Kenneth J. Maxwell v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-05-248-CR
KENNETH J. MAXWELL APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM COUNTY CRIMINAL COURT NO. 7 OF TARRANT COUNTY
------------
OPINION
------------
Appellant Kenneth J. Maxwell challenges the jury’s verdict finding him
guilty of misdemeanor driving while intoxicated.
Factual Summary
On April 22, 2003, at 2:00 a.m., Officer James Hill stopped appellant for
driving eighty miles per hour in a sixty-miles-per-hour zone on the West
Freeway in Fort Worth. Officer Hill also noticed that appellant failed to use his
turn signal when he changed lanes and that appellant was weaving. Appellant
admitted to Officer Hill that he had been drinking after Officer Hill noticed an
odor of alcohol and appellant’s bloodshot eyes. Appellant, however, refused
to perform any sobriety tests in the field or later at the police department.
After arresting him and taking him to the police department, appellant
eventually submitted to a breath test approximately one hour later, which
indicated he was legally intoxicated at 0.11. He was charged by information
under two theories of intoxication: loss of normal use of mental and physical
faculties or an alcohol concentration of at least 0.08. The court denied his
pretrial motion to suppress the evidence and any statements obtained as a
result of his arrest. A jury found him guilty. The trial court sentenced him to
180 days’ confinement with a $450 fine. The court suspended his sentence
and placed him on twelve months’ community supervision.
Issues on Appeal
In appellant’s first point, he contends the evidence is legally insufficient
to prove either of the State’s theories of intoxication—loss of normal use of his
mental and physical faculties or an alcohol concentration of at least 0.08. In
his second point, he challenges the factual sufficiency of the evidence to
support the jury’s verdict. In his third point, appellant asserts trial court error
in overruling his motion to suppress the evidence based upon a lack of probable
cause to arrest appellant. In his fourth point, he asserts error in overruling the
2
motion to suppress the breath test results because he was not afforded his right
to “contact a physician to obtain a specimen of his blood.” In his final point,
appellant claims trial court error in overruling his objection to allegedly improper
jury argument at the guilt-innocence phase of the trial. We begin our discussion
with appellant’s suppression points.
Suppression Issues
Appellant contends that his arrest was illegal because it was made
without probable cause in violation of the Fourth Amendment and the United
States Constitution; article I, section 9 of the Texas Constitution; and article
38.23 of the Texas Code of Criminal Procedure.1 Appellant contends that the
arresting officer’s testimony shows that he had made the decision to arrest
appellant prior to the time appellant got out of his car because he testified that
appellant was “possibly intoxicated above the legal limit.” Appellant believes
Officer Hill made his decision to arrest him after observing factors only showing
that appellant had been drinking, not that he was intoxicated, e.g., red eyes,
smell of alcohol, refusal to perform field sobriety tests, speeding, and
appellant’s admission that he had been drinking. He also contends, without
1
Appellant does not challenge the validity of the initial traffic stop.
3
authority, that the refusal to perform field sobriety tests cannot be used as a
factor in establishing probable cause to arrest.
We review a trial court’s ruling on a motion to suppress evidence under
a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327
(Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997). In reviewing the trial court's decision, we do not engage in our own
factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.
1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no
pet.). The trial judge is the sole trier of fact and judge of the credibility of the
witnesses and the weight to be given their testimony. State v. Ross, 32
S.W.3d 853, 855 (Tex. Crim. App. 2000); State v. Ballard, 987 S.W.2d 889,
891 (Tex. Crim. App.1999). Therefore, we give almost total deference to the
trial court’s rulings on (1) questions of historical fact, even if the trial court's
determination of those facts was not based on an evaluation of credibility and
demeanor; and (2) application-of-law-to-fact questions that turn on an
evaluation of credibility and demeanor. Montanez v. State, 195 S.W.3d 101,
108–09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53
(Tex. Crim. App. 2002); State v. Ballman, 157 S.W.3d 65, 68 (Tex. App.—Fort
Worth 2004, pet. ref’d). But when the trial court's rulings do not turn on the
credibility and demeanor of the witnesses, we review de novo a trial court’s
4
rulings on mixed questions of law and fact. Estrada v. State, 154 S.W.3d 604,
607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652-53. Stated another
way, when reviewing the trial court’s ruling on a motion to suppress, we must
view the evidence in the light most favorable to the trial court's ruling. State
v. Kelly, 204 S.W .3d 808, 818 (Tex. Crim. App. 2006). When the record is
silent on the reasons for the trial court’s ruling, or when there are no explicit
fact findings and neither party timely requested findings and conclusions from
the trial court, as in this case, we imply the necessary fact findings that would
support the trial court’s ruling if the evidence, viewed in the light most
favorable to the trial court’s ruling, supports those findings. Id. W e then
review the trial court’s legal ruling de novo unless the implied fact findings
supported by the record are also dispositive of the legal ruling. Id.
