Richard Lewis Montgomery v. State ( 2004 )

Opinion Issued December 30, 2004  

In The  

Court of Appeals

For The  

First District of Texas  

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  NO. 01-03-01227-CR

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RICHARD LEWIS MONTGOMERY, Appellant

V.

THE STATE OF TEXAS, Appellee

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  On Appeal from the County Criminal Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1177028

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MEMORANDUM OPINION

          A jury found appellant, Richard Lewis Montgomery, guilty of the misdemeanor offense of driving while intoxicated (DWI), and the trial court assessed his punishment at 180 days in jail, suspended for two years’ community supervision, and a $2,000 fine. See Tex. Pen. Code Ann. § 49.04 (Vernon 2003). We determine (1) whether the trial court erred in overruling appellant’s objection to the jury charge and (2) whether the trial court erred in overruling appellant’s objection to the admission of evidence of a witness’s prior conviction. We affirm.

Facts

          On June 6, 2003, Pasadena Police Department Officer James Wright observed appellant driving a vehicle that appeared to be speeding. Officer Wright used a radar gun to confirm that appellant’s vehicle was traveling at 49 miles per hour in a 35-mile-per-hour speed zone. Officer Wright immediately pulled out behind appellant’s vehicle, followed it for a distance, and waited for a safe place to pull the vehicle over. While following the vehicle, Officer Wright observed it swerve to the left, swerve across the center divider line, correct itself, and then swerve across the right divider line. Appellant repeated this swerving sequence once more, then abruptly engaged the vehicle’s breaks and attempted to make a sharp left into the driveway of the Dailey Double bar. However, appellant turned short of the driveway and proceeded to drive the remaining distance to the entrance with the vehicle partly on the sidewalk and partly on the road. Upon observing this maneuver, Officer Wright immediately turned on his patrol car’s emergency lights and followed appellant’s vehicle into the parking lot. After pulling into the parking lot, appellant twice unsuccessfully attempted to park his vehicle and, in the process, nearly hit several parked cars, including Officer Wright’s patrol car. Appellant successfully parked his vehicle on his third attempt.

          Upon approaching appellant’s vehicle, Officer Wright observed a strong smell of alcohol emanating from within. Officer Wright requested that appellant produce identification, to which appellant responded by hanging his head and stating, “I had a six pack, you got me.” While Officer Wright questioned appellant, the passenger of the vehicle, Ron Vahshotlz, exited the vehicle and entered the bar.

          Noting appellant’s speeding, weaving, and a strong smell of alcohol, Officer Wright performed a field sobriety test on appellant. After appellant failed the first test, Officer Wright requested that appellant perform at least four other field sobriety tests, all of which appellant failed. After appellant had failed all five tests, Officer Wright placed appellant under arrest for DWI.    Nolan Vahsholtz, a friend of appellant who had been standing outside of the bar watching appellant perform the field sobriety tests, asked Officer Wright to release appellant’s vehicle into his custody so that it would not be towed. Officer Wright did so and took appellant to the police station. At the police station, appellant refused to take an intoxilyzer test or to perform any additional sobriety tests.       

Jury Charge

                In his first point of error, appellant contends that the jury charge failed to track the statutory definition of the term “weaving”and that the error harmed him. Specifically, appellant asserts that the charge, as worded, “imposed a greater duty on appellant . . . and lessened the State’s burden of proof in showing a violation of this statute in the process.”

          In reviewing jury-charge error, we utilize a two-step process. We first determine whether error actually exists in the charge. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). If we find that error is present, we must then determine whether sufficient harm was caused by the error to warrant reversal. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). If the charge error was the subject of timely objection, reversal is required if that error was calculated to injure the rights of the defendant, thereby causing some actual harm. Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000). In a case in which a defendant did not properly object at trial, we will reverse only if the error is so egregious and created such harm that he was denied a fair and impartial trial. Arline, 721 S.W.2d at 351; Almanza, 686 S.W.2d at 171. In both circumstances, the harm suffered is examined in light of the entire jury charge; the state of the evidence, including the contested issues and the weight of probative evidence; the argument of counsel; and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171.      The Texas Transportation Code provides that “an operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely.” Tex. Transp. Code Ann.§ 545.060 (a) (Vernon 2003) (emphasis added). Appellant asserts that, because the jury charge stated that an operator “shall not,” instead of “may not,” move from the lane, the definition of the word weaving, as defined in the charge, imposed a greater duty on appellant than required by the statutory definition.

