Clyde James Freeman v. State , 2013 Tex. App. LEXIS 11959 ( 2013 )

Affirmed and Opinion filed September 24, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00077-CR
CLYDE JAMES FREEMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 410th District Court
Montgomery County, Texas
Trial Court Cause No. 09-11-11188-CR
OPINION
A jury convicted appellant of felony driving while intoxicated (DWI), and
the trial court assessed punishment at forty years‘ confinement. Appellant
challenges his conviction in five issues, contending that the trial court erred by
(1) releasing a defense witness from his subpoena; (2) denying appellant‘s request
for a jury instruction on misdemeanor DWI; (3) failing to properly charge the jury
on prior DWI convictions with a limiting instruction; (4) improperly commenting
on appellant‘s guilt in the jury charge; and (5) denying appellant‘s motion to
suppress the results of a breath test. We affirm.
I. BACKGROUND
Courtney Philpott testified that she was working at a diner in Magnolia on
September 19, 2009, when appellant entered the diner and placed a to-go order.
She testified that appellant was being loud and smelled of alcohol. He told her,
―I‘ve been drinking all day. I‘m probably drunk.‖ While appellant sat in his
vehicle and waited for his order, Philpott saw him drinking from a glass alcohol
bottle. She knew he was drunk. After appellant left, and with the encouragement
of other customers in the diner, she called the police to report the possibly
intoxicated driver.
Corporal Jose Lopez of the Magnolia Police Department testified that on
September 19, 2009, he was in his patrol vehicle when he received a call over the
radio of a person that was intoxicated at a diner. Around the time he heard the call
on the radio, he observed appellant‘s car several vehicles in front of him swerve
and have trouble maintaining a lane. Appellant was driving partially in the center
turn lane that separated the northbound and southbound lanes of Magnolia
Boulevard. When Lopez activated the lights and sirens on his patrol vehicle,
appellant made a right turn without signaling, almost causing an accident with the
vehicle behind him. Appellant turned into the parking lot of a convenience store,
and he parked a little bit sideways, taking up two parking spaces.
By the time Lopez stopped his vehicle beside appellant‘s car, another officer
had entered the convenience store to retrieve appellant. The officers brought
appellant outside. Lopez noticed a very strong odor of alcohol emanating from
appellant; appellant‘s speech was slurred; and he had significant trouble
maintaining his balance. Lopez conducted an HGN test to check if appellant‘s
2
eyes would ―track properly.‖ Appellant‘s eyes did not track properly, which
indicated to Lopez that appellant was possibly impaired. Thus, Lopez
administered two standardized field sobriety tests—the ―walk and turn‖ and ―one-
legged stand.‖ On the first test, Lopez observed seven clues of intoxication; on the
second, Lopez observed three. On each test, two positive clues indicate
intoxication.
Appellant was arrested, and Lopez informed appellant of his Miranda rights.
While inventorying the vehicle, the officers found a glass bottle containing a liquid
that smelled like alcohol. Appellant said it was vodka.
Lopez asked appellant whether he would give a breath or blood sample, and
appellant said, ―Fuck you.‖ Lopez understood that response to be a refusal to a
breath test. Lopez said, ―You know we‘re going to take blood from you,‖ and
appellant told him to take it. Lopez testified that he did not read to appellant the
―DIC-24‖ statutory warnings at the scene,1 but he did read the warnings after
transporting appellant to jail. Lopez again asked appellant if he would take a
breath test, and appellant consented. Glenn Merkork, a forensic scientist, testified
that appellant blew 0.225 on the intoxilyzer, which was between two and three
times the per se definition of intoxication of 0.08.
Mark Wright testified that he was a latent print examiner with the
Montgomery County Sheriff‘s Office. He compared appellant‘s fingerprint with
unknown fingerprints in State‘s Exhibit 7, which included two judgments of
conviction for driving while intoxicated. He testified that appellant‘s known print
matched the two ink prints in Exhibit 7.