We must uphold the trial court’s ruling if it is supported by the record and
correct under any theory of law applicable to the case even if the trial court
gave the wrong reason for its ruling. Armendariz v. State, 123 S.W.3d 401,
404 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004); Ross, 32
S.W.3d at 856; Romero, 800 S.W.2d at 543; Martinez v. State, 236 S.W.3d
361, 367 (Tex. App.—Fort Worth 2007, pet. dism’d). Further, as noted by the
State in its brief, we are to review the trial court’s decision by looking at and
5
considering the “totality of the circumstances.” Wiede v. State, 214 S.W.3d
17, 24-25 (Tex. Crim. App. 2007).
We should not, as appellant does, look at the facts in existence piecemeal
or isolate our review to those facts elicited only on cross-examination by the
defense. Looking to the totality of these circumstances, there were other
additional facts that Officer Hill could have considered in establishing probable
cause: it was 2:00 a.m. and appellant admitted he was coming from a place
that the officer knew sold alcohol; appellant admitted he had been drinking as
well; appellant was not just speeding but he was speeding while admittedly
having at least drunk some alcohol; appellant passed the officer while speeding;
appellant was also weaving in his own lane and had failed to use his turn signal
when he changed lanes; and appellant refused to perform any field sobriety
tests.
Appellant contends that we may not include an appellant’s refusal to
submit to field sobriety tests in our probable cause review, but he cites no
authority for this proposition, and we likewise have been unable to find
authority that supports his proposition. The only case we have found directly
on point states that we may consider an appellant’s refusal to submit to an
officer’s request for field sobriety tests in our probable cause review. State v.
Garrett, 22 S.W.3d 650, 655 (Tex. App.—Austin 2000, no pet.). In that case,
6
the Austin Court of Appeals approved considering the defendant’s refusal to
participate in field sobriety tests because it was a “direct result of the
defendant’s conduct, i.e., his refusal to participate in any of these tests.” Id.
The court stated that officers may consider a defendant’s refusal as a part of
the “totality of the circumstances.” 2 This does not modify an older Fort Worth
case that supports the proposition that the refusal to undertake field sobriety
tests alone is insufficient probable cause. Jackson v. State, 681 S.W.2d 910,
912 (Tex. App.—Fort Worth, no pet.). Here, there are other factors that
additionally support the finding of probable cause. Thus, we conclude and hold
that when considering the totality of all the evidence admitted at trial and doing
so in the light most favorable to the trial court’s ruling, there was sufficient
evidence to establish probable cause to arrest appellant. Thus, we conclude
that the trial court correctly denied appellant’s motion to suppress. We overrule
appellant’s third point.
2
We also note that there are cases that support the admission of the
refusal to participate in field sobriety tests in the context of the sufficiency of
the evidence on intoxication—a different question from its consideration in the
probable cause analysis. See Dawkins v. State, 822 S.W.2d 668, 671 (Tex.
App.—Waco 1991), pet. ref’d, 825 S.W.2d 709 (Tex. Crim. App. 1992);
Barraza v. State, 733 S.W.2d 379, 381 (Tex. App.—Corpus Christi 1987),
aff’d, 790 S.W.2d 654 (Tex. Crim. App. 1990).
7
In appellant’s other point complaining about the denial of his motion to
suppress, he contends that the results of his breath tests were inadmissible
because he was not afforded “his right to contact a physician to obtain a
specimen of his blood.” Appellant contends that transportation code section
724.019(a)–(b) was violated.3 That section provides that a person arrested for
a driving while intoxicated offense should be given a reasonable opportunity to
contact a physician or nurse to take an additional specimen of blood once the
person has submitted to the taking of a specimen of breath, blood, urine, or
other specimen. T EX. T RANSP. C ODE A NN. § 724.019(a), (b) (Vernon 1999). In
particular, appellant contends that he was not given a reasonable opportunity
to contact such a person and that the State showed no “inability” to do so.
