 NUMBER 13-05-384-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ANGELIQUE TIFFANY HARTMAN,	Appellant,

v.

THE STATE OF TEXAS,	Appellee.

On appeal from the 25th District Court
of Gonzales County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Yañez and Castillo

Opinion by Justice Castillo

 A jury convicted appellant, Angelique Tiffany Hartman, of the felony offense of
driving while intoxicated. (1)  The trial court assessed punishment at ten years'
imprisonment, imposed a $1,000.00 fine, and ordered the sentence suspended to
place Hartman on community supervision for a period of five years.  We affirm.
I.  RELEVANT FACTS
	At approximately 12:30 a.m. on November 30, 2003, Trooper Phillip Gonzales
stopped Hartman after radar detected she was driving eighty-three miles per hour on
an interstate highway.  Trooper Gonzales approached Hartman's  vehicle and detected
a strong odor of alcohol emanating from Hartman and her vehicle.  He observed a
nearly-empty bottle of vodka on the front seat of her vehicle. (2)  Hartman admitted to
Trooper Gonzales that she last consumed a few drinks, "something stronger than
beer," at about 10:30 p.m.  After Hartman failed the standard field sobriety tests,
Trooper Gonzales arrested her for driving while intoxicated.  At trial, Hartman testified
she was not intoxicated.  The videotape of the stop including the field sobriety tests
was admitted in evidence.
II.  POINTS OF ERROR
	By her first, second, and fifth points of error, Hartman asserts that the trial court
erred in admitting (1) evidence of the improperly administered field sobriety tests, (2)
testimony correlating the HGN results with a specific blood-alcohol content ("BAC"),
and (3) proof of the two prior DWI convictions.  By her third point of error, she asserts
that the trial court erred in refusing to take judicial notice of the NHTSA Manual.  In
her fourth point of error, she asserts that the evidence was legally and factually
insufficient.
III.  SUFFICIENCY OF THE EVIDENCE
	By her fourth point of error, Hartman asserts the evidence is legally and factually
insufficient to sustain the conviction.  The State responds that the essential elements
of the offense were proven beyond a reasonable doubt.  Hartman does not challenge
the jurisdictional element as to the two prior driving-while- intoxicated convictions. (3)
The record demonstrates that she stipulated to the two prior intoxication-related
convictions.
A.  Standard of Review
1.  Legal Sufficiency
	When evaluating the legal sufficiency of the evidence, we view the evidence in
the light most favorable to the verdict and determine whether any rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt.
Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).  This standard is meant to give full play to the
jury's responsibility to fairly draw reasonable inferences from basic facts to ultimate
facts.  Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003).  We consider
all the evidence that sustains the conviction, whether properly or improperly admitted.
Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) (citing Garcia v. State,
919 S.W.2d 370, 378 (Tex. Crim. App. 1994) (per curiam)).  The conviction will be
upheld if the evidence is sufficient to support a finding of guilt under any one of the
theories submitted.  Tex. Code Crim. Proc. Ann. art. 37.07 § 1(a) (Vernon Supp.
2005) (verdict must be general); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim.
App. 1991) (en banc).
	The legal sufficiency of the evidence is measured against the elements of the
offense as defined by a hypothetically correct jury charge for the case. (4) Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Swartz v. State, 61 S.W.3d
781, 786 (Tex. App.-Corpus Christi 2001, pet. ref'd).  This standard of legal
sufficiency ensures that a judgment of acquittal is reserved for those situations in
which there is an actual failure in the State's proof of the crime rather than a mere
error in the jury charge submitted.  Malik, 953 S.W.2d at 240; Swartz, 61 S.W.3d at
785.  We then determine if any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.  Jackson, 443 U.S. at 319.
2.  Factual Sufficiency
	In a factual sufficiency review, we view all the evidence in a neutral light, both
for and against the finding, and set aside the verdict if "proof of guilt is so obviously
weak as to undermine confidence in the jury's determination, or the proof of guilt,
although adequate if taken alone, is greatly outweighed by contrary proof."
Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex. Crim. App. 2005) (citing Johnson
v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)); see Zuliani v. State, 97 S.W.3d
589, 593-94 (Tex. Crim. App. 2003).  In determining the factual sufficiency of the
elements of the offense, we view all the evidence neutrally, not through the prism of
"the light most favorable to the prosecution."  Johnson, 23 S.W.3d at 6-7 (citing
Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)).  In conducting our
review, we consider all of the evidence weighed by the jury, comparing the evidence
which tends to prove the existence of the elemental fact in dispute to the evidence
which tends to disprove it.  Id.
	There are two ways in which the evidence may be insufficient.  Zuniga v. State,
144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004).  First, when considered by itself,
evidence supporting the verdict may be too weak to support the finding of guilt beyond
a reasonable doubt.  Id. at 485.  Second, there may be both evidence supporting the
verdict and evidence contrary to the verdict.  Id.  Weighing all the evidence under this
balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not
stand.  Id.  This standard acknowledges that evidence of guilt can 'preponderate' in
favor of conviction but still be insufficient to prove the elements of the crime beyond
a reasonable doubt.  Id.
	We are authorized to disagree with the jury's determination even if probative
evidence exists which supports the verdict, but we must avoid substituting our
judgment for that of the fact-finder.  Santellan v. State, 939 S.W.2d 155, 164 (Tex.
Crim. App. 1997) (en banc).  This Court measures the factual sufficiency of the
evidence against the hypothetically correct jury charge.   See Adi v. State, 94 S.W.3d
124, 131 (Tex. App.-Corpus Christi 2002, pet. ref'd).
B.  The Elements of Felony Driving While Intoxicated
	A person commits the offense of driving while intoxicated if he or she operates
a motor vehicle in a public place without the normal use of mental or physical faculties
due to the introduction of alcohol or other substances into the body.  Tex. Pen. Code
Ann. §§ 49.01(2)(A), 49.04(a) (Vernon 2003).  The corpus delicti of driving while
intoxicated is that someone drove or operated a motor vehicle in a public place while
intoxicated.  Threet v. State, 250 S.W.2d 200, 200 (Tex. Crim. App. 1952).
	If the State can prove a defendant had "previously been convicted two times
of an offense" related to operating a motor vehicle while intoxicated, the driving while
intoxicated offense becomes a felony of the third degree.  See Tex. Pen. Code Ann. §
49.09(b) (Vernon Supp. 2005).  "Intoxicated" means not having the normal use of
mental or physical faculties by reason of the introduction of alcohol, or having an
alcohol concentration of 0.08 or more.  See Tex. Pen. Code Ann. § 49.01(2)(A), (B)
(Vernon 2003).  Thus, a hypothetically correct jury charge as limited by the indictment
would authorize the jury to convict if it determined from the record evidence that
Hartman (1) operated a motor vehicle, (2) in a public place, (3) while intoxicated, (4)
due to the introduction of alcohol into her body, and (5) she was previously convicted
of two driving-while-intoxicated offenses.  Each of these elements must be proved to
sustain a conviction. (5) See Tex. Pen. Code Ann. § 2.01 (Vernon 2003); Malik, 953
S.W.2d at 240; Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001).
	The jury may consider the defendant's refusal to submit to a breath test as
evidence of driving while intoxicated.  See Bright v. State, 865 S.W.2d 135, 137
(Tex. App.-Corpus Christi 1993, pet. ref'd) (citing Finley v. State, 809 S.W.2d 909,
913 (Tex. App.-Houston [14th Dist.] 1991, pet. ref'd)); see also Tex. Transp. Code
Ann. § 724.061 (Vernon 1999) (evidence that defendant refused breath test may be
introduced into evidence at trial).
C.  Legal Sufficiency Analysis
	Hartman's argument on appeal focuses on the claimed unreliability of the results
of the standardized field sobriety tests.  However, the testimony of an officer that a
person is intoxicated provides sufficient evidence to establish the element of
intoxication.  Gruber v. State, 812 S.W.2d 368, 370 (Tex. App.-Corpus Christi 1991,
pet. ref'd) (citing Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979) and
Whisenant v. State, 557 S.W.2d 102, 105 (Tex. Crim. App. 1977)); Little v. State,
853 S.W.2d 179, 183 (Tex. App.-Corpus Christi 1993, no pet.) (the uncorroborated
testimony of an arresting officer alone is sufficient to establish intoxication); Hargrove
v. State, 774 S.W.2d 771, 772 (Tex. App.-Corpus Christi 1989, pet. ref'd)
(testimony of officers sufficient to establish intoxication).  Even so, for purposes of our
legal sufficiency analysis, we review the evidence in the light most favorable to the
verdict.  Escamilla, 143 S.W.3d at 817 (citing Jackson, 443 U.S. at 319).
	Hartman testified in her own defense.  Hartman admitted that she had her last
drink at 10:30 p.m., prior to her arrest.  She and a friend finished a bottle of wine at
Hartman's residence.  Hartman testified she drank two and a half glasses of wine.
Before leaving her residence to travel to San Antonio to visit friends for the weekend,
she placed the one-liter, half-empty bottle of vodka behind the driver's side floorboard
of her vehicle.  Hartman stated she had not eaten the day before her arrest.  Hartman
testified as follows on cross examination:
	Q.  How often do you drink?
	A.  Usually-it depends.  On the weekends sometimes.  This happened to
be a Saturday night.

	Q.  Would you say you drink daily?
	A.  No.
	Q.  On the weekends, most weekends?
	A.  (Moving head up and down).
	Q.  What's your drink of choice?
	A . I tend to drink vodka with grapefruit juice.  I never drink it straight.
	Q.  Usually, how much vodka do you drink on a given weekend?
	A.  I might have a couple on a Saturday night . . . probably [a] six-ounce
tumbler.  Always grapefruit juice.

