Eric Roel Jimenez v. State
13-13-00066-CR
Tex. App.Feb 25, 2015Background
- Defendant Eric Roel Jimenez was tried by jury for felony DWI; found guilty and sentenced to probation. Appeal filed by appointed counsel Larry Warner after original counsel died.
- State presented three witnesses: two bystanders/accident investigators who did not identify the defendant in court and one officer who arrested and testified the defendant smelled of alcohol, staggered, and refused breath testing.
- No breath or blood alcohol test result was introduced; prosecution emphasized defendant’s refusal to provide a breath sample in closing argument.
- During closing, after the prosecutor argued refusal supported guilt, the trial judge said in the jury’s presence, “I mean, it just tracks the evidence,” prompting defense objection that the judge’s remark impermissibly commented on the weight of the evidence.
- The charge included statutory language defining intoxication as “having an alcohol concentration of 0.08 or more” (omitting the percent sign) and an exception phrase concerning devices “used exclusively on stationary rails or tracks.” The appellant contends the decimal omission and the unproven exception are legally significant.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Jimenez) | Held |
|---|---|---|---|
| 1. Whether judge’s in‑court remark "it just tracks the evidence" was a prohibited comment on weight of the evidence | The prosecutor argued refusal to take breath test is a permissible inference of guilt; judge’s statement merely acknowledged the evidence | Judge’s comment in front of jury approved prosecutor’s argument, conveyed judicial opinion, and was structural/fundamental error requiring reversal | Not decided in this brief — appellant urges reversal/new trial |
| 2. Whether jury charge phrase "alcohol concentration of 0.08 or more" is egregiously erroneous | The statutory text conveys the legal BAC threshold | Omission of percent sign renders definition ambiguous/constitutionally deficient (reads as 8%), a serious legal error requiring reversal | Not decided in this brief — appellant urges reversal/new trial |
| 3. Whether prosecution disproved exception "except a device used exclusively on stationary rails or tracks" when proving "motor vehicle" | State treats jury instruction as the correct statutory formulation; evidence supports operation on public roadway | The exception in the charge was not disproved by the State (no testimony negating that exception); under Malik the lack of proof requires acquittal | Not decided in this brief — appellant asks for acquittal or remand |
| 4. Whether instruction that "a person may be convicted on the testimony of one witness" amounted to improper comment benefiting the State | The instruction is a correct statement of law and not reasonably calculated to prejudice defendant | Given only one identifying/intoxication witness, the instruction emphasized the State’s weak one‑witness case and improperly influenced the jury; error was harmful | Not decided in this brief — appellant urges reversal/new trial |
Key Cases Cited
- Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) (trial judge may not comment on weight of evidence; impermissible remarks can constitute fundamental error)
- Fulminante v. Arizona, 499 U.S. 279 (U.S. 1991) (distinguishes structural error from trial error; lack of a neutral adjudicator is structural)
- Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (legal‑sufficiency review measured against a theoretically correct charge)
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (harmless‑error analysis framework for unobjected‑to jury charge error; subsequently refined by later authority)
- Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988) (addresses harmless‑error principles and waiver in jury‑charge challenges)
- Rosamond v. State, 730 S.W.2d 147 (Tex. App.—Corpus Christi 1987) (appellate reversal where State failed to prove an element/exception)