Gomez, Jorge Alvarez

PD-0268-15 May 6, 2015

NO. ______________________

IN THE COURT OF CRIMINAL APPEALS OF TEXAS AUSTIN, TEXAS

JORGE ALVAREZ GOMEZ, Appellant/Petitioner,

V.

THE STATE OF TEXAS, Appellee/Respondent.

APPELLANT‘S PETITON FOR DISCRETIONARY REVIEW ________________________________________________________________________ No. 04-14-00198-CR Court of Appeals for the Fourth District of Texas At San Antonio, Texas

On Appeal from Cause Number 362070 in the County Court at Law of Bexar County, Texas Honorable Wayne A. Christian, Judge Presiding.

Respectfully submitted, ________//S//________________ Victor M. Valdes, J.D., Ed.D. 111 Soledad, Suite 300 San Antonio, Texas 78205 Tel. (210) 229-9652 Fax (210) 590-6713 Bar No. 20424500 Attorney for Appellant Email:vvaldes@satx.rr.com

APPELLANT REQUESTS ORAL ARGUMENT

TABLE OF CONTENTS INDEX OF AUTHORITES …………………………………………………………...….ii

STATEMENT REGARDING ORAL ARGUMENT……………………………...…….iii STATEMENT OF THE CASE…………………………………………………………....1 STATEMENT OF PROCEDURAL HISTORY……………………………………..…....1

GROUNDS FOR REVIEW

FIRST GROUND FOR REVIEW: Whether the Court of Appeals erred when it ignored Petitioners request to take judicial notice and failed to accurately recite relevant facts?....2 SECOND GROUND FOR REVIEW: Whether the Court of Appeals erred when it concluded that it was not a comment on the weight of the evidence?……………….....…7 THIRD GROUND FOR REVIEW: Whether the Court of Appeals erred when it concluded Appellant was not entitled to Article 38.23 instructions?……………………..8 FOURTH REASON FOR REVIEW: Whether the Court of Appeals erred when Appellant was not allowed to present a defense?……………………………………..…11 FIFTH GROUND FOR REVIEW: Whether the Court of Appeals erred when it ignored its own previous decisions in violation of The Doctrine of Stare Decisis?.......................14

PRAYER FOR RELIEF……………………………………………………………..…..14 CERTIFICATE OF SERVICE……………………………………………………….….15 CERTIFICATE OF COMPLIANCE……………………………………………….........15

APPENDIX A Alvarez-Gomez v. State, No. 04-14-00198-CR (Tex.App.-San Antonio, delivered February 11, 2015) (Not designated for Publication). APPENDIX B Alvarez-Gomez v. State, No. 04-14-00198-CR (Tex.App.-San Antonio, delivered on March 3, 2015) (Motion for Rehearing and Reconsideration En Banc, denied). APPENDIX C Transcript of Trial Court‘s interaction with the State.

i

INDEX OF AUTHORITIES Chamber v. Mississippi, 410 U.S. 284 S. Ct. 1083, 35 L. Ed 2d 297 (1973)……………12 Clark v. State, 878 S.W. 2d 224………………………………………………………...…8 Crawford v. Washington, 544 U.S. 36, 51 (2004)…………………………………….....16 Dawbert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 599 (1993)……………......13,14 Ex Parte Reter, 827 S.W. 2d 324 (Tex. Cr. App. 1992)………………………………....15 Grant V. State, 738 S.W. 2d 309…………………………………………………...…….10 Gifford v. State, 793 S.W. 2d 48 (1991)……………………………………..……….11,17 Hewitt v. State, 734 S.W. 2d 745……………………………………………...…………10 Kumho Tire Co. Ltd. v. Carmichael 526 U.S. 137, (1999)…………………..………….13 Miranda v. Arizona, 384 U.S. 436 (1966)………………………………………………...8 Ray v. State, 749 S.W. 2d 939 (1998)………………………………………………..….11 State v. Henan, 89 Ohio St. 3d 421, 723 N.E. 2d 952………………………………..….13 Stone v. State, 703 S.W. 2d 562………………………………………………………....10 RULES AND STATUTORY PROVISIONS Sixth Amendment…………………………………………………………………………9 Texas Penal Code, Section 49.0…………………………………………………...……...1 Article 38.05, Texas Code of Criminal Procedure………………………………………...8 Article 38.23, Texas Code of Criminal Procedure……...…………………………..9,10,16 Rule of Evidence 513……………………………………………………………………..9 Rule of Evidence 702…………………………………………………………………….10 SECONDARY SOURCES NHTSA…………………………………………………………………...…....10,12,13,14 Western, The Compulsory Process Clause, 73 Mich. L.R. 72, 159 (1974)……..……….11 Dr. Marceline Burns,…………………………………………………………………......13 Hon. Judge Edward D. Re on Stare Decisis…………………………………………..…13 ii

