James R. Cloud v. State ( 2008 )

Affirmed and Memorandum Opinion filed June 24, 2008

Affirmed and Memorandum Opinion filed June 24, 2008.

In The

Fourteenth Court of Appeals

_______________

NO. 14-07-00847-CR

JAMES R. CLOUD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1100187

M E M O R A N D U M   O P I N I O N

James R. Cloud appeals his conviction for driving while intoxicated, asserting that (1) the evidence was factually insufficient to prove appellant committed the offense of driving while intoxicated; and (2) the trial court erred in denying appellant=s motion for a mistrial after the State played an arrest video for the jury referencing appellant=s 13 prior arrests.  We affirm.

Background

Appellant was driving a truck on Interstate Highway 10 on January 13, 2007, when he passed Officer Charles Beckworth. Officer Beckworth testified that he had detained another driver for a traffic violation and was exiting his vehicle when appellant Acame by me in his truck and almost hit me.  I had to lean up against the patrol car.@ 

Officer Beckworth finished writing the citation, pursued appellant, and pulled him over.  When he approached the driver=s side window of appellant=s truck, he smelled alcohol and saw that appellant had red eyes and flushed skin.  Officer Beckworth asked appellant to exit the vehicle, and when appellant did so he appeared unsteady. Officer Beckworth testified that appellant=s speech was slurred.  Officer Beckworth told appellant to spit out his chewing gum, and when appellant did so, Officer Beckworth smelled alcohol on his breath.  Officer Beckworth also testified that appellant tore off the bracelet he was wearing, which appeared to be a paper bracelet allowing admission to a bar or nightclub.  Appellant stated he had come from the Katy Mills Mall.  Officer Beckworth testified that there was only one place open at that hour at the Katy Mills Mall, a nightclub called Midnight Rodeo.  Appellant refused to perform any field sobriety tests at the site of the stop.   Appellant later refused to take a breathalyzer test.

Appellant pleaded not guilty.  The State offered the videotape of the arrest as State=s Exhibit 1.  Appellant objected to two portions of the videotape.  In the first portion, Officer Beckworth is talking to the dispatcher; in the second, he is talking to a district attorney.  In both portions, appellant=s 13 prior arrests are mentioned. Appellant stipulated to two prior convictions for driving while intoxicated. Appellant was convicted by a jury, sentenced to six years confinement in the Texas Department of Criminal Justice, Institutional Division, and fined $4,000.

Appellant timely filed this appeal.

Analysis

Factual Sufficiency

In reviewing factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether (1) the evidence in support of the jury=s verdict, although legally sufficient, is nevertheless so weak that the jury=s verdict seems clearly wrong and unjust; and (2) in considering conflicting evidence, the jury=s verdict, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence.  Watson v. State, 204 S.W.3d 404, 414‑17 (Tex. Crim. App. 2006).  We consider all the evidence; we do not intrude upon the jury=s role of assigning credibility and weight to the evidence.  Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003) (en banc).

Under the law applicable in this case, a person commits the offense of driving while intoxicated if (1) a person (2) drove or operated a vehicle (3) in a public place (4) while intoxicated. Tex. Penal Code Ann. ' 49.04 (Vernon 2003).

The arresting officer=s testimony is sufficient to prove intoxication if his testimony is founded on observations including slurred speech, bloodshot eyes, the odor of alcohol on the person or on the breath, and unsteady balance or a staggered gait.  See Cotton v. State, 686 S.W.2d 140, 142-43 (Tex. Crim. App. 1985) (experienced arresting officer=s opinion that a driver was intoxicated was sufficient to establish intoxication when these elements were observed); Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d) (AThe testimony of a police officer that an individual is intoxicated is probative evidence of intoxication@); Dumas v. State, 812 S.W.2d 611, 615 (Tex. App.CDallas 1991, pet. ref=d) (uncorroborated testimony of arresting officer sufficient to establish intoxication); Moreno v. State, 01-07-00109-CR, 01-07-00110-CR, 2008 WL 340381, at *3 (Tex. App.CHouston [1st Dist.] Feb. 7, 2008, pet. ref=d) (officer=s testimony sufficient to support conviction in absence of video tape and no performance of field sobriety tests). 