	Q.  What would two vodkas, six-ounce tumbler glasses do to you?
	A.  Make me feel calmer.
Hartman testified that the effects of drinking wine or vodka depended on whether she
had eaten before consuming either alcoholic beverage.  She stated that, without
eating, she would "feel calmer" after drinking "a glass or two" of wine and she would
also feel calmer after drinking "much more" vodka.  Hartman further testified as
follows:
	Q.  How much vodka would it take, if that's what you were drinking on
a particular day, to get you intoxicated?

	A.  Once again, that would vary.
	Q.   On a day when you had not been eating?
* * *
	A.  Six.
	Q.  What size bottle of that vodka was that that you had in your car?
	A.  I believe it was a liter.
	Q.  How many glasses or drinks of vodka can you make out of a liter?
* * *
	A.  Probably eight to ten.
Hartman testified that the videotape of the scene would show her stumbling because
of the effect of passing traffic, the road surface, the cold weather, and her high-heeled
boots.  On re-direct examination, Hartman testified that eating food delayed the effects
of alcohol on her body.
	The videotape of the events leading to Hartman's arrest shows she was
unsteady on her feet at the scene.  Hartman refused to take the breathalyzer test.
	After the traffic stop, Trooper Gonzales observed that Hartman's eyes were
glassy and bloodshot and she was unbalanced.  He detected a strong odor of alcohol
from Hartman and her vehicle.  Trooper Gonzales testified that Hartman refused to
take the breathalyzer test and, "based on the totality of everything" he observed, he
arrested Hartman for driving while intoxicated.
	Backup Trooper Greg Castillo testified he arrived at the scene during the field
sobriety tests.  He observed Hartman stumble.  He heard Hartman say she had two
drinks earlier.  After Hartman's arrest, Trooper Castillo performed the vehicle
inventory, retrieved a large half-empty bottle vodka from the vehicle, and smelled a
moderate odor of alcohol in the vehicle.  Based on his experience and training and his
observations of Hartman at the scene, Trooper Castillo concluded she was under the
influence of alcohol.
 Viewed in the light most favorable to the verdict, the testimony was sufficient
for a rational trier of fact to have found beyond a reasonable doubt the essential
elements of felony driving while intoxicated.  Hartman admitted she drank two and a
half glasses of wine before driving.  She also admitted she drank vodka on weekends
and the arrest occurred on a weekend.  She refused to take the breathalyzer test.
Both troopers at the scene observed physical manifestations of intoxication.  We
conclude the evidence was legally sufficient to prove the essential elements of the
offense of felony driving while intoxicated.  See Escamilla, 143 S.W.3d at 817 (citing
Jackson, 443 U.S. at 319).
D.  Factual Sufficiency Analysis
	Hartman focuses her argument on appeal on the intoxication element of the
offense.  For purposes of our factual sufficiency analysis, we consider the evidence
we have reviewed above and contrary evidence.  See Zuliani, 97 S.W.3d at 593-94;
Zuniga, 144 S.W.3d at 484-85.
 Hartman disputes that she was intoxicated.  She acknowledges the factors
Trooper Gonzales relied upon to conclude she was intoxicated, including (1) a strong
odor of alcohol, (2) bloodshot eyes, (3) the bottle of vodka in the car, and (4) her
unsteady balance.  However, she asserts that contrary evidence renders the factors
insufficient to prove intoxication.
	To explain the condition of her eyes, Hartman points to her testimony of the
breakup of a long-term relationship that led to her crying the day before her arrest.
Similarly, to explain her unsteady balance, she points to testimony and videotape
evidence of the five-inch-heeled boots she wore when stopped, uneven road
conditions, and strong wind.  Importantly, Hartman does not address the evidence of
the strong odor of alcohol nor her admission, both at the scene and at trial, that she
drank half a bottle of wine before driving.  Further, she does not address that she
drank vodka on weekends and possessed a half-empty  bottle of vodka in her vehicle.
	Hartman testified that she had been very upset the day before her arrest after
breaking up with her fiancé.  She indicated that she had been crying.  Although she
acknowledged that she had consumed alcohol earlier that evening on an empty
stomach, she stated the wine calmed her.  Hartman also testified that she was
wearing five- inch high-heeled shoes and that the wind was blowing her slight frame
as the vehicles passed on the highway.  However, the videotape shows her leaning
noticeably forward while being questioned by the trooper.  The videotape also shows
the light sweater Hartman wore did not blow in the wind to the extent she described
at trial.  Likewise, her unbalanced stance did not change when the wind blew the
sweater.  Her swaying and trembling were marked on the videotape even when the
wind was not blowing.
	At trial, the State offered and the trial court admitted the shoes Hartman wore
on the day she testified.  The record demonstrates that the height of the heels
Hartman wore at trial was equal to or similar to that of the heels she wore when
arrested.  Thus, the jury observed that Hartman wore shoes ostensibly with the same
heel height and, by its verdict, determined they did not affect her balance.  Similarly,
by its verdict, the jury rejected Hartman's claim of innocence.
	That the evidence of guilt was not free of contradiction and that the credibility
of witnesses may have been subject to question does not require us to conclude that
the verdict was factually insupportable.  See Zuliani, 97 S.W.3d at 593-94.  Those
circumstances merely create issues for the jury to resolve.  Id.  The jury is the
exclusive judge of the credibility of the witnesses and of the weight to be given their
testimony.  Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981), art. 38.04 (Vernon
1979).  We will not reverse unless (1) the evidence of Hartman's guilt, taken alone,
is too weak to support the finding of guilt beyond a reasonable doubt or (2) the
contrary evidence is so strong that the standard of proof beyond a reasonable doubt
could not have been met.  Zuniga, 144 S.W.3d at 484-85.
	Viewing the relevant evidence in a neutral light, favoring neither the prosecution
nor the defense, and with appropriate deference to the jury's credibility determinations,
we conclude that the evidence supporting the verdict is not too weak to support the
jury's finding of guilt beyond a reasonable doubt.  Nor is the weight of the evidence
contrary to the verdict strong enough that the State could not have met its burden of
proof.  Id.  We conclude that the evidence is factually sufficient to support the verdict.
E.  Disposition
	Because we find the evidence legally and factually sufficient to prove that
Hartman operated a motor vehicle on a public roadway while intoxicated due to the
introduction of alcohol into her body, and that she was previously convicted of two
driving while intoxicated offenses, we overrule Hartman's fourth point of error.
IV.  ADMISSION OF EVIDENCE
	By her first, second, and fifth points of error, Hartman challenges the trial
court's rulings admitting evidence of the field sobriety tests, Trooper Gonzales's
testimony as to the BAC, and the jurisdictional convictions.  The State responds that
the trial court ruled properly.
A.  Standards of Review
1.  Abuse of Discretion
 A trial court's admission or exclusion of evidence is reviewed under an abuse
of discretion standard.  Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002);
Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001); Morris v. State, 89
S.W.3d 146, 151(Tex. App.-Corpus Christi, no pet.).  An abuse of discretion occurs
when the trial court acts arbitrarily or unreasonably, without reference to guiding rules
or principles.  Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990)
(en banc) (op. on reh'g).  In other words, an abuse of discretion occurs only when the
trial court's decision is so wrong as to lie outside that zone within which reasonable
persons might disagree.  Id. at 380.  A trial court has a "limited right to be wrong."
Id.  Our inquiry on appeal is whether the result was reached in an arbitrary or
capricious manner.  Id.  Therefore, we uphold a trial court's evidentiary ruling if it is
reasonably supported by the record and is correct under any theory of law applicable
to the case.  State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000) (en
banc); Jones v. State, 833 S.W.2d 118, 125 n.15 (Tex. Crim. App. 1992) (en banc).
We do not reverse a trial court's evidentiary ruling on a theory of admissibility or
inadmissibility not raised at trial.  Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim.
App. 2002).
2.  Preservation of Error
	The complaining party must make a specific objection and obtain a ruling on the
objection.  Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).  The record
must show that the complaining party gave the trial court an opportunity to rule on the
complaint by presenting that complaint to the trial court in a specific and timely
objection.  Tex. R. App. P. 33.1(a); (6) Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim.
App. 2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003);
Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (en banc).  Further,
making the trial court aware of the complaint requires that both the grounds and what
is being objected to be apparent.  See Hernandez v. State, 599 S.W.2d 614, 617
(Tex. Crim. App. 1980) (en banc) (op. on reh'g).
3.  Harm
	Even assuming that the trial court abused its discretion in admitting evidence of
the two prior convictions during the guilt-innocence phase of the trial, Hartman is not
entitled to reversal unless she shows that the error was: (1) of constitutional
magnitude; or (2) affected a substantial right.  See Tex. R. App. P. 44.2(a), (b).  A
violation of rules of evidence that results in erroneous admission of evidence is non-constitutional error.  Couchman v. State, 3 S.W.3d 155, 160 (Tex. App.-Fort Worth
1999, pet. ref'd).  Under the harmless error standard for non-constitutional error, we
must disregard any error that does not affect a substantial right.  Tex. R. App. P.
44.2(b).  A substantial right is affected when the error had a substantial and injurious
effect or influence in determining the jury's verdict.  King v. State, 953 S.W.2d 266,
271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776,
(1946)).  However, if the error had no or only a slight influence on the verdict, the
error is harmless.  Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
B.  The Field Sobriety Test Results
	By her first point of error, Hartman asserts that the results of the horizontal gaze
nystagmus ("HGN"), one-leg stand, and walk-and-turn field sobriety tests were
inadmissible and, thus, unreliable because Trooper Gonzales improperly administered
them. (7)  In a sub-issue, Hartman asserts that the trial court improperly denied her
motion to suppress testimony of the HGN test result.  The State responds that Trooper
Gonzales's testimony concerning the tests was properly admitted.
1.  The HGN Test Results
	In determining whether a driver is intoxicated, a law enforcement officer with
reason to suspect intoxication may conduct a series of field sobriety tests to aid in
making arrest decisions.  See Compton v. State, 120 S.W.3d 375, 376 (Tex.
App.-Texarkana 2003, pet. ref'd).  Satisfactory performance of the tests suggests
sobriety, while poor performance can serve as a useful indicator of impairment.  Id.
Both the underlying theory and the technique employed in administering the HGN test
make it a sufficiently reliable indicator of intoxication.  Id. at 377 (citing Emerson v.
State, 880 S.W.2d 759, 763, 768-69 (Tex. Crim. App. 1994)).  For testimony
concerning a defendant's performance on the HGN test to be admissible, it must be
shown that the witness testifying is qualified as an expert on the HGN test, specifically
concerning its administration and technique.  Emerson, 880 S.W.2d at 769.  In the
case of a law enforcement official, this requirement will be satisfied by proof that the
officer has received practitioner certification by the State of Texas to administer the
HGN.  Id.  A witness qualified as an expert on the administration and technique of the
HGN test may testify concerning a defendant's performance on the HGN test, but may
not correlate the defendant's performance on the HGN test to a precise BAC.  Id.
	In this case, Hartman maintains that Trooper Gonzales deviated from the
standard for administering the HGN by conducting it while Hartman faced vehicular
lights and that the result was rendered unreliable and, thus, inadmissible.  Trooper
Gonzales testified that Hartman faced traffic when he conducted the HGN test and she
failed the test.  He acknowledged that he did not have Hartman turn away from the
oncoming traffic when administering the test, but he was able to determine the
indicator of intoxication-involuntary jerking of the eyes-even when there was no
oncoming traffic. (8)  The State maintains that any variations in the administration of the
test does not render the evidence inadmissible or unreliable but, rather, implicates
weight and not admissibility of the evidence.
	Although sobriety tests, when administered under ideal conditions, will generally
serve as valid and useful indicators of impairment, slight variations from the ideal may
have some effect on the evidentiary weight given to the results.  Compton, 120
S.W.3d at 378.  The accuracy of the HGN test has been estimated at various levels,
depending on such factors as testing conditions and the ability and experience of those
conducting the test, thus taking into account that the test will not be administered in
strict conformity with an officer's training every time it is performed.  Id.
Consequently, any variation in administering the tests, no matter how slight, does not
automatically undermine the admissibility of an individual's poor performance of the
tests.  See id.
	Even assuming Trooper Gonzales deviated from the standard for administering
the HGN test by allowing Hartman to face traffic while performing the test, we
conclude that Hartman has not demonstrated harm.  She does not challenge Trooper
Gonzales's competency to administer and interpret the HGN test.  Trooper Gonzales
was qualified as an expert to testify regarding the test results.  He testified that the
test result was one of many circumstances that led him to conclude she was
intoxicated.  Thus, the record shows he used the HGN test results to corroborate his
opinion that Hartman was intoxicated.  Further, Hartman admitted to Trooper Gonzales
and to the jury that she consumed an alcoholic beverage before driving.  Accordingly,
as to the HGN test, we conclude that Hartman has not shown reversible error.  Tex.
R. App. P. 44.2(b); Johnson, 967 S.W.2d at 417; Morris, 89 S.W.3d at 151 ("[I]f
there was error, we conclude it was harmless because the jury was presented with
other evidence sufficient to support the jury's finding of intoxication.").
2.  The Walk-and-Turn and One-Leg Stand Test Results
	Hartman asserts that these tests were rendered unreliable and, thus,
inadmissible because Hartman did not remove her high-heeled shoes in accordance
with performance standards.  The State points to evidence of Hartman's high-heeled
shoes at trial and the jury's opportunity to determine whether the heel height affected
the weight to be given the tests.
	Hartman did not complain either in the motion to suppress or raise a specific
objection and obtain a ruling on the objection when the evidence was offered at trial.
At the beginning of the suppression hearing, Hartman specifically limited her motion
to the HGN test.  We conclude that Hartman forfeited error.  See Tex. R. App. P.
33.1(a); Wilson, 71 S.W.3d at 349; Morris, 89 S.W.3d at 150.
	Even assuming Hartman preserved error, we have already concluded the
evidence was legally and factually sufficient to prove the essential element of
intoxication.  We did so by excluding evidence of the standard field sobriety test
results and including evidence of Hartman's shoes at trial.  Thus, assuming without
deciding that deviation from standards for performing the walk-and-turn and one-leg
stand occurred because Hartman wore high-heeled boots while performing them, we
disregard the error because it does not affect a substantial right.  See Tex. R. App. P.
44.2(b); King, 953 S.W.2d at 271.
3.  Disposition
	Because Hartman has not shown reversible error, we overrule her first point of
error.  See Tex. R. App. P. 44.2(b).
C.  Testimony Correlating HGN to a Specific BAC
	In her second point of error, Hartman asserts that the trial court erred in
admitting the testimony of Trooper Gonzales correlating results of the HGN test with
the .08 blood-alcohol concentration, a component of intoxication.  See Tex. Pen. Code
Ann. § 49.01(2)(A), (B) (Vernon 2003).  The State counters that the trial court did not
admit testimony correlating the HGN results to a BAC and that, even if the testimony
admitted was correlating testimony, its admission was harmless error.
	The HGN technique is not a reliable indicator of precise BAC.  See Emerson, 880
S.W.2d at 769.  A witness may not use the HGN evidence to quantify the defendant's
BAC.  Id.
	Trooper Gonzalez testified during direct examination as follows:
	Q.  Based on your training and experience, do you have an opinion as to
whether the defendant's blood alcohol level concentration was above or
below .08?

