Michael L. Jordan v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00301-CR
MICHAEL L. JORDAN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In two issues, Appellant Michael L. Jordan appeals his conviction of felony
driving while intoxicated (DWI). We affirm.
II. Procedural Background
The State indicted Jordan for operating a motor vehicle in a public place
while intoxicated on or about August 29, 2010, alleging the following two
1
See Tex. R. App. P. 47.4.
convictions to support the felony DWI charge: a January 24, 1986 DWI
conviction in the County Court at Law of Taylor County, Texas, in cause number
68,389, and an April 5, 1993 DWI conviction in County Criminal Court No. 10 of
Tarrant County, Texas, in cause number 0487825.2 A jury found Jordan guilty as
charged in the indictment and assessed his punishment at ten years’
confinement; the trial court suspended the sentence and placed Jordan on
community supervision for ten years. This appeal followed.
III. Admission of Evidence
In two issues, Jordan argues that the trial court abused its discretion by
admitting into evidence State’s Exhibit 26 and by allowing publication of his
blood-test results to the jury. We give great deference to the trial court’s
discretion, and its evidentiary rulings should not be reversed as long as they are
within the “zone of reasonable disagreement.” See Salazar v. State, 38 S.W.3d
141, 151 (Tex. Crim. App.), cert. denied, 534 U.S. 855 (2001); see also
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g)
(setting out abuse-of-discretion standard).
A. State’s Exhibit 26
In his first issue, Jordan argues that the trial court abused its discretion by
admitting State’s Exhibit 26, a “purported judgment against [him] for a 1986 DWI
2
These two prior convictions were elements of the offense that the State
had to prove to enhance the charged offense to a third-degree felony. See Tex.
Penal Code Ann. § 49.09(b) (West 2011 & Supp. 2013).
2
conviction in Taylor County, Texas,” under the premise that it was a self-
authenticating document under rule 902(4) because it did not comply with the
code of criminal procedure’s fingerprint and representation-by-counsel
requirements.3 He contends that the State had the burden “to provide a properly
authenticated document that complied with the procedures mandated in the
Code” and also appears to incorporate a sufficiency argument into this issue,
complaining that “[o]ther than ‘Michael L. Jordan,’ there is not one single
independent piece of evidence on the judgment that links him to the offense
alleged,” i.e., no fingerprints, witness, date of birth, confession, sworn statement,
social security number, or photograph.
The trial court held a hearing outside the jury’s presence with regard to
State’s Exhibit 26’s admissibility. Jordan first objected to the admission of State’s
Exhibit 26 based on the lack of a fingerprint, any other evidence to link the
conviction to him, and the judgment’s lack of identifying characteristics. He also
pointed out that the 1986 judgment and sentence states that Jordan, “together
with JIM SMART, defendant’s attorney, (counsel waived). Although the trial court
expressed its concern that this second point might present a jurisdictional issue,
3
Although Jordan also complains that the trial court abused its discretion
by admitting State’s Exhibit 25, a redacted copy of the certified DPS driving
record, he does not explain why this exhibit was inadmissible except to argue
that it was linked to State’s Exhibit 26, which he argues is a facially deficient
judgment. See Tex. R. App. P. 38.1(i). Based on our conclusion below that the
trial court did not abuse its discretion by admitting State’s Exhibit 26, we overrule
this portion of Jordan’s first issue.
3
it ultimately decided that State’s Exhibit 26 was admissible under rule 902 and
that it was for the jury to decide the weight and credibility of the evidence
sufficient to link the conviction to Jordan, relying in part on Nowell v. State, No.
02-10-00479-CR, 2011 WL 4712009 (Tex. App.—Fort Worth Oct. 6, 2011, no
pet.) (mem. op., not designated for publication).
When, as here, proof of a prior conviction is a jurisdictional element, the
fact of the prior conviction, including the accused’s identity, must be proven
beyond a reasonable doubt. See Zimmer v. State, 989 S.W.2d 48, 50 (Tex.