1
These warnings provide, among other things, some of the potential consequences of
refusing or submitting to a breath or blood test. See Tex. Transp. Code Ann. § 724.015.
3
The jury found appellant guilty of felony driving while intoxicated, which
required proof that appellant had been previously convicted twice of any offenses
related to the operation of a motor vehicle while intoxicated. See Tex. Penal Code
Ann. §§ 49.04; 49.09(b)(2). The court sentenced appellant to forty years‘
confinement, and this appeal followed.
II. SIXTH AMENDMENT CLAIMS
In his first issue, appellant contends that the court violated appellant‘s Sixth
Amendment rights to compulsory process, confrontation, and cross-examination
when the court released a defense witness over objection. The State contends that
the witness‘s testimony was inadmissible under Rule 608 of the Texas Rules of
Evidence, and appellant replies that the evidence was admissible under Rule 613.
A. Background
On the first day of witness testimony, Corporal Lopez testified in front of the
jury about the facts of appellant‘s case until reaching the testimony concerning
appellant‘s breath test. At that point, the trial court held a suppression hearing
outside the jury‘s presence. During cross-examination in that hearing, Lopez
responded ―no‖ to whether he ―ever had any problems with [his] own agency as far
as being truthful with them.‖ Appellant‘s counsel indicated he had a witness who
would contradict Lopez‘s answer. Appellant then called Sergeant Greg Valdez,
Lopez‘s superior, and asked whether there had been prior incidents ―where you
made determinations that [Lopez] was not truthful.‖ Valdez testified there was
―one incident that he was wrote up,‖ where Valdez believed Lopez was untruthful
to him.2 But Valdez also testified that there was never any finding that Lopez lied;
2
The trial court admitted Defense Exhibit 1 for purposes of the suppression hearing. The
exhibit was Valdez‘s report of the incident, describing the infraction of ―dishonest or
untruthfulness.‖ The incident concerned whether Lopez had received a request to help another
officer look for some keys. It was not related to appellant‘s case.
4
the matter was neither referred for disciplinary action nor investigated; and it was
dismissed.
At the end of the first day of trial, the court told Lopez and Valdez that they
would be on call the following day, but Valdez told the court that he had
nonrefundable airplane tickets to go on vacation that night. The court said it was
inclined to release Valdez, and trial counsel said, ―I would just have to object.‖
The court said it did not anticipate Valdez‘s testimony about Lopez being
admissible, stating that the incident was ―far afield and not related to this offense.‖
Nonetheless, the court suggested appellant could introduce the records of the
incident even though they were hearsay, and the State said there was no problem
with that. The court suggested further that another witness on the key incident
could come in, or ―we can read back his testimony.‖ The court released Valdez,
noting that ―[i]f it becomes an issue, then the State can call you back.‖
The court also explained that if appellant wanted to attack Lopez‘s
credibility with Valdez‘s testimony, the court would reverse its position and allow
the State to elicit testimony concerning Lopez‘s prior arrest of appellant for DWI.
Thus, during appellant‘s cross-examination of Lopez in front of the jury on the
following day, appellant did not ask Lopez about the ―untruthful‖ incident nor
offer any evidence about that incident. On the third and final day of trial, after
both sides had rested, appellant wanted to ―make a record with a bill‖ concerning
Valdez. Appellant contended that releasing Valdez violated the Compulsory
Process Clause of the Sixth Amendment. Appellant did not mention the
Confrontation Clause or Rule 613 of the Texas Rules of Evidence.
B. Preservation of Error
―Rule 33.1 of the Texas Rules of Appellate Procedure provides that an
objection must be timely and sufficiently specific to make the trial court aware of
5
the complaint, unless the specific grounds were apparent from the context.‖ Berry
v. State, 233 S.W.3d 847, 857 (Tex. Crim. App. 2007); see Tex. R. App. P. 33.1.
