Gomez, Jorge Alvarez
PD-0268-15
| Tex. App. | May 6, 2015Background
- Appellant Jorge Alvarez Gomez was convicted by a jury of DWI after an incident in May 2011; he was fined and placed on probation and appealed.
- At the scene the vehicle owner (Orozco) testified the truck stalled, that he had driven and left Alvarez-Gomez in the passenger seat while he retrieved jumper cables, and that Alvarez-Gomez was sick and vomiting.
- The arresting officer testified and video/audio from the stop was admitted; the officer did not administer the HGN and admitted deviations from standardized SFST/NHTSA procedures.
- Defense sought to introduce NHTSA materials and to take judicial notice of proper SFST procedures; the trial court excluded certain materials and told defense counsel on the record "it's not admissible, counsel."
- Defense argued the court’s rulings (judicial-notice denial, trial-court commentary, exclusion of Article 38.23 instruction and NHTSA evidence) deprived Alvarez-Gomez of his right to present a defense; the Fourth Court of Appeals affirmed the conviction and denied rehearing en banc.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial court refused to take judicial notice / cut off defense witness and said "it's not admissible" | Valdes: court’s on-the-record remark and refusal to take judicial notice signaled comment on weight, deprived defense and prejudiced jury | State: trial court properly ruled on admissibility; statement did not constitute an improper comment affecting the verdict | Court of Appeals found no reversible error; conviction affirmed (trial-court remark not held to require reversal) |
| Whether trial judge’s statements were an improper comment on weight of evidence (Art. 38.05) | Valdes: judge’s remark implied disbelief of defense, diminished defense credibility and violated Art. 38.05 and evidentiary rules | State: judge’s rulings concerned admissibility, not a weight-of-evidence commentary that mandates reversal | Court of Appeals rejected appellant’s claim that statements amounted to improper comment requiring reversal |
| Entitlement to Article 38.23 jury instruction (alleged illegal/evidence-obtaining violations) | Valdes: factual conflict (owner vs. officer; failure to observe 15-minute continuous observation before breath test; sickness/vomiting) raised an Article 38.23 issue and required jury charge | State: evidence supported jury finding appellant drove while intoxicated; no fact conflict sufficient to trigger 38.23 instruction | Court of Appeals held appellant was not entitled to Article 38.23 instruction and affirmed conviction |
| Exclusion of NHTSA materials and denial of right to present expert/defense evidence (SFST reliability / Daubert-type gatekeeping) | Valdes: exclusion of NHTSA manual excerpts and refusal to judicially notice standardized procedures prevented meaningful challenge to SFST reliability and deprived compulsory-process rights; trial court failed gatekeeping role | State: evidence and testimony admitted were sufficient; deviations did not render evidence inadmissible; trial court properly exercised discretion | Court of Appeals rejected claims and affirmed; rehearing denied |
Key Cases Cited
- Chambers v. Mississippi, 410 U.S. 284 (1973) (due process/compulsory-process principles where exclusion of critical defense evidence violated rights)
- Crawford v. Washington, 544 U.S. 36 (2004) (framework for testimonial statements and confrontation concerns)
- Stone v. State, 703 S.W.2d 652 (Tex. Crim. App.) (discussing when conflicts in facts require Article 38.23 instruction)
- Gifford v. State, 793 S.W.2d 48 (Tex. App.) (holding refusal to charge on continuous observation before breath test may be reversible when evidence raises the issue)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (trial-court gatekeeping on scientific evidence admissibility)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (application of gatekeeping standard to non-technical expert testimony)