Ricke Sony v. State ( 2009 )

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OPINION
No. 04-08-00806-CR
Ricke SONY,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 4, Bexar County, Texas
Trial Court No. 232446
Honorable Fred Shannon, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Concurring opinion by: Sandee Bryan Marion, Justice
Sitting: Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Marialyn Barnard, Justice
Delivered and Filed: November 11, 2009
AFFIRMED
A jury found Ricke Sony guilty of racing on a highway under section 545.420 of the Texas
Transportation Code (“the Code”). On appeal, Sony contends the statute violates his due process
and equal protection rights as guaranteed by the United States and Texas Constitutions. Sony also
contends the trial court erred in refusing to: (1) grant his motion for directed verdict; (2) charge the
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jury on the defense of necessity; and (3) suppress certain pictorial evidence. We affirm the trial
court’s judgment.
BACKGROUND
Sony was arrested and charged by information with racing on a highway under section
545.420 of the Code. See TEX . TRANSP . CODE ANN . § 545.420 (Vernon Supp. 2008). The
information alleged: “RICKE SONY did then and there participate as the driver and operator of a
motor vehicle in a race, namely: the use of one or more vehicles in an attempt to outgain and
outdistance another vehicle.” Section 545.420 of the Code provides that a person may not participate
in a race and defines “race” as:
[T]he use of one or more vehicles in an attempt to:
(A) outgain or outdistance another vehicle or prevent another vehicle from
passing;
(B) arrive at a given destination ahead of another vehicle or vehicles; or
(C) test the physical stamina or endurance of an operator over a long-distance
driving route.
Id. § 545.420 (a)(1), (b)(2).
At trial, Michael McFarland, the arresting officer, testified that on October 14, 2007, he was
traveling south on Interstate 35 near Loop 1604 in his “aggressive driving vehicle,” a silver Crown
Victoria marked with “San Antonio Police Department” in letters that were similar in color to the
vehicle. Officer McFarland told the jury he was patrolling the area for speeders and aggressive
drivers. Officer McFarland stated he had been trained to spot vehicles that were racing or engaging
in acts of reckless driving. According to Officer McFarland, racing vehicles do not have to travel
at a certain speed, but only have to “try to outdistance one or the other[,]” and the majority of the
cases he sees are instances where two vehicles are side by side with one“one trying to out distance
the other.”
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Officer McFarland stated that in his rear view mirror, he observed a red Mazda RX7 (“the
Mazda”) traveling at a high rate of speed in the passing lane. He also saw a blue Dodge Neon (“the
Dodge”) traveling very fast in another lane behind the Mazda. The posted speed limit in the area was
sixty-five miles per hour, and Officer McFarland testified his radar detector clocked speeds
“somewhere in the nineties when [both cars] were first coming up passing the strip of [other]
vehicles [on the interstate.]” Officer McFarland testified that eventually both vehicles were traveling
side-by-side. As both vehicles accelerated, Officer McFarland stated that according to his radar
detector, their speeds increased from ninety-five miles per hour to over one hundred miles per hour.
When the vehicles approached Officer McFarland’s vehicle, the Dodge got behind the Mazda.
Officer McFarland testified he activated his emergency lights when the vehicles passed him, and
both cars immediately hit their breaks and started slowing down. While Officer McFarland was not
able to catch the Dodge, which continued south on Interstate Highway 35, he was able to stop the
Mazda, which belonged to Sony. Officer McFarland said Sony admitted he was speeding, but
claimed it was because the Dodge was “coming at me, at a really fast pace.” Officer McFarland
arrested Sony for racing.
Officer McFarland testified that after arresting Sony, he conducted an inventory search of the
Mazda. He discovered several products that “looked after[-]market in appearance” and “were added
on the vehicle.” Several pictures of the after-market products were admitted into evidence,
including: (1) a programmer used to change the shifting points; (2) a boost meter or a meter gage
used to measure or monitor the amount of boost being added to the engine on high performance cars;
(3) a radar detector; (4) after-market air filters used to increase the performance of a vehicle; and (5)
enlarged pipes coming off the radiator and another part of the engine. Officer McFarland testified
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that based on his experience in the aggressive driving unit, most people arrested for racing on the
highway had additions to their car similar to the ones found on the Mazda.
