Driving While Intoxicated Case Law Update - Texas District ...

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Chunn v. State, 923 S.W.2d728 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). Sanders v. State, 936 S.W.2d 436 (Tex.App.-Austin 1996, pet. ref'd). State v. Sanchez, 925 S.W.2d 371(Tex.App.-Houston [1st Dist.]1996, pet. ref'd). Burke v. State,930 S.W.2d230 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). Aquirre v. State, 928 S.W.2d 759 (Tex.App.-Houston [14th Dist.] 1996, no pet.). E. UNOBJECTED TO ERROR IN CHARGING INSTRUMENT McCovv. State,877 5.W.2d844 (Tex.App.-Eastland 1994, no pet.). Where charging instrument mistakenly alleged loss of "facilities" and no objection was made prior to trial, the judge could properly replace the term with "faculties" in the jury instruction. F. READING DWI ENHANCEMENT AT WRONG TIME Pratte v. State, 2008 WL 5423193 (Tex.App.-Austin 2008, no pet.). The court allowed the State to read the enhancement paragraph in front of the jury that alleged a prior DWI conviction over the defendant's objection. Article 36.01 of the Code of Criminal Procedure says that when prior convictions are alleged forpurposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment. In this particular case, the defendant stipulated to the prior listed in the enhancement after the information was read and before the State called its firsf wifness so fhe Court holds that the asseded error did not contribute to the defendant's conviction. II. VOIR DIRE A. PROPER QUESTION/STATEMENT Kirkham v. State,632 S.W.2d 682 (Tex.App.-Amarillo 1g82,no pet.). Voir dire question, "Do you believe a person is best judge of whether they are intoxicated?" is proper and is not a comment on defendant's right not to testify. Vrba v. State,151 S.W.3d 676 (Tex.App.-Waco, October 27,2004, pdr ref'd.). The following questions asked by the prosecution were proper in that they were not "commitment questions:" "What are some signs that somebody is intoxicated?" "Who thinks that the process of being arrested would be something that might sober you up a little bit?" "Why do you think someone should be punished?" "Which one of these [four theories of punishment]is mosf important to you in trying to determine how someone should be punished and how much punishment they should receive?"
B. IMPROPER QUESTION/STATEMENT Harkey v. State, 785 S.W.2d 876 (Tex.App.-Austin 1990, no pet.). Defense attorney asking member of jury panel "if they could think of a reason why anyone would not take such a (breath) test" held to be improper in its'Torm." Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App. 2001). The question, "lf someone refused a breath test, would you presume him/her guilty on their refusal alone?" was held to be improper as it consfitufes an attempt to commit the juror. This case also reaffirms that a juror may permissibly presume guilt from evidence of a refusal to give a breath or blood test. Davis v. State,2006 WL2194708, (Tex.App.-Houston [14th Dist.]2006, no pet.). (Notdesignated for publication). Even if State established that breath-testing device was functioning properly at the time of the test, that the fesf uras properly administered, and that defendanf's fesf result was 0.08 or above, defendantwas stillentitled to challenge, andthe juryto disbelieve, the reliability of the methodology used by the device, and Sfafe's misstatemenfs fo the contrary during voir dire required reversal. C. CHALLENGE FOR CAUSE 1. PRESUMPTION OF INNOCENCE Harkev v. State, 785 S.W.2d 876 (Tex.App.-Austin 1990, no pet.). Jurors stating, in response fo suggesfion by defense counse/ that defendant "must be guilty of something or he wouldn't be there" did not provide a basr's for challenge for cause. 2. ONE WITNESS CASE Zinoer v. State, 932 S.W.2d 511 (Tex.Crim.App. 1996). Leonard v. State, 923 S.W.2d770 (Tex.App.-Fort Worth 1996, no pet.). Castillo v. State, 913 S.W.2d 529 (Tex.Crim.App.1995). Garrett v. State, 851 S.W.2d 853 (Tex.Crim.App.1993). Statement by venire person that'Testimony of one wifness would not be enough for him to convict even if that testimony proved all elements beyond a reasonable doubt" mql make that juror challengeable for cause but be very careful and read the above cases before you try it.
Page 1 and 2: Driving While Intoxicated Case Law
Page 3 and 4: 2. DOESN'T APPLY 18 F. OFFICER'S AR
Page 5 and 6: K, L. M. N. o. P. o. R. NOSOUND=NOP
Page 7 and 8: F. G. H, L J. K. L. 3. NO RIGHT TO
Page 9 and 10: C. D. STATUTORY REQUIREMENTS FOR DR
Page 11 and 12: E, F. G. H. t. J. K. L. M. N. o. P.
Page 13 and 14: O. IF YOU ALLEGE MORE PRIOR DWI'S T
Page 15: I. INFORMATION/CHARGING INSTRUMENT
Page 19 and 20: DWI ROADBLOCKS A. ARE ILLEGAL Holt
Page 21 and 22: V. OCCUPATIONAL LICENSE CHART The f
Page 23 and 24: Elisibilitv for Occupational Driver
Page 25 and 26: Villarealv. State, 2008 WL 4367616
Page 27 and 28: out that hearsay is generally admis
Page 29 and 30: Foster v. State, 326 S.W.3d 609 (Te
Page 31 and 32: anyone other than officer to help h
Page 33 and 34: F. OFFICER'S ARREST AUTHORITY WHEN
Page 35 and 36: occur) who observed the traffic off
Page 37 and 38: a mile in the early morning hours.