App.—San Antonio 1998, pet. ref’d). To establish that a defendant has been
convicted of a prior offense, the State must prove beyond a reasonable doubt
that a prior conviction exists and that the defendant is linked to that conviction.
Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007); Beck v. State,
719 S.W.2d 205, 210 (Tex. Crim. App. 1986).
Under rule of evidence 902(4), a document is admissible into evidence as
a self-authenticating document if the document is a certified copy of a public
record. Tex. R. Evid. 902(4); see also Tex. R. Evid. 902(1)–(3); Flowers, 220
S.W.3d at 922 (“Rule 902 of the Texas Rules of Evidence explicitly allows for the
self-authentication of certified copies of public records[.]”). State’s Exhibit 26 is a
certified copy of a January 24, 1986 judgment and sentence from the County
Court at Law of Taylor County, Texas, pertaining to “Michael L. Jordan” in cause
number 68,389 for DWI, and Jordan does not argue that there are any flaws in
4
the certification or that the document itself is a forgery. 4 See Bruton v. State, 428
S.W.3d 865, 873–75 (Tex. Crim. App. 2014) (explaining that rule 902, along with
4
In Jordan’s appellate brief, although he states that he is “[m]indful of the
Nowell case referenced in the record,” he expressly declines to “venture into the
minefield of ‘void’ versus ‘voidable’ convictions,” despite his contention on appeal
that there was no admissible evidence to prove that he had been represented by
counsel in 1986. Cf. Gaddy v. State, No. 02-09-00347-CR, 2011 WL 1901972, at
*1 (Tex. App.—Fort Worth May 19, 2011) (addressing appellant’s contention that
the trial court erred by admitting into evidence void DWI convictions that could
not support his felony DWI conviction), judgm’t vacated, No. PD-1118-11, 2012
WL 4448757 (Tex. Crim. App. Sept. 26, 2012) (not designated for publication).
In Nowell, the appellant moved to quash his felony DWI indictment, arguing that
one of the two prior misdemeanor DWI convictions alleged by the State was “void
on its face” because the statutory procedural requirements in effect in 1993 in
code of criminal procedure article 1.13 had not been met. 2011 WL 4712009, at
*1. We affirmed the trial court’s judgment denying the motion, relying on Ex parte
McCain, 67 S.W.3d 204, 209–11 (Tex. Crim. App. 2002), in which the court of
criminal appeals held that a violation of article 1.13(c) does not render a
conviction void for enhancement purposes. Id. at *1–2; see also Sample v.
State, 405 S.W.3d 295, 301 (Tex. App.—Fort Worth 2013, pet. ref’d) (reviewing
denial of motion to quash). In Sample, the appellant moved to quash his felony
DWI indictment, alleging that one of the prior DWIs was void because at the time
he pleaded guilty in that case, he had not waived his rights to counsel or jury trial.
405 S.W.3d at 301. The trial court held a hearing on the motion to quash to
determine whether the appellant had waived his rights before he pleaded guilty,
determined that he had, and denied the motion, and we overruled the appellant’s
complaint on this issue, concluding that the trial court had not abused its
discretion. Id. at 301–03. Jordan did not file a motion to quash the indictment in
this case.
Further, although Jordan argues that the absence of a fingerprint on the
1986 judgment is “[t]he final and most troubling aspect of State’s Exhibit 26,” the
fingerprint requirement for misdemeanor offenses punishable by confinement in
jail was not added to code of criminal procedure article 38.33 until 1987. See Act
of May 21, 1987, 70th Leg., R.S., ch. 721, § 1, 1987 Tex. Gen. Laws 2596,
2596–97 (amended 1989 and 1991) (current version at Tex. Code Crim. Proc.
Ann. art. 38.33 (West 2005)); see also Act of May 22, 1989, 71st Leg., R.S., ch.
