Didier Saho v. State , 2015 Tex. App. LEXIS 5400 ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00352-CR
DIDIER SAHO APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 6 OF TARRANT COUNTY
TRIAL COURT NO. 1236650
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OPINION
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A jury convicted Appellant Didier Saho of driving while intoxicated (DWI).
The trial court sentenced him to sixty days’ confinement, probated for nine
months, and a $500 fine. Appellant brings a single issue on appeal, arguing that
the trial court erred by denying his motion for new trial. Because the trial court
did not abuse its discretion by denying the motion, we affirm the trial court’s
judgment.
Brief Facts
Officer Curtis Page saw a van change lanes, forcing another vehicle off the
road. Page pulled the van over and instructed the driver, Appellant, to get out of
the van. Appellant smelled of alcohol, had bloodshot eyes, and was unsteady
when he got out of the van. Page testified that Appellant’s speech was slurred
when he responded to Page’s questions. Appellant performed poorly on the field
sobriety tests, and Page placed him under arrest for suspicion of DWI. In
response to Page’s questions about alcohol consumption, Appellant finally
admitted that he had drunk one Heineken beer. At the jail, Appellant’s intoxilyzer
tests registered .146 and .149.
At trial, Appellant argued, among other defenses, involuntary intoxication.
He described the treatment that Paul Tiogong, a “traditional practitioner” from
Cameroon, gave him for a male supplement, including chewing a nut, drinking a
potion, and not being able to drink water but being instructed to drink the
Heineken beer instead. Appellant testified that after he left Tiogong’s, he did not
feel intoxicated, although he felt some stomach pain when he stopped to buy
gasoline. But because he had drunk nothing but the single Heineken and the
potion, he concluded that it must have been the potion that caused his
intoxication.
After his conviction, Appellant filed a motion for new trial. After a hearing,
the trial court denied the motion.
2
Newly Discovered or Newly Available Evidence
At the hearing on Appellant’s motion for new trial, he presented an affidavit
from Tiogong, who was in Cameroon. The State argued that the jury had heard
the evidence of the nut and potion at trial and had heard that Tiogong was not
available because he was in Cameroon. The State also argued that Tiogong’s
statements that the potion had a high concentration of alcohol were conclusory
without providing any qualifications to make that conclusion and that the trial
court should not take judicial notice of the intoxicating quality of odontol, an
ingredient of the potion, because it was not common knowledge.
We review a trial court’s denial of a motion for new trial for an abuse of
discretion. 1 As the Texas Court of Criminal Appeals has recently reiterated,
The test for abuse of discretion is not whether, in the opinion of the
appellate court, the facts present an appropriate case for the trial
court’s action, but rather, “whether the trial court acted without
reference to any guiding rules or principles.” The mere fact that a
trial court may decide a matter differently from an appellate court
does not demonstrate an abuse of discretion. Appellate courts view
the evidence in the light most favorable to the trial court’s ruling,
defer to the court’s credibility determinations, and presume that all
reasonable fact findings in support of the ruling have been made. 2
It is well-established law that
1
Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014); Salazar v.
State, 38 S.W.3d 141, 148 (Tex. Crim. App.), cert. denied, 534 U.S. 855 (2001).
2
State v. Thomas, 428 S.W.3d 99, 103–04 (Tex. Crim. App. 2014)
(footnotes omitted).
3
for a defendant to be entitled to a new trial on the basis of newly
discovered or newly available evidence, the following four-pronged
test must be satisfied:
(1) the newly discovered evidence was unknown or
unavailable to the defendant at the time of trial;
(2) the defendant’s failure to discover or obtain the new
evidence was not due to the defendant’s lack of due diligence;
(3) the new evidence is admissible and not merely cumulative,
corroborative, collateral, or impeaching; and
(4) the new evidence is probably true and will probably bring
about a different result in a new trial. 3
Appellant was arrested and formally charged with DWI in April 2011. He
went to trial on the charges in April 2014. He was aware from the date of his
arrest that he was accused of being intoxicated. According to his own testimony,
he was aware that he had drunk a single beer and the potion prepared by
Tiogong. Tiogong was not in Cameroon on the day of Appellant’s arrest. The
record is silent regarding the date he returned to Cameroon.
Although Appellant secured Tiogong’s affidavit for the hearing on the
motion for new trial, the affidavit was hearsay. 4 The trier of fact has the option of
believing or disbelieving unobjected-to hearsay and of considering or refusing to
3
Carsner v. State, 444 S.W.3d 1, 2–3 (Tex. Crim. App. 2014).
4
See Tex. R. Evid. 801(d).
4
consider unobjected-to hearsay. 5 For the three years before his trial, Appellant
was aware of Tiogong’s knowledge and the fact that he could testify to the
contents of the potion he had given to Appellant. Nothing in the record suggests
any impediment to Appellant’s securing Tiogong’s testimony by pretrial
deposition pursuant to article 39.02 of the code of criminal procedure. 6
Considering all the above, we hold that Appellant failed to sustain his
burden of establishing his entitlement to a new trial based on newly discovered or
newly available evidence and that the trial court therefore did not abuse its
discretion by denying his motion for new trial. We overrule Appellant’s sole issue
and affirm the trial court’s judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and SUDDERTH, JJ.
PUBLISH
DELIVERED: May 28, 2015
5
Poindexter v. State, 153 S.W.3d 402, 406–07 (Tex. Crim. App. 2005); see
also Tex. R. App. P. 21.7 (providing trial court may receive evidence by affidavit
or otherwise at hearing on motion for new trial).
6
See Tex. Code Crim. Proc. Ann. art. 39.02 (West Supp. 2014).
5