At trial, Sony admitted he was speeding, but he testified he did not believe he was traveling
over eighty-five miles per hour. Sony testified he was speeding in order to make the next exit after
he missed the first one. Sony also testified that a blue Dodge was coming up very fast behind him,
and he accelerated “to get the car off me.” On cross-examination, Sony stated he did not realize the
Dodge was traveling alongside him because he was “concentrating on the traffic directly in front of
[him] and then looking for the exit.” Sony also explained he was in the passing lane because he
overreacted to missing his exit and was in a hurry to find another exit. Sony also admitted
“reasonable people” might have thought he was driving unsafely, but he was not racing.
At the close of the evidence, the trial court read the charge to the jury. In relevant part, the
charge stated:
1.
OUR LAW PROVIDES THAT A PERSON COMMITS THE OFFENSE OF
RACING ON A HIGHWAY IF THE PERSON PARTICIPATES IN A RACE,
THROUGH THE USE OF ONE OR MORE VEHICLES IN AN ATTEMPT TO
OUTGAIN OR OUTDISTANCE ANOTHER VEHICLE.
2.
THE TERM “PARTICIPATES IN A RACE” INCLUDES PARTICIPATING
AS THE DRIVER OR OPERATOR OF A MOTOR VEHICLE INVOLVED IN A
RACE.
…
“RACING” MEANS THE USE OF ONE OR MORE VEHICLES IN AN
ATTEMPT TO OUTGAIN OR OUTDISTANCE ANOTHER VEHICLE.
3.
NOW, IF YOU FIND FROM THE EVIDENCE BEYOND A
REASONABLE DOUBT THAT ON OR ABOUT THE 14TH DAY OF OCTOBER,
A.D., 2007, IN BEXAR COUNTY, TEXAS, THE DEFENDANT, RICKE SONY,
DID THEN AND THERE INTENTIONALLY AND KNOWINGLY PARTICIPATE
AS THE DRIVER OR OPERATOR OF A MOTOR VEHICLE TO OUTGAIN AND
OUTDISTANCE ANOTHER VEHICLE, THEN YOU WILL FIND THE
DEFENDANT GUILTY OF THE OFFENSE OF RACING AS CHARGED IN THE
INFORMATION.
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The jury found Sony guilty, and the trial court sentenced him to thirty days in jail and a
$250.00 fine.
DUE PROCESS CHALLENGE
In his first issue, Sony contends section 545.420 of the Code is unconstitutional on its face.
More specifically, he argues the statute is void for vagueness in violation of the Due Process Clause
of the United States and Texas Constitutions.
The State counters that Sony failed to preserve this issue for appeal because Sony did not
assert in the trial court that the statute was facially void or void as applied to him.
When challenging the constitutionality of a statute for vagueness, there are two types of
challenges: (1) an “as applied” challenge, involving whether a statute is unconstitutional as applied
to a defendant’s particular conduct, and (2) a “facial” challenge, involving whether a statute is
unconstitutional on its face. Fluellen v. State, 104 S.W.3d 152, 167 (Tex. App.—Texarkana 2003,
no pet.).
Texas law is clear that an “as applied” challenge cannot be raised for the first time on appeal.
See, e.g., Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) (holding appellant waived
his challenge to statute as vague as applied because he did not specifically object at trial); Garcia
v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994) (holding that defendant must object at trial
to preserve as applied challenge for appeal); Fluellen, 104 S.W.3d at 167 (“A constitutionality
challenge based on application to the defendant's case cannot be raised for the first time on appeal.”).
Therefore, in order to preserve an as applied challenge for appeal, an appellant must specifically
object at trial that a statute is unconstitutionally vague as applied to him. See id.