          If a requested charge is substantially the same as the charge actually give, there is no error. See Baldree v. State, 784 S.W.2d 676, 682 (Tex. Crim. App. 1989). A defendant is not entitled to have an instruction worded exactly as he requests, as long as the charge correctly states the law and tracks the applicable statute. Thacker v. State, 889 S.W.2d 380, 399 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d).

          In this case, the jury charge properly tracked the language set forth in section 545.060(a) of the Texas Transportation Code. In this context, the phrases “shall not” and “may not” are synonymous. See Tex. Gov’t Code Ann. § 311.016(5) (Vernon 2003) (stating “may not” imposes a prohibition and is synonymous with “shall not”). Because the jury charge correctly tracked the language of the statute, the charge did not contain error, and the trial court did not err in overruling appellant’s objection to the charge.

          We overrule appellant’s first point of error.

Prior Conviction  

          In his second point of error, appellant contends that the trial court erred in overruling appellant’s objection to the admission of Ron Vahsholtz’s prior conviction for forgery because the conviction was remote.

          We review a trial court’s decision to admit or to exclude evidence for an abuse of discretion. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). All relevant evidence is deemed admissible, except as otherwise provided by Constitution, by statute, by the rules of evidence, or by other rules prescribed pursuant to statutory authority. Tex. R. Evid. 402. The erroneous admission or exclusion of evidence does not result in reversible error unless it affects a substantial right of the accused. See Tex. R. App. P. 44.2(b). Substantial rights are affected when the error has a substantial and injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

          Even assuming that the trial court erred in allowing the admission of Ron Vahsholtz’s prior conviction, it cannot be said that the error was harmful. In the present case, Ron Vahsholtz had spent the day with appellant and was a passenger in appellant’s vehicle when appellant was observed weaving and attempting to park his vehicle. Ron Vahsholtz primarily testified regarding the amount of alcohol that appellant had drunk before his arrest and about whether appellant was speeding and weaving. The prosecutor questioned Ron Vahsholtz only briefly concerning his prior conviction for forgery. Furthermore, the prosecutor did not mention the conviction, or even significantly attack Ron Vahsholtz’s credibility, during closing argument.

          Moreover, Ron Vahsholtz’s testimony constituted only a small portion of the overall testimony during trial and was corroborated by other witnesses, most importantly by appellant and Nolan Vahsholtz. Like Ron Vahsholtz, appellant testified that he had drunk only three beers during the course of the day, testified that he had not been speeding or weaving, and explained why he had had difficulty parking his truck. Appellant also testified that he had performed the field sobriety tests correctly.

          More importantly, Nolan Vahsholtz, Ron Vahsholtz’s son, also corroborated appellant’s and Ron Vahsholtz’s testimony regarding appellant’s driving and performance of the field sobriety tests. The night that appellant was arrested, Nolan Vahsholtz had unexpectedly run into his father and appellant at a bar. About 10 minutes after they had met, the group decided to caravan to another bar, the Daily Double. On the drive to that bar, Nolan Vahsholtz’s vehicle drove in front of appellant’s vehicle, with one vehicle between them. Nolan Vahsholtz testified that appellant did not appear intoxicated in the first bar, that he did not speed or weave while driving to the second bar, and that appellant completed the field sobriety tests without appearing to be intoxicated.

          Based on our review of the record, we cannot conclude that the admission of Ron Vahsholtz’s prior conviction had a substantial, injurious effect on the jury’s verdict. We hold, therefore, that error did not affect appellant’s substantial rights and, pursuant to rule 44.2(b), it must be disregarded. See Bryant v. State, 997 S.W.2d 673, 677 (Tex. App.—Texarkana 1999, no pet.).

          We overrule appellant’s second point of error.  

Conclusion

          We affirm the judgment of the trial court.

                                                             Tim Taft

                                                             Justice

Panel consists of Justices Taft, Jennings, and Bland.  

Do not publish. See Tex. R. App. P. 47.2(b).