―This rule ensures that trial courts are provided an opportunity to correct their
mistakes at the most convenient and appropriate time—when the mistakes are
alleged to have been made.‖ Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App.
2002). A defendant must let the trial court know what he wants and why he thinks
himself entitled to it. See, e.g., Lankston v. State, 827 S.W.2d 907, 909 (Tex.
Crim. App. 1992).
At no time during trial did appellant mention Rule of Evidence 613 or the
Confrontation Clause or any words that would apprise the trial court of those bases
for appellant‘s objection. Those contentions are not apparent from the context.
Thus, appellant‘s general objection and bill did not preserve error for these
appellate complaints. See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App.
2005) (objection that evidence should have been admitted for ―credibility‖ did not
preserve complaint based on the Confrontation Clause); Dixon v. State, 2 S.W.3d
263, 273 (Tex. Crim. App. 1998) (objection that ―only ‗final felony convictions
may be used to impeach testimony‘‖ did not preserve error under Rule of Evidence
613 concerning impeachment based on bias or motive); Shedden v. State, 268
S.W.3d 717, 735 (Tex. App.—Corpus Christi 2008, pet. ref‘d) (motion to suppress
urging a violation of the ―right to confront the witnesses against them‖ did not
preserve complaint based on Compulsory Process Clause).
Assuming without deciding that appellant‘s compulsory process complaint
was apparent from the context at the time the court released Valdez,3 we will
address the merits of that complaint.
3
We note that appellant did not mention the Compulsory Process Clause until after the
close of evidence, and even then his bill concerned calling Valdez to testify about ―departmental
6
C. Compulsory Process
―We review complaints concerning limitations on the right to compulsory
process under an abuse-of-discretion standard.‖ Lawal v. State, 368 S.W.3d 876,
886 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Drew v. State, 743
S.W.2d 207, 225 n.11 (Tex. Crim. App. 1987)). The Sixth Amendment right to
compulsory process ―‗is in plain terms the right to present a defense, the right to
present the defendant‘s version of the facts as well as the prosecution‘s to the jury
so it may decide where the truth lies.‘‖ Coleman v. State, 966 S.W.2d 525, 527
(Tex. Crim. App. 1998) (quoting Washington v. Texas, 388 U.S. 14, 19 (1967)).
―The Sixth Amendment does not guarantee, however, the right to secure the
attendance and testimony of any and all witnesses; rather, it guarantees only
compulsory process for obtaining witnesses whose testimony would be both
material and favorable to the defense.‖ Id. at 527–28. The burden to show
materiality is on the defendant. Id. at 528.
Under the Compulsory Process Clause, evidence is material ―‗only if there is
a reasonable likelihood that the testimony could have affected the judgment of the
trier of fact.‘‖ Harris v. Thompson, 698 F.3d 627–28 (7th Cir. 2012) (quoting
Valenzuela-Vernal, 458 U.S. 858, 874 (1982)); see also Gov’t of Virgin Islands v.
Mills, 956 F.2d 443, 446 (3d Cir. 1992). Accordingly, a defendant does not have a
right to compulsory process for testimony that is ―‗incompetent, privileged or
otherwise inadmissible under standard rules of evidence.‘‖ United States v.
Walker, 410 F.3d 754, 758 (5th Cir. 2005) (quoting Taylor v. Illinois, 484 U.S.
400, 410–11 (1988)); accord Clark v. State, No. 04-10-00540-CR, 2012 WL
3025685, at *7–8 (Tex. App.—San Antonio July 25, 2012, no pet.) (mem. op., not
policies.‖ Further, appellant never offered any evidence before the jury about Valdez‘s
―untruthful‖ finding, despite the trial court‘s invitation to do so.
7
designated for publication) (no violation of right to compulsory process because
the evidence was inadmissible under the Texas Rules of Evidence); Edwards v.