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Moreover, now, a facial challenge can no longer be raised for the first time on appeal.
Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). Previously, relying on the decision
in Raab v. State, 730 S.W.2d 751, 752 (Tex. Crim. App. 1987), numerous intermediate courts held
a facial challenge could be raised for the first time on appeal. See, e.g., Barnett v. State, 201 S.W.3d
231, 232 (Tex. App.—Fort Worth 2006, no pet.) (“[A] defendant may raise a constitutional challenge
to the facial validity of a statute for the first time on appeal.”); Rodriguez v. State, 71 S.W.3d 800,
802 (Tex. App.—Texarkana 2002, no pet.) (allowing defendant to raise facial challenge to validity
of statute for first time on appeal); McGowan v. State, 938 S.W.2d 732, 741 (Tex. App.—Houston
[14th Dist.] 1996, pet. ref’d) (indicating defendant is not required to object at trial when challenging
facial constitutionality of statute). Recently, the court of criminal appeals held “a defendant may not
raise for the first time on appeal a facial challenge to the constitutionality of a statute.” Karenev, 281
S.W.3d at 434.
Here, neither an as applied nor a facial challenge was preserved for appellate review. There
is nothing in the record to establish Sony specifically asserted at trial that the statute was facially
vague or vague as applied to him. While Sony suggests that his questioning of Officer McFarland
regarding the arbitrariness of the enforcement of the statute is sufficient to preserve error, we
disagree. See TEX . R. APP . 33.1(a)(1) (requiring grounds for objection to be made with sufficient
specificity to make trial court aware of complaint). Because no specific, timely objection was made,
this issue was not preserved for our review. See Karenev, 281 S.W.3d at 434; Curry, 910 S.W.2d
at 496. Accordingly, we overrule Sony’s due process challenge.
EQUAL PROTECTION CHALLENGE
As part of his first issue, Sony also contends that section 545.420 of the Code is
unconstitutional because the statute violates the Equal Protection Clause of the United States and
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Texas Constitutions. Again, nothing in the record shows Sony asserted at trial a violation of his
equal protection rights. Because Sony failed to make a specific or timely objection at trial on equal
protection grounds, the issue was not preserved for appellate review. See TEX . R. APP . P. 33.1(a)(1);
see also Flores v. State, 245 S.W.3d 432, 437 n. 14 (Tex. Crim. App. 2008) (highlighting that
appellant waived equal protection claim when he neglected to raise issue at trial); Steadman v. State,
31 S.W.3d 738, 742 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (holding complaint that
sentence violated equal protection was waived because of failure to object at trial). Accordingly, we
overrule Sony’s equal protection challenge, and his first issue.
MOTION FOR DIRECTED VERDICT
In his second issue, Sony contends the trial court abused its discretion in denying his motion
for directed verdict. Sony contends the evidence was legally insufficient to show he was racing,
arguing the evidence established only that he was speeding.
We review a challenge to a trial court’s denial of a motion for directed verdict the same as
we would review a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d
479, 482 (Tex. Crim. App. 1996). In determining the legal sufficiency of the evidence, we review
all the evidence in the light most favorable to the verdict to decide whether a rational jury could have
found the essential elements of the offense beyond a reasonable doubt. See id. The jury is the sole
judge of the credibility of the witnesses and the weight to be given to their testimony. Moore v.
State, 935 S.W.2d 124, 126 (Tex. Crim. App. 1996). The jury may choose to accept or reject all or
part of the testimony, and we must resolve any conflicts and inconsistencies in the evidence in favor
of the jury’s verdict. Id.; Jennings v. State, 107 S.W.3d 85, 88 (Tex. App. —San Antonio 2003, no
pet.).