603, § 2, 1989 Tex. Gen. Laws 1995, 1995–96 (amending article 42.01 to include
“22. The defendant’s fingerprint taken in accordance with Article 38.33 of this
code.”) (amended 1991, 1993, 1995, 1997, 1999, 2005, 2009, 2011, and 2013)
5
other authentication rules, is designed to ensure that a document that is admitted
is authentic rather than a forgery and that “certified as correct” in rule 902(4)
means that the copy is certified as a correct copy of the governmental record; the
certification “need not attest to the truth of the matters contained in that
governmental record”). Because we conclude that the trial court did not abuse its
discretion by admitting State’s Exhibit 26 under rule 902(4), we overrule this part
of Jordan’s first issue.
We next address whether the State adequately linked the conviction in
State’s Exhibit 26 to Jordan, and whether the evidence as a whole was sufficient
to support Jordan’s felony DWI conviction.5 A certified copy of a judgment is not
normally sufficient, standing alone, to link a defendant to a prior conviction.
Beck, 719 S.W.2d at 210. Rather, the State has the burden of proving that link
with independent evidence showing that the defendant is the same person
(current version at Tex. Code Crim. Proc. Ann. art. 42.01, § 1(23) (West 2006 &
Supp. 2013)). Even if Jordan’s argument that the “plain deficiencies on the face
of the judgment” render the evidence insufficient has any bearing on the
admissibility of State’s Exhibit 26 under rule 902, he directs us only to code of
criminal procedure articles 42.01, 1.13(a), and 38.33 without any reference to or
discussion of any applicable case law. Therefore, we overrule this portion of his
first issue as inadequately briefed. See Tex. R. App. P. 38.1(i) (requiring a brief
to contain a clear and concise argument for the contentions made, with
appropriate citations to authorities).
5
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768
(Tex. Crim. App. 2013).
6
named in the prior conviction. See id. The State may prove both that a prior
conviction exists and that the defendant is linked to that conviction in a number of
different ways. Flowers, 220 S.W.3d at 921–22. “Regardless of the type of
evidentiary puzzle pieces the State offers to establish the existence of a prior
conviction and its link to a specific defendant, the trier of fact determines if these
pieces fit together sufficiently to complete the puzzle.” Id. at 923. If the two
elements can be found beyond a reasonable doubt, then the various pieces used
to complete the puzzle are necessarily legally sufficient to prove a prior
conviction. Id.
Deputy Paul Rojas of the Tarrant County Sheriff’s Department
fingerprinted Jordan a few days before trial and matched those prints to the
certified copy of the criminal docket sheet from the 1993 DWI conviction in
Tarrant County Criminal Court No. 10, contained in State’s Exhibit 22.6 Deputy
Rojas testified that State’s Exhibit 24 was a certified record of a Texas driver’s
license history and that State’s Exhibit 25 was a redacted copy of the same
record.
The trial court admitted State’s Exhibit 25, the redacted copy of the Texas
Department of Public Safety certified abstract record for “Michael Larence
Jordan” containing his driver’s license number, date of birth, photograph, and
fingerprints. When Deputy Rojas fingerprinted Jordan, he reviewed Jordan’s
6
Deputy Rojas testified that the fingerprint in State’s Exhibit 23, the Tarrant
County judgment of conviction, was not a good print.
7
driver’s license and obtained the driver’s license number, which he said was the
same as listed on State’s Exhibits 24 and 25 and showed the same first, middle,
and last name and date of birth as on those exhibits. Deputy Rojas testified that
the photograph in State’s Exhibit 25 was a photograph of Jordan.