	A.  Be above.

Defense counsel objected on the same ground asserted on appeal and the trial court
overruled the objection.  Hartman complains of and points to other inadmissible
testimony as to BAC.  However, because she did not present the latter complaint to
the trial court, she has forfeited error.  Tex. R. App. P. 33.1; Lankston, 827 S.W.2d at
909.
	We observe that our legal and factual sufficiency review did not incorporate the
complained-of testimony.  We further observe that Hartman does not address harm.
Even assuming that Trooper Gonzales quantified Hartman's exact BAC based on her
performance on the HGN test, we conclude, in the light most favorable to Hartman,
that the trial court's admission of the testimony "had but a slight effect" on the jury's
verdict and the ruling was, thus, harmless.  Johnson, 967 S.W.2d at 417.
	Accordingly, we overrule Hartman's second point of error.
D.  Denial of Judicial Notice of the NHTSA Manual
	In her third point of error, Hartman maintains that the trial court erred in refusing
to take judicial notice of the National Highway Transportation and Safety
Adminstration ("NHTSA") Manual.  She argues that the trial court had a mandatory
responsibility to take judicial notice to ensure that the HGN technique was applied
according to the manual.  The State counters that the trial court's refusal to take
judicial notice of the instructor's manual was within the zone of reasonable
disagreement and thus not error.
	Judicial notice of adjudicative facts is controlled by Texas Rule of Evidence 201.
See Tex. R. Evid. 201(b).  Rule 201states that a judicially noticed fact must be one not
subject to reasonable dispute in that it is either (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.
Id.  Rule 201 further states that a court shall take judicial notice if requested by a party
and supplied with the necessary information.  Tex. R. Evid. 201(d).
	In this case, defense counsel requested the trial court take judicial notice of "an
instructor's manual which sets up the standardized field sobriety tests as administered
by the [NHTSA] and recognized by the Texas Court of Criminal Appeals [in accord with
Emerson, 880 S.W.2d at 766]."  Prior to the request, defense counsel attempted to
adduce evidence from Trooper Gonzales as to the testing requirements, but the trooper
did not recognize the instructor's manual as to standard field sobriety testing.  Before
defense counsel requested the trial court take judicial notice, Trooper Gonzales
testified as follows during cross examination:
	Q.  I want to show you this book and ask you if you've seen it before?
	A.  Yes, sir, I saw it yesterday.
	Q.  Right.  I'm going to go ahead and give this to you and help you open it to
a page.  Go ahead and open it.

	A.  Yes, sir.
	Q.  This book is also the authentic book that they use to teach the officers; is
that correct?

	A.  I guess so.  It says, Instructor.  I'm not an instructor, so I never see their
book.

	Q.  They hide the answers, don't they?
	A.  Yes, sir.
	Q.  Would you read this?
	A.  Optocokinetic?
	Q.  Yes.
	[Prosecutor]:  Your Honor, I'm going to object to him reading out loud
from a book that is not in evidence, also a book that he says he's not the
instructor, he's never seen this book, he doesn't know this as an
instructor's book, only that that is the title on it.

	[Defense counsel]:  Judge, this is a learned treatise, and an expert
witness will be quizzed upon a learned treatise.

	[Prosecutor]:  Only if he recognizes it as being-

	The Court:  Only if he recognizes it, [Defense Counsel].  Objection is
sustained.

	[Defense counsel]:  Your Honor, would you take judicial notice of this
instructor's manual which sets up the standardized field sobriety tests as
administered by [the] National Highway Transportation and Safety
Administration and recognized by the Texas Court of Criminal Appeals?

	[Prosecutor]:  Your Honor, I'm not sure that book is recognized by the
Court of Appeals.  The Court the Appeals will recognize that the tests,
the HGN, the One-Leg Stand, and the Walk-and-Turn, are certified tests.
The fact whether or not they recognize a book and all the contents in it,
I disagree with you.

	[Defense counsel]:  In Emerson v. State, the Texas Court of Criminal
Appeals took judicial notice of all the materials involved which were
submitted to the Court.

	[Prosecutor]:  We don't know what materials those were in that particular
case.

	The Court:  I've never seen the book, [defense counsel].