According to appellant’s testimony, after he had consented to and given
a breath specimen, he was taken from his holding cell into a hallway and given
an opportunity to get an additional test. He testified that he was then told that
there would be a time limit on getting such a test done and that he was free to
call a physician, but they never gave him access to a phone. Appellant asked
to be taken to a hospital for a test, and he also asked whether the police had
3
Appellant does not contend that his consent to give a breath specimen
was coerced or involuntary as he had argued at trial in addition to this
complaint. See Harrison v. State, 205 S.W.3d 549, 553 (Tex. Crim. App.
2006); Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993).
8
someone on staff who could give him a blood test. Both requests were denied.
So appellant gave them the name of a friend and asked them to call her to see
if she could contact someone to give him the test. No one told him if they
reached her or the result of the conversation, according to appellant. Officer
Hill conceded that appellant wanted a blood test and that he had a right to
contact someone to try to get a blood test once he submitted to a breath test.
He also admitted on cross-examination that he had only seen one person in
custody ever get another specimen, and in that case, the specimen was taken
by the person’s wife who happened to be a doctor. Officer Hill further
acknowledged that the law required the additional test to be done within a two-
hour window from arrest and that appellant was given his breath test at about
3:00 a.m., already one hour and two minutes after his arrest. Officer Hill said
appellant was allowed to call his wife or girlfriend but that the police
department’s policy was not to take anyone to another facility for any
additional testing.
Section (c) of 724.019 provides that a peace officer is not required to
transport someone in custody to a facility for testing, and further, section (d)
provides that the “failure or inability to obtain an additional specimen or analysis
under this section does not preclude the admission of evidence relating to the
analysis of the specimen taken” by the officer originally. T EX. T RANSP. C ODE
9
A NN. § 724.019(c), (d) (emphasis supplied). Thus, under this very statute there
are two scenarios under which the failure to obtain another specimen has no
effect on admissibility of the original breath specimen: neither the “failure” nor
the “inability” to obtain the additional blood specimen affects the admissibility
of the original breath test. In spite of this, appellant argues for the suppression
of the original breath test due to the officers’ failure to provide him with a
reasonable opportunity to obtain a blood test and the State’s failure to prove
“inability.”
Statutory construction is a question of law for the courts to determine.
Jones v. State, 175 S.W.3d 927, 930 (Tex. App.—Dallas 2005, no pet.). We
begin with the plain and common meaning of the statute. Bargas v. State, 164
S.W.3d 763, 772 (Tex. App.—Corpus Christi 2005, no pet.). We are to
interpret words and phrases in context and construe them according to the
rules of grammar and common usage. T EX. G OV’T C ODE A NN. § 311.011
(Vernon 2005). We are to presume that the entire statute is to be effective,
and we may consider the object to be attained regardless of whether the
statute is determined to be ambiguous or not. Id. §§ 311.021, 311.023. If the
language is clear, we must interpret it according to its terms. Bargas, 164
S.W.3d at 772. Only if the interpretation leads to absurd results will we look
to extra-textual factors to determine legislative intent. Id.
10
When we interpret a statute we seek to effectuate the collective
intent or purpose of the legislators who enacted the legislation. . . .
[W]e must interpret an unambiguous statute literally, unless doing
so would lead to an absurd result that the legislature could not
possibly have intended. . . . Where the statute is clear and
unambiguous, the Legislature must be understood to mean what it
has expressed, and it is not for the courts to add or subtract from
such a statute.
Seals v. State, 187 S.W.3d 417, 419–20 (Tex. Crim. App. 2005).
Here, the language is clear: the legislature specifically addressed the
ramifications of “failure or inability” to obtain another specimen and it clearly
provided that such failure or inability would have no effect on the admissibility
of the specimen obtained by the officer. And while we may question the
legislature’s failure to provide a remedy for non-compliance, we cannot say that
the failure to do so is absurd. The legislature obviously wanted to make such
opportunity available to such drivers but did not want to risk all prosecutions
simply because an additional test was unobtainable for some reason. Because
the statute itself states that the inability or failure to obtain another specimen
does not affect the admissibility of the original breath specimen, we must
follow the dictates of the statute and hold that there was no trial court error in
denying appellant’s motion to suppress on this basis. We overrule appellant’s
fourth point and turn to appellant’s sufficiency points.
