Fremin, Ellen Murphy v. State ( 2002 )

Affirmed and Opinion filed June 6, 2002

Affirmed and Opinion filed June 6, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00571-CR

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ELLEN MURPHY FREMIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 12

Harris County, Texas

Trial Court Cause No. 1019656

O P I N I O N

Ellen Fremin appeals her conviction and thirty-day jail sentence for driving while intoxicated. In four issues, appellant contends: (1) she was improperly denied a jury instruction; (2) her request for an instructed verdict was erroneously refused; and (3)  the results of field sobriety testing and extraneous offense evidence should not have been admitted.  We affirm.

Background

In the early evening of May 12, 2000, appellant left her two children and one grandchild at Little Rascal=s Playhouse (the APlayhouse@), a child-care center. Appellant went to a restaurant for dinner with friends and drank some wine.  She left the restaurant around 10:00 p.m. but did not return to the Playhouse until 11:00 p.m.  The playhouse and the restaurant are less than one minute=s drive from each other.

According to Playhouse employee Rosie Canales, appellant was angry upon her return to the Playhouse.  Appellant shouted and screamed as she dragged her crying daughter by the hair while searching for a carpeted mat she thought had been brought to the Playhouse.  Appellant left with her children approximately ten minutes after her arrival. Canales testified appellant smelled of alcohol but did not stagger, slur her speech, or hit her children.

Before appellant returned to the Playhouse from the restaurant, Deputy Harris County Sheriff Robert Strickland, who was working off-duty providing security at the Playhouse shopping center, summoned the Houston Police Department=s DWI task force.  Three officers from the task force arrived at the Playhouse to await appellant=s return.  On direct examination, over objection, Strickland testified he called the DWI task force because of Aprevious situations@ involving appellant.

Task force officers Green and Lindsey followed appellant as she left the Playhouse.  Deputy Strickland went inside the Playhouse and had a brief discussion with the Playhouse employees.  Strickland left the Playhouse and caught up with the task force officers, who were following appellant.  Strickland, mistakenly, told the officers that appellant had hit her children.^[1]  Lindsey detained appellant immediately after speaking with Strickland.  Lindsey testified appellant was speeding, smelled of alcohol, had glassy eyes, and failed field sobriety tests.  After her arrest, the officers found a cool, approximately half-full, open beer container in the console of appellant=s car.  Appellant refused a request to undergo a breath test.

Discussion

I. Charge under Article 38.23

The trial court denied appellant=s request that the jury determine whether her detention was legal.  See Tex. Crim. Proc. Ann. ' 38.23 (Vernon Supp. 2002).  Appellant argues her husband=s testimony, which was excluded by the trial court, raises a fact issue regarding whether she was speeding. See Balentine v. State, 2002 Tex. Crim. App. LEXIS 71, at *23B24 (Tex. Crim. App. 2002) (holding ' 38.23 charge should be submitted only if there is a factual basis to believe evidence obtained illegally). We disagree.  Appellant=s husband, Byron Fremin, would have testified he had the following conversation with Officer Strickland the night of appellant=s arrest:^[2]

Q:  When you met [Strickland] outside the gate, what did he tell you?

A:  He told me that Ellen was threatening to sue them for no reason to stop her.  And he said that=s absolutely right, we didn=t stop her for her driving, we stopped her because we got a call from a security constable working security over there at Little Rascal=s Playhouse claiming that she had pulled my little girl=s hair.  And that=s all he needed for a reason to stop her.

Even if Mr. Fremin=s testimony is true, Officer Strickland merely informed him that his wife=s detention for speeding was pretextual.^[3]  Pretext stops are legal.  See, e.g., Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992) (AAs long as an actual violation occurs, law enforcement officials are free to enforce the laws and detain a person for that violation, regardless of . . . the officer=s subjective reasons for the detention.@).  Evidence of pretext does not contradict Lindsey=s testimony that appellant was speeding. See, e.g., Hamilton v. State, 831 S.W.2d 326, 331 (Tex. Crim. App. 1992) (distinguishing evidence of facts from evidence of motive).  Because appellant offered no evidence bearing on whether she was speeding, the trial court properly refused to grant her request for a jury instruction. We overrule appellant=s first issue.

II.  Factual Insufficiency

The information charged appellant with being intoxicated by reason of the introduction of alcohol or, in the alternative, the drug Skelaxin.^[4]  In his second issue, appellant contends the trial court erred in failing to grant an instructed verdict of acquittal on the drug paragraph of the information. Appellant does not attack the sufficiency of the evidence supporting proof of intoxication by alcohol.  His second issue is therefore overruled.  Kitchens v. State, 823 S.W.2d 256, 259 (Tex. Crim. App. 1991) (holding that appellant=s failure to contest evidentiary sufficiency on all alternatively charged theories results in affirmance).

III.  Field Sobriety Testing

In his third issue, appellant argues the trial court erred in allowing Officer Lindsey to testify that the results of Horizontal Gaze Nystagmus (HGN) tests like those given to appellant had been validated by comparison with breath test results.  Lindsey testified on direct examination:

Q:  You spoke yesterday that three tests were standardized and validated?

A:  Yes, ma=am.

Q:  Can you tell us what does Avalidate@ mean?

A:  That the results of the field sobriety tests have a B can compare to a known result, a known number of a breath test result.

Defense Attorney:  Objection, Judge.  Move for a mistrial.

Court:  Objection sustained.  Request for a mistrial is denied.

Appellant contends the trial court=s error is identified in Emerson v. State, 880 S.W.2d 759, 764B66 (Tex. Crim. App. 1994).  We disagree.  Emerson prohibits a police officer from using HGN evidence to quantify a defendant=s blood-alcohol-content (ABAC@).  Id. at 769.  Officer Lindsey did not link the results of appellant=s HGN test to a BAC. Rather, he offered evidence demonstrating the reliability of the HGN test in general.  Compare Smith v. State, 65 S.W.3d 332, 345 (Tex. App. Waco 2001, no pet.) (error found where officer testified defendant=s HGN result indicated a BAC greater than .08).  Accordingly, we overrule appellant=s third issue.

IV.  Rule 404(b)

In his final issue, appellant contends Deputy Strickland=s statement that he called the DWI task force as a result of Aprior situations@ should not have been admitted. See Tex. R. Evid. 404(b) (evidence of other acts not admissible to show action in conformity therewith). The State responds that the statement was not an extraneous act and, alternatively, was admissible as same transaction evidence.  See id. (evidence of other acts admissible if  those acts part of same transaction as crime charged).  Even if the trial court erred in permitting Strickland=s testimony, appellant=s brief identifies no evidence of harm.  Appellant=s issue is therefore waived. See Tex. R. App. P. 38.1(h) (requiring citation to authority and record). See also Tex. R. App. P. 44.2(b) (error not affecting substantial rights must be disregarded).  We overrule appellant=s fourth issue.

Accordingly, the judgment of the trial court is affirmed.

/s/        Eva M. Guzman

Justice

Judgment rendered and Opinion filed June 6, 2002.

Panel consists of Justices Yates, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.3(b).

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^[1]  Strickland admitted he was mistaken in believing appellant had hit her children.

^[2]  Mr. Fremin=s testimony was heard outside the presence of the jury.

^[3]  Officer Strickland denied having made the statements attributed to him by appellant=s husband.

^[4]  The State is allowed to plead alternative theories of manner and means in conjunctives and proof under one theory will suffice for conviction.  Lawton v. State, 913 S.W.2d 542, 551 (Tex. Crim. App. 1995).  See also Price v. State, 59 S.W.3d 297 (Tex. App.CFort Worth 2001, no pet.) (DWI case).