEMENT OF PROCEDURAL HISTORY
On April 30, 2015, The Second District Court of Appeals affirmed Appellant’s
conviction in its opinion in Ramirez v. State, No. 02-14-00386-CR, (Tex.App. – Fort Worth,
delivered April 30, 2015) (Mem. Op.) (not designated for publication). No Motion for Rehearing
was filed.
This Court granted Appellant’s motion for extension of time to file his Petition for
Discretionary Review by July 31, 2015. This petition is timely filed.
QUESTION PRESENTED FOR REVIEW
WHETHER THE COURT OF APPEALS APPLIED THE CORRECT
LEGAL STANDARD REGARDING THE TRIAL COURT’S DENIAL OF
THE REQUESTED JURY CHARGE INSTRUCTION PURSUANT TO
ARTICLE 38.23, TEXAS RULES OF CRIMINAL PROCEDURE (3RR:
176).
ARGUMENT AND AUTHORITIES
The Court of Appeals opinion correctly sets out the facts in its opinion. See, Ramirez v.
State, No. 02-14-00386-CR (Tex. App. – Fort Worth, delivered April 30, 2015) (Mem. Op.) (not
designated for publication).
7
At the conclusion of the trial on the merits, Appellant requested an instruction be
included in the jury charge regarding unlawfully obtained evidence due to the lack of probable
cause for the arrest of Appellant (3RR: 166; DX - 1). See, TEX.CODE CRIM.PRO. ART. 38.23(a).
The trial court denied the request (3RR: 176). Appellant asserted in the Court of Appeals below
that he was harmed by the denial of this properly requested charge. See, Almanza v. State, 686
S.W.2d 157, 171 (Tex.Crim.App. 1985).
The Court of Appeals, citing only Renteria v. State as authority, concluded there was no
factual dispute about how evidence was obtained in Appellant’s case. Mem. Op. at 5; see,
Renteria v. State, 206 S.W.3d 689, 704 (Tex. Crim. App. 2006). The Court of Appeals found
there was no conflicting evidence regarding the odor of alcohol on Appellant, the traffic
violation, the officer observed Appellant commit, or Appellant leaving his car in ‘drive’ after he
was stopped. Mem. Op. at 4 – 5. However, Appellant’s express complaint on appeal was that the
arrest of Appellant was based upon the standard field sobriety tests (SFST) performed by
Appellant and that the poor performance was due to the lack of instructions in English as
Appellant is a Spanish speaker.
The Court of Appeals further states that a fact issue did not exist concerning the SFST
language problem although the in-car video recording demonstrated the difficulty which
Appellant had concerning understanding the officer’s comments and instructions. Mem. Op. at 4;
and see, State’s Exhibit 4 (video). It was this dispute of whether Appellant could understand the
officer’s instructions in English that Appellant sought to have the jury decided. In its opinion, the
Court of Appeals has failed to address the issue raised which was necessary for a final
disposition of Appellant’s appeal in accordance with Rule 47.1, Texas Rules of Appellate
Procedure. TEX. R. APP. PRO. 47.1.
8
The proper legal standard regarding a 38.23 instruction that should have been applied in
the Court of Appeals opinion is that Appellant was entitled such an instruction if (1) the evidence
heard by the jury raised an issue of fact, (2) the evidence on the fact was affirmatively contested,
and (3) the contested factual issue was material to the lawfulness of the conduct challenged. See,
Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008); TEX. CODE CRIM. PRO. ART.
38.23. The Court of Appeals does not cite any authority regarding the legal standard applicable,
but only cites Renteria for the proposition that no factual dispute existed. Mem. Op. at 5;
Renteria, 206 S.W.3d at 704.
Appellant has a statutory right for a jury to be charged in accordance with Art. 38.23(a).
Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). A Texas peace officer may arrest
a person without a warrant for any offense committed in his presence or within his view. See,
TEX.CODE CRIM.PRO. ART. 14.01(a). While the authority to arrest without a warrant in Texas is
governed by statute, the warrantless arrest must meet the applicable probable cause requirement.
Akins v. State, 202 S.W.3d 879, 888 (Tex. App.—Fort Worth 2006, pet. ref’d). The State has the
burden to prove probable cause to arrest existed to justify a warrantless arrest. Givens v. State,
949 S.W.2d 449, 451 (Tex.App.—Fort Worth 1997, pet. ref’d).
At the charge conference in our case, the 38.23 instruction was requested orally and in
writing by Appellant (3RR: 166; DX – 1). The trial court’s charge submitted to the jury did not
contain the requested 38.23 instruction (CR: 87—90).