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Section 545.420 of the Code provides that “a person may not participate in any manner in
a race[.]” TEX . TRANSP . CODE ANN . § 545.420(a)(1). The jury charge tracked the language of
section 545.420(b)(2) by defining racing as “THE USE OF ONE OR MORE VEHICLES IN AN
ATTEMPT TO OUTGAIN OR OUTDISTANCE ANOTHER VEHICLE.” Id. at § 545.420(b)(2)
Officer McFarland testified Sony’s Mazda and the Dodge were traveling over ninety miles per hour
on Interstate Highway 35. According to Officer McFarland, the vehicles overtook other vehicles on
the interstate and eventually were traveling side-by-side. Officer McFarland testified that when the
vehicles were side-by-side, they accelerated, and Sony’s speed increased from nintey-five to one
hundred and one miles per hour. In addition to this testimony, the State presented evidence that
Sony’s vehicle had several high performance additions, which according to Officer McFarland, were
commonly added to enhance a vehicle’s overall performance. Although Sony testified he sped to
get to the next exit and out of the Dodge’s way, we must resolve any conflicts and inconsistencies
in the testimony in favor of the jury’s verdict. See Moore, 935 S.W.2d at 126; Jennings, 107 S.W.3d
at 88.
We hold the State’s evidence was sufficient to allow a rational jury to find Sony participated
in a race, i.e., was using the Mazda to outgain or outdistance the Dodge. See Williams, 937 S.W.2d
at 482; see also TEX . TRANSP . CODE ANN . § 545.420. Accordingly, the trial court did not abuse its
discretion in denying Sony’s motion for directed verdict. Sony’s second issue is overruled.
DEFENSE OF NECESSITY
Sony next contends the trial court abused its discretion in refusing to submit his request for
an instruction on the statutory defense of necessity. The State contends, however, that Sony’s issue
is meritless because Sony did not offer any evidence to raise an inference that his conduct was
immediately necessary to avoid any imminent harm. We agree.
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A defendant is entitled to an instruction on each defensive issue raised by the evidence.
Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim. App. 2007). A defendant’s testimony alone is
sufficient to raise a defensive issue and as a result, to require an instruction in the jury charge. Id.
at 209; Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1982). When the evidence raises a
defensive issue and the defendant properly requests an instruction on that issue, the trial court must
submit the issue to the jury. Darty v. State, 994 S.W.2d 215, 218 (Tex. App.—San Antonio 1999,
pet. ref’d). We review a trial court’s decision to submit or refuse to submit an instruction under an
abuse of discretion standard. See id. In addition, we review the evidence offered in support of a
defensive issue in the light most favorable to the defense. See Pennington v. State, 54 S.W.3d 852,
856 (Tex. App.—Fort Worth 2001, pet. ref’d).
To raise the defense of necessity, the defendant must admit to committing the offense and
then offer necessity as a justification. Hubbard v. State, 133 S.W.3d 797, 801 (Tex.
App.—Texarkana 2004, pet. ref'd); Pennington, 54 S.W.3d at 857. Section 9.22 of the Texas Penal
Code provides:
Conduct is justified if:
(1) the actor reasonably believes the conduct is immediately necessary to
avoid imminent harm;
(2) the desirability and urgency of avoiding the harm clearly outweigh,
according to ordinary standards of reasonableness, the harm sought to be
prevented by the law proscribing the conduct; and
(3) a legislative purpose to exclude the justification claimed for the conduct
does not otherwise plainly appear.
TEX . PENAL CODE ANN . § 9.22 (Vernon 2003). Under section 9.22(1), a defendant is required to
present evidence that he reasonably believed a specific harm was imminent. Id. § 9.22(1);
Pennington, 54 S.W.3d at 857. “Reasonable belief” means a belief that an ordinary and prudent man
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would hold if he was in the same circumstances as the actor. Id. § 1.07(a)(42); Pennington, 54
S.W.3d at 857. Whether an accused’s belief is reasonable is a question of fact and is viewed from
the accused’s standpoint at the time he acted. Pennington, 54 S.W.3d at 857. “‘Imminent’ means
something that is impending, not pending; something that is on the point of happening, not about to
happen.” Id.; Darty, 994 S.W.2d at 218. “Harm is imminent when there is an emergency situation
and it is ‘immediately necessary’ to avoid that harm.” Pennington, 54 S.W.3d at 857.