State’s Exhibit 25 also listed the January 24, 1986 conviction for DWI in
the Taylor County Court, including the same cause number, same charge, same
county of conviction, same first and last name, and same conviction date as
listed in State’s Exhibit 26, and the April 5, 1993 conviction for DWI in the Tarrant
County Court, including the same cause number, same charge, same county of
conviction, same full name of the person convicted,7 and same conviction date as
listed in State’s Exhibit 23. See, e.g., Flowers, 220 S.W.3d at 920–22, 925
(holding that a certified computer printout that showed the prior DWI conviction,
along with defendant’s date of birth, address, social security number, and other
personal descriptors, which was from the Dallas County clerk, custodian of the
original judgment for the prior DWI conviction, coupled with driver’s license
record that set out the same personal information, an entry about the Dallas
County DWI, and a photograph that could be used to compare to defendant, was
sufficient to prove defendant’s prior DWI conviction); Turnbow v. State, No. 02-
09-00438-CR, 2010 WL 4486223, at *4–6 (Tex. App.—Fort Worth Nov. 10, 2010,
no pet.) (mem. op., not designated for publication) (holding that evidence was
7
State’s Exhibit 23, the certified copy of the Tarrant County conviction, lists
Jordan’s full name.
8
sufficient to support finding prior DWI conviction when, even though the judgment
and order of probation contained no fingerprints, the order modifying probation
contained the same cause number as the judgment and included a fingerprint
that was identified as appellant’s at trial, and the certified DPS driving packet
referenced the conviction with a partial docket number that matched the last five
digits and contained the driver’s photograph, which the jury could compare to
appellant).
Our sufficiency standard of review gives full play to the responsibility of the
trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim.
App. 2011). The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393
S.W.3d at 768. Here, the jury could have found beyond a reasonable doubt that
Jordan was the same Jordan in State’s Exhibit 26, the January 24, 1986 Taylor
County DWI conviction, based on comparing him to his photograph in the DPS
record that listed the same specifics of the Taylor County DWI conviction as
found in State’s Exhibit 26. See Dorsett v. State, 396 S.W.2d 115, 116 (Tex.
Crim. App. 1965) (overruling appellant’s complaint that his driver’s license record
was insufficient to identify him as the person previously convicted of DWI when
complaint, information, and judgment in prior DWI conviction matched DPS
record that contained Dorsett’s physical description and a listing of the same
9
prior DWI conviction matched by date, county, charge, and cause number and
the jury had the opportunity to observe him and determine by comparison to his
description whether he was the same person who had been previously
convicted); Reese v. State, 273 S.W.3d 344, 347–48 (Tex. App.—Texarkana
2008, no pet.) (holding jury could have properly concluded that Reese was the
same person who had been previously convicted of boating while intoxicated
when, despite judgment in cause number 4222 listing only his first and last name
with no further identifying information, there was additional evidence to link him to
the conviction: his probation supervisor testified about Reese’s other prior DWI
conviction, the judgment of which listed that Reese had pleaded “true” to having
previously been convicted in cause number 4222 and been adjudicated guilty in
that case, and Reese’s signatures on the community supervision conditions in
cause number 4222, the other conviction’s judgment, and the community
supervision data sheet in the other conviction were admitted in evidence); see
also Orsag v. State, 312 S.W.3d 105, 118–19 (Tex. App.—Houston [14th Dist.]
2010, pet. ref’d) (holding evidence sufficient to establish prior convictions when
jury had appellant’s signature to compare with the signatures on the certified
judgments of conviction, as well as testimony by his fiancée pertaining to the
signatures and convictions); cf. Reyes v. State, 394 S.W.3d 809, 811 (Tex.
App.—Amarillo 2013, no pet.) (holding State failed to prove 1989 DWI conviction
when judgment did not contain fingerprints and the only information linking
appellant with that conviction was limited to the information contained on the face
10
of the judgment); Prihoda v. State, 352 S.W.3d 796, 807, 810 (Tex. App.—San
Antonio 2011, pet. ref’d) (holding evidence insufficient to link appellant to prior
conviction when the only evidence was his full name on the prior judgment of
conviction, his signature on that judgment, and some vague testimony by
arresting officer that he had checked appellant’s driver’s license history and
became aware of the prior DWI). We overrule the remainder of Jordan’s first
issue.