11
Sufficiency of the Evidence
In appellant’s first point, he contends the evidence is legally insufficient
to support the verdict, and in his second point, he contends the evidence is
factually insufficient to support the verdict.
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all the evidence in the light most favorable to the prosecution in order
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); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
Under appellant’s legal sufficiency challenge, he complains about the lack
of evidence to support the jury’s finding of a level of alcohol concentration of
.08 or greater. In particular, he complains that because the test was “given
within an hour of the stop,” there is only evidence of his alcohol concentration
one hour after the stop as opposed to evidence of his blood alcohol
concentration—“BAC”—at the time he was observed driving while allegedly
intoxicated. Appellant contends the evidence shows that he could have been
below the .08 level because no one testified that he would have been at or
above the legal limit an hour earlier. The Texas Court of Criminal Appeals has
held that breath tests are probative and admissible even in the absence of
12
retrograde extrapolation testimony. Stewart v. State, 129 S.W.3d 93, 97 (Tex.
Crim. App. 2004). The lack of extrapolation evidence goes to its weight, not
its admissibility. State v. Mechler, 153 S.W.3d 435, 449 (Tex. Crim. App.
2005). Thus, the breath test showing a BAC of .11 is some evidence of
intoxication.
Furthermore, appellant was charged under two theories of intoxication:
loss of normal use and excess BAC. Although somewhat unclear, appellant
appears to argue that the jury could not rely on the alternate theory—loss of
normal use—because the evidence admitted at trial on this theory was also
legally insufficient. The evidence admitted, however, shows that the officer
testified that appellant was stopped because he was traveling at about eighty
miles per hour at 2:00 a.m. on Fort Worth’s West Freeway while drifting two
times within his lane and changing lanes once without a proper signal; that
appellant passed the officer in his patrol car while traveling approximately
twenty miles per hour over the posted speed limit; that Officer Hill noticed an
odor of alcohol and bloodshot eyes; that appellant admitted he had been
drinking and had come from the Illusions bar where he had been drinking; and
appellant refused to perform field sobriety tests. The jury was thus free to
believe, based upon the totality of the circumstances, that appellant was
intoxicated while driving based upon the absence of the normal use of his
13
mental or physical faculties. Therefore, the absence of extrapolation evidence
as to his blood alcohol level at the time of the stop was irrelevant to the jury’s
finding of guilt because he was charged under both theories. We overrule
appellant’s first point.
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.
State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether
the evidence supporting the conviction, although legally sufficient, is
nevertheless so weak that the fact-finder’s determination is clearly wrong and
manifestly unjust or whether conflicting evidence so greatly outweighs the
evidence supporting the conviction that the fact-finder’s determination is
manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23
S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,
we must determine, with some objective basis in the record, that the great
weight and preponderance of all the evidence, though legally sufficient,
contradicts the verdict. Watson, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
14
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in
the evidence. Id. We may not simply substitute our judgment for the fact-
finder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407
(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result
is appropriate, we must defer to the jury’s determination of the weight to be
given contradictory testimonial evidence because resolution of the conflict
“often turns on an evaluation of credibility and demeanor, and those jurors were
in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.
Thus, we must give due deference to the fact-finder’s determinations,
“particularly those determinations concerning the weight and credibility of the
evidence.” Id. at 9.
An opinion addressing factual sufficiency must include a discussion of the
most important and relevant evidence that supports the appellant’s complaint
on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
Moreover, an opinion reversing and remanding on factual insufficiency grounds
must detail all the evidence and clearly state why the finding in question is
factually insufficient and under which ground. Goodman v. State, 66 S.W.3d
283, 287 (Tex. Crim. App. 2001); Johnson, 23 S.W.3d at 7.
15
Reviewing the evidence in a neutral light, we cannot say that there was
factually insufficient evidence to support the jury’s verdict. Here, appellant
points particularly to the arresting officer’s testimony conceding that appellant
behaved normally and walked and talked normally. However, when viewing
this evidence, we must also consider the other evidence previously mentioned
in our legal sufficiency review, and review all the evidence in a neutral light.