STATEMENT REGARDING ORAL ARGUMENT

Appellant has raised important questions of first impression in the Court and believes that oral argument would help clarify the issues presented in this petition for discretionary review. THEREFORE he respectfully requests oral argument.

iii

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

NOW COMES, Jorge Alvarez Gomez Appellant in this cause, by and through his attorney of record, Victor Manuel Valdes, and, pursuant to the provisions of Tex. R. App. Pro. 66, et seq., moves this Court to grant discretionary review, and in support will show as follows:

STATEMENT OF THE CASE

Appellant was charge by information with driving while intoxicated, in violation of Tex. Penal Code, Section 49.01 (CR, P. 12)1 He filed a motion to suppress evidence (intoxilyzer), on 21st of December 2011, but the trial court denied the motion who he carried with the trial, however we cannot find the order. (CR. p._). A jury found Appellant guilty and was assessed a $500.00 fine and six months‘ probation and 48 hours of community service, (CR. p.41). He timely perfected his appeal. (CR. p.45).

STATEMENT OF PROCEDUAL HISTORY

Appellant presented five issues in his appellate brief. The conviction was affirmed in an opinion not designated for publication, delivered on February 11, 2015. A motion for Rehearing and Reconsideration En Banc was timely filed, however, it was denied on 3rd of March 2015. On 12th of March 2015, this Honorable Tribunal granted Appellant‘s Motion for and Extension of Time in which to file the Petition for Discretionary Review until the 4th day of May 2015, therefore this petition is timely filed.

1.

1 The record on appeal is cited as “[volume] R. [page]”.

FIRST GROUND FOR REVIEW: Whether the Court of Appeals erred when it ignored Petitioners request to take judicial notice and failed to accurately recite relevant facts? ARGUMENT

The Court of Appeals opinion does fail to accurately recite the relevant facts. Just after midnight on the 17th day of May 2011, Appellant, fell asleep in an interception near highway 281 while waiting in the truck of his friend, Mr. John Carlos Orozco. According to the police officer he noticed the ―… APV with no head lights on….‖ The owner of the vehicle testified as follows:

Q. Mr. Orozco, would you state your full name for the record, please. A. John Carlos Orozco. Q. Orozco. Mr. Orozco, you know the reason you are here today? A. Yes, sir, I do. Q. Okay. Do you remember an incident that occurred at 11 may, 2011? A. Yes, sir, I do. Q. Now, also you know this young man here sitting next to me? A. I do, very well. Q. How long have you known him? A. Since we were kids. We were very good friends. Q. Do you know what he‘s – what he does for a living? A. He works for Northside School District as a Counselor. Q. Okay. Anything else he does? A. Military service. Q. Sir? A. He‘s a Vet from the – for the military. 2.

Q. OK. A. As well. Q. Now, the day of this incident, in particular on the 11th of May, 2011, you -- explain to us what you remember about that day pertaining to the stuff of Jorge. A. On that day, um, my truck had stalled on the highway. I was the one operating, parked it. I stalled, I had battery issues, so I did walk across the street, which is literally where we were just at, picked up jumper cables a friend gave me—let me come back, which I am in the video doing that. When I came to jump my truck again, the officers were already there speaking with Mr. Alvarez. The Court: Can everybody hear the witness? You want him to use the microphone, or everybody can hear fine? All good. Go ahead, sir. The Witness: Um, I told ‗em – I explained to one of the officers, that‘s my truck. He‘s not driving, let me have the truck. The officer interviewing Mr. Alvarez would not let me basically say anything that had to do with that. I was – performed the test. I was—I passed everything. I was the one driving. Mr. Alvarez should have never been arrested for anything in that case for that day. Q. (By Mr. Valdes) Now, have you prepared an affidavit to that respect? A. Yes, sir, I have. Mr. Valdes: you honor, I think—we can mark it. The Court: Counsel, you have got a live witness. Why are we worrying about an affidavit? Mr. Valdes: Well, I‘d like to present it to the – The Court: It‘s not admissible Counsel. Mr. Valdes: I‘m sorry? The Court: Not admissible. You‘ve got a witness here live to testify. Mr. Valdes: Okay. All right. Q. (By Mr. Valdes) But, you prepared a document to that respect before. Am I right, sir? A. Yes, sir. Q. Okay. Now, is that the first time that the truck it stalls on you? 3.