Additionally, appellant refused to perform field sobriety tests and refused to take a breath test.  Both refusals may be used as evidence of guilt.  See Tex. Transp. Code Ann. ' 724.061 (Vernon 1999); Finley v. State, 809 S.W.2d 909, 913 (Tex. App.CHouston [14th Dist.] 1991, pet. ref=d); see also Barraza v. State, 733 S.W.2d 379, 381 (Tex. App.CCorpus Christi 1987) aff=d, 790 S.W.2d 654 (Tex. Crim. App. 1990) (there is no significant difference between a refusal to take a field sobriety test and a refusal to perform a breathalyzer test).  Officer Beckworth testified that appellant told him, A[D]on=t even ask, [I=m] not going to do it@ when asked to take the field tests.

The jury was free to believe Officer Beckworth=s testimony and consider appellant=s refusal to take field sobriety tests.  Therefore, the evidence is factually sufficient to establish that appellant was intoxicated.

Appellant=s first issue is overruled.

Mistrial

A mistrial is appropriate only for Ahighly prejudicial and incurable errors.@  Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000).   It is a mechanism to end a proceeding when the trial court faces prejudicial error that makes continuance wasteful and futile.  Id.  A trial court=s denial of a motion for mistrial is reviewed for abuse of discretion.  Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (en banc); Wood, 18 S.W.3d at 648.  When an appellant is not contesting the trial court=s ruling on his objection, but rather the denial of a new trial, the mistrial should be upheld unless it is outside the zone of reasonable disagreement.   Archie v. State,  221 S.W.3d 695, 699 (Tex. Crim. App. 2007).

AA mistrial is only required when the improper evidence is >clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury.=@  Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999) (quoting Gonzalez v. State, 685 S.W.2d 47, 49 (Tex. Crim. App. 1985)).  In analyzing whether the prejudicial event is so harmful that the case must be retried, we consider (1) the prejudicial effect; (2) the curative measures taken; and (3) the certainty of conviction absent the prejudicial event.  See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (en banc); see also Hawkins, 135 S.W.3d at 77 (adopting Mosley factors to evaluate whether the trial court abused its discretion in denying a mistrial for improper argument); Austin v. State, 222 S.W.3d 801, 815 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d), cert. denied, 128 S. Ct. 1230 (2008) (applying the elements set forth in Mosley).  In most cases, Aa prompt instruction to disregard will cure error associated with an improper question or answer, even one regarding extraneous offenses.@  Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (en banc).  AOf course, the harm analysis is conducted in light of the curative instruction.  Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.@  Hawkins v. State, 135 S.W.3d at 77.  If the court has given an instruction to the jury to disregard this improper evidence, there is a presumption that the jury has followed the instruction.  Thrift v. State 176 S.W. 3d 221, 224 (Tex. Crim. App. 2005).  In determining whether the erroneous evidence mandates a new trial, we look at the facts and circumstances of the case to see if the trial court=s instruction cured the admission.  Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).

Appellant contends that he was prejudiced when the State played the video recording of the arrest.  The parties had agreed before the video was played to turn down the volume at two distinct times to prevent the jury from hearing portions of Officer Beckworth=s discussions with the dispatcher and the district attorney.  Appellant contends that the volume was not turned down quickly enough during Officer Beckworth=s discussion with the district attorney, allowing at least part of the phrase Aarrested 13 times@ to be heard by the jury.  The parties agreed that there was difficulty in using the video equipment, and that any error in controlling the volume was not intentional.

The jury was excused and a brief consultation ensued.  While the trial court stated that it only heard A13,@ it nonetheless sustained appellant=s objection to the admission of the evidence and instructed the jury as follows:

Please be seated, ladies and gentlemen.  Before we resume, I need to give you an instruction that with regard to the videotape that was just played for you, if you heard any mention about the defendant having prior contact with the police, I am ordering you to disregard it.  Don=t consider it for any purpose, and so do not use it as evidence against defendant.  If it was admitted, it was admitted in error, so do not use it as evidence against him whatsoever.  Thank you.

