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).