Appellant urged the factual dispute at trial requiring the 38.23 instruction was that
Appellant could not understand the English instructions for the Standard Field Sobriety Tests
(SFSTs) as stated by the police officer at the scene of the DWI arrest so that the result of the
SFSTs could not be relied upon to establish probable cause for a lawful arrest for DWI (3RR:
9
166—67). Appellant further urged that the police officer’s testimony regarding intoxication and
the evidence presented on the in-car video are in conflict regarding whether the Appellant could
understand the English only instruction for the SFSTs (3RR: 171). See, State’s Exhibit 4 (video).
The factual dispute complained of by Appellant under this issue is shown in the record,
but the issue is not analyzed in the Court of Appeals’ opinion. The police officer’s testified that
the three tests shown on the video were the standardized field sobriety testing used nationwide
(3RR: 6). The instructions regarding the three tests were given in English; however, the video
recording of the tests shows that Appellant could not understand English and so could not
understand the instructions given by the officer. See, State’s Exhibit 4 (video). The officer
formed his opinion that Appellant was intoxicated for the arrest of DWI (3RR: 12—13). The
officer used the SFSTs to as an aid to determine probable cause and whether to make the
warrantless arrest (3RR: 13—15). The SFST test known as the horizontal gaze nystagmus was
not used to determine probable cause to arrest since the Appellant did not follow instructions
(3RR: 33). The officer admitted that understanding instructions for the walk and turn test and the
one leg stand test require a basic understanding of English (3RR: 43—44). The one-leg test was
actually performed in a way that the office had never seen before (3RR: 47). This was evidence
the Appellant could not understand the English instructions given by the officer.
Appellant contested the evidence gained as a result of his illegal arrest which includes the
blood test result (3RR: 120). Because Appellant was arrested without a warrant and without
probable cause of the commission of a crime, the blood test evidence was illegally gained. The
jury should have been allowed to determine the factual issue of whether Appellant could
understand the instructions given for the SFSTs to determine if the officer met the definition of
10
probable cause for the warrantless arrest. The Court of Appeals has not applied the proper legal
analysis regarding such disputed evidence.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court grant
discretionary review and remand this case to the Court of Appeals to address the issue raised by
Appellant in accordance with Rule 47.1 of the Texas Rules of Appellate Procedure, or in the
alternative, after full briefing on the merits, issue an opinion reversing the Court of Appeals’
judgment and remand and for other proceedings consistent with this Court’s opinion.
Respectfully submitted,
ALONZO LAW FIRM, P.C.
Attorneys at Law
400 S. Zang Blvd., Ste 810
Dallas, TX 75208
(214) 941-8200 office tel.
(214) 941-8228 fax
By: /Roberto R. Alonzo/
Roberto R. Alonzo
State Bar No. 01109700
Email: alonzopc2003@yahoo.com
ATTORNEY FOR APPELLANT
11
CERTIFICATE OF SERVICE
I certify the foregoing Petition for Discretionary Review was served upon the State of
Texas by sending a true and correct copy to the Criminal District Attorney of Denton County and
the State Prosecuting Attorney via U.S. Mail addressed to: Hon. Paul Johnson, Criminal District
Attorney, Attn: Appellate Section, P.O. Box 2344, Denton, TX 76202; Hon. Lisa C. McMinn,
State Prosecuting Attorney, P.O. Box 13046, Austin, TX 78711-3046, on July 31, 2015.
/Roberto R. Alonzo/
____________________________
Roberto R. Alonzo
Attorney for Appellant
CERTIFICATE OF COMPLIANCE
In accordance with Rule 9.4(i) of the Texas Rules of Appellate Procedure, I certify that
the total word count for the foregoing Petition for Discretionary Review is 1,485 words as shown
by the word count function of the computer program, MS Word 2007, used to generate the
document.
/Roberto R. Alonzo/
_______________________________
Roberto R. Alonzo
Attorney for Appellant
12
__________________________
APPENDIX
_________________________
• Miguel Ramirez v. State, No. 02-14-00386-CR (Tex. App. – Fort Worth,
delivered April 30, 2015) (Mem. Op.) (not designated for publication).
13
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00386-CR
MIGUEL RAMIREZ APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY
TRIAL COURT NO. CR-2013-01449-B
----------
MEMORANDUM OPINION 1
----------
A jury convicted Appellant Miguel Ramirez of driving while intoxicated
(DWI). The trial court sentenced him to 120 days’ confinement but suspended
imposition of the sentence, placing him on community supervision for sixteen
months. In his sole issue, Appellant contends that the trial court reversibly erred
by denying his requested article 38.23(a) jury instruction. Because Appellant has
1
See Tex. R. App. P. 47.4.
not raised a violation of any law in obtaining evidence of intoxication by the
administration of standardized field sobriety tests in English, we affirm the trial
court’s judgment.