And when so reviewing the evidence, including the evidence of appellant’s
refusal to perform field sobriety tests, we conclude the evidence is also
factually sufficient to support the jury’s verdict. We overrule appellant’s second
point.
Improper Jury Argument
Finally, we turn to appellant’s last point, in which he contends that the
trial court erred by overruling his objection to an instance of allegedly improper
jury argument during guilt/innocence. In particular, appellant contends that the
prosecutor suggested that defense counsel “was acting unethically in trying to
distract the jurors from focusing on the evidence against appellant by ‘putting
everyone else on trial.’” Appellant objected to the following:
[PROSECUTOR]: Of the fifteen minutes that Defense Counsel
got up here and talked to you [during jury argument], ten of those
minutes were spent talking about somebody else besides that
Defendant, because that’s what he was trying to do, put everybody
else on trial.
16
[DEFENSE COUNSEL]: Objection, Judge. It’s an attempt to
strike at the Defendant over Counsel’s shoulders.
[PROSECUTOR]: Put everyone else on trial to distract.
[Emphasis added].
Appellant contends this argument “intentionally sought to distract the jurors
from the evidence against appellant by putting ‘everybody else on trial.’”
Appellant also contends this is an attempt to strike at appellant over the
shoulders of his counsel and an attempt to divert the jury from performing its
role as trier of fact.
To be permissible, the State’s jury argument must fall within one of the
following four general areas: (1) summation of the evidence; (2) reasonable
deduction from the evidence; (3) answer to argument of opposing counsel; or
(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94-95 (Tex.
Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493
S.W.2d 230, 231 (Tex. Crim. App. 1973). If a jury argument exceeds the
bounds of proper argument, the trial court’s erroneous overruling of a
defendant’s objection is not reversible error unless it affected the appellant’s
substantial rights. T EX. R. A PP. P. 44.2(b); Martinez v. State, 17 S.W.3d 677,
692-93 (Tex. Crim. App. 2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex.
Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999). In
17
determining whether the appellant’s substantial rights were affected, we
consider (1) the severity of the misconduct (i.e., the prejudicial effect of the
prosecutor’s remarks), (2) curative measures, and (3) the certainty of,
conviction absent the misconduct. Martinez, 17 S.W.3d at 692-93; Mosley,
983 S.W.2d at 259.
The Court of Criminal Appeals has consistently held that arguments
that strike at a defendant over the shoulder of his defense counsel
are improper. Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim.
App. 1995). Although the Court has found it impossible to
articulate a precise rule regarding these types of arguments, it has
cautioned that “a prosecutor runs a risk of improperly striking at a
defendant over the shoulder of counsel when the argument is made
in terms of defense counsel personally and when the argument
explicitly impugns defense counsel's character.” Mosley v. State,
983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Even if a
prosecutor's statements are intended as a rebuttal, the legitimate
arguments of defense counsel cannot serve as a basis for
permitting prosecutorial comments that "cast aspersion on defense
counsel's veracity with the jury."
Cole v. State, 194 S.W.3d 538, 544 (Tex. App.—Houston [1st Dist.] 2006,
pet. ref’d) (quoting Dinkins, 894 S.W.2d at 357).
The State contends the argument was a proper response to defense
counsel’s arguments that questioned some of the State’s witnesses, Officer
Hill, Mark Fonderen, and the intoxilyzer operator. We agree. When we look at
the argument in the context of all of appellant’s arguments and all of the
witnesses’ testimony, we can see that the remark was an attempt to redirect
18
the jury to the testimony and evidence that was admitted yet not rebutted as
opposed to actually “trying to put everyone else on trial.” The argument is
more in the nature of a colloquialism and an attempt to respond to appellant’s
closing argument that critiqued a lot of the State’s witnesses and case. Thus,
we conclude that the prosecutor’s argument was a proper response to opposing
counsel’s arguments. We overrule appellant’s fifth point.
Conclusion
Having overruled all of appellant’s points, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL B: LIVINGSTON, WALKER, and MCCOY, JJ.
PUBLISH
DELIVERED: March 13, 2008
19