State, No. 05-91-01087-CR, 1993 WL 15491, at *6 (Tex. App.—Dallas Jan. 27,
1993, pet. ref‘d) (not designated for publication) (no violation of right to
compulsory process because the evidence was merely impeachment on a collateral
matter and thus inadmissible under Rule 608 of the former Texas Rules of
Criminal Evidence).
Appellant has failed to show that Sergeant Valdez‘s testimony was material
as a matter of law. In particular, the trial court would have acted within its
discretion to exclude Valdez‘s testimony under Rule 608 of the Texas Rules of
Evidence. Rule 608(b) provides, ―Specific instances of the conduct of a witness,
for the purpose of attacking or supporting the witness‘ credibility, other than
conviction of crime as provided in Rule 609, may not be inquired into on cross-
examination of the witness nor proved by extrinsic evidence.‖ Tex. R. Evid.
608(b). Under this rule, a witness‘s character for truthfulness may not be attacked
by offering extrinsic evidence concerning specific prior instances of
untruthfulness. Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009).
Evidence that Valdez had believed Lopez was untruthful during a prior, unrelated
incident is exactly the type of evidence made inadmissible by Rule 608(b): it is
extrinsic evidence concerning a specific prior instance of untruthfulness.
Appellant has failed to establish a reasonable likelihood that the testimony could
have affected the jury‘s verdict. See United States v. Romero–Cruz, 201 F.3d 374,
377–78 (5th Cir. 2000) (finding no compulsory process violation when the
purported witness ―would at most have impeached [another witness] on a collateral
matter,‖ and the defendant ―failed to establish a reasonable likelihood that [the
8
purported witness‘s] testimony would have affected the judgment of the jury‖).4
The trial court did not abuse its discretion in concluding that releasing Valdez did
not violate appellant‘s right to compulsory process.
Appellant‘s first issue is overruled.
III. JURY CHARGE CLAIMS
In several issues, appellant contends the trial court erred by denying a
requested lesser-included jury instruction, failing to instruct the jury on
jurisdictional elements of DWI, failing to include a limiting instruction, and
commenting on appellant‘s guilt.
A. Lesser-Included Instruction
In his second issue, appellant contends that the trial court erred by denying
his request for a jury instruction on the lesser-included offense of misdemeanor
DWI.
―The determination of whether a lesser-included-offense instruction
requested by a defendant must be given requires a two-step analysis: (1) Is the
requested charge for a lesser-included offense of the charged offense? (2) Is there
trial evidence that supports giving the instruction to the jury?‖ Rice v. State, 333
S.W.3d 140, 144 (Tex. Crim. App. 2011). The State does not dispute appellant‘s
contention under the first inquiry that misdemeanor DWI is a lesser-included
offense of felony DWI. See Guess v. State, No. 12-08-00448-CR, 2010 WL
681345, at *4 (Tex. App.—Tyler Feb. 26, 2010, pet. ref‘d) (mem. op., not
designated for publication); Carter v. State, No. 14-08-00662-CR, 2009 WL
4
Cf. Whitmore v. State, 570 S.W.2d 889, 896–98 (Tex. Crim. App. 1976) (the
defendant‘s Sixth Amendment right to compulsory process was violated when the trial court
denied a motion for new trial based on newly available testimony that was ―admissible and not
merely cumulative, corroborative, collateral, or impeaching; and [the] materiality was such as
would probably bring about a different result on another trial‖).
9
2998534, at *3 (Tex. App.—Houston [14th Dist.] Aug. 11, 2009, pet. ref‘d) (mem.
op., not designated for publication).
Under the second inquiry, we must ―determine if there is some evidence in
the record which would permit a jury to rationally find that, if the defendant is
guilty, he is guilty only of the lesser-included offense.‖ Rice, 333 S.W.3d at 145.
―‗[T]here must be some evidence directly germane to the lesser-included offense
for the finder of fact to consider before an instruction on a lesser-included offense
is warranted.‘‖ Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011)
(alteration in original) (quoting Hampton v. State, 109 S.W.3d 437, 441 (Tex.