B. Suppression
In his second issue, Jordan complains that the trial court abused its
discretion by allowing his blood-test results to be published to the jury in violation
of the hearsay rule and the Confrontation Clause. Assuming, without deciding,
that the trial court erred by admitting the blood-test results, we will review the
record to determine whether the error was harmless beyond a reasonable doubt.8
See Tex. R. App. P. 44.2(a).
8
We review constitutional error for whether a “reasonable possibility” exists
that the error might have contributed to the conviction and try to calculate as
much as possible the probable impact on the jury in light of the existence of other
evidence, taking into account any and every circumstance apparent in the record
that logically informs our decision and evaluating the record in a neutral,
impartial, and even-handed manner. See Mosley v. State, 983 S.W.2d 249, 259
(Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999);
Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997); see also
Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011); Wesbrook v.
State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944
(2001); Harris v. State, 790 S.W.2d 568, 586 (Tex. Crim. App. 1989), disagreed
with in part on other grounds by Snowden, 353 S.W.3d at 821–22.
11
With regard to blood evidence, the prosecutor mentioned during voir dire
that jurors might expect to hear some evidence about blood or breath or to see
in-car footage and explained that there are circumstances under which police can
obtain a mandatory blood sample before he asked whether anyone had any
strong feelings or thoughts about blood or breath tests. Jordan reminded the jury
that regardless of whether there was a video or a blood test, it was up to the jury
to consider the evidence or lack thereof.
During his opening statement, the prosecutor told the jury that after Jordan
was pulled over on suspicion of drunk driving, the police administered field
sobriety tests and concluded Jordan was intoxicated, and then, after running his
name and record, determined there was information indicating that a mandatory
blood draw should be conducted. The prosecutor also told the jurors that they
would hear testimony from Dr. Johnson, a forensic scientist, who would explain
what the blood test results might mean. Jordan responded that he expected the
evidence to show that the blood sample was not stored properly.
Arlington Police Officers Dylan Eckstrom and Christie King,9 of the police
department’s DWI unit, testified that while they were on patrol at around 2 a.m.
on August 29, 2010, they noticed a Ford dually pickup truck drift within its own
lane, fail to maintain a single lane three times, and almost strike another vehicle
twice. Officer King testified that there were a lot of bars in the area where they
9
Officer King had a different last name at the time of Jordan’s arrest.
12
saw the truck and that it was common knowledge that those bars close at 2 a.m.
They initiated a traffic stop of the truck, first activating the emergency lights on
the patrol car and then—after the driver failed to respond for three or four
blocks—activating the patrol car’s airhorn.
Jordan, the truck’s driver, drove into a parking lot and immediately exited
his vehicle before the police approached him. Officer King had to tell Jordan
three times to get back into his vehicle before he said, “Okay.” Once Jordan was
back inside his vehicle, Officer King asked him for proof of insurance and his
driver’s license and asked where he was coming from. When Jordan began
talking, she immediately detected the odor of alcohol on his breath and person.
She described his eyes as glassy and watery and said that his speech was
slurred.10 Officer King said that at that point, there was no doubt in her mind that
Jordan was possibly intoxicated “based on the driving behavior and [her]
speaking with him alone.” Officer King had to ask Jordan twice more for his
driver’s license and proof of insurance. Jordan told Officer King that he had been
to two bars that night, one not far from where he was stopped, and he admitted
to having consumed three twelve-ounce beers.
Officer King conducted a DWI investigation, administering standardized
field sobriety tests: the horizontal gaze nystagmus test, which resulted in six of
10
Officer Eckstrom testified that in his brief contact with Jordan, he
observed that Jordan’s eyes were red and bloodshot, that Jordan slurred his
speech, and that there was an odor of alcohol coming from the vehicle.