	Defense counsel:  Okay.

	The record shows no further discussion or questioning regarding the manual, its
contents, or its admission in evidence.  Hartman directs our attention to the appendix
of her appellate brief which contains a "DWI Detection and Standardized Field Sobriety
Testing Student Manual [NHTSA]."
	Hartman does not complain, nor is it apparent from the context, that Hartman
attempted to obtain a final ruling on the request for judicial notice of the NHTSA
instructor's manual, which is not part of the appellate record.  Even so, the trial court
implicitly denied the request to take judicial notice of the NHTSA instructor's manual.
See Tex. R. App. P. 33.1(a)(2)(A); Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim.
App. 2005) (stating that the issue is not whether the trial court's ruling is legally
"correct" in every sense but whether the complaining party on appeal brought to the
trial court's attention the very complaint that party is now making on appeal).
	In this case, we are unable to consider the student manual Hartman appends to
her appellate brief because appellate courts cannot consider items which are not part
of the record from the trial court.  See Tex. R. App. P. 33.2, 38.1(j); Ramirez v. State,
104 S.W.3d 549, 551 n. 9 (Tex. Crim. App. 2003) (en banc) (appellate record cannot
be supplemented with evidence not introduced during trial); Rasberry v. State, 535
S.W.2d 871, 873 (Tex. Crim. App. 1976) (documents attached to a pro se brief are
not part of the record and cannot be considered); Gabriel v. State, 973 S.W.2d 715,
719 (Tex. App.-Waco 1998, no pet.) (letter attached to appellate brief not part of
record).  Absent the proffered exhibit in question, on this record, we cannot conclude
the trial court abused its discretion by refusing to take judicial notice of the NHTSA
instructor's manual.  Montgomery, 810 S.W.2d at 391.
	Further,  Hartman requested the trial court take judicial notice of the instructor's
manual but on appeal argues that Emerson authorizes judicial notice of the "DWI
Detection manual published by the NHTSA."  See Emerson, 880 S.W.2d at 768.  Rule
201 states that a court shall take judicial notice if requested by a party and supplied
with the necessary information.  Tex. R. Evid. 201(d).  We cannot conclude that the
trial court was bound by rule 201 to take judicial notice of the instructor's manual
while Hartman attempts to rely on the student manual on appeal.  See Reyna, 168
S.W.3d at 177.
	Further still, if the objection made in the trial court differs from the complaint
made on appeal, a defendant has not preserved any error for review.  Thomas v. State,
723 S.W.2d 696, 700 (Tex. Crim. App. 1986) (en banc); Morris 89 S.W.3d at 151.
Because Hartman requested the trial court take judicial notice of the instructor's
manual but not the student manual she complains of on appeal, she forfeited error.
See Reyna, 168 S.W.3d at 177.  On the same basis, she forfeited error because her
complaint on appeal differs from the complaint at trial.   Thomas, 723 S.W.2d at 700.
Further, Hartman has forfeited error because the student manual attached to her
appellate brief is not evidence.  See Rasberry, 535 S.W.2d at 873.
	Accordingly, we overrule Hartman's third point of error.
E.  The Prior Convictions
	In her fifth point of error, Hartman asserts that the trial court erred in admitting
as State's exhibits 2 and 3 the certified judgments of the two prior convictions, even
though she had stipulated to both convictions.  The State responds that Hartman did
not preserve error.
	At the beginning of the trial, the prosecutor offered and the trial court admitted
in evidence as State's exhibit 1 the parties' stipulation as to the two prior DWI
convictions alleged in the indictment, without objection.  Hartman stipulated as to two
prior driving-while-intoxicated (DWI) convictions which elevated the charged offense
to a felony under section 49.09(b) of the Texas Penal Code.  Tex. Pen. Code Ann. §§
49.01(2)(A), 49.04(a) (Vernon 2003), § 49.09(b) (Vernon Supp. 2005).  The exhibit
demonstrates Hartman's consent to the stipulation and to the trial court's jurisdiction.
The State then offered and the trial court admitted, without objection, the complained-of exhibits 2 and 3.
	Essentially, Hartman asserts she was harmed because the evidence permitted
the jury to improperly focus on the previous convictions.  However, prior to the State's
calling its first witness, the priors and their certified packets were admitted in evidence
without objection.  Because Hartman did not object, she forfeited error.  Tex. R. App.
P. 33.1(a); Wilson, 71 S.W.3d at 349.  Even assuming she preserved error, Hartman
confessed to the two prior convictions.  Thus, she lost the ability to complain and
forfeited any error as to the use of those convictions in the culpability phase of the
trial.  See Smith v. State, 158 S.W.3d 463, 465 n.14 (Tex. Crim. App. 2005) (en
banc) (stipulating to the priors to avoid the introduction of damaging evidence arguably
rises to the level of estoppel when it comes to challenging the legitimacy of using
those priors); Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002) (en banc)
(erroneous evidentiary rulings rarely rise to the level of denying the fundamental
constitutional rights to present a meaningful defense).  Further, because she stipulated
to the complained-of evidence, Hartman cannot complain of invited error.  See
Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (the law of invited error
estops a party from making an appellate error of an action it induced).
	Accordingly, we overrule Hartman's fifth point of error.
VI.  CONCLUSION
	Because we overrule all five  points of error Hartman raises on appeal,  we
affirm the trial court's judgment.

								ERRLINDA CASTILLO
								Justice
Publish
Tex. R. App. P. 47.2(b).

Opinion delivered and filed
this 3rd day of August, 2006.
1.  The indictment alleged that, on or about November 30, 2004, Hartman operated a motor
vehicle in a public place while intoxicated, by not having the normal use of mental or physical faculties
by reason of alcohol.  The indictment alleged two jurisdictional prior convictions for the purpose of
enhancement (occurring on August 27, 1996, and December 15, 1998).
2.  Trooper Gonzalez testified that Hartman was one of two drivers he stopped at the same time
for speeding at over eighty miles an hour.  After he made initial contact with Hartman and observed the
bottle of vodka in the front seat, he proceeded to ticket the driver of the second vehicle.  He testified
that when he returned to Hartman, he observed the vodka bottle was moved to the rear floorboard.
3.  There are three grades of the offense of driving while intoxicated.  The difference between the
grades is set by the number of prior convictions for certain intoxication-related offenses.  The offense
of driving while intoxicated, without any alleged prior intoxication-related convictions, is a Class B
misdemeanor.  Tex. Pen. Code Ann. § 49.04(b) & (c) (Vernon 2003).  If the State can prove a defendant
had previously been convicted of one offense related to operating a motor vehicle, aircraft or watercraft
while intoxicated, the driving while intoxicated offense becomes a Class A misdemeanor.  Tex. Pen. Code
Ann. § 49.09(a) (Vernon Supp. 2005).  If the State can prove a defendant had "previously been
convicted two times of an offense" related to operating a motor vehicle, aircraft or watercraft while
intoxicated, the driving while intoxicated offense becomes a felony of the third degree.  Tex. Pen. Code
Ann. § 49.09(b) (Vernon Supp. 2005).  The prior intoxication-related offenses, whether they are felonies
or misdemeanors, serve the purpose of establishing whether the instant offense qualifies as felony
driving while intoxicated.  Gibson v. State, 995 S.W.2d 693, 695-96 (Tex. Crim. App. 1999).  The prior
intoxication-related offenses are elements of the offense of driving while intoxicated.  Id. at 696.  They
define the offense as a felony and are admitted into evidence as part of the State's proof of its
case-in-chief during the guilt-innocence stage of the trial.  Id.
4.  A hypothetically correct jury charge would not simply quote from the controlling statute.
Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001).  Its scope is limited by "the statutory
elements of the offense . . . as modified by the charging instrument."  Fuller v. State, 73 S.W.3d 250,
254 (Tex. Crim. App. 2002) (Keller, P.J., concurring) (quoting Curry v. State, 30 S.W.3d 394, 404
(Tex. Crim. App. 2000)).
5.  See note 4.
6.  As a prerequisite to presenting a complaint for appellate review, the record must show that:

(1) the complaint was made to the trial court by a timely request, objection, or motion
that:

	(A) stated the grounds for the ruling that the complaining party sought
from the trial court with sufficient specificity to make the trial court
aware of the complaint, unless the specific grounds were apparent from
the context; and

	(B) complied with the requirements of the Texas Rules of Civil or
Criminal Evidence or the Texas Rules of Civil or Appellate Procedure;
and

	(2) the trial court:

		(A) ruled on the request, objection, or motion, either expressly or
implicitly; or

		(B) refused to rule on the request, objection, or motion, and the
complaining party objected to the refusal.

Tex. R. App. P. 33.1(a)(1).
7.  In her pretrial motion to suppress, Hartman's principal argument against allowing the results
of the HGN test to be introduced into evidence was that Trooper Gonzales incorrectly performed the
HGN test without specifying the claimed deficiency.
8.  A motion to suppress evidence is nothing more than a specialized objection to the admissibility
of evidence.  Galitz v. State, 617 S.W.2d 949, 952 (Tex. Crim. App. 1981) (en banc); Wilson v. State,
857 S.W.2d 90, 94 (Tex. App.-Corpus Christi 1993, pet. ref'd).  Trooper Gonzales testified at the
pretrial suppression hearing.  We are authorized to consider evidence adduced at that hearing.  See
Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996) (en banc) (holding that, where the
parties re-litigate the suppression issue during the trial on the merits, the relevant testimony is
appropriate in our review).


