Lawrence Floyd Miller III v. State ( 2015 )

ACCEPTED
01-15-00261-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/6/2015 3:30:28 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00261-CR
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
7/6/2015 3:30:28 PM
IN THE FIRST COURT OF A P P E ACHRISTOPHER
LS A. PRINE
Clerk
HOUSTON, TEXAS
LAWRENCE FLOYD MILLER, III,
Appellant,
Vs.
THE STATE OF TEXAS,
Appellee.
Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Cause No. 74039
BRIEF FOR THE APPELLEE, THE STATE OF TEXAS
Trey D. Picard
Assistant Criminal District Attorney
State Bar No. 24027742
JERI YENNE – BRAZORIA COUNTY 111 East Locust St., Suite 408A
CRIMINAL DISTRICT ATTORNEY Angleton, Texas 77515
(979) 864-1233
(979) 864-1712 Fax
treyp@brazoria-county.com
Attorney for the Appellee,
Oral argument is not requested. The State of Texas
IDENTITY OF PARTIES AND COUNSEL
Appellant: Lawrence Floyd Miller, III
Appellee: The State of Texas
Attorney for the Appellant: Cary M. Faden
Attorney at Law
State Bar No. 06768725
77 Sugar Creek Center Blvd.
Suite 230
Sugar Land, Texas 77478
(281) 491-6182
(281) 491-0049 Fax
careyfaden@aol.com
Attorney for the Appellant Von Shelton
at Trial: Attorney at Law
State Bar No. 18211500
2038 East Mulberry St.
Angleton, Texas 77515
(979)849-2402
(979)849-8893 Fax
Attorney for the Appellee Trey D. Picard
on Appeal: State Bar No. 24027742
Assistant Criminal District Attorney
111 East Locust St., Suite 408A
Angleton, Texas 77515
(979) 864-1233
(979) 864-1712 Fax
ii
Attorney for the Appellee Robyn Griffith
at Trial: State Bar No. 24012738
Assistant Criminal District Attorney
111 East Locust St., Suite 408A
Angleton, Texas 77515
(979) 864-1233
(979) 864-1712 Fax
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................. ii
TABLE OF CONTENTS............................................................................... iv
INDEX OF AUTHORITIES .......................................................................... v
ABBREVIATIONS FOR RECORD REFERENCES ................................... vi
STATEMENT OF THE CASE ...................................................................... 1
ISSUES PRESENTED ................................................................................... 2
STATEMENT OF FACTS ............................................................................. 3
SUMMARY OF THE ARGUMENT ............................................................. 6
ARGUMENT .................................................................................................. 7
1) The evidence is sufficient to show Appellant was the driver of
the vehicle ............................................................................................. 7
2) The trial court was within its discretion to allow a witness’ in
court identification of Appellant as the driver ..................................... 9
CONCLUSION ............................................................................................. 13
PRAYER ....................................................................................................... 14
CERTIFICATE OF SERVICE ..................................................................... 15
CERTIFICATE OF RULE 9.4 COMPLIANCE .......................................... 16
APPENDIX ................................................................................................... 17
iv
INDEX OF AUTHORITIES
Cases
Adames v. State,
353 S.W.3d 854 (Tex.Crim.App.2011) ................................................ 7
Bartlett v. State,
270 S.W.3d 147 (Tex.Crim.App.2008) ................................................ 7
Capello v. State,
775 S.W.2d 476 (Tex.App.—Austin 1989, pet. ref’d) ....................... 10
Clayton v. State,
235 S.W.3d 772 (Tex.Crim.App.2007) ................................................ 7
Denton v. State,
911 S.W.2d 388 (Tex.Crim.App.1995) ................................................ 8
Garza v. State,
633 S.W.2d 508 (Tex.Crim.App.1982) (op. on reh’g) ....................... 10
Jackson v. State,
657 S.W.2d 123 (Tex.Crim.App.1983) .............................................. 10
Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) .......................... 7
Kirsch v. State,
357 S.W.3d 645 (Tex.Crim.App.2012) ................................................ 8
Loserth v. State,
963 S.W.2d 770 (Tex.Crim.App.1998) ........................................ 10, 11
Manson v. Brathwaite,
432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977) .......................... 10
Neil v. Biggers,
409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972) .......................... 10
v
Williams v. State,
235 S.W.3d 742 (Tex.Crim.App.2007) ................................................ 7
Statutes
TEX. PENAL CODE ANN. § 49.04(a) (Vernon 2011) ........................................ 8
TEX. PENAL CODE ANN. § 49.09(b) (Vernon 2011) ........................................ 8
