Manuel Sotelo v. State ( 2009 )


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  •                              NUMBER 13-09-00024-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    MANUEL SOTELO,                                                                Appellant,
    v.
    THE STATE OF TEXAS,                                                            Appellee.
    On appeal from the 28th District Court
    of Nueces County, Texas.
    MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
    Memorandum Opinion by Chief Justice Valdez
    A jury found appellant, Manuel Sotelo, guilty of the offense of driving while
    intoxicated (“DWI”), a third-degree felony in this case because of prior convictions for the
    same offense. See TEX . PENAL CODE ANN . § 49.04 (Vernon 2003), § 49.09 (Vernon Supp.
    2009). The trial court assessed punishment at three years’ imprisonment. By a single
    issue, Sotelo contends that the trial court erred in overruling his objection to the State’s
    allegedly improper jury argument. We affirm.
    I. BACKGROUND
    Around 11:23 p.m. on March 22, 2008, Port Aransas police officer Terry Syler
    encountered a Chevy Impala blocking Mustang Island Beach’s flow of vehicular spring
    break traffic. Upon closer inspection, Officer Syler realized that the Impala had been
    involved in a minor accident with a nearby Dodge truck. The Impala’s front wheels were
    buried in the sand and one of the wheels appeared broken; the driver, later identified by
    Officer Syler as Sotelo, attempted to free the Impala by spinning its tires. Officer Syler
    testified that he approached the driver’s side of the Impala and asked Sotelo to exit.
    Officer Syler suspected that Sotelo was intoxicated because Sotelo’s breath smelled of
    alcohol, he was “unsteady on his feet,” and his speech was slurred.
    Texas Department of Public Safety Trooper Eloy Vasquez arrived on the scene to
    assist Officer Syler. Trooper Vasquez testified that, in addition to the signs of intoxication
    noted by Officer Syler, Sotelo had “watery eyes” and kept repeating himself. Trooper
    Vasquez testified that Sotelo responded “Yes” when asked if “he had been drinking a lot.”
    Due to the large number of people and traffic on the beach, Trooper Vasquez transported
    Sotelo to the parking lot of the Port Aransas Police Department to conduct sobriety testing.
    Trooper Vasquez testified that he conducted the horizontal gaze nystagmus test, the “walk
    and turn” test, and the “one leg stand” test and that Sotelo failed each of the tests.
    Although Sotelo refused to take a breath test, Trooper Vasquez testified that in his opinion,
    Sotelo “had lost his mental and physical faculties. He was intoxicated.”
    Sotelo testified that he arrived at the beach around 8:30 p.m., intending to meet
    several friends. Sotelo parked his mother’s Impala and introduced himself to a few people
    at a nearby bonfire. Sotelo testified that he offered to drive a man home a few hours later;
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    however, on cross-examination, Sotelo testified that he did not know the man’s name.
    Sotelo admitted that he had consumed two beers that night and had two prior DWI
    convictions. According to Sotelo, because he had seen many police officers on the beach,
    he allowed the unidentified man to drive the Impala. Sotelo stated that he rode in the front
    passenger seat as the man drove the Impala down the beach. At some point, a Dodge
    truck backed into the Impala. Sotelo testified that he got out of the Impala and looked for
    a cell phone to call the police, and the man who had been driving the Impala fled. Sotelo
    insisted that no one was in the driver’s seat when the police arrived.            On cross-
    examination, Sotelo stated that he had not told the officers that someone else had been
    driving the Impala at the time of the accident because “he was more concerned about [his]
    vehicle.”
    The jury found Sotelo guilty of third-degree felony driving while intoxicated, and the
    trial court assessed punishment at three years’ imprisonment. See TEX . PENAL CODE ANN .
    §§ 49.04, 49.09. This appeal ensued.
    II. JURY ARGUMENT
    In his sole issue, Sotelo contends that the State’s comments on his refusal to submit
    to a breath test were improper, and the trial court erred by failing to sustain his objections
    to those comments.
    Closing arguments began with defense counsel’s argument that the State had not
    met its burden of proof. Defense counsel argued that evidence of the three field sobriety
    tests conducted was unreliable and that Sotelo had the right to refuse to submit to a breath
    test. During the State’s closing argument, the following exchange occurred:
    [State]:             . . . And then [Sotelo] was offered the opportunity to
    provide a breath sample. You know why? Because we
    are always going to hear the argument, oh, these field
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    sobriety tests are too hard. No one can do it. So you
    know what, he had his chance right there with his two
    beers that he drank, to blow and prove to this Court and
    to you all—
    [Defense Counsel]: Objection, Your Honor. I just want to make sure the jury
    doesn’t think the burden is being shifted, and I’m going
    to object to this part of the argument that my client has
    any burden to prove anything. I think she’s mentioned
    that.
    [State]:             Your Honor, the refusal to perform the breath
    sample—it has been used in court.
    The Court:           Overruled.