               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of--                                  )
                                             )
Washington Star Construction Company         )      ASBCA No. 60644
                                             )
Under Contract No. W9 IJA4-12-C-7131         )

APPEARANCE FOR THE APPELLANT:                       Mr. Jaweed Alami
                                                     Managing Director

APPEARANCES FOR THE GOVERNMENT:                     Raymond M. Saunders, Esq.
                                                     Army Chief Trial Attorney
                                                    MAJ Deidre K. Baker, JA
                                                     Trial Attorney

 OPINION BY ADMINISTRATIVE JUDGE PEACOCK ON THE GOVERNMENT'S
           MOTION TO DISMISS FOR LACK OF JURISDICTION

       The government moves to dismiss this appeal for lack of jurisdiction, arguing that
no "cognizable" claim was submitted to a contracting officer (CO) pursuant to the
Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109, prior to the filing of the
appeal. We grant the motion.

        STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

       1. On 5 July 2012, the government awarded Contract No. W91JA4-12-C-7131
(contract), in the amount of $1,897,160.17, to Washington Star Construction Company
(appellant) to construct buildings and provide upgrades for an Afghan National Police
(ANP) District building and Central Unit Headquarters in Kabul Province in Afghanistan
(R4, tab 1 at 1-3). The Notice to Proceed was issued on 14 July 2012 (R4, tab 2).

       2. By invoice dated 6 November 2012, appellant requested payment in the amount
of Afghani (AFN) 46,089,930 for completion of 50% of the project (R4, tab 3). The
requested amount was paid to appellant by voucher dated 30 November 2012 (R4, tab 4).

       3. Modification No. POOOOl, effective 27 April 2013, added T-Walls, a guard
tower and upgrades on the project, and increased the price of the contract by $56,950.17
(R4, tab 5 at 1).

       4. By correspondence dated 22 July 2013, appellant submitted an invoice to the
government for AFN 23,044,965 for payment marking the completion of75% of the
project (R4, tab 8), and by voucher dated 16 August 2013, the government paid appellant
the invoice amount (R4, tab 10). In correspondence dated 4 November 2013, appellant
submitted an invoice described as "Final Payment" for AFN 25,831,477.58 which also
included the following:

               Release of Claims: Know all men by these present[], in
               consideration of the premise [sic] and sum of AFN
               94,966,372.58 of which AFN 69,134,895.00 has been paid,
               and a balance due of AFN 25,831,477.58 is to be paid by the
               United Sates Government under the above noted contract, the
               undersigned contractor does release and discharge the
               Government, its officers, agents and employees, of and from
               all liabilities, obligations and claims whatsoever in law and
               equity arising out of or by virtue of said contract, except
               specified claims in stated amounts, or in estimated amounts
               when the amounts are not susceptible of exact statement by
               the contractor, as follows: None.

(R4, tab 14)

       5. By voucher dated 30 December 2013, the government made a payment of
AFN 25,831,477.58 to appellant (R4, tab 15). A contract completion statement
(DD 1594) was signed 7 January 2014, reflecting a completion date of 4 November 2013
(R4, tab 16).

       6. On 24 June 2016, appellant emailed its notice of appeal to the Board,
requesting processing by the Board of its attached letter indicating it had provided a quote
of $142,000 for extra work on the contract and had been told a modification would be
issued adding $144,000 to the contract. Appellant contends it performed the extra work
but never received a modification. The Board docketed the matter as ASBCA No. 60644.
By email dated 28 June 2016, appellant submitted the same document again, and it was
accepted as appellant's complaint.

        7. On 9 August 2016, the government moved to dismiss the appeal for lack of
jurisdiction, asserting that the Board lacks jurisdiction because appellant never submitted
a claim in a sum certain to the CO. The government included the name and email of the
CO in a footnote in its motion (gov't mot. at 5 n.1 ). By email dated 11 August 2016, the
government again provided the CO's name and email address to appellant (Bd. corr. file).

       8. Appellant responded to the government's motion by correspondence dated
16 August 2016, titled, "Objection motion to dismiss ASBCA: 60644." Appellant stated,
"our company was waiting for the modification and add amount of the $144,000 on the
contract, we are still waiting, therefore, it was the contracting officer mistake not send the
modification." (Syntax in original)

                                              2
        9. On 6 October 2016, the Board received an email sent from appellant to the CO,
copying the Board and government counsel, attaching what was titled, "Certified Claim
for ASBCA: 60644." This submission repeated the same language regarding appellant's
quote of $142,000, the promise of $144,000, and the CO's failure to provide a
modification after it had performed the work. This document also included a claim
certification.
                                       DECISION

        The CDA states, "Each claim by a contractor against the Federal Government
relating to a contract shall be submitted to the contracting officer for a decision."
41 U.S.C. § 7103(a)(l). The Board's jurisdiction depends on the submission of a
claim to the CO, followed by a written CO's final decision or a "deemed denial" of
the claim. Where the claim is greater than $100,000, it must also be certified in
accordance with the CDA to be considered a claim. 41 U.S.C. § 7103(b ); FAR 2.101;
Bizhan Niazi Logistic Services Company, ASBCA No. 59205, 14-1 BCA ii 35,703 at
174,827 (citing Taj Al Safa Company, ASBCA No. 58394, 13 BCA ii 35,278 at 173,158).

        Appellant, as the proponent of the Board's jurisdiction, must establish
that it submitted a written claim for payment to the CO prior to filing this appeal.
United Healthcare Partners, Inc., ASBCA No. 58123, 13 BCA ii 35,277 at 173,156.
Although the CDA does not define the term "claim," it is defined at Federal Acquisition
Regulation (FAR) 2.101:

                     Claim means a written demand or written assertion by
             one of the contracting parties seeking, as a matter of right, the
             payment of money in a sum certain, the adjustment or
             interpretation of contract terms, or other relief arising under
             or relating to the contract.. .. A voucher, invoice, or other
             routine request for payment that is not in dispute when
             submitted is not a claim. The submission may be converted
             to a claim, by written notice to the contracting officer as
             provided in 3 3 .206( a), if it is disputed as to liability or
             amount or is not acted upon in a reasonable time.

       There is no requirement that a "claim" be submitted in any particular form or with
any particular words, but it must be in writing and provided to a CO, with "clear and
unequivocal statement[s] that gives the [CO] adequate notice of the basis and amount of
the claim." Contract Cleaning Maintenance, Inc. v. United States, 811 F.2d 586, 592
(Fed. Cir. 1987).

                                             3
       There is no evidence in the record indicating that appellant submitted a claim to
the CO before filing this appeal on 24 June 2016. Appellant has failed to meet its burden
to establish the Board's jurisdiction, and therefore the appeal must be dismissed.*

                                     CONCLUSION

        The government's motion is granted. This appeal is dismissed without prejudice
to a timely appeal from the CO's denial, or deemed denial, of the contractor's 6 October
2016 claim in accordance with 41 U.S.C. § 7104.

       Dated: 8 November 2016

                                                     Administrative Judge
                                                     Armed Services Board
                                                     of Contract Appeals

 I concur                                            I concur

/~~~~~
 Administrative Judge
                                                     RJCHARDSHACKLEFORD
                                                     Administrative Judge
 Acting Chairman                                     Vice Chairman
 Armed Services Board                                Armed Services Board
 of Contract Appeals                                 of Contract Appeals

• It appears appellant submitted a claim to the CO on 6 October 2016, subsequent to the
        filing of this appeal (SOF ,-r 9), but that filing is of no significance in this appeal.
        Under 41 U.S.C. § 7103(f)(2), the CO is required to issue a decision on any
        submitted claim of more than $100,000 within 60 days of receipt or notify the
        contractor of the time within which a decision will be issued. If appellant
        disagrees with the CO's decision, it has 90 days from the date of receipt of the
        decision to appeal to this Board. 41 U.S.C. § 7104(a). Alternatively, it has
        12 months from receipt of the CO decision to bring an action in the United States
        Court of Federal Claims. 41 U.S.C. § 7104(b)(l), (3). Should the CO fail to issue
        a decision within the required time period, 41 U.S.C. § 7103(f)(5) authorizes the
        contractor to appeal to the Board or bring an action in the court on a "deemed"
        denied basis.

                                               4
      I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 60644, Appeal of
Washington Star Construction Company, rendered in conformance with the Board's
Charter.

      Dated:

                                                 JEFFREY D. GARDIN
                                                 Recorder, Armed Services
                                                 Board of Contract Appeals

                                            5


Honorable James E. Barlow       Opinion No. (C-612)
Criminal District Attorney
Bexar County                    Re: Whether paragraph'(b
San Antonio, Texas                of Article 53.07 V.CX. .
                                  becomes void and Imperative
                                  due to the holding in AG
                                  Opinion C-497 that para-
                                  graphs (a) and (d) are void,
                                  being in conflict with Sec.
                                  61 of Article XVI of the
                                  Texas Constitutionand re-        . ..
Dear Mr. Barlow:                  lated question.
     In an opinion request of this office you ask our
opinion on two (2) questions InvolvingArticle 53.03,  Code
of Criminal Procedure of Texas, 1966. The two questions ,
you pose are as follows:
          I'l. Does paragraph (b of Article 53.07,  CCP-
               become. void and noperatlve due to your
               holding in Attorne General Opinion C-497
               that paragraphs     and (d) are void, being
               in conflict with Section 61 of Article XVI
               of the Texas Constitution?
          “2.   If paragraph (b) of Article 53.07, CCP is
                sustained, what is the extent of its coverage?"
       As you point out in your requist, Article 53.07, Vernon’s
Code of Criminal Procedure which became effective January 1,
1966,   purported to make it mandatory that all Justices of
the Peace in Texss be compensatedon a salary rather than
a fee basis. On August 31, 1965,     in Opinion No. C-497, this
office   held unconstitutionalSections (a) and (d) aof Article
53.07    which two sections in effect set out that after Janwy
1, 1966,   all of the Justices of the Peace in Texas will be
on a salary basis: We speclficallypointed out in that
opinion that its application extended only to Sections (a)
and (d). You now aek whether or not that holding rendered
lnoporativeSection (b) of said Article. Said Section (b)
states as follows:
                           -2966-
Honorable James E. Barlow, page 2     (c-612)

