Frank Navarro v. State ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-12-00515-CR
________________________
FRANK NAVARRO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court
Lubbock County, Texas
Trial Court No. 2012-436251; Honorable Jim Bob Darnell, Presiding
September 15, 2014
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Following a plea of not guilty, Appellant, Frank Navarro, was convicted by a jury
of driving while intoxicated, third or more, a third-degree felony.1 Punishment was
enhanced to that of a first degree felony by virtue of two prior felony convictions. 2 The
jury assessed a sentence of ninety-nine years confinement. By a sole issue, Appellant
1
TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (West Supp. 2014).
2
TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014).
contends the court’s charge impermissibly shifted the burden of proof by requiring him
to disprove one of the prior driving while intoxicated offenses used to enhance this
particular offense to a felony offense. While the State concedes the particular
instruction was erroneous, because we find the error was not egregious, we affirm.
BACKGROUND
On the afternoon of March 19, 2012, Homeland Security Investigation agents
driving in an unmarked truck from Idalou to Lubbock observed a Ford Explorer coming
up on them at a high rate of speed. They took evasive action and moved to the
shoulder of the road to allow the vehicle to pass. At that moment, one of the agents
observed the driver drinking from a gold-colored can.3 They followed the driver and
observed him commit several traffic violations, run over a median and avoid multiple
near-miss collisions. They called 911 and reported this activity to the Texas
Department of Public Safety. They then activated their vehicle’s lights and sirens to
follow the vehicle and alert other drivers. The vehicle finally stopped at an apartment
complex where Appellant exited the vehicle and urinated in the parking lot. When
Appellant returned to his vehicle as if to drive away the agents positioned their vehicle
so as to block him in. Appellant was then detained and handcuffed until local police
officers could respond.
Officer Joshua Franco responded to the call. Another officer was already at the
scene and had taken custody of Appellant. After Appellant was identified, he refused to
take standard field sobriety tests. After a determination that Appellant was intoxicated,
3
The can was later identified as a Miller High Life tall boy.
2
Officer Franco asked for a specimen and Appellant again refused. When a criminal
history check revealed two or more prior convictions for driving while intoxicated,
Appellant was transported to a local hospital for a mandatory blood draw.4 The blood
was delivered by Officer Franco to the Texas Department of Public Safety laboratory for
testing. Results showed Appellant’s blood alcohol concentration was 0.274 grams of
alcohol per 100 milliliters.5
Appellant was indicted for driving while intoxicated, enhanced to a felony as the
result of two prior driving while intoxicated convictions. The range of punishment was
also enhanced by two prior felony convictions. Following a finding of guilt and the
assessment of sentence, Appellant appealed. By a sole issue, Appellant alleges he
was egregiously harmed by error in the court’s charge. He asserts the charge
impermissibly shifted the burden of proof to him to prove beyond a reasonable doubt
that he had not been previously convicted of operating a motor vehicle in a public place
while intoxicated. While the State contends that the charge did not shift the burden of
proof, it concedes the charge is erroneous but argues the error was harmless. We
agree the charge is erroneous but conclude the error did not cause Appellant egregious
harm.
ANALYSIS
After defining the elements of the offense of driving while intoxicated and the
three grades of the offense depending on the number of prior driving while intoxicated
convictions, the court’s charge contains three separate application paragraphs: (1)
4
See TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West 2011).
5
The legal limit in Texas is .08. See TEX. PENAL CODE ANN. § 49.01(2)(B) (West 2011).
3
Paragraph Five pertinent to felony driving while intoxicated (i.e., two prior convictions),
(2) Paragraph Six pertinent to Class A driving while intoxicated (i.e., one prior
conviction), and (3) Paragraph Seven pertinent to Class B driving while intoxicated (i.e.,
no prior conviction).
Paragraph seven of the court’s charge instructed the jury as follows:
if you find from the evidence beyond a reasonable doubt that on or about
March 29, 2012 . . . the defendant did then and there operate a motor
vehicle in a public place while intoxicated, but you further find from the
evidence beyond a reasonable doubt that the defendant, previously
thereto, had not been convicted of the offense of operating a motor vehicle
in a public place, while intoxicated, then you will find the defendant guilty
of the offense of unlawfully operating a motor vehicle in a public place
while intoxicated . . . .
(Emphasis added). Appellant asserts this instruction shifted the burden of proof to him
to prove beyond a reasonable doubt he had not been previously convicted of driving
while intoxicated before the jury could consider the lesser-included Class B
misdemeanor offense. Appellant did not object to the charge. Given the State’s
concession of error, we proceed to conduct a harm analysis for egregious error
pursuant to Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1984) (op. on
reh'g).
STANDARD OF REVIEW—UNOBJECTED-TO CHARGE ERROR
Unobjected-to charge error is reversible if it is so egregious and creates such
harm that it deprives the accused of a "fair and impartial trial." See Almanza, 686
S.W.2d at 172. See also Trejo v. State, 280 S.W.3d 358, 261 (Tex. Crim. App. 2009).
Errors that result in egregious harm are those that affect "the very basis of the case,”
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“deprive the accused of a valuable right,” or “vitally affect his defensive theory." See
Almanza, 686 S.W.2d at 172. See also Sanchez v. State, 209 S.W.3d 117, 121 (Tex.
Crim. App. 2006).
