Opinion
No. 2 CA-CR 2017-0342
09-19-2018
THE STATE OF ARIZONA, Appellee, v. GERSON JOAB BARRERA, Appellant.
COUNSEL James Fullin, Pima County Legal Defender By Jeffrey Kautenburger, Assistant Legal Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20112147001
The Honorable Teresa Godoy, Judge Pro Tempore
AFFIRMED
COUNSEL James Fullin, Pima County Legal Defender
By Jeffrey Kautenburger, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Following a jury trial in absentia, appellant Gerson Barrera was convicted of aggravated driving under the influence (DUI) while his license was suspended or revoked, aggravated driving with an alcohol concentration (BAC) of .08 or more while his license was suspended or revoked, aggravated DUI having committed two or more prior DUI violations, and aggravated driving with a BAC of .08 or more having committed two or more prior DUI violations. After he was returned to custody, the trial court sentenced him to enhanced, presumptive, concurrent 4.5-year prison terms. Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530 (App. 1999), stating he has reviewed the record and has found no "tenable issue to raise on appeal." Counsel has asked us to search the record for error. Barrera has not filed a supplemental brief.
¶2 Viewed in the light most favorable to sustaining the verdict, the evidence was sufficient to support the jury's finding of guilt. See State v. Delgado, 232 Ariz. 182, ¶ 2 (App. 2013). The evidence presented at trial showed a police officer stopped Barrera's vehicle at 2:36 a.m. after he was seen speeding at "approximately a hundred miles an hour." Barrera, whose license was suspended and revoked, smelled of alcohol, had slurred speech, exhibited cues of impairment on a horizontal gaze nystagmus test, and had a BAC of .134. He had prior DUI convictions from 2004 and 2009, each of which fell within the statutory eighty-four-month window. We further conclude the sentence imposed is within the statutory limit. See A.R.S. §§ 13-703(I), 28-1381, 28-1383.
The state presented relation-back evidence showing Barrera's BAC two hours before the blood draw, which was done at 5:00 a.m., had been .164. --------
¶3 Pursuant to our obligation under Anders, we have searched the record for fundamental, reversible error and have found none. Therefore, Barrera's convictions and sentences are affirmed.