              "All fines Imposed by justices of the
               peace and all trial fees and other fees
               which justices of the peace are required
               by law~.tocollect shall be deposited to
               the credit of the Officers' Salary Pund
               of the county, or whichever fund is used
               to pay the salaries of district, county
               or precinct officers."
     It Is our opinion that Article 53.07 (b) is not rendered
void or Inoperativeby our holding in Opinion No. C-497.
Article 54.01, Vernon's Code of Criminal Procedure, 1966 entitled
"SeverabilityClause", reads as follows:
             "If any provision, section or clause
              of this Act or application thereof
              to.any person or circumstancesIs held
              Invalid, such invalidity shall not affect
              other provisions or applicationshereof
              which can be given effect without the
              invalid provision, section or clause, and
              to this end the provisions-ofthis Act
              are.declaredto be severable.n
     In 12 Tex. Jur. 2nd, 394, ConstitutionalLaw, Sec. 49,
Is found the following statement concerningthe affec,tof
having a severabilityclause:
              ,t . .When such a provision is fouhd in
               a statute the courts will retain all the
               valid portions of the statute even though *:,
               they would have declared the entire act
               Invalid without the saving clause. This
               rule, however, Gill not be extended to
               uphold the validity of a portion of an
               act If that portion Is wholly dependent
               on the Invalid portion."
      In our opinion, Section b of Article 53.07, is not
                              a and (d) of that Artkle.
wholly dependent on Sections 11
Although on Its face subsection (b) would appear to have the
purpose of.lmplementlngsubsections (a) and (d), It cannot
be said that this Is its sole objective. Nor can it be
said that it could not be placed into effective operation
without subsection (a) and/or d). It is our opinion, there-
fore, that Opinion Number C-494 does not render inoperative
or void Section (b) of Article 53.07.
     This leads us to your second inquiry. If subsection (b)
of Article 53.07 Is valid, what fines are required to be
                         -2967-
     Honorable James E. Barlow, page 3      (c-612)

     placed in the Officers Salary Fund? Article 16, Section
     24, Constitutionof the Stata of Texas, states as follows:
                   'The Legislature shall make provision
                    for laying out and working public roads,
                    for the building of bridges and for
                    utilizing fines, forfeitures,and con-
                    vict labor to all these purposes."
.,
          We do not construe this provision to make it mandatory
     that all fines be used for the laying out and working of
     public road and/or bridges, but rather that It directs
     the Legislature to utlillze as It sees fit all or part of
     fines for there purposes. Therefore, the fact that Article
     53.07, direct8 that the fines collected by Justices of
     the Peace be prid Into the Officers Salary Fund does not
     place It In conflict with the above set out constitutional
     provision.
         Article 6701d, Sec. 144, Vernon's Clvll Statutes, en-
     titled Disposltlon OS Fines and Forfeitures,is as follows:
                   “Fines collected for violation of any
                    highway laws as set forth in this Act
                   shall be used by the municipalityor the
                   counties in which the ssme are assessed
                   and to which the same are payable in
                   the constructionand maintenance of roads,
                   brldgas, and culverts therein and for
                   the enforcement of the traffic laws
                   regulating the use of the public highways
                   by motor vehicles and motorcycles and to
                   help defray the expense of county'traffic
                   officers."
          Also, there are numerous similar statutes relating to
     game, fish.and oyster laws. One such exsmple.isArticle 912,
     Vernon's Penal Code, mich states, in part, as follows:
                  "Sectlori-1.It shall be the duty of any
                   justlco~of the peace, clerk of any court,
                   or any other officer of this state, receiving
                   any fine or penalty imposed by any court
                   for violation of any of the laws of this
                   state pertaining to the protection and
                   conservationof wild birds, wild foul, wild
                   animals, fish, oysters and other wild life
                       .to remit said fine or penalty. .to
                   th; Game, Fish and Oyster Commission: . .

                              -2968-
Honorable   James E. Barlow, page 4    (c-612)

                In justice court cases the amount to
                be remitted to said commission shall
                be eighty-five(85) fer cent of such
                .finesand penalties.
     Obviously, the new Code of Criminal Procedure and par-
ticulary Article 53.07 would be the latest expressionof
Legislativeintent concerningthe dispositionof ~flnes
assessed In Justice Courts. The favored rule of construction
is to reconcile the provisions of conflicting statutes if
at all possible and let them both stand. In 53 Tex. Jur.
2ndl34 Statutes, Sec. 102, is found the following statement:
               "Where there is no expressed repeal the
                presumption is that in enacting a new
                law the Legislature Intended the old
                statute to remain in operation. The
                two acts will persist unless the con-
                flicting provisions are so antagonistic
                and repugnant that both can not stand...
                If by any reasonable,constructiontwo
                acts or statutoryprovisions can be
                reconciledand so construed that both
                may stand, one will not be held to re-
                peal the other."
     Also, it is observed that Article 53.07, is a eneral
statute pertaining to all fines while Article 6701 'f
                                                    d),
Section 144 and Article 912 are special statutes deal~ing
with specified fines. A rule of statutory constructionem-
ployed as an aid in determininglegislativeintent which
we feel is applicable is stated in 39 Tex. Jur. 149, Statutes,
Sec.~81, which is as follows:
               "The enactmentof a general law does not
                ordinarily operate as a repeal of a par-
                ticular or special law by implication,al-
                though both relate to the same subject matter.
                On the contrary both statutes are permitted
                to stand,,*andthe general law Is applicable
                to all cases not embraced by the specific
                act. In other words, the particular act
                Is construed as constitutingan exception
                to the general law. This Is said to be
                a settled rule of construction,based
                upon the presumption that a specific statute
                evidences the intention of the legislature
                more clearly then a general one, and there-
                fore should control..."
                          -2969-
Honorable James E. Barlow, page 5      (c-612)

     We believe that Article 6701d, Article 912 and Article
53.07 fall within the above quoted exceptions. Effect must
be given to all of these articles if possible. Article 912
and the other statutes relating to game and fish are specific
with regard to the fund into which fines will be paid. We
are of the opinion that when a specific statute such as this
is construed in connectionwith Article 53.07 which is a general
statute, the specific will control and all fines imposed by
any court for violation of the laws of this state pertaining
to game and fish and other wild life will be paid into the
fund designatedby the specific statutes.
       With regard to Article 67Old, Section 144, it is noted
 that the fines collected for the violation of highway laws
 are payable to the road and bridge fund of the particular
 county but may also be used for the enforcementof traffic
'laws regulating the use of public highways. The payment
 of justice of the peace salaries certainly is part of the
 enforcement of the traffice  laws of the public highways.
 Since justice of the peace tribunals are the primary tri-
 bunals for the dispositionof these types of cases, we eee
 no reason why some portion of the fines collect&d in a
 county could not be designated for the Officers Salary Fund
 of that county and be used to pay the salary of the particular
  u&Ices of the peace of that county. Otherwise, Article
  7016 dictates that all fines collected for violation of
 l#
 highway laws shall be paid into the road and bridge fund of
 the county.
      On the other hand, Article 53.07 will control with re-
gard to fines where there are no special statutes dealing
with those types of fines, and those fines shall be paid
into the Officers Salary Fund of the county as designatedby
Article 53.07. All fees collected by a Justice of the Peace
shall be paid Into the Officer's Salary Fund in accordance
with Article 53.07. Attorne General's 0 lnions Numberr
0-3820~ 1941 , o-4269 (194x7, 0~5681 (lgt,), o-ho5 (1945)
and v-465 (1927) and any other opinions, If any, in conflict
with the opinions expressed herein are overruled to the ox-,
tent OS such conflict.
                       SUHMARY
                       ---w-w-
     Paragraph (B) of Article 53.07, Code of Criminal
     Procedure of Texas, 1966, is not void and in-
     operative due to the holding in Attorney General's
     Opinion C-497. Article 93.07, V.C.C.P. controls
     the disposition of all fines collected in justice
     of the peace court which are not otherwise covered
                         -2970-
Honorable James E. Barlow, page 6,     (C&2)

    by a special statute designatingthe fund into
    which a particular fine is paid,
                             Yours very truly,
                             Waggoner Carr
                             Attorney General of Texas

SK/lb
APPROVED
OPINION COMMITTEE
W. V. Geppert, Chairman
Lonnle Zwiener
Malcolm Quick
Ralph Rash
Robert E. Owen
APPROVEDPOR~ATTORNEYGENERAL
BY: T. B. Wright

                          -2971-


521 F.2d 817
Sidney B. WEINER, Plaintiff-Appellant,v.SHEARSON, HAMMILL & CO., INC., a corporation, Defendant-Appellee.
No. 72-1294.
United States Court of Appeals,Ninth Circuit.
Aug. 1, 1975.

Sheldon Mitchell (argued), Phoenix, Ariz., for plaintiff-appellant.
John S. Hobbs (argued), Phoenix, Ariz., for defendant-appellee.
OPINION
Before CHAMBERS, KOELSCH and SNEED, Circuit Judges.
CHAMBERS, Circuit Judge:

1
Weiner brought this action in the Arizona District Court against his stockbroker, Shearson, Hammill & Co., Inc., alleging that the company had mishandled the sale and purchase of certain shares in Weiner's account in such a way as to violate the federal securities laws.  Weiner sought a declaration that he owed the company nothing, and a judgment for compensatory damages for the diminution in value of the shares, and for punitive damages.  The company moved for a dismissal of the action on the grounds that the complaint failed to state a claim upon which relief could be granted, or alternatively, that the action should be dismissed or stayed in deference to an identical action involving the same parties and the same transactions already pending in the Arizona Superior Court.  The district court granted the motion to dismiss, but did not disclose the basis for its order.  Weiner then brought this appeal.  At oral argument, we directed the parties to augment the record with the record of the proceedings in the Arizona Superior Court, and that record is now before us.  For the reasons hereinafter stated, we reverse the order of dismissal and remand the case for further proceedings.