On January 12, 2013, at around 12:06 a.m., Highway Patrol Officer
Jeremiah Hale pulled over Appellant after observing the vehicle that he was
operating cross double, solid white lines separating the service road and exit
ramp and then go back into its original lane. Hale approached the vehicle from
the passenger side and could smell the odor of alcohol through the open window.
While Appellant searched for his driver’s license, Hale noticed that the gear shift
was still in “drive,” and he instructed Appellant to put his vehicle in “park.” Hale
asked Appellant to exit the vehicle several times, asking once in Spanish.
Appellant exited the vehicle, and upon further inquiry, admitted to having had two
beers that evening. Hale decided to administer field sobriety tests, beginning
with the horizontal gaze nystagmus test. Hale terminated the test when
Appellant did not follow the pen with his eye as instructed. Because Hale did not
finish administering the test, he disregarded it.
Hale then administered the walk-and-turn test. Hale asked Appellant if he
understood the instructions, and Appellant stated that he did. Appellant
displayed seven out of eight possible clues of intoxication. Next, Hale
administered the one-leg-stand test. Appellant confirmed that he understood
Hale’s instructions, but instead of holding his foot out as instructed, Appellant
placed his foot out, counted to four, put his foot back down, took a step, and
2
repeated the sequence. Based on Appellant’s performance on the field sobriety
tests, Hale arrested him for DWI.
Appellant consented to giving a blood sample and was transported to
Denton Regional Medical Center for a blood draw. The analysis of Appellant’s
blood alcohol concentration showed 0.131 grams of alcohol per 100 milliliters of
blood. The results of the analysis were admitted into evidence at trial. After the
close of evidence, Appellant requested an article 38.23(a) instruction in the jury
charge on whether there was probable cause to arrest him. Appellant’s counsel
asserted that there was a fact issue as to whether there was a language barrier
between Appellant and Hale. The request was denied.
In his sole issue, Appellant argues that the trial court erred by denying his
requested jury charge instruction pursuant to article 38.23(a) of the Texas Code
of Criminal Procedure. He requested the jury instruction because the field
sobriety tests were administered in English, and he alleged that there might have
been a language problem. Appellant argues on appeal that his poor
performance on the standardized field sobriety tests could have resulted from a
language barrier rather than intoxication.
Appellant appears to suggest that the blood test was improperly obtained
because it was the fruit of the arrest that may have been based on a language
barrier rather than on probable cause. Yet Appellant filed no motion to suppress
and did not object based on any language barriers to the admission of the blood
test results or to testimony about his poor performance on the field sobriety tests.
3
Article 38.23 provides, in pertinent part,
No evidence obtained by an officer or other person in violation
of any provisions of the Constitution or laws of the State of Texas, or
of the Constitution or laws of the United States of America, shall be
admitted in evidence against the accused on the trial of any criminal
case.
In any case where the legal evidence raises an issue
hereunder, the jury shall be instructed that if it believes, or has a
reasonable doubt, that the evidence was obtained in violation of the
provisions of this Article, then and in such event, the jury shall
disregard any such evidence so obtained. 2
For a defendant to be entitled to the instruction, the evidence must raise an
issue whether the evidence was obtained in violation of a provision of the
Constitution or laws of the State of Texas or of the United States. 3 Appellant has
not raised a violation of any law regarding the police obtaining evidence of
intoxication by the administration of standardized field sobriety tests in English.
He speculated that there was a language barrier, but there is no evidence of a
language barrier in the record and no related challenge to the admission of
evidence obtained as a result of the detention and arrest. Although the trial
judge did everything possible to try to understand Appellant’s argument regarding
a reason the arrest was unlawful, Appellant was unable to point to anything
except speculation. There was no conflicting evidence regarding the odor of
alcohol on Appellant, the traffic violation the officer observed Appellant commit,
2
Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005).
3
Id.
4
or Appellant’s leaving his car in “drive” after he was stopped. Additionally,
Appellant admitted to consuming alcohol. The article 38.23 instruction is
required only when there is a factual dispute about how the evidence was
obtained. 4 The record reflects no such dispute. Consequently, Appellant was
not entitled to an article 38.23 instruction.
We overrule Appellant’s sole issue and affirm the trial court’s judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GABRIEL, and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 30, 2015
4
Renteria v. State, 206 S.W.3d 689, 704 (Tex. Crim. App. 2006).
5