Page 39 and 40: State v. Arriaqa, 5 S.W.3d 804 (Tex
Page 41 and 42: explain the margin of error or the
Page 43 and 44: P. "FOLLOWING TOO CLOSELY''- SUFFIC
Page 45 and 46: defendant from leaving. Officer sai
Page 47 and 48: 2. REASONABLE Bohren v. State,2011W
Page 49 and 50: Sinqleton v. State. 91 S.W.3d 342 (
Page 51 and 52: B. BASED ON'BREACH OF PEACE'THEORY
Page 53 and 54: IX. VIDEO A. PARTS OF PREDICATE CAN
Page 55 and 56: Mathieu v. State, 992 S.W.2d725 (Te
Page 57 and 58: F. ABSENCE OF VIDEOTAPE 1. NOT GROU
Page 59 and 60: K. NO SOUND = NO PROBLEM Aouirre v.
Page 61 and 62: R. OFFICER'S NARRATIVE ON PERFORMAN
Page 63 and 64: was effor, albeit harmless, to allo
Page 65 and 66: forfeited in the guilt-innocence ph
Page 67 and 68:
ecoming the focus of a DWI investig
Page 69 and 70:
Rasan v. State,642S.W.2d 489 (Tex.C
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2. OFFICER DOES NOT HAVE TO BE AN O
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the reliability of VGN before it is
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C. WALK AND TURN = LAY WITNESS TEST
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G. FAILURE TO EXPLAIN FST'S IN DEFE
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B. PROOF OF "STATE'' Barton v. Stat
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C. INSTRUMENT CERTIFICATION 1, NEW
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G. DIC.23 & DIC.24 WARNINGS 1. REQU
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warning on refusing alcoholfesfs, b
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efusing or of giving a sample for s
Page 89 and 90:
2. NO EVIDENCE THAT ADDITIONAL WARN
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Hall v. State, 649 S.W.2d 627 (Tex.
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3. AFTER 2 HOURS Holloway v. State,
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P. BREATH TEST ADMISSIBLE AS PROOF
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T. LOSS OF NORMAL & PER SE LAW EVID
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fesf resu/fs were not inflammatory
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6. IMPROPER ADMISSION OF EXTRAPOLAT
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esu/fs. As long as fhe operator kno
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suggesf that he was physically or m
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D. PROCEDURE FOR TAKING BLOOD SAMPL
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Thurman v. State, 861 S.W.2d 96 (Te
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4. NOT NECESSARY TO SHOW WHO DREW T
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Biqon v. State, 252 S.W.3d 360 (Tex
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offense of DWI," the Court finds th
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8. SEARCH WARRANT AFFIDAVIT CONTAIN
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(b) FArAL Farhart v. State, 337 S.W
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consenfs, 724.012 does not apply. H
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in the Sfafe's case-in-chief, the S
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was not the result of an involuntar
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trance-like high. The Court affirme
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C. CHARGE ON WORKING CONDITION OF I
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intoxication sefs forfh alternative
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of Appeals had misconstrued the act
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the impairment element of the Sfafe
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Sledqe v. State ,1994 WL 247961 (Te
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V. WHEN CHARGE SPECIFICALLY USES SU
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Tennerv v. State, 680 S.W.2d 629 (T
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E. ENHANCEMENT OF FELONY DWI WITH N
Page 145 and 146:
Also, if stipulated that there are
Page 147 and 148:
of the priors. He then complained o
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K. PROPER TO ALLEGE DATE PROBATION
Page 151 and 152:
o. IF YOU ALLEGE MORE PRIOR DWI'S T
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a violation of the ex posf facto la
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W. EXPUNCTION WILL NOT ALWAYS RENDE
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intoxicated (DWI) from a C/ass B mi
Page 159 and 160:
Holmberq v. State, 931 S.W.2d 3(Tex
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G. NO CONFLICT BETWEEN N'DUI'' AND
Page 163 and 164:
equipment was obserued in the vehic
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unning, radio playing loudly, and d
Page 167 and 168:
wheels was consr.stent with the whe
Page 169 and 170:
Wriqht v. State, 932 S.W.2d 572 (Te
Page 171 and 172:
Bucek v. State ,724 S.W .2d 129 (Te
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concerning how recently the vehicle
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B. DENIAL OF PROBATION DUE TO LANGU
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alcohol by calling a sysfem adminis
Page 179 and 180:
Avfor v. State, 2011 WL 1659887 (Te
Page 181 and 182:
Carrasco v. State,712S.W.2d 120 (Te
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Drapkin v. State, 781 S.W.2d 710 (T
Page 185 and 186:
Folev v. State, 327 S.W.3d 907 (Tex
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(Tex.Crim.App. 1988)..... .......42
Page 189 and 190:
Human v. State, 749 S.W.2d 832 {Tex
Page 191 and 192:
Lewisv.State,72S.W.3d704(Tex.App.-F
Page 193 and 194:
Moncivais v. State, 2O02WL 1445200
Page 195 and 196:
Poncev. State,828 S.W.2d 50 (Tex.Ap
Page 197 and 198:
Schaum v. State, 833 S.W.2d 644 (Te
Page 199 and 200:
State v. Gerstenkom, 239 S.W.3d 357
Page 201 and 202:
Stone v. State, 685 S.W.2d 791 (Tex
Page 203 and 204:
Vasquezv. State,2007WL 2417373 (Tex
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