2
In his complaint, Weiner alleged that he was the owner of shares of National Trust Life Insurance Company of America.  He turned these shares over to Shearson, Hammill & Co. and instructed them to investigate the marketability of the shares.  The company then made the following representations to Weiner through the mail: because of a merger, the shares were now marketable in the form of shares of Community National Life Insurance Company; the company had exchanged the National Trust Life shares for the equivalent Community National Life shares; and it had transferred these shares to its street name and had then sold them on the open market.  Weiner received confirmations of these transactions and the proceeds of the sale.

3
The company allegedly did not follow this represented course of action.  Instead, it had sold its own account short on Community National Life shares.  Later it was forced to cover this short sale by buying Community National Life shares on the open market at approximately twice the price that the shares had been trading at when the short sale was made.  This difference was charged to Weiner's account, and the company has refused to release or transfer this account until the amount is paid.  The trading price of Community National Life has since declined, and Weiner's shares have become nearly valueless.  At no time was the company authorized to transfer or sell any of Weiner's shares.

4
As a result of these alleged transactions, Weiner, who is himself a practicing lawyer, decided to institute legal proceedings.  In February 1971, he filed a pro se complaint in the Maricopa County Superior Court, alleging that the company had breached the brokerage agreement between them.  Thereafter, various proceedings took place, including the filing of an amended complaint.  Eventually, Weiner, who was no doubt acting with the familiar adage in mind, retained another lawyer to continue the action for him.

5
On June 15, 1971, Weiner's counsel filed a second amended complaint that transformed the action from one based on breach of contract to one based on violations of the federal securities laws.  On the same day, counsel filed a virtually identical complaint in the district court for the district of Arizona and thereby commenced the present action.

6
In the district court, Shearson, Hammill moved to dismiss the action or to stay the proceedings pending a resolution in the state court.  The district court granted the motion to dismiss.

7
The parties returned to the state court, and after that court denied motions to dismiss, Shearson, Hammill filed its answer and a counterclaim for the amount alleged to be owing to it from Weiner.  Weiner answered, and some discovery was undertaken.  At present, the case is by stipulation on the Superior Court's inactive calendar awaiting the outcome of this appeal.

8
At the outset, we are placed at a disadvantage in not having a clear statement of the grounds upon which the district court relied in granting the motion to dismiss.  However, in view of the disposition, we make of this matter, we think it would be not only unnecessary but also premature to consider whether the district court could properly have based its dismissal in whole or in part upon a conclusion that the complaint failed to state a claim.  For if the district court was of the opinion that it could properly grant the motion to dismiss or stay the action in deference to the prior pending state action, it should not have reached the question of whether a claim was sufficiently stated.  Aetna State Bank v. Altheimer, 430 F.2d 750, 752-53 (7th Cir. 1970).

9
The existence of a power in the federal court to refrain from exercising its jurisdiction has long been a question of some uncertainty.  Early pronouncements of the Supreme Court suggested that the federal courts could never decline to exercise jurisdiction over controversies properly before them.  See, e. g., Cohens v. Virginia, 19 U.S.  (6 Wheat.) 264, 403, 5 L.Ed. 257 (1821); Chicot County v. Sherwood, 148 U.S. 529, 534, 13 S.Ct. 695, 37 L.Ed. 546 (1893); McClellan v. Carland, 217 U.S. 268, 281-82, 30 S.Ct. 501, 54 L.Ed. 762 (1910).  This theory of an absolute right of access to an available federal forum has gradually given way to the recognition of a number of exceptions which in their aggregate suggest that the absolutist nature of the theory retains little vitality.1

10
These exceptions can be broadly grouped into three categories.2  The most closely circumscribed category is commonly known as the doctrine of the abstention.  Abstention is required only in those relatively few instances where the exercise of jurisdiction would create unwarranted friction between the federal and state sovereigns.  Thus, for example, where the federal court may avoid the decision of constitutional issues by requiring the parties to seek in the state courts an authoritative construction of doubtful state law, the federal court should abstain.  Railroad Commission v. Pullman Company,  312 U.S. 496, 500-01, 61 S.Ct. 643, 85 L.Ed. 971 (1941).

11
The abstention doctrine, it should be noted, is no way dependent on the presence or absence of a concurrent state court action between the parties.  In Chicago v. Fieldcrest Dairies, 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355 (1942), in which the Court found abstention to be required, the institution of a parallel action in the state court was found significant only in that it demonstrated the availability of a state forum to resolve the uncertain question of state law.  Id. at 173, 62 S.Ct. 986.  Conversely, the existence of a prior pending state court action involving a collateral dispute between the same parties is alone not sufficient reason to invoke abstention.  County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959); Mach-Tronics, Inc. v. Zirpoli, 316 F.2d 820 (9th Cir. 1963).

12
The second category comprises cases stayed or dismissed for reasons of forum non conveniens.  Gulf Oil Co. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Koster v. Lumberman's Mutual Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947).  Cases invoking this doctrine do not turn on the existence of any pending parallel litigation, but the doctrine does presuppose the availability of another, more convenient forum.

13
Finally, there is the class of cases such as the present one in which the parties are seeking to litigate the same or closely related claims in two forums simultaneously.  The state courts have long recognized that in such situations, the later filed action may be abated.  Note, Power to Stay Federal Proceedings, 59 Yale L.J. 978, 978-80 (1959).  A variety of considerations have been cited in support of such abatement: the friction created by the appearance that the second court is interfering with the first; the waste of judicial resources caused by litigation in two courts; the unnecessary burden placed on already overcrowded dockets; the dual burden placed on litigants; and the possibility that dual litigation might involve the courts in an unseemly race to judgment.  See PPG Industries, Inc. v. Continental Oil Company, 478 F.2d 674, 680 (5th Cir. 1973).

14
The federal courts have had some difficulty in incorporating the abatement doctrine into their practice.  Where two federal district courts are involved, there has been little trouble in finding a discretionary power to abate the second action.  Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 163, 81 L.Ed. 153 (1936); Filtrol Corporation v. Kelleher, 467 F.2d 242 (9th Cir. 1972), cert. denied, 409 U.S. 1110, 93 S.Ct. 914, 34 L.Ed.2d 691 (1973).  Similarly, where the parallel litigation is pending before a federal administrative agency, we have recognized a discretionary power in the district court to stay its hand.  Chronicle Publishing Co. v. National Broadcasting Co., 294 F.2d 744 (9th Cir. 1961).  Since in such cases the litigants are not deprived of a federal forum, the considerations of judicial economy and interference with orderly administrative procedure have proved paramount.

15
However, where the prior action has been brought in a state court, there has been some reluctance to recognize a broad power to stay the federal action under all circumstances.  See, e. g., PPG Industries, Inc. v. Continental Oil Company, 478 F.2d 674, 682 (5th Cir. 1973); cf. Thompson v. Boyle, 417 F.2d 1041, 1042 (5th Cir. 1969), cert. denied, 397 U.S. 972, 90 S.Ct. 1088, 25 L.Ed.2d 266 (1970).  Undoubtedly, where the federal action seeks only declaratory relief, the discretionary power inherent in the nature of the remedy enables the court to abate the action in deference to the state court.  Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942).  Similarly, the discretionary nature of other equitable remedies allows the federal court to stay action.  PPG Industries, Inc. v. Continental Oil Company, supra ; see Lear Siegler v. Adkins, 330 F.2d 595 (9th Cir. 1964).

16
But when the action is at law, a few courts still have felt constrained by the old pronouncements that a federal court would be derelict in its duty if it "practically abandoned its jurisdiction over a case of which it had cognizance, and turned the matter over for adjudication to the state court."  McClelland v. Carland, supra at 281, 30 S.Ct. at 504.  In our view, such statements simply have no application to cases involving abatement.  Rather, cases such as McClellan and Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9 (1943), say merely that on the facts there presented, the federal courts were not justified in invoking the doctrine of abstention and relegating the parties to an as yet uncommenced action in the state courts.  The Supreme Court had no need to consider the weight to be given to the considerations of economy and judicial dignity because there was no problem of competing litigation in the state and federal forums.

17
We thus conclude that the district court possessed the power to abate the present action, even though it be one both for a declaratory judgment and damages.  In so concluding, we join a number of other circuits.  Mottolese v. Kaufman, 176 F.2d 301 (2d Cir. 1949); Amdur v. Lizars, 372 F.2d 103 (4th Cir. 1967); Aetna State Bank v. Altheimer, 430 F.2d 750 (7th Cir. 1970).  See Thompson v. Boyle, 417 F.2d 1041 (5th Cir. 1969), cert. denied, 397 U.S. 972, 90 S.Ct. 1088, 25 L.Ed.2d 266 (1970).

18
Turning now to the case at bar, we first note that even if abatement were proper in this case, dismissal of the action was not the appropriate method.  Instead the district court should have stayed the action pending either the outcome of the state action or a timely suggestion by either party that the reasons which had prompted the stay had ceased to apply.  Shareholders Management Company v. Gregory, 449 F.2d 326 (9th Cir. 1971).

19
Whether a stay is appropriate is a more difficult question.  It is clear that at the outset of the federal suit, the issues presented before the two courts were identical.  The federal complaint is virtually a carbon copy of the second amended state complaint, except for a few immaterial changes made to conform to federal practice.  But it would appear that at the outset of the federal suit, there was a serious question whether the state court had complete jurisdiction to pass upon all of the claims purportedly stated in the second amended complaint.