13
six possible clues of intoxication; the walk-and-turn test, which resulted in five of
eight possible clues; and the one-leg stand test, which resulted in four of four
possible clues.11 After conducting the field sobriety tests, the officers arrested
Jordan. Officer King said that she based her decision to arrest Jordan on
everything from her initial observation of his vehicle through his performance on
the third test, his odor of alcohol, his glassy, red eyes, his slurred speech, and his
swaying.
Officer Eckstrom had run a driver’s license check and criminal history
check on Jordan, and at the time of the arrest, he informed Officer King that
Jordan’s record showed two DWI convictions, which put Jordan under the
mandatory specimen requirement. Officer King gave Jordan the DIC-24 statutory
warning, and Jordan initially verbally consented to the blood test but then at the
hospital ten minutes later, he refused to give a voluntary sample and said he
“would take the hit on his license.” There was no in-car video of the field sobriety
tests, and the police did not take Jordan back to the police station to record the
sobriety tests because, according to Officer Eckstrom, “With a mandatory
11
Officer King explained to the jury that standardized field sobriety tests are
a collection of three tests adopted by the National Highway Traffic Safety
Administration (NHTSA) that can indicate whether someone is impaired, that she
had performed the tests many times, and that when testing Jordan, she had
followed the standards promulgated by NHTSA. Officer King said that the
decision point for the walk-and-turn test was two clues and that Jordan lost his
balance during her instructions for that test, stopped while walking, did not touch
heel-to-toe, stepped off of the line, and performed an improper turn. During the
one-leg stand test, Jordan swayed, hopped, put his foot down, and used his arms
for balance.
14
specimen situation, the closer to the specimen being taken to the actual offense
time is preferable.” Officers Eckstrom and King both testified that Jordan’s truck
was seized for forfeiture and eventually forfeited to the State.
Officer King stated that based on her interaction with Jordan that evening,
she felt that he was intoxicated and had lost the normal use of his mental and
physical faculties based on the introduction of alcohol into his system. She
based her opinion on her initial observation of Jordan’s driving behavior, his
responses to her questions, and his standardized field sobriety test results.
The phlebotomist who drew Jordan’s blood at the hospital and Officer King
testified about the blood draw and chain of custody, and Joyce Ho, the Tarrant
County Medical Examiner’s office lab manager, further testified about chain of
custody and about conducting the blood test and recording the results. Ho stated
that it was important to refrigerate the blood sample to keep it from degrading,
that the sample was refrigerated at the lab, and that Dr. Johnson would be the
proper witness to testify about what happens to blood evidence when it is not
properly refrigerated. Officer Eckstrom told prosecutors that in March 2012, as
far as he knew, the blood sample after testing had not been preserved in the
refrigerator but later learned that he was wrong and that the procedure was to
refrigerate before and after testing. Dr. Robert Johnson, the Tarrant County
Medical Examiner’s office’s chief toxicologist, testified that blood was refrigerated
for purposes of testing alcohol concentration to prevent certain microbes in the
blood from producing ethanol but that sodium fluoride could also prevent
15
fermentation and could do so even without refrigeration. Dr. Johnson said that
the vials used by the State for blood draws contained sodium fluoride to preserve
the blood and prevent microbial formation.
Dr. Johnson testified that he was familiar with Jordan’s toxicology test
results conducted by his office and that the lab’s protocol was for every case to
be reviewed three times—once by the analyst that does the work, next as a peer
review by another analyst in the lab, and then by the approving official prior to
release of the results. He was not chief toxicologist when the report was
generated; Dr. Angela Springfield, his predecessor, signed off on the report to
approve it. Dr. Johnson said that based on what he knew of the case, all
procedures were properly followed to generate the test record, which showed
Jordan’s blood alcohol content at 0.18 grams per decaliter, or above 0.08, the
limit for legal intoxication. He said that he knew the peer review had been done,
just not who did it, and that he had no personal knowledge regarding whether
Jordan’s blood sample had been refrigerated or contained sodium fluoride.12 Dr.