A. No, sir. It‘s not a regular truck. I have done a lot of modifications. My electrical system in not the very best. It‘s not the first time it stalled out on me. I do have a history with that truck. Q. So why—why do you have an idea why it stalls? A. Battery issues. That‘s the – that‘s the main issue on my truck. Q. Okay. By the way, what kind of work do you do? A. I‘m a commercial truck driver. I drive across the interstate, all Texas type of loads. Q. Okay. Have you ever been arrested? A. Not once. Q. Not once. Okay. And is Jorge familiar with you truck? A. Not at all. I don‘t let my girlfriend drive it. Mr. Valdes: I pass the witness, your Honor. Appellant was sick and he was throwing up. The officer did not give him any of

the field sobriety tests. He was concerned with the vomit emanating from Appellant. In addition to the testimony of Mr. Orozco, the video, indicates that Appellant was not familiar with the vehicle. At one time, he pulled the hood latch instead of the emergency brake. In the video, Appellant clearly informs the officer that he was not driving. On cross examination, Mr. Orozco testified that when he left to look for the cables, Appellant was in the passenger‘s seat, and that he knew that Appellant was sick and that he left and told appellant ―… hey, I‘m going to run around—I‘m going to run across the street and get some jumper cables. Make sure no one take my truck‖. (Rep.‘s Record, Vol. 2, page 20), at the end of the States presentation Appellant moved for a directed verdict, however, the trial court denied it. (P. 7, Vol. 2 of Rep.‘s Record).

4.

Again, the Appellant requested the Court to take judicial notice of the proper proceedings of conducting the standard field sobriety test and the following colloquy followed:

Mr. Valdes: Now let‘s talk about motion to take judicial notice. The Court: We have already talked about that, and that, once again, has been respectfully denied. Oh, okay. Well, I just wanted for the record— The Court: Respectfully denied on the record yesterday. (p.7, vol. 2 of Rep.‘s Record). On December 4, 2013, Appellant re-urged the Motion to Suppress evidence as

follows:

Mr. Valdes: I still have—I‘m going re-urge my Motion to Suppress, your Honor. Okay? Well, you know, there‘s a bunch of comments that the police officer made like ―oh, that‘s disgusting,‖ you know, so the fact that he is in handcuffs in front of the jury. Also, your Honor, the police officer said— The Court: I‘m sorry. Which motion to suppress are we talking about? Mr. Valdes: I‘m Sorry? The Court: About officer making statements on the video? Mr. Valdes: yeah. He made the statement. The Court: It‘s already been denied in the nicest possible way. Mr. Valdes: Well, your Honor before—you denied before – you denied before you listened to – watch the whole tape. The Court: well, it‘s still denied. Mr. Valdes: Okay. May I finish because— The Court: By all means. Mr. Valdes: Okay. Thank you, your Honor, with all respects he says that‖ that‘s too much to drink,‖ he is supposed to be an expert on that. It‘s going to be misleading in front of the jury. Okay. ―That is too much to drink‖. So that‘s a self-serving type of 5.

comment by the officer and ―that‘s disgusting‖ that‘s another thing that—these comments like that and a few other comments that he made that it‘s completely prosecutorial that is—that tends to favor the prosecutor in this case. That‘s why I think we should suppress all of the audio in this case. The Court: you don‘t think people throwing up is disgusting? It absolutely is. Mr. Valdes: Well—but the –but the— The Court: Overruled. Your objection is noted for the record and for appellate purposes. No hard feeling. How is that? Mr. Valdes: No hard feeling. The arresting officer also testified that ―he did not give him the HGN. (page 75,

vol. 1 of Rep.‘s Record). And that there are no elements that affect the test, such as wind, lights, inclines. (vol.1, Pages 78-99, of Rep.‘s Record). According to the arresting officer watery eyes do not affect the HGN, red eyes, contact lenses do not affect the HGN.

SECOND GROUND FOR REVIEW: Whether the Court of Appeals erred when it concluded that it was not a comment on the weight of the evidence?