    [State]:             He had the opportunity to blow and show you that he
    was below .08, and he refused. I know we talked about
    this in voir dire about how that would take you to that
    one level. And I wish I could give that to you, but it is
    not up to me to give it. There was one person in this
    room who could have given that evidence to you, and
    he refused.
    [Defense Counsel]: I’m going to object again. That’s burden shifting, Your
    Honor. It’s inappropriate.
    [State]:             Your Honor, it is the same response. It can be used
    against him in Court.
    The Court:           The evidence of his refusal is on the record.
    [State]:             So again, that can be used against him. . . .
    A.    Was the State’s Jury Argument Improper?
    We review a trial court’s ruling on an objection to a jury argument under an abuse
    of discretion standard. See York v. State, 
    258 S.W.3d 712
    , 717 (Tex. App.–Waco 2008,
    pet. ref’d). “[P]roper jury argument generally falls within one of four general areas: (1)
    summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to
    argument of opposing counsel; and (4) plea for law enforcement.” Brown v. State, 270
    
    4 S.W.3d 564
    , 570 (Tex. Crim. App. 2008). To determine whether a party’s argument
    properly falls within one of these areas, we must consider the argument in light of the
    record as a whole. See Rodriguez v. State, 
    90 S.W.3d 340
    , 364 (Tex. App.–El Paso 2001,
    pet. ref’d).
    The State contends that its argument was proper because it was an answer to
    defense counsel’s arguments and “the State may comment on appellant’s failure to
    produce witnesses and evidence in his favor, so long as the remark does not fault the
    defendant for exercising his right not to testify.” The State’s argument on appeal begins
    with a line of cases that address whether a statement is an improper comment on a
    defendant’s failure to testify. See Jackson v. State, 
    17 S.W.3d 664
    , 674 (Tex. Crim. App.
    2000); Patrick v. State, 
    906 S.W.2d 481
    , 491 (Tex. Crim. App. 1995); Livingston v. State,
    
    739 S.W.2d 311
    , 338 (Tex. Crim. App. 1987); Caron v. State, 
    162 S.W.3d 614
    , 618 (Tex.
    App.–Houston [14th Dist.] 2005, no pet.). However, Sotelo does not contend that the
    State’s argument was a comment on his failure to testify; instead, he argues that the
    State’s argument improperly shifted the burden of proof to him. Accordingly, we focus our
    analysis on whether the State attempted to shift its burden to Sotelo.
    Section 724.061 of the Texas Transportation Code provides that a person’s refusal
    to submit to a breath test may be introduced into evidence. TEX . TRANS . CODE ANN . §
    724.061 (Vernon 1999). Because evidence of Sotelo’s failure to take a breath test was in
    evidence, the State could properly comment on his refusal in closing argument. See
    Emigh v. State, 
    916 S.W.2d 71
    , 73 (Tex. App.–Houston [1st Dist.] 1996, no pet.); Jordan
    v. State, 
    897 S.W.2d 909
    , 912-13 (Tex. App.–Fort Worth 1995, no pet.). However, the
    issue before us is not whether the State erred by commenting on Sotelo’s refusal to take
    a breath test, but whether the State’s comment improperly shifted the burden of proof to
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    Sotelo. We conclude that the State’s argument was improper.
    Although evidence of Sotelo’s refusal to submit to a breath test was properly
    introduced at trial, the State’s comments went beyond merely summarizing the state of the
    evidence. The record indicates that the State’s comments began as an answer to defense
    counsel’s argument that the sobriety tests were unreliable; however, the State’s argument
    became improper when the State suggested that Sotelo had the burden “to blow and
    prove” his innocence. By arguing that Sotelo had a chance “to prove” his innocence, the
    State attempted to shift its burden to Sotelo. See Bartlett v. State, 
    270 S.W.3d 147
    , 153
    (Tex. Crim. App. 2008) (concluding that although evidence of a person’s refusal to submit
    to a breath test may be introduced at trial because it tends to show a consciousness of
    guilt, a jury is not authorized “to presume a consciousness of guilt from the refusal to take
    a breath test”). Accordingly, we conclude that the State’s argument was improper and the
    trial court erred in overruling Sotelo’s objection. See Abbott v. State, 
    196 S.W.3d 334
    , 343-
    44 (Tex. App.–Waco 2006, pet. ref’d) (concluding that jury argument was improper where
    the State’s closing argument misstated the law on the burden of proof).
    B.     Did the Error Contribute to Sotelo’s Conviction?
    Because the trial court erred in overruling Sotelo’s objection, we must determine
    whether reversal is required. See TEX . R. APP. P. 44.2. “The law on the burden of proof
    is constitutional: The Due Process Clause of the Fourteenth Amendment to the United
    States Constitution requires that every state criminal conviction be supported by evidence
    that a rational factfinder could find beyond a reasonable doubt.” See 
    Abbott, 196 S.W.3d at 344
    . Moreover, the presumption of innocence “arises from the constitutional guarantee
    of a fair and impartial trial.” 
    Id. (citing U.S.
    CONST . amend. XIV). Because the error is
    6
    constitutional, we must reverse the trial court’s judgment unless we determine beyond a
    reasonable doubt that the error did not contribute to Sotelo’s conviction. See TEX . R. APP.