Crim. App. 2003)). ―It is not enough that the jury may disbelieve crucial evidence
pertaining to the greater offense.‖ Skinner v. State, 956 S.W.2d 532, 543 (Tex.
Crim. App. 1997). ―The evidence must establish that the lesser-included offense is
a valid, rational alternative to the charged offense.‖ Goad, 354 S.W.3d at 446
(quoting Rice, 333 S.W.3d at 145).
Appellant contends the second step has been satisfied in this case because
State‘s Exhibit 7 contained two prior DWI judgments from June 2000 and October
2001, and the testimony and evidence linked appellant to only the October
judgment. Appellant notes that both judgments have thumbprints on them, but
only the October judgment contains the handwritten initials of the State‘s
fingerprint expert, Mark Wright. Appellant also quotes the following testimony
from Wright:
Q: Let me show you State‘s Exhibit No. 7. Can you have a look at
State‘s Exhibit No. 7 and tell us whether or not you can identify it?
A: Yes, sir. It is one ink fingerprint on the judgment date
identified.5
5
(emphasis added by appellant).
10
Based on this evidence, appellant contends the jury could have rationally
concluded that appellant was guilty of only a misdemeanor DWI because the State
failed to prove one of the prior convictions.
However, regardless of the fact that Wright‘s testimony above does not
necessarily support appellant‘s position,6 appellant ignores the remaining
testimony from Wright, which clarifies that his fingerprint analysis linked
appellant to both prior judgments:
Q. Did you have an opportunity to compare the fingerprints on
State‘s Exhibit No. 7, the inked fingerprints on Exhibit No. 7 and
compare it to the known prints on State‘s Exhibit No. 9?
A. Yes, I did.
Q. And what were the results of your findings when comparing the
unknown prints on State‘s Exhibit No. 7 to the known prints on
State‘s Exhibit No. 9?
A. That they were made by the same person, the defendant, Mr.
Freeman.
* * *
Q. And in your opinion, is the person depicted in State‘s Exhibit
No. 7, Clyde James Freeman, the same person that you took the ink
print or the marked print—the known print from today?
A. Yes. Based on the two, the comparison of the two ink prints
from that document and the known fingerprint card, it is the same
person.7
Appellant did not cross-examine Wright on the issue, and there is no evidence in
this record directly germane to the lesser-included offense of misdemeanor DWI.
The trial court did not err by refusing to submit a lesser-included offense
instruction.
6
Each of the two judgments in Exhibit 7 contains ―one ink fingerprint.‖
7
(emphasis added).
11
Appellant‘s second issue is overruled.
B. Jurisdictional Elements of Prior DWI Convictions
In his third issue, appellant contends the trial court erred by not instructing
the jury on all essential elements of the offense of felony DWI. In particular,
appellant contends that the charge ―should spell out the elements of the
jurisdictional priors in their entirety‖ and ―list the elements of the prior DWIs.‖
Appellant contends that the jurisdictional elements ―must be separately listed so
there is no doubt the jury finds them to be true.‖ Appellant cites no authority for
any of these propositions, and we reject them.
―A jury charge must distinctly set forth the law applicable to the case and set
out all of the essential elements of the offense.‖ Martin v. State, 200 S.W.3d 635,
639 (Tex. Crim. App. 2006). This requirement includes jurisdictional elements,
such as the two prior convictions in a felony DWI case. See id. A person commits
the offense of DWI ―if the person is intoxicated while operating a motor vehicle in
a public place.‖ Tex. Penal Code Ann. § 49.04(a). A DWI is a felony ―if it is
shown on the trial of the offense that the person has previously been convicted . . .
two times of any other offense relating to the operating of a motor vehicle while
intoxicated.‖ Id. § 49.09(b).