vi
ABBREVIATIONS FOR RECORD REFERENCES
Abbreviation The Record
1 RR 2:532 Reporter’s Record, vol. 2, page 532.
2 CR 1:45 Clerk’s Record, vol. 1, page 45.
3 Ant. Br. 5 Appellant’s Brief, page 5.
4 Apx. Ex. 1 State’s Appendix, Exhibit 1.
5 RR 5: Sx. 1 Reporter’s Record, vol. 5, State’s Exhibit 1
vii
STATEMENT OF THE CASE
A jury convicted Appellant, Lawrence Floyd Miller, III, of
driving while intoxicated (DWI), third or more, and sentenced him to twenty
years confinement and a $5,000.00 fine (CR 00071). Trial occurred in the
412th District Court for Brazoria County, Texas, the Hon. Ed Denman
presiding.
1
ISSUES PRESENTED
At issue is whether the evidence is sufficient to show Appellant
was the driver of the vehicle, and whether the trial court was within its
discretion to allow a witness’s in court identification of Appellant as the
driver of the vehicle, which Appellant claims was the product of an improper
one-on-one police lineup.
2
STATEMENT OF FACTS
At approximately 11:00 p.m. on May 4, 2014, Appellant’s gray
Chevrolet pickup truck collided with automobile driven by Arecely Macedo
on Avenue A in Freeport, Texas (RR 4:19-20, 4:22-23). Macedo did not see
the driver of the truck; however, one of the truck’s tires was left behind as it
drove away from the accident (RR 4:26-27). Bobby Robinette, a witness
who lived near the scene and was outside of his home, heard a metallic
grinding noise coming from the concrete street next to his residence (RR
4:33, 4:35). Turning to the source of the noise, he saw a gray pickup truck
rolling down the street with one of its wheels missing—the rim scraping
against the pavement (RR 4:36-37). Robinette saw the truck proceed down
Avenue A and then turn into an adjoining alley (RR 4:37-38).
Robinette saw two individuals exit the truck when it came to a
stop (RR 4:38). The passenger ran away without difficulty (RR 4:38-39).
Robinette noticed that the driver, however, had some difficulty walking as
he got out of the truck and tried to hobble away (RR 4:39-40). Robinette
continued to watch the diver as he flagged down Officer Adam Soto with the
Freeport Police Department, who was responding to the accident. Officer
Soto had been notified that the truck involved in the collision had fled in a
direction towards his location (RR 4:63, 4:65, 4:70).
3
When Officer Soto stopped, Robinette pointed out the truck and
the driver who was leaning against a nearby fence (RR 4:43, 4:61-62, 4:72).
Officer Soto saw a wrecked silver Chevrolet pickup truck in the alley, which
was leaning to one side because one of its wheels was missing (RR 4:71).
Officer Soto approached Appellant on foot and asked him if he was injured
from the accident, but Appellant, who appeared to be intoxicated, gave no
response (RR 4:73-74, 4:91-93) Officer Soto handcuffed Appellant and
conducted a pat down search, during which he recovered a set of keys—one
of which was fitted for that truck (RR 4:77). Robinette identified Appellant
as the driver of the Chevrolet pickup truck, and Appellant was confirmed to
be the registered owner (RR 4:43-45, 4:111, 4:117). Robinette also testified
that during the investigation one of the officers brought Appellant over to
him and asked, “is this the guy?” (RR 2:21, 4:50). But neither officer who
responded to the scene said this occurred (RR 4:77, 4:79, 4:81, 4:105-06).
Officer Soto placed Appellant in the back of his patrol car until
Officer Craig Graham—who specializes in intoxication related
investigation—arrived on scene (RR 4:74, 4:97-98). When Officer Graham
opened the door of the patrol car, he immediately noticed a very strong odor
coming from Appellant (RR 4:99-100). He also observed Appellant had red,
watery eyes and was agitated and uncooperative (RR 4:100). Officer
4
Graham testified that Appellant appeared to be extremely intoxicated, and
that Appellant’s speech was slurred to the extent his answers to questions
were almost incomprehensible (RR 4:100-01). Officer Graham obtained a
search warrant for Appellant’s blood, and a specimen was collected at a
nearby hospital (RR 4:101). Appellant became belligerent during the
collection process and several officers had to hold him down (RR 4:102).
Subsequent testing revealed Appellant’s blood alcohol level was 0.286
grams per 100 milliliters (RR 4:145).