Because Sony admitted speeding and therefore, sufficiently admitted to the conduct
underlying the charged offense, Sony satisfied the admission element and may offer the defense of
necessity to justify his conduct. See Hubbard, 133 S.W.3d at 801-802 (allowing a defensive
instruction when defendant admitted at least some participation in the action underlying the offense
charged); Pennington, 54 S.W.3d at 856. But, we still must determine whether Sony presented
evidence that he reasonably believed his conduct was necessary to avoid imminent harm. See TEX .
PENAL CODE ANN . §§ 1.07(a)(42), 9.22; Pennington, 54 S.W.3d at 857. Sony admitted he was
speeding in an effort to get to the next exit. Although Sony testified he was accelerating in order to
get out of the way of the fast approaching Dodge, he also testified he was oblivious to any car “on
[him],” and he felt “in control the whole time” and was “definitely safe.” After reviewing the record,
we hold Sony’s testimony does not show he reasonably believed he had to immediately speed to
prevent any imminent harm from occurring. See id. Accordingly, we overrule Sony’s third issue.
ADMISSIBILITY OF PHOTOGRAPHS
Finally, Sony contends the trial court abused its discretion in admitting several photographs
of enhancements made to the Mazda. According to Sony, the photographs were irrelevant under
Texas Rule of Evidence 401, and more prejudicial than probative under Texas Rule of Evidence 403.
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Sony contends because there is no relationship between evidence of vehicle enhancements and
racing, the photographs were used to imply he was racing when he was only speeding.
The State first contends Sony failed to preserve the complaint that the photographs should
have been excluded pursuant to Rule 403 for appeal. We agree.
The record reflects Sony did not object to the photographs based on Rule 403. Throughout
the conversations regarding the admissibility of the photographs, the trial court, as well as Sony’s
defense counsel, discussed the issue surrounding the admissibility of the photographs in terms of
relevance. When the State began introducing the exhibits, Sony’s counsel asked if the jury could be
excused. The court specifically asked, “Okay. Is the objection relevance?” Sony’s defense counsel
replied, “Yes.” Upon request of the trial court, Officer McFarland began describing the significance
of each of the photographs, and at one point, Sony’s counsel stated, “Your Honor, my objection is
very simple, unless he has relevant knowledge that that’s an after-market item then he can’t testify
to that. He has no knowledge whatsoever if that’s an after-market item or not.” Based on the record
before us, Sony raised only a Rule 401 complaint with regards to the photographs. Accordingly,
Sony waived his Rule 403 complaint. See TEX . R. APP . P. 33.1(a)(1).
Whether a photograph is admissible under Rule 401 is within the sound discretion of the trial
judge. Shuffield v. State, 189 S.W.3d 782, 786 (Tex. Crim. App. 2006). Texas Rule of Evidence
401 describes relevant evidence as “evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more or less probable than it would be
without the evidence.” TEX .R. EVID . 401; Shuffield, 189 S.W.3d at 786-87.
Here, the photographs showed images of high performance additions to the Mazda, including
the type of engine and several after-market additions. Officer McFarland testified the additions were
commonly added to high-performance vehicles owned by racers in San Antonio to enhance a
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vehicle’s overall performance. Based on Officer McFarland’s testimony, the photographs were
relevant to the alleged racing charge because the photographs had a tendency to make the
determination that Sony was racing more or less probable by showing Sony’s vehicle had high
performance additions commonly used by racing vehicles. See TEX .R. EVID . 401.
Accordingly, we hold the trial court did not abuse its discretion in admitting the photographs
and overrule Sony’s fourth issue.
CONCLUSION
Based on the foregoing, we affirm the trial court’s judgment.
Marialyn Barnard, Justice
PUBLISH
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