June 30, 2020- State of New Mexico v. Brandon Thomas Dean, No. A-1-CA-38305

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	NO. A-1-CA-38305	4
BRANDON THOMAS DEAN,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	7
Cindy Leos, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
for Appellee	11
Bennett J. Baur, Chief Public Defender	12
John Charles Bennett, Assistant Appellate Defender	13
Santa Fe, NM	14
for Appellant	15
MEMORANDUM OPINION	16
VARGAS, Judge.	17
{1} 	Defendant appeals the district court’s order affirming his conviction in the	18
metropolitan court, following a jury trial, for driving while intoxicated (DWI). This	19
Court issued a notice of proposed disposition, proposing to affirm. Defendant filed	20
a memorandum in opposition, which we have duly considered. Unpersuaded, we	21
affirm.	22
Court of Appeals of New Mexico
Filed 6/30/2020 11:06 AM

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{2} 	On appeal, Defendant contends that because the verdict form signed by the	1
jury found Defendant guilty of driving with a breath alcohol concentration (BAC)	2
of eight one-hundredths (0.08), without including the words “or more,” when the	3
evidence presented showed that his BAC was nine one-hundredths (0.09), the	4
evidence presented did not support the verdict. This Court’s notice stated that the	5
district court issued a thorough, well-reasoned memorandum opinion, presenting the	6
facts and arguments of the case and the district court’s analysis in response thereto	7
and rejecting this argument from Defendant. [CN 2] We proposed to agree with the	8
district court in its factual presentation, analysis, and conclusion; adopt the district	9
court’s memorandum opinion for purposes of this appeal; and affirm. [CN 2]	10
{3} 	We note that Defendant concedes that it is arguable that a BAC of 0.08	11
necessarily was included in reaching his actual BAC of 0.09. [MIO 4] In any event,	12
Defendant has not presented any facts, authority, or argument in his memorandum	13
in opposition that persuade this Court that our proposed summary disposition was	14
incorrect. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d	15
683 (“Our courts have repeatedly held that, in summary calendar cases, the burden	16
is on the party opposing the proposed disposition to clearly point out errors in fact	17
or law.”); State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d	18
1003 (stating that a party responding to a summary calendar notice must come	19
forward and specifically point out errors of law and fact, and the repetition of earlier	20

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arguments does not fulfill this requirement), superseded by statute on other grounds	1
as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374.	2
{4} 	Accordingly, for the reasons stated above and in this Court’s notice of	3
proposed disposition, we affirm.	4
{5} 	IT IS SO ORDERED.	5
_________________________________	6
JULIE J. VARGAS, Judge	7
WE CONCUR:	8
_________________________________	9
JENNIFER L. ATTREP, Judge	10
_________________________________	11
BRIANA H. ZAMORA, Judge	12