20
That complaint purportedly states a claim under § 17(a) of the Securities Act of 1933 (15 U.S.C. § 77q(a)), and to the extent that it may do so, the state court has jurisdiction.  15 U.S.C. § 77v(a).  But the complaint also purports to state claims under §§ 10(b) and 15(c)(1) of the Securities Exchange Act of 1934 (15 U.S.C. §§ 78j and 78O (c)(1)) and Rule 10b-5 and Rules of the New York Stock Exchange 401 and 405.  At the time the federal action was dismissed, it may well be that state court lacked jurisdiction to entertain these claims.3  However, subsequent to the dismissal, Shearson, Hammill filed its answer and a counterclaim seeking recovery of the amount allegedly owing on the stock transaction, and Weiner answered, alleging as an affirmative defense the misrepresentations which form the core of his second amended complaint.  At this point, the state court apparently had jurisdiction to rule on the 1934 Act issues as a matter of affirmative defense.  Shareholders Management Co. v. Gregory, supra; Aetna State Bank v. Altheimer, supra.

21
Hence, since we must reverse the order of dismissal, we do so without limitation so as to allow the district court to consider whether, given the present posture of the state court action, a stay of the federal action would be appropriate.  We note that even if the state court finds itself precluded from giving affirmative relief under the 1934 Act (assuming it ever reaches that question), a stay would not necessarily be inappropriate.  The state court does have power to grant the parties relief under the 1933 Act or the state law counterclaim, and in doing so, it also may or may not resolve the 1934 Act issues.  See Klein v. Walston & Co., 432 F.2d 936 (2d Cir. 1970).  Cf. Watson v. Roberts, Scott & Co., Inc., 466 F.2d 1348 (9th Cir. 1972).

22
The order of the district court is reversed, and the cause is remanded for further proceedings consistent with this opinion.

1
 Mottolese v. Kaufman, 176 F.2d 301 (2d Cir. 1949)
For a review of the development and decline of the theory of absolute right of access, see Note, Power to Stay Federal Proceedings, 59 Yale L.J. 978 (1950) and Note, Stays of Federal Proceedings, 60 Colum.L.Rev. 684 (1960).

2
 There is also a generally recognized fourth category which stands upon different ground from those mentioned in the text.  In actions which are in rem or quasi in rem, the court, which first acquires jurisdiction over the res alone has jurisdiction to resolve the controversy.  Princess Lida of Thurn and Taxis v. Thompson, 305 U.S. 456, 466, 59 S.Ct. 275, 83 L.Ed. 285 (1939)

3
 15 U.S.C. § 78aa
Brenner v. Mitchum, Jones & Templeton, Inc., 494 F.2d 881 (9th Cir. 1974), appears to suggest to the contrary.  Significantly, however, nowhere in that opinion does the court discuss the effect of the exclusive grant of jurisdiction under the 1934 Act.


542 U.S. 962
HUNDLEYv.UNITED STATES.
No. 03-9379.
Supreme Court of United States.
September 3, 2004.

1
Petition for rehearing denied.

2
Reported below: 541 U. S. 1001.


277 N.J. Super. 545 (1994)
649 A.2d 1349
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
PAUL M. MOSS, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Submitted November 10, 1994.
Decided December 6, 1994.
*546 Before Judges MUIR, Jr., D'ANNUNZIO, and EICHEN.
John J. Fahy, Bergen County Prosecutor, attorney for appellant (Stuart A. Minkowitz, Assistant Prosecutor, of counsel and on the letter brief; John J. Scaliti, Asst. Prosecutor, on the letter brief).
Linda George, attorney for respondent (Ms. George, of counsel; Jon P. LeTendre, on the letter brief).
The opinion of the court was delivered by MUIR, JR., J.A.D.
On leave granted, the State appeals from an order suppressing evidence seized after an automobile stop. The order followed a trial court ruling that the stop of defendant's motor vehicle was illegal. We reverse.
A Palisades Park police officer stopped defendant for failing to signal when making a left-hand turn. The officer testified defendant's vehicle was stopped immediately in front of his police car for a red traffic light at the intersection of the Routes 1 and 9 south ramp and Broad Avenue in Palisades Park. Both cars were in the left lane. Another car was in the right lane. When the traffic light turned green, with no turn indication of any kind, defendant drove his vehicle into the middle of the intersection and braked suddenly. Defendant then, without any turn signal, made a left turn onto Broad Avenue. Although traffic was light, there was other traffic on Broad Avenue. After the stop, the officer observed in plain view a .32 caliber revolver on the car floor. The officer later determined the revolver was loaded with hollow-nose bullets. A subsequent search of defendant turned up another loaded handgun.
*547 The officer relied on N.J.S.A. 39:4-126 to make the stop. To the extent pertinent, that statute provides:
No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in section 39:4-123 ... and until such movement can be made with safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement.

[emphasis added]
The statute then goes on to provide the manner in which a mechanical, electrical, or manual signal must be given.
It is well settled that courts may not disregard plain statutory language. In the words of the late Chief Justice Vanderbilt, "[a] clear and unambiguous statute is not open to construction or interpretation, and to do so in a case where not required is to do violence to the doctrine of the separation of powers." Watt v. Mayor and Council of Borough of Franklin, 21 N.J. 274, 277, 121 A.2d 499 (1956). Put another way, where the language of a law is clear, courts are not free to replace it with unenacted legislative intention, for to do so leads the judiciary into undemocratic law making.
N.J.S.A. 39:4-126 is clear and unambiguous when its terms are given their ordinary and well understood meaning. See Levin v. Township of Parsippany-Troy Hills, 82 N.J. 174, 182, 411 A.2d 704 (1980). The key words in the statute are "may be affected by such movement." The common ordinary meaning of the word "may" is "to be in some degree likely to." Webster's Third New International Dictionary 1396 (1981). As such, the key words do not project a requirement that a turn movement must affect other traffic but merely that it has the potential of doing so.
Here, clearly there was other traffic that to some degree was likely to be affected by the left turn of defendant's vehicle. Both the police vehicle immediately behind the turning vehicle and the other traffic on Broad Avenue had that potential. Consequently, defendant's failure to make a turn signal violated the statute and made the motor vehicle stop legal. See Delaware v. *548 Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673 (1979).
The trial court relied on State v. Williamson, 270 N.J. Super. 318, 637 A.2d 195 (App.Div.), certif. granted, 136 N.J. 298, 642 A.2d 1007 (1994), to reach its conclusion. We do not read Williamson to countervail our holding. However, to the extent that Williamson can be read to interpret the statute to require that a turn movement must affect other traffic, we disagree with it.
Reversed.


96 F.3d 1456
U.S.v.Vargas***
NO. 95-5161
United States Court of Appeals,Eleventh Circuit.
Aug 19, 1996

1
Appeal From:  S.D.Fla., No. 94-00436-CR-UUB

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  11th Cir.R. 34-3

**
 Local Rule 36 case


COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

ALEJANDRO JIMENEZ,

                                    Appellant,

v.

THE STATE OF TEXAS,

                                    Appellee.

§

§

§

§

§

§

No. 08-08-00193-CR

Appeal from
 Criminal District Court No. 1

of El Paso County, Texas

(TC # 20070D02194)

O P I N I O N

            Alejandro Jimenez, pro se, appeals his convictions for possession with intent to distribute
a controlled substance.  Appellant pled guilty to possession of cocaine in an amount more than four
grams and less than 200 grams, enhanced (Count I), and to possession of cocaine in an amount more
than 400 grams (Count II).  In accordance with a plea bargain, the trial court sentenced him to fifteen
years’ imprisonment (Count 1) and twenty years’ imprisonment (Count II), said sentences to be
served concurrently in the Texas Department of Criminal Justice--Institutional Division.  He was
also fined $1.00 in connection with Count II.
            After Appellant's retained attorney filed a motion to withdraw due to Appellant’s indigence,
we directed the trial court to conduct a hearing to determine whether Appellant had retained new
counsel, or whether he was indigent and entitled to the appointment of counsel. The trial court called
the case for hearing on June 11, 2008 and took judicial notice from the Judicial Information
Management System that Appellant was not in jail.  When Appellant did not appear, the bailiff
called his name three times in the hallway.  There being no response and no evidence before the
court regarding Appellant’s financial status, the court entered an order that Appellant is not indigent.
On July 24, 2008, this court notified Appellant regarding his failure to make financial arrangements
for the reporter’s record.  On July 30, 2008, we received Appellant’s pro se response asking the court
to appoint counsel to represent him.  The court then notified Appellant that (1) the trial court had
determined he is not indigent, (2) the cause would be submitted without a reporter’s record, and (3)
his pro se brief was due on or before September 13, 2008.  No pro se brief having been filed, the
court advised Appellant that the appeal would be considered without briefs pursuant to Tex.R.App.P.
38.8(b)(4).
            In the interest of justice, we have reviewed the entire record for unassigned fundamental
error. See Tex.R.App.P. 38.8(b)(4); Lott v. State, 874 S.W.2d 687, 688 (Tex.Crim.App. 1994).
Having found no unassigned fundamental error, we affirm the judgment of the trial court.

February 24, 2010
                                                                                ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)


904 So.2d 701 (2005)
Mildred Lea SMITH
v.
STATE of Louisiana DEPARTMENT OF HEALTH AND HOSPITALS.
No. 2005-C-1103.
Supreme Court of Louisiana.
June 17, 2005.
In re Louisiana, State of; Health and Hospitals, Dept. of;  Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Morehouse, 4th Judicial District Court Div. D, No. 2003-393; to the Court of Appeal, Second Circuit, No. 39,368-CA.
Denied.
JOHNSON, J., would grant the writ.
VICTORY, J., would grant the writ.
KNOLL, J., would grant the writ.