The jury charge in this case correctly stated the law applicable to the case by
requiring the jury to find beyond a reasonable doubt that appellant ―was twice
convicted of an offense related to the operating of a motor vehicle while
intoxicated.‖ The charge stated that the phrase ―offenses relating to operating a
motor vehicle while intoxicated‖ included DWI offenses. No greater specificity is
required. ―Nothing in the law requires that the jury be informed of the particulars
of the prior convictions . . . in the jury charge itself.‖ Martin, 200 S.W.3d at 640
(emphasis omitted) (holding that the jury charge need only ―include some
12
reference to the jurisdictional element of two prior DWI convictions in a felony
DWI trial‖); cf. Sifford v. State, 511 S.W.2d 526, 528 (Tex. Crim. App. 1974) (jury
charge correctly stated that ―appellant was previously convicted on the charged
date‖ without addressing whether the appellant was ―‗duly and legally‘ so
convicted‖). Accordingly, the trial court adequately charged the jury on the
essential elements of felony DWI.
This part of appellant‘s third issue is overruled.
C. Limiting Instruction Regarding Jurisdictional Elements
Also in his third issue, appellant contends the trial court erred by failing to
include a limiting instruction regarding the prior DWI jurisdictional elements.8
When, as here, a defendant does not request a limiting instruction at the time
evidence is admitted, the evidence is admitted for all purposes. Hammock v. State,
46 S.W.3d 889, 895 (Tex. Crim. App. 2001). A limiting instruction on the
evidence never becomes ―‗law applicable to the case,‘ and the trial court [is] not
required to include a limiting instruction in the charge to the jury.‖ Id. Thus,
under Hammock, appellant would not be entitled to an instruction in the jury
charge because he did not request a limiting instruction at the time the evidence of
his prior convictions was admitted. See Ward v. State, No. 01-02-00582-CR, 2003
WL 1563753, at *2 (Tex. App.—Houston [1st Dist.] Mar. 27, 2003, pet. ref‘d)
(mem. op., not designated for publication) (applying Hammock in a felony DWI
case).
8
Appellant suggests the limiting instruction should have informed the jury that it could
not consider the evidence of appellant‘s having been two times previously convicted ―in any
manner proving or tending to prove that the defendant was intoxicated or operated a motor
vehicle in a public place on ___ day of ___.‖
13
Appellant attempts to distinguish his case from Hammock because the
evidence in his case is ―much less striking and much more technical,‖ and the
evidence has ―its greatest impact in the jury room‖ rather than at the time the
evidence is offered. But Hammock was not decided on such concerns; Hammock
presented a straightforward application of Texas Rule of Evidence 105(a) and
Code of Criminal Procedure Article 36.14. See Hammock, 46 S.W.3d at 895.
Accordingly, we conclude the trial court did not err by omitting from the charge a
limiting instruction concerning appellant‘s prior DWI convictions.
Appellant‘s third issue is overruled.
D. Comment on Appellant’s Guilt
In his fourth issue, appellant contends he was egregiously harmed by the
inclusion of an instruction in the jury charge that commented on appellant‘s guilt.
The State concedes error but argues appellant did not suffer egregious harm. The
instruction stated as follows:
You are instructed that if you find that there is evidence in this case in
regard to the defendant‘s having participated in any crime or bad act
other than the offense for which you have found him guilty, you
cannot consider such crime(s) or bad act(s) unless it has been shown
beyond a reasonable doubt by evidence to have been committed by
the defendant for which he could be held criminally responsible,
regardless of whether he has been previously charged with or finally
convicted of the crime(s) or act(s). You are further instructed such
crime(s) or act(s) are not to be used in setting the punishment of the
defendant, but rather to assist you in determining the proper
punishment in this particular case alone.9
9
(emphasis added). The Court of Criminal Appeals has suggested that an ―obvious
example‖ of error would be when a judge informs the jury that it would reach the punishment
phase of the trial ―because the only reasonable inference for the jury is that the defendant‘s guilt
had been established in the judge‘s mind.‖ Brown v. State, 122 S.W.3d 794, 798 & n.9 (Tex.