5
SUMMARY OF THE ARGUMENT
Considering that a witness identified Appellant as the driver of
the Chevrolet pickup truck, as well as the fact Appellant was its registered
owner and a key to that vehicle was found on his person during a pat down
search, the jury could have found beyond a reasonable doubt that Appellant
was the driver or operator of the vehicle for purposes of DWI. Further, the
trial court did not err by admitting Robinette’s in-court identification of
Appellant as the driver because Robinette’s testimony shows his
identification of Appellant was independent of—and not influenced by—any
alleged one-on-one lineup.
6
ARGUMENT
1) The evidence is sufficient to show Appellant was the driver
of the vehicle.
When reviewing the sufficiency of the evidence, an appellate
court views all of the evidence in the light most favorable to the verdict to
determine whether any rational fact finder could have found the essential
elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Adames v. State,
353 S.W.3d 854, 859 (Tex.Crim.App.2011). The court’s review of “all of
the evidence” includes evidence that was properly and improperly admitted.
Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). Direct and
circumstantial evidence are treated equally, and circumstantial evidence
alone can be sufficient to establish guilt. Id.
The jury is also the exclusive judge of the facts, the credibility
of the witnesses, and the weight to be given to the testimony. Bartlett v.
State, 270 S.W.3d 147, 150 (Tex.Crim.App.2008). A court of appeals may
not re-evaluate the weight and credibility of the evidence or substitute its
judgment for that of the jury. Williams v. State, 235 S.W.3d 742, 750
(Tex.Crim.App.2007); see also Clayton, 235 S.W.3d at 778 (“When the
record supports conflicting inferences, [the court] presume[s] that the
7
factfinder resolved the conflicts in favor of the prosecution and therefore
defer[s] to that determination.”).
A person is guilty of DWI, third offense, if he (1) having been
two times previously convicted of an offense related to the operation of a
motor vehicle while intoxicated (2) is intoxicated (3) while operating a
motor vehicle (4) in a public place. See TEX. PENAL CODE ANN. §§ 49.04,
49.09(b) (Vernon 2011). Appellant’s sufficiency challenge in this appeal is
limited to whether the State proved beyond a reasonable doubt he operated a
motor vehicle—he does not challenge evidence supporting the jury’s other
findings that Appellant was intoxicated, or any other element of the offense.
The term “operating,” as utilized in the Penal Code, is not
defined. See TEX. PENAL CODE ANN. § 49.04(a); see also Kirsch v. State,
357 S.W.3d 645, 651 (Tex.Crim.App.2012). Therefore, in assessing the
sufficiency of the evidence to prove that a defendant was “operating” a
vehicle for purposes of DWI, a reviewing court looks to the totality of the
circumstances, which must “ ‘demonstrate that the defendant took action to
affect the functioning of his vehicle in a manner that would enable the
vehicle’s use.’ ” Kirsch, 357 S.W.3d at 650–51 (quoting Denton v. State,
911 S.W.2d 388, 390 (Tex.Crim.App.1995)).
8
There is no dispute Appellant’s silver Chevrolet pickup had just
been involved in a hit and run auto accident, during which one of its tires
had been torn off, and that his vehicle came to a stop in an alley near
Robinette’s home. He only claims he was not the driver and that the State’s
evidence does not indicate otherwise. However, Robinette saw Appellant
exit the pickup truck from the driver’s seat after it came to a stop in an alley
(RR 4:39-40). Responding officers found keys to that vehicle in Appellant’s
pocket (RR 4:77). Appellant was also identified as the registered owner of
that vehicle (RR 4:111, 4:117). Considering this evidence in the light most
favorable to the verdict, the jury could have found beyond a reasonable
doubt that Appellant was operating the vehicle in question, and his first issue
should be overruled.
2) The trial court was within its discretion to allow Robinette’s
in-court identification of Appellant as the driver.
In his second issue, Appellant argues that the trial court erred in
refusing to suppress Robinette’s in-court identification of him because it
derived from an improperly suggestive, one-on-one lineup occurring at the
scene.1 While often criticized as suggestive, however, one-on-one lineups do
1
Neither of the investigating officers said the alleged one-on-one lineup took place. But
because Robinette was the only witness to testify at the suppression hearing, and
maintains that one of the officers brought Appellant over to him and asked if Appellant
was the driver, the State’s analysis assumes arguendo this event occurred.
9
not violate due process as a matter of law. See Neil v. Biggers, 409 U.S. 188,
93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); Garza v. State, 633 S.W.2d 508, 512
(Tex.Crim.App.1982) (op. on reh’g). The question is whether the
suggestiveness inherent in the procedure was such as to give rise to a
substantial likelihood of irreparable misidentification. See Biggers, 409 U.S.
at 198-99, 93 S.Ct. at 381-82; Jackson v. State, 657 S.W.2d 123, 127
(Tex.Crim.App.1983); Capello v. State, 775 S.W.2d 476, 482 (Tex.App.—
Austin 1989, pet. ref’d).