Johnson stated that it would not be possible for an average male to achieve a
0.18 blood alcohol concentration by drinking three beers. Finally, as set out
12
Jordan argues that the trial court erred by denying his motion to suppress
the results because he was not able to “cross-examine[] the unnamed,
unidentified individual who conducted the peer review” and that Dr. Johnson
lacked the personal knowledge to explain Dr. Springfield’s role in the testing of
the blood.
16
above in our discussion of Jordan’s first issue, Deputy Rojas testified about
fingerprinting Jordan and compared the fingerprints to the State’s exhibits.
During his closing argument, the prosecutor argued that the State had
proven all three bases for DWI—mental faculties, physical faculties, and blood
alcohol content—and that the blood test results were reliable because all of the
protocols had been followed. Jordan responded that just because some of the
evidence was admissible did not mean that the contents of that evidence were
accurate, particularly the Taylor County conviction, that it did not matter how
Jordan performed his field sobriety tests when the police officers had already
decided to arrest him based on his two prior DWI convictions and to take his
truck, that there was no video to support the officers’ testimonies about the
events of that night, and that there was no testimony to explain how the 0.18
blood alcohol content number was obtained. In its rebuttal, the State referred the
jury to Dr. Johnson’s and Ho’s testimonies and argued that no one had it out for
Jordan, that it was “very clear what happened that night, whether it’s the blood,
the blood draw, his driving behavior, everything,” and that the driving record and
judgments of conviction were certified and belonged to Jordan.
The trial court’s charge defined “intoxicated” as “not having the normal use
of mental or physical faculties by reason of the introduction of alcohol into the
body or having an alcohol concentration of 0.08 or more.” [Emphasis added.]
When the jury is authorized to convict on any one of several theories or methods
of commission of the same offense and returns a general verdict of guilt, it does
17
not matter that the evidence is insufficient to sustain one or more of the theories,
so long as the evidence is sufficient to sustain conviction under at least one
theory. Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (citing
Rabbani v. State, 847 S.W.2d 555, 558–59 (Tex. Crim. App. 1992), cert. denied,
509 U.S. 926 (1993)). Based on our review of the record as set out above, even
disregarding the blood-test results, the jury could have found that Jordan was
intoxicated by not having the normal use of his mental or physical faculties by
reason of the introduction of alcohol into his body, rendering harmless the trial
court’s error, if any, in the admission of the blood-test results. See Tex. R. App.
P. 44.2(a); Swearingen, 101 S.W.3d at 95; see also Cotton v. State, 686 S.W.2d
140, 142 n.3 (Tex. Crim. App. 1985) (enumerating nonexclusive list of signs
recognized as evidence of intoxication, including slurred speech, bloodshot eyes,
odor of alcohol on the person or his breath, unsteady balance, and staggered
gait); Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011,
pet. ref’d) (citing Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979), for
the proposition that “as a general rule, the testimony of an officer that a person is
intoxicated provides sufficient evidence to establish the element of intoxication”);
Zill v. State, 355 S.W.3d 778, 786 (Tex. App.—Houston [1st Dist.] 2011, no pet.)
(“A defendant’s poor performance on the standardized field sobriety tests is
further evidence of intoxication.”); cf. State v. Mechler, 153 S.W.3d 435, 441–42
(Tex. Crim. App. 2005) (holding in rule 403 analysis with regard to whether the
State needed breathalyzer evidence that the State had sufficient other probative
18
evidence to establish defendant’s intoxication in the form of the arresting officer’s
testimony about the defendant’s driving, smell of alcohol on his breath, admission
to drinking “[a] little” alcohol, and failing field sobriety tests). Therefore, we
overrule Jordan’s second issue.
IV. Conclusion
Having overruled both of Jordan’s issues, we affirm the trial court’s
judgment.
/s/ Bob McCoy
BOB MCCOY
JUSTICE
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 26, 2014
19