Crim. App. 2003); see also Tex. Code Crim. Proc. Ann. art. 38.05 (trial judge shall not make any
remark calculated to convey to the jury the judge‘s opinion of the case).
14
Appellant contends this instruction removed the State‘s burden of proving guilt
beyond a reasonable doubt and singles out appellant‘s guilt. When viewed in light
of the Almanza factors, however, we do not find egregious harm.
Under Almanza v. State, ―unobjected-to jury charge error will not result in
reversal of a conviction in the absence of ‗egregious harm.‘‖ Allen v. State, 253
S.W.3d 260, 264 (Tex. Crim. App. 2008) (citing Almanza v. State, 686 S.W.2d 157
(Tex. Crim. App. 1984)). To determine egregious harm, we much consider (1) the
entire jury charge, (2) the state of the evidence, including the contested issues and
the weight of the probative evidence, (3) the arguments of the parties, and (4) any
other relevant information revealed by the record of the trial as a whole. Id. ―Jury
charge error is egregiously harmful if it affects the very basis of the case, deprives
the defendant of a valuable right, or vitally affects a defensive theory.‖ Id.
The jury charge included, among other things, an abstract section describing
the crime, an application paragraph, and an instruction concerning the DIC-24
warnings informing the jury to disregard evidence derived from the breath test if
appellant‘s consent was not freely and voluntarily obtained. The charge also
included several paragraphs about the jury‘s role in determining guilt and the
burden of proof:
All persons are presumed to be innocent, and no person may be
convicted of an offense unless each element of the offense is proved
beyond a reasonable doubt. The fact that a person has been arrested,
confined, or indicted for, or otherwise charged with an offense gives
rise to no inference of guilt as his or her trial. The law does not
require a Defendant to prove his or her innocence or produce any
evidence at all. The presumption of innocence alone is sufficient to
acquit the Defendant unless the jurors are satisfied beyond a
reasonable doubt of the Defendant‘s guilt after careful and impartial
consideration of all the evidence in this case.
15
The prosecution has the burden of proving the Defendant guilty
and it must do so by proving each and every element of the offense
charged beyond a reasonable doubt and, if it fails to do so, you must
acquit the Defendant.
* * *
You are the exclusive judges of the facts proved, of the
credibility of the witnesses, and the weight to be given their
testimony, but you must be governed by the law you shall receive in
these written instruments.
* * *
Your sole duty at this time is to determine the guilt or
innocence of the Defendant under the foregoing instructions; restrict
your deliberations solely to the issue of guilt or innocence of the
Defendant.
Viewing the jury charge as a whole, this factor weighs against a finding of
egregious harm. The burden of proof was clearly placed on the State to prove
guilty beyond a reasonable doubt, and the final two paragraphs in particular
informed the jury that it was deciding appellant‘s guilt and would be the exclusive
judge of the facts. The passing reference in the erroneous instruction concerning
appellant‘s guilt and punishment likely would not convey to the jurors that they
should find appellant guilty. This conclusion is bolstered by considering the
arguments of the parties.
By the parties‘ arguments, it was clear that the jury‘s role was to determine
if the State had proven appellant‘s guilt beyond a reasonable doubt. Both the State
and trial counsel informed the jury that the burden was on the State to exclude all
reasonable doubt concerning appellant‘s guilt. Appellant‘s counsel reminded the
jurors that they were the exclusive judges of credibility. And the arguments
highlighted the primary contested issues in the case: (1) whether appellant‘s breath
sample was freely and voluntarily obtained; and (2) whether Lopez was credible.
16
The error in the charge was not emphasized by either party. This factor weighs
against a finding of egregious harm.
Further, the record contains ample evidence of appellant‘s guilt, irrespective
of the results of the breath test.10 Lopez detailed the results of the field sobriety
tests. Philpott testified about appellant‘s admission, ―I‘ve been drinking all day.