It is difficult to envision a more damaging situation during a trial in which the trial judge, in front of the jury, and sua sponte, tells the defense attorney that: ―It‘s not admissible counsel‖. There will not be judge‘s instruction to the jury, regardless of how it is phrased, that can erase the impression on the jury.

Article 38.05 of the Texas Code of Criminal Procedure provides some guidance in this respect as follows: ―In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; …‖

6.

The trial court interfered with Appellant‘s right to present evidence in a critical area of the case. The Court in Clark v. State, 878 S.W. 2d 224, 226 (Tex. App. – Dallas 1994, no pet.). indicates that: A trial court improperly comments on the weight of evidence if it makes a statement that: (1) implies approval of the State‘s argument, (2) indicates any disbelief in the defense‘s position, (3) diminishes the credibility of the defense‘s approach to its case‖.

The trial Court‘s erroneous ruling had a direct impact on Appellant‘s constitutional rights to present a defense and it cannot be considered harmless. Rule of Evidence 513 prohibits the trial Judge from making any comment about the evidence.

THIRD GROUND FOR REVIEW: Whether the Court erred when it concluded that Appellant was not entitled to Article 38.23, of the Code of Criminal Procedure Instructions?

ARGUMENT Article 38.23 (a) provides: No evidence obtained by an officer on 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 the Article, then and such event, the jury shall disregard any such evidence as obtained.

In DWI cases, as in other areas of the penal laws, the recurring question is how and when is an issue of illegally obtained evidence raised? The answer is, first, there must be a

7. conflict in the facts, not just a conflict in the possible interpretation of an un-contradicted set of facts. Second, if there is such a conflict in the facts, and if one of the conflicting versions of the facts reasonably leads to the conclusions that the Constitution or law was violated, a charge under Article 38.23 must be given. See Stone v. State, 703 S.W. 2d 652 (Tex. Crim. App. 1986); Grant v. State, 738 S.W. 2d 309 (Tex. App.-Houston, 1987, pet. Ref.‘d); Hewitt v. State 734 S. W. 2d 745 (Tex. App.—Fort Worth 1987, pet. Ref.‘d).

There was evidence that the officer did not follow the NHTSA procedures during the administration of the STANDARD field Sobriety Test. Furthermore, there was evidence in the video in which the Appellant tells the arresting officer, ―I was not driving‖ and that he was not advised of his Miranda rights.

The leading DWI case in Article 38.23 is Stone v. State, 703 S.W. 2d 652 (Tex. Crim. App. 1986), aff‘g 685 S.W. 2d 791 (Tex. App Fort Worth 1985).

In this case, the officer did not see the Appellant drive the vehicle to the intersections and Appellant and the owner of the truck testified that he was sick and that the truck stalled on him because of electrical problems. Furthermore, the trial court judge believed Mr. Orozco and not the police officer. In addition, because the police officers. admitted that he did not observe Appellant continuously for fifteen minutes prior to the actual breath test, and Appellant was not allowed Article 38.23 instructions, hence, he was denied a fair trial. The Appellant objected to the evidence and filed a Motion to Suppress evidence.

On Gifford v. State, 793 S.W. 2d 48 (Tex. App.- Dallas 1990, pet gtd.), pet.

8. dism‘d, improvidently. Gtd., 810 S.W. 2d 225 (Tex. Crim. App. 1991), the Dallas Court held that where evidence raised an issue of whether the Defendant was continuously observed fifteen minutes prior to taking the breath test, the trial court‘s refusal to charge the jury on this issue was reversible error. In Ray v. State, 749 S.W. 2d 939, (Tex. App.-San Antonio 1998, pet. ref‘d), the San Antonio Court held differently.

It is obvious, that the regulations exists for a particular purpose and should be followed at all times. The State should be held accountable for any violations of the law.

FOURTH REASON FOR REVIEW: Whether the Court of Appeals erred when Appellant was not allowed to present a defense?.

A defendant has a right to introduce material evidence in his favor whatever its character, unless the state can demonstrated that the jury is incapable of determining its weight and credibility and that the only way to ensure the integrity of the trial is to exclude the evidence altogether. (See Western, the Compulsory Process Clause, 73 Mich. L.R. 72, 159 (1974). The instant case is similar to Chambers v. Mississippi, 410 U.S. 284 S. Ct. 1083, 35 L. Ed. 2d 297 (1973). In which the Supreme Court found violations of due process and the Sixth Amendment. Both rulings by the trial court in Chambers operated to deprive the defendant of his compulsory process rights, by preventing him from attempting to elicit facts from this witness through examination, and by preventing him from introducing independent evidence of those facts. Appellant presented sufficient evidence such that the jury could find, beyond a reasonable doubt, that Appellant was not operating the vehicle, and that Mr. Orozco, the owner drove the vehicle to the intersection. In addition the evidence presented proved beyond a

9. reasonable doubt that the arresting officer failed to follow the standard procedures as established by the NHTSA in the administration of the Standard Field Sobriety Test.