The fact that appellant already had been arrested and convicted twice was before the  jury as part of the State=s case to establish jurisdiction in felony court.  These convictions were stipulated, however, so as to preclude admission of evidence regarding appellant=s criminal history.  Appellant contends that because the jury heard about 13 previous arrests, the trial court abused its discretion in denying a mistrial.  Appellant relies on two cases for this proposition. See Robles v. State, 85 S.W.3d 211, 212 (Tex. Crim. App. 2002); Tamez v. State, 11 S.W.3d 198, 199-200 (Tex. Crim. App. 2000).

Both cases are distinguishable.  The evidence of prior convictions in Tamez and Robles was admitted over objection, leading to a jury conviction in Tamez and a guilty plea in Robles.  In both cases, the Court of Criminal Appeals found the previous DWI convictions were admitted in error; accordingly the convictions were reversed.  Robles, 85 S.W.3d at 214 (affirming appellate court reversal and remand); Tamez, 11 S.W.3d at 201 (reversing and remanding appellate court affirmance).  In this case, the trial court sustained the objection to the evidence of previous arrests and instructed the jury to disregard any such evidence even though it was not clear that the jury had in fact heard the full statement about 13 prior arrests.

 If the jury did hear that appellant had been arrested 13 times, this is clearly inadmissible evidence.  See Robles, 85 S.W.3d at 212 (when the requisite number of previous convictions is stipulated to, evidence of prior convictions is inadmissible).  However, because the trial court sustained the objection and instructed the jury to disregard the erroneous admission of evidence, we apply the Mosley factors.  Mosley, 983 S.W.2d at 259.

The degree of prejudice is uncertain at best because it is not clear that the jury heard the statement regarding 13 prior arrests.  Even assuming the jury heard prejudicial evidence about prior arrests, the trial court sustained appellant=s objection and ordered the jury not to consider it in any way.  Such an instruction by the trial court is presumed to cure any error created by the admission of the statement.  See Ovalle, 13 S.W.3d at 783-784; Russell v. State, No. 2-05-346-CR, 2006 WL 2925126, at *7 (Tex. App.CFort Worth Oct. 12, 2006, no pet.) (Aunmuted videotape comments concerning a defendant=s criminal history constitute the type of error that may be cured by an instruction to disregard@).  Both the first and second Mosley elements addressing prejudicial effect and curative measures weigh in favor of the State.

Turning to the third Mosley element, there was sufficient evidence to establish that appellant would have been convicted without the erroneously admitted evidence having been heard by the jury.  Officer Beckworth testified that he smelled alcohol when he initially approached appellant=s driver=s side window and smelled it on appellant=s breath when he was removed from the car.  He testified that appellant had red eyes and flushed skin.  Officer Beckworth testified that appellant appeared unsteady as he exited the car; his speech was slurred; he tore off the admittance bracelet he was wearing; he refused to do any field sobriety tests at the site of the stop; and he later refused to take a breathalyzer test.  The refusal to take sobriety tests and to take a breathalyzer test  may be used as evidence of guilt.  See Tex. Transp. Code Ann. ' 724.061; Finley v. State, 809 S.W.2d 909, 913 (Tex. App.CHouston [14th Dist.] 1991, pet. ref=d); see also Barraza v. State, 733 S.W.2d at 381. Under these circumstances, the third Mosley element weighs in the State=s favor given the certainty of conviction even absent the prejudicial event.

The trial court acted within its discretion in denying a mistrial. 

Appellant=s second issue is overruled.

Conclusion

The trial court=s judgment is affirmed.

/s/        William J. Boyce

Justice

Judgment rendered and Memorandum Opinion filed June 24, 2008.

Panel consists of Chief Justice Hedges, Justice Boyce, and Senior Justice Price.^*

Do Not Publish C Tex. R. App. P. 47.2(b).

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^*           Senior Justice Frank C. Price sitting by assignment.