Five factors are considered to evaluate whether there was a
substantial likelihood of irreparable misidentification: (1) the opportunity of
the witness to view the criminal at the time of the crime, (2) the witness’s
degree of attention, (3) the accuracy of the witness’s prior description of the
criminal, (4) the level of certainty demonstrated by the witness at the
confrontation, and (5) the length of time between the crime and the
confrontation. See Biggers, 409 U.S. at 199, 93 S.Ct. at 411; see also
Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d
140 (1977).
An appellate court will review the five Biggers factors, which
are all issues of historical fact, deferentially in a light favorable to the trial
court’s ruling. See Loserth v. State, 963 S.W.2d 770, 773-74
10
(Tex.Crim.App.1998). The factors viewed in this light should then be
weighed de novo against “the corrupting effect” of the suggestive pretrial
identification procedure. Id. The reviewing court must also view the
historical facts in a light most favorable to the court’s ruling if the trial court
does not make express findings of historical facts. Id. at 774.
In this case, Robinette saw Appellant exit the pickup truck
shortly after it came to rest in an alley after being damaged in the collision
with Macedo’s vehicle (RR 2:8-9, 4:36-37, 4:39-40). According to the
witness, the lineup occurred while Robinette was at the arrest location and
had just seen Appellant get out of the driver’s seat of the vehicle. Given the
immediacy of Robinette’s identification of Appellant at the scene, as well as
the certainty with which Robinette was able to identify Appellant, both at the
scene and in court (RR 2:11-12, 4:43-45) the record does not support a
finding there was a substantial likelihood of misidentification resulting from
a suggestive one-on-one lineup.
Under the “totality of the circumstances” the trial court did not
err in admitting Robinette’s in-court identification of Appellant by Robinette
because of the alleged one-on-one lineup. Considered in conjunction with
the historical facts in light of the Biggers factors, the record does not
indicate there is a substantial likelihood of irreparable misidentification by
11
this witness. To the contrary, Robinette’s identification of Appellant as the
driver of the Chevrolet pickup was independent of—and not influenced by—
any alleged one-on-one lineup. Therefore, the Court of Appeals should hold
that the trial court did not abuse its discretion in admitting Robinette’s
identification of Appellant, and Appellant’s second issue should be
overruled.
12
CONCLUSION
Viewing all of the evidence in the light most favorable to the
verdict, the jury could have found beyond a reasonable doubt that Appellant
operated a motor vehicle in a public place while he was intoxicated. Further,
the trial court was within its discretion to allow Robinette’s in court
identification of the Appellant as the driver, since the purported one-on-one
lineup was not so suggestive as to give rise to a substantial likelihood of
misidentification. Accordingly, Appellant’s issues on appeal should be
overruled.
13
PRAYER
For these reasons, the State asks the Court of Appeals to
overrule the Appellant’s issues on appeal and affirm the trial court’s
judgment.
Respectfully submitted,
/s/ Jeri Yenne
_____________________________________
Jeri Yenne
State Bar No. 04240950
Brazoria County Criminal District Attorney
/s/ Trey D. Picard
_____________________________________
Trey D. Picard
State Bar No. 24027742
Assistant Criminal District Attorney
111 East Locust St., Suite 408A
Angleton, Texas 77515
(979) 864-1233
(979) 864-1712 Fax
treyp@brazoria-county.com
ATTORNEY FOR THE APPELLEE,
THE STATE OF TEXAS
14
CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 6.3 and
9.5(b), (d), (e), I certify that I have served this document on all other parties,
which are listed below, on July 6, 2015:
Cary M. Faden By:
Attorney at Law  personal delivery
State Bar No. 06768725
77 Sugar Creek Center Blvd.  mail
Suite 230  commercial delivery service
Sugar Land, Texas 77478
 electronic delivery / fax
(281) 491-6182
(281) 491-0049 Fax
careyfaden@aol.com
Attorney for the Appellant
/s/ Trey D. Picard
_____________________________
Trey D. Picard
Assistant Criminal District Attorney
15
CERTIFICATE OF RULE 9.4 COMPLIANCE
I certify that this electronically filed document complies with
Rule 9.4 of the Texas Rules of Appellate Procedure and that the number of
words is: 2,702.
/s/ Trey D. Picard
_____________________________
Trey D. Picard
Assistant Criminal District Attorney
16
APPENDIX
No documents are attached.
17