The only testing of field sobriety tests that meets the definition as standard was conducted at the request of the National Highway Traffic Safety Administration (hereinafter NHTSA) (See p. 8). Additionally, only the three standardized tests, and their standardized administration, adopted by NHTSA have been so evaluated. In the case at bar, the officer did not use the three tests that have been made the subject of extensive research.

The police officer admitted he does not follow the Standard procedures in conducting the HGN. (Vol. 2), pages 99-102). The field sobriety test used in this case does not meet the Dawbert v. Merrill Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, standards and in Kumho Tire Co. Ltd. v. Carmichael (1999) 526 U.S. 137, 119 S. Ct. 1167, and Rule 702 of the Texas Rules of Evidence.

The Appellate Court erred in approving the trial court‘s failure to maintain its ―gatekeeping‖ function. The Appellant attempted to introduce documents for the trial court to take judicial notice of the proper manner of performing the HGN and factors that affect its accuracy; however, the trial court denied his requests.

The 1975, NHTSA funded research conducted by Dr. Marceline Burns found out that variance from the prescribed manner of administering, observing, and evaluating an individual‘s performance of the three standardized tests, deprives the tests of reliability, and accuracy. This position, that only tests given in the ―standardized‖ manner have any

10. validity is echoed in virtually every police manual regarding field sobriety tests.

In State v. Homan (April 26, 2000) 89 Ohio St. 3d 421, 732 N.E. 2d 952, The Ohio Supreme Court held that any variation in the use of the NHTSA Standardized Field Sobriety Tests makes the results completely unreliable as it relates to probable cause. The court found ―it is well established that in field sobriety testing even minor deviations from the standardized procedures can severely bias the tests.‖ (Ibid). The trial judge‘s refusal to allow the introduction of the NHTSA excerpts, amounted to a refusal of Appellant‘s right to present a defense. These were precisely the issues that were before the jury, and the trial judge‘s ruling essentially denied petitioner an opportunity to establish that a reasonable doubt existed as to his guilt.

The very concept at the heart of Dawbert, is the scientific mythology. The State was allowed to introduce evidence as to the HGN‘s reliability; hence, Appellant should have been allowed to introduce the NHTSA Manual in the area of proper procedures and reliability of the test.

Because the court erred in not allowing the judicial notice of the NHTSA Manual excerpts, the Appellant was denied the right to present a defense, and this Honorable Tribunal should reverse the Appellate Court with and order for a new trial.

FIFTH REASON FOR REVIEW: Whether the Court of Appeals erred when it ignored its own previous decisions in violation of The Doctrine of Stare Decisis?

A brief study of the doctrine of stare decisis indicates that it was received in the United States, as part of the common law tradition. In addition to fostering stability and permitting the development of a consistent and coherent body of law, it also served other

11. beneficial functions. It preserved continuity, manifested respect for the past, assured equality of treatment for litigants similarly situated, spared judges the task of reexamining rules of law with each succeeding case, and afforded the law a desirable measure of predictability. See the Federal Judicial Center, article on Stare Decisis presented by the Hon. Edward D. Re, Chief Judge, United States Customs Court, May 13th-16th, 1975.

The doctrine of stare decisis commands that the Court follow settled questions of law in the absence of compelling reasons to reject them, see Ex Parte Porter, 827 S.W. 2d 324, 329 (Tex. Cr. App. 1992), and cases cited therein.

The Court of Appeals ignored its own previous decision in State of Texas v. Savage, 905 S.W. 2d 265 (1994-4th Court of Appeals). In that case, the Fourth Court of Appeals found that: the trial court‘s past-verdict determination that the evidence was not sufficient to support the verdict was a ruling on a matter of law….‖ Ibid, at 271.

Furthermore, because the trial court wanted the district attorney to change the charges to obstruction of a highway vis-a vis-DWI, and because, obviously, the Petitioner was sick and, because the trial court believed Mr. Orozco, the owner of the truck, and not the police officer. The trial court should have granted the motion for directed Verdict.

