Nance, Jessica Nicole ( 2015 )

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 COURT AT 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 of Appellate Procedure TRAP 79.2C in support of her request for the for Motion for
rehearing. The motion 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 IN e
COURT OF CRIMINAL APPEALS
JUN 03 2015
AbeiAcosta,C(erk
IDENTITY 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 75401
INDEX 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 of the Parties and Counsel
Table of Contents
Index of Authorities
Statement of the Case
Issues Presented
Statement of the Facts
Summary of the Argument
Prayer for Relief
Certificate of compliance of typeface and word count
Certificate of Service
Gonzales, 369 S.W.3d at 854
Bray v. 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 other grounds by California
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 Beck v. Ohio
379 U.S. 89, 96 (1964)
Clay v. State, 391S.W.3d 94,100 n.21 (Tex. Crim. App. 2013)
(quoting Wayne R. LaFave, 2Search and Seizure: ATreatise on the Fourth
Amendment § 4.3(b), at 511 (4th ed. 2004))).
State v. Robinson, 334 S.W.3d 776, 778-79 (Tex. Crim. App. 2011) (footnotes
omitted)
Robinson, 334 S.W.3d at 780 (Cochran, J., concurring); Ford v. State, 158 S.W.3d
488,492 (Tex. Crim. App. 2005).
Robinson, 334 S.W.3d at 779; Amador v. State, 221 S.W.3d 666, 672-73 (Tex.
Crim. App. 2007).
Bray, 597 S.W.2d at 765 n.l (quoting McDonald, 335 U.S. at 456).
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 RULES
Texas Penal Code 49.04
Rule 44.2(a) of the Texas Rulesof Appellate 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:
1Adams, R., &Victor, M. (1993). Principles of Neurology, 5th edition. McGraw-Hill, Inc.: NewYork
2 Burns, M.,& Anderson, H.( 1995). A Colorado validation study of the standardized field sobriety
(SFST) battery. Final Report. Colorado Department of Transportation.
3 Burns, At, & Dloquino, T.( 1997). A Florida validation study of standardized field sobriety test
(S.F.S.T. battery. Florida Department of Transportation.
4 De Myer, W. Neuroanatomy. Williams &Wilkins, Baltimore.
5 DWI detection and standardized field sobriety testing Student manual.(1995). NHTSA, U.S.
Department of Transportation.
6 DWI detection and standardized field sobriety testing Instructor manual. (1995). NHTSA, U.S.
Department of Transportation.
7 Elliot. C, & Murray. A. (1998). Repeatability of body 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 divided attention performance under the
influence of alcohol: 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.
Electroencephalography and clinical Neurophysiology, 105,309-320.
STATEMENT OF THE CASE
This is an appeal of the judgment and sentence in acriminal case for the County Court at Law
Number 1in Hunt County, Texas. Appellant Plead Guilty to the crime of Driving while Intoxicated
Second. (RR Vol. 3p.8) Appellant filed in the trial court an election to punishment to be made by the
trial court on August 12th, 2013. The court ordered a pre-sentence investigation. Appellant was
assessed asentence of imprisonment for Two Hundred Fifty (250) days in the Hunt County Jail, $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 November 4th, 2013 in the trial court and has yet to be heard. The court 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 November 25th, 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 of Error One:
Defendant's Fourth Amendment rights were violated when the officers failed to obtain a
search warrant.
Point of Error Two:
Trial court erred in the admissibility, utilization and refutation ofthe State's evidence
concerning field-sobriety test.
Point of error Three:
Trial court erred in allowing Trooper Goodwin to testify that there isa certain level of
intoxication that can be determined bythe HGN.
Statement of the facts
Appellant pled guilty to Driving While Intoxicated, Second . (RR Vol. 3 p.8). The trial
court admonished Appellant of the charge and the range of punishment. (RR Vol. 3 p.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 right to 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 obtained from 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 of two hundred and fifty days in jail. (RR Vol. 5p. 113-125).