When reviewing harm resulting from charge error, an appellate court must
determine harm in light of four factors: (1) the entire jury charge, (2) the state of the
evidence, including contested issues and the weight of probative evidence, (3) the
arguments of counsel, and (4) any other relevant information revealed by the record of
the trial as a whole. See Almanza, 686 S.W.2d at 174. See also Ngo v. State, 175
S.W.3d 738, 743 (Tex. Crim. App. 2005). Additionally, there is no burden of proof or
persuasion in a harm analysis conducted under Almanza.
(1) The Entire Jury Charge
The trial court is required to provide the jury with “a written charge distinctly
setting forth the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14
(West 2007). Because the charge is the instrument by which the jury convicts, it must
contain an accurate statement of the law and must set out all the essential elements of
the offense. Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012).
The court’s charge in the guilt/innocence phase is lengthy and, as previously
stated, includes instructions on different levels of driving while intoxicated—a Class B
misdemeanor, a Class A misdemeanor and a third degree felony.6 The Class A and
Class B offenses are presented as lesser-included offenses, only applicable if the jury is
not unanimously convinced of the greater offense.
6
TEX. PENAL CODE ANN. §§ 49.04(b), 49.09(a), (b)(2).
5
Here, the error occurs in paragraph seven, the application paragraph for a Class
B misdemeanor, which the jury would have reached only if it had failed to reach a
unanimous verdict on the original charge of felony driving while intoxicated.
Furthermore, paragraph seven notwithstanding, paragraph twelve instructs the jury to
consider the charge as a whole and paragraph seventeen instructs the jury that
Appellant does not have to prove his innocence or produce any evidence at all, and the
State has the burden of proving his guilt by proving each and every element beyond a
reasonable doubt. Absent evidence to the contrary, we presume the jury understood
and followed the court’s charge. Gelinas v. State, 398 S.W.3d 703, 706 (Tex. Crim.
App. 2013). While the inadvertent inclusion of the word “not” certainly could have been
misleading, we find that a reading the charge in its entirety weighs against the likelihood
of confusion and a finding of egregious harm.
(2) The State of the Evidence
Driving while intoxicated is a strict liability crime—it does not require a specific
mental state, only a person operating a motor vehicle on a public roadway while
intoxicated. See Farmer v. State, 411 S.W.3d 901, 905 (Tex. Crim. App. 2013) (citing
Owen v. State, 525 S.W.2d 164, 164-65 (Tex. Crim. App. 1975)). Driving while
intoxicated may be supported by circumstantial evidence if there is a temporal link
between an accused’s intoxication and his driving. See Kuciemba v. State, 310 S.W.3d
460, 462 (Tex. Crim. App. 2010). See also Smithhart v. State, 503 S.W.2d 283, 285
(Tex. Crim. App. 1973).
6
Appellant contested the charge against him. He entered a plea of not guilty to the
primary offense and pleas of not true to the two enhancement allegations.7 The State
presented evidence of Appellant’s erratic and dangerous driving pattern as witnessed
by the Homeland Security Investigation agent. That agent was previously employed as
a Florida Highway Patrol Officer and, as such, had prior experience responding to
driving while intoxicated calls. Testimony also established Appellant smelled of alcohol
and had numerous containers of beer in his vehicle. A chemist for the Texas
Department of Public Safety testified that Appellant’s blood alcohol content was 0.274,
more than three times the legal limit in Texas.
Furthermore, of significance to the alleged error, an investigator for the
prosecution with expertise in fingerprints linked Appellant to two prior driving while
intoxicated convictions through certified copies of judgments which were admitted into
evidence. The probative evidence of the primary offense and the two prior driving while
intoxicated convictions weighs heavily against a finding of egregious harm.
(3) The Arguments of Counsel
During voir dire, the State acknowledged its burden to prove all elements of the
indicted offense, including the two prior convictions, beyond a reasonable doubt. The
prosecutor stated that the burden never shifts to the defendant. Defense counsel
likewise stated the burden was on the State to prove all elements beyond a reasonable
doubt. During closing arguments, the prosecutor explained the State was required to
prove the contents of paragraph five of the charge, which instructed the jury on the
7
During the punishment phase, Appellant entered pleas of true to the enhancement allegations
and instructed defense counsel not to object or contest other judgments when offered into evidence.
7
primary offense with two prior driving while intoxicated convictions. The prosecutor
further explained that if the jury rejected the two priors, it could then consider the lesser-
included offenses, including the possibility that Appellant had no priors. Both the
prosecutor and defense counsel reiterated during closing arguments that the burden of
proof was always on the State to prove every element of the offense beyond a
reasonable doubt. Accordingly, the arguments of counsel weigh against a finding of
egregious harm.
(4) Any Other Relevant Information
Prior to voir dire, the trial court instructed the jury that the State was required to
prove the driving while intoxicated offense alleged, as well as the two prior driving while
intoxicated convictions. The court continued that Appellant did not have to prove his
innocence or produce any evidence at all. The jury did not ask any questions during
deliberations and those deliberations were not lengthy. There is no indication of any
confusion by the jury or even consideration of the lesser-included offenses. The jury’s
rejection of the lesser-included offenses rendered the erroneous instruction in
paragraph seven harmless. The State established beyond a reasonable doubt the
elements of the primary offense of driving while intoxicated and the two prior driving
while intoxicated convictions. As such, this factor also weighs against a finding of
egregious error.
In balancing the four Almanza factors, we conclude the error in paragraph seven
of the charge did not affect the very basis of Appellant’s case, deprive him of a valuable
8
right, or vitally affect a defensive theory. Appellant has not demonstrated the lack of a
fair and impartial trial resulting in egregious harm. His sole issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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