CONCLUSIONS

The Court of Appeals ruled against Petitioner because it erroneously focused exclusively on the alleged intoxication rather than determining whether the procedural aspects and due process of law were followed. The Court concluded that ―the evidence

12. supported the jury‘s finding that Alvarez-Gomez was driving the vehicle while intoxicated….‖ (See page 3, of Appendix A). However, there was sufficient testimony indicating the opposite; in other words, that Petitioner was not driving. Therefore, Petitioner was entitled to Article 38.23 instructions. Furthermore, it was obvious, that the Petitioner was sick.

The Court of Appeals also erred when it erroneously sustained the trial courts denied the Motion to Suppress evidence. The video was obviously testimonial and Petitioner was entitled to suppress the audio. In Crawford v. Washington, 544 U.S. 36, 51 (2004) the Supreme Court was precise in the area of testimonial. For example, pretrial statements that the declarants would reasonably expect to be used prosecutorially are testimonial‖. Ibid.

The Court of Appeals, additionally, focused on some elements that can be easily explained. For example, the Court of Appeals found that Petitioner had ―trouble standing on his own, and the audio indicates his speech is slurred‖. (See page 5 of Appendix A). However, it does not find that even the arresting officer recognized that Petitioner was sick and that Mr. Orozco testified that Petitioner was sick, it was a selective finding by the court.

The Appellate Court committed error by construing the attitude of the trial court as accountable. The trial court erred when it asked permission to the State to grant a new trial. The trial court erroneously asked the State for permission to grant a new trial to the detriment of the Petitioner. (See Appendix A, page 6-7).

13.

The Court of Appeals erroneously focused on the intoxilyzer results; however, it ignored the fact that the procedures leading to the tests were not observed. There is a mandatory waiting period of 15 to 20 minutes in which the defendant is observed. This observation period was not complied with and, as a result, Petitioner‘s rights were violated. This observation period is crucial in situations where in the present case, Petitioner was vomiting and was sick. (See Gifford v. State, 793 S,W, 2d 48(1991)

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that this court grant discretionary review and, after full briefing on the merits, issue an opinion reversing the Court of Appeals‘ judgment and remanding the cause to the trial court for a new trial.

Respectfully submitted, ________//S//______________ Victor M. Valdes, J.D., Ed.D. SBN 20424500 111 Soledad, Suite 300 San Antonio, Texas 78205 Tel. (210) 229-9652 Fax (210) 590-6713 Email:vvaldes@satx.rr.com

14.

CERTIFICATE OF SERVICE

I, Victor M. Valdes, hereby certify, by affixing my signature above, that a true and correct copy of the foregoing Petition for Discretionary Review was emailed to Nathan E. Morey, nathan.morey@bexar.org, Officer to the Bexar County District Attorney. Also, mailed through the U.S. Postal Service to, Lisa McMinn, P.O. Box 13046, Capital Station, Austin, Texas 78711, on this day, May 4th 2015.

___________//S//___________ Victor M. Valdes, J.D., Ed.D SBN 20424500 111 Soledad, Suite 300 San Antonio, Texas 78205 Tel. (210) 229-9652 Fax (210) 590-6713 Email:vvaldes@satx.rr.com

CERTIFICATE OF COMPLIANCE

I, Victor M. Valdes, certify that, pursuant to Texas Rules of Appellate Procedure 9.4(i)(2)(B) and 9.4(i)(3), the above Petition for Discretionary Review contains 3,655 words according to the ―word count‖ feature of Microsoft Office.

Respectfully submitted, _________//S//_____________ Victor M. Valdes, J.D., Ed.D.

15.

APPENDIX A Jorge Alvarez Gomez, Appellant, v. The State of Texas Appellee.

Cause No. 04-14-00198-CR Decision by the Fourth Court of Appeals dated February 11, 2015

APPENDIX B Jorge Alvarez Gomez, Appellant, v. The State of Texas Appellee.

Court of Appeals No. 04-14-00198-CR ORDER denying Appellant‘s Motion for Rehearing and Reconsideration En Banc.

APPENDIX C Jorge Alvarez Gomez, Appellant, v. The State of Texas Appellee.

Cause No. 04-14-00198-CR

Excerpts from the trial courts final hearing pertaining to the negotiation with the District Attorney as to changing of the charge. The trial court believed that the jury had it wrong.

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