    P. 44.2(a); 
    Abbott, 196 S.W.3d at 344
    -45 (conducting a harm analysis under Texas Rule
    of Appellate Procedure 44.2(a) after determining that the State’s closing argument was
    improper where it misstated the law on the burden of proof).
    In conducting a harm analysis under rule 44.2(a), our emphasis is not on “the
    propriety of the outcome of the trial.” Scott v. State, 
    227 S.W.3d 670
    , 690 (Tex. Crim. App.
    2007). Instead, we consider “the likelihood that the constitutional error was actually a
    contributing factor in the jury’s deliberations in arriving at that verdict.” 
    Id. In reaching
    this
    decision, we consider: (1) the source and nature of the error; (2) the extent to which the
    State emphasized the error; (3) the probable collateral implications of the error; (4) the
    weight a juror would probably place upon the error; and (5) whether declaring the error
    harmless would encourage the State to repeat it with impunity. Wall v. State, 
    286 S.W.3d 372
    , 374 (Tex. App.–Corpus Christi 2008, pet. ref’d) (citing Harris v. State, 
    790 S.W.2d 568
    , 587 (Tex. Crim. App. 1989)); 
    Abbott, 196 S.W.3d at 344
    .
    Although the trial court erred by overruling Sotelo’s objection, the source and nature
    of the error was the State’s improper jury argument attempting to shift the burden of proof
    to Sotelo. Turning to the second through fourth factors, we note that aside from the above
    cited argument, the jury was properly instructed on the burden of proof throughout the trial.
    During voir dire, the jury heard from defense counsel that the State had the burden to
    prove that Sotelo was guilty of the offense of driving while intoxicated. Defense counsel
    emphasized that Sotelo “has no burden at all to do anything.” When trial began, the
    State’s opening argument informed the jury that the State had the burden to prove that
    7
    Sotelo committed the charged offense beyond a reasonable doubt. Defense counsel’s
    opening statement reminded the jury that “the State always has the burden” and that “the
    burden never shifts to my client.”
    Before closing arguments, the trial court charged the jury, in pertinent part, as
    follows:
    Unless you so find beyond a reasonable doubt, or if you have a
    reasonable doubt thereof, you will acquit the defendant of the felony offense
    alleged in the indictment.
    ....
    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, the offense gives rise to no inference
    of guilt at his trial. The law does not require a defendant to prove his
    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 the case.
    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 by
    reasonable doubt and if it fails to do so, you must acquit the defendant.
    ....
    In deciding the question of guilt or innocence, the jury shall be
    governed by the law as it is stated in the charge. . . .
    The charge was followed by defense counsel’s closing argument emphasizing the State’s
    burden. After improperly attempting to shift the burden of proof to Sotelo via the previously
    discussed closing argument, the State concluded its jury argument by stating that the State
    bears the burden of proof and emphasizing that it had met its burden.
    Sotelo does not contend that the evidence is legally or factually insufficient to
    8
    support his conviction. Moreover, the error did not occur until the State’s closing argument
    in the guilt-innocence phase of trial. The evidence does not suggest that the State
    emphasized its error or that the jury would place undue weight on the State’s improper
    argument. 
    Abbott, 196 S.W.3d at 344
    -45. Moreover, the jury was properly instructed on
    the correct burden of proof numerous times throughout the trial. Because the jury is
    presumed to follow these instructions, the impact of the State’s improper argument was
    likely negated to some extent. See Crocker v. State, 
    248 S.W.3d 299
    , 306-07 (Tex.
    App.–Houston [1st Dist.] 2007, pet. ref’d).
    Finally, we must determine whether declaring the State’s error harmless would
    encourage the State to repeat it with impunity. See 
    Abbott, 196 S.W.3d at 344
    . The
    defense’s closing argument questioned the reliability of the three sobriety tests given and
    the veracity of the officer who conducted them. As previously discussed, the State’s
    argument, although improper, began as a response to defense counsel’s arguments.
    Although the State‘s argument went beyond merely responding to defense counsel’s
    assertions, there is nothing in the record to suggest that the State intended to shift its
    burden to Sotelo—Sotelo’s refusal to take the breath test was not emphasized during the
    trial. Morevoer, soon after its improper argument, the State referred to the correct burden
    of proof, and the jury was instructed as to the correct standard numerous times throughout
    the trial.
    After due consideration of the each of the aforementioned factors, we are certain
    that the State’s error did not contribute to Sotelo’s conviction. Accordingly, the complained-
    of error was harmless. See TEX . R. APP. P. 44.2(a); 
    Abbott, 196 S.W.3d at 345
    . Sotelo’s
    sole issue is overruled.
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    III. CONCLUSION
    Having overruled Sotelo’s sole issue, we affirm the trial court’s judgment.
    ________________________
    ROGELIO VALDEZ
    Chief Justice
    Do Not Publish.
    TEX . R. APP. P. 47.2(b)
    Delivered and filed
    the 10th day of December, 2009.
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