I‘m probably drunk.‖ She believed appellant was drunk. Wright confirmed by
fingerprint analysis that appellant had two previous convictions for DWI. And
when the breath test results are considered, the evidence of intoxication is
overwhelming. The weight of the probative evidence weighs against a finding of
egregious harm.
Finally, we note the absence of any indicator in this record that the jury was
impacted by the erroneous charge. For example, although the jury submitted
several questions to the trial court during deliberations, none of the questions
concerned punishment or the erroneous portion of the court‘s charge.
Considering the entire record in light of the Almanza factors, we find no
egregious harm. See Olivas v. State, 202 S.W.3d 137, 146–49 (Tex. Crim. App.
2006) (no egregious harm from omission of burden of proof instruction concerning
deadly weapon finding because even though the issue was contested, the evidence
was ample, and there was nothing in the record to suggest the jury ignored the
plain statement of law from trial counsel‘s closing argument and failed to apply it
correctly); see also Jackson v. State, 285 S.W.3d 181, 183–85 (Tex. App.—
10
Perhaps the most disputed issue was whether Lopez read the DIC-24 warnings before
requesting appellant‘s breath sample. The video recording at the scene showed Lopez asking
appellant for ―breath or blood‖ without reading the DIC-24 warnings, and appellate refused with
profanity. Lopez acknowledged that his report incorrectly suggested appellant was read the DIC-
24 warnings before being transported to jail. Lopez testified that he gave appellant the DIC-24
warnings at the jail without recording it, and the form did not bear appellant‘s signature.
Appellant‘s counsel asked the jury to disbelieve Lopez‘s testimony and determine he was not
credible.
17
Texarkana 2009, no pet.) (no egregious harm when jury instructions identified the
punishment classification of the potential offenses in the guilt-innocence charge
even though the information was irrelevant and the evidence was conflicting).
Appellant‘s fourth issue is overruled.
IV. MOTION TO SUPPRESS
In his fifth issue, appellant contends the trial court abused its discretion
when it denied his motion to suppress the breath test. Without citing authority,
appellant contends that when a defendant refuses a breath test, an ―officer should
only be allowed to request again if [the defendant] initiates.‖
―A driver‘s consent to a blood or breath test must be free and voluntary, and
it must not be the result of physical or psychological pressures brought to bear by
law enforcement.‖ Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App. 2012)
(emphasis omitted). In making this determination, the trial court must consider the
totality of the circumstances. Id. ―[N]o one statement or action should
automatically amount to coercion such that consent is involuntary—it must be
considered in the totality.‖ Id. We will uphold a trial court‘s ruling on the
voluntariness of a breath test unless the ruling is clearly erroneous. Id. at 335. We
view the evidence in the light most favorable to the trial court‘s ruling and review
questions of law de novo. See id.
The totality of the evidence in this case does not indicate appellant‘s consent
was involuntary, and we decline to adopt appellant‘s bright-line rule prohibiting an
officer from making a second request for a breath specimen. In Feinen for
example, the defendant refused to give a breath specimen two times before he
ultimately consented. Id. at 330, 336. Like the officer in Feinen, Lopez did not
provide to appellant any information proven to be untrue. See id. at 335–36. The
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officer in Feinen read the warnings before making the first request, but that single
distinction is not dispositive in a totality-of-the-circumstances analysis. Appellant
cites no authority to suggest his consent was involuntary merely because he
refused to give consent once before receiving the DIC-24 warnings. We conclude
the trial court did not err by denying the motion to suppress.
Appellant‘s fifth issue is overruled.
V. CONCLUSION
Having overruled all of appellant‘s issues, we affirm the trial court‘s
judgment.
/s/ Sharon McCally
Justice
Panel consists of Justices Brown, Christopher, and McCally.
Publish — Tex. R. App. P. 47.2(b).
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