Rodney Dick Helm, Jr. v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-430-CR
RODNEY DICK HELM, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 7 OF TARRANT COUNTY
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OPINION
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Rodney Dick Helm, Jr. appeals from his conviction for driving while
intoxicated (“DWI”). In three points, he complains that the trial court erred by
overruling his objection to a jury charge instruction, that the trial court abused
its discretion by overruling his motion for new trial complaining of that jury
instruction, and that the improper jury instruction harmed him. The State
agrees that the trial court erred by giving the improper jury instruction but
argues the error was harmless. We affirm.
Facts
While waiting at a stop sign, Officer Ismael Espinoza of the Fort Worth
Police Department observed Appellant turn in front of another truck, which had
to slam on its brakes to avoid a collision and skidded. Officer Espinoza
considered the turn dangerous. Appellant drove past Officer Espinoza and into
the parking lot of a striptease bar. Officer Espinoza then made a u-turn and
followed Appellant into the lot. His overhead lights were not on. He parked
behind Appellant and saw Appellant “moving something or placing something
or possibly retrieving something” on his vehicle’s floorboard. Appellant exited
his truck and walked toward the bar’s entrance, swaying and not
acknowledging Officer Espinoza’s presence.
Officer Espinoza exited his car, approached Appellant, and detected an
odor of alcohol about his person. He placed Appellant in the back of his squad
car, in the confined space of which the smell of alcohol on Appellant’s breath
was much stronger. Appellant admitted that he had been drinking; he said he
had consumed “maybe two” drinks. Officer Espinoza found a 750-milliliter
bottle of whiskey on the floor of Appellant’s truck, and the bottle was 80%
empty. Appellant’s speech was “a little bit slurred.”
Officer Espinoza was not trained to administer field sobriety tests, so he
called for backup. Sergeant Weldon Norman responded to the call. Appellant
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told him “right off the bat that he wasn’t going to take any field sobriety tests”
before Sergeant Norman had even spoken to him. Sergeant Norman then
administered the HGN test, and Appellant exhibited four out of six clues of
intoxication. Appellant’s eyes were “a little bloodshot.”
Officer Espinoza arrested Appellant for driving while intoxicated. He
transported Appellant to the jail and gave him the DIC 24 warning. Appellant
refused to provide a breath specimen.
Appellant points out that there were no police video cameras in either
patrol vehicle; therefore, the only evidence of the events leading up to and
including the arrest is the officers’ testimony. Also, a video recording of
Appellant and his actions at the city jail was admitted and published to the jury.
The trial court instructed the jury, over Appellant’s objection, that “[y]ou
are instructed that you may consider the defendant’s breath test refusal as
evidence in this case.” The jury convicted Appellant, and the trial court
sentenced him to ninety days’ confinement in the Tarrant County Jail and a fine
of $550, with the confinement portion of the sentence probated for twenty-four
months.
The trial court’s instruction was error
In Hess v. State, this court held that it was error for a trial court to give
an instruction identical to the one in this case. 224 S.W.3d 511, 515 (Tex.
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App.—Fort Worth 2007, pet. ref’d). In Bartlett v. State, the Texas Court of
Criminal Appeals, citing our Hess opinion, recently explained,
A judicial instruction that singles out a particular piece of evidence,
but does not serve one of the legally authorized purposes set out
above, risks impinging upon the “independence of the jury in its
role as trier of the facts, a role long regarded by Texans as
essential to the preservation of their liberties.” Even a seemingly
neutral instruction may constitute an impermissible comment on the
weight of the evidence because such an instruction singles out that
particular piece of evidence for special attention. In the instant
case, the question is whether the trial court’s seemingly neutral
explanation of the law with respect to the admissibility of the
refusal to take a breath test constituted such an impermissible
comment.
270 S.W.3d 147, 151–52 (Tex. Crim. App. 2008) (citations omitted).
The Bartlett court explained that there are three situations when a trial
court may properly comment on a specific item of evidence:
First, the trial court may specifically instruct the jury when the law
directs it to attach a certain degree of weight, or only a particular
or limited significance, to a specific category or item of evidence,
[such as accomplice testimony under article 38.14 of the code of
criminal procedure or evidence admitted for a limited purpose under
rule 105 of the Texas Rules of Evidence]. Second, the Legislature
has expressly required the trial court to call particular attention to
specific evidence in the jury charge when the law specifically
identifies it as a predicate fact from which a jury may presume the
existence of an ultimate or elemental fact. . . . Under section
22.05(c) [of the Penal Code, the deadly-conduct statute],
recklessness and danger, two separate elements of the offense of
deadly conduct, may each be presumed if a person knowingly
points a firearm at or in the direction of another. Third, the trial
court may instruct the jury with respect to evidence that is
admissible contingent upon certain predicate facts that it is up to
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the jury to decide. For example, when the law specifically assigns
to jurors the task of deciding whether certain evidence may be
considered, as it does under Article 38.23 of the Code of Criminal
Procedure, it is essential that jurors be told exactly what evidence
is in question [before] they can[] pass upon its admissibility.
Id. at 151 (citations and quotation marks omitted).
These are the only three circumstances under which the law authorizes
singling out particular evidence in the jury instruction. Instructing the jury about
the refusal to take a breath test does not fall within any of these three
exceptions. As the State candidly concedes, the trial court clearly erred in
instructing the jury that it could consider Appellant’s refusal to take a breath
test. We sustain Appellant’s first issue.
The error was harmless
Having determined that there was error in the charge, we now must
decide if sufficient harm was caused by the error to require a reversal. See
Hutch v. State, 922 S.W.2d 166, 170–71 (Tex. Crim. App.1996). The
standard to determine whether sufficient harm resulted from the charging error
to require reversal depends upon whether the Appellant objected. See Olivas
v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006) (interpreting Almanza
v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g)). When the
Appellant has made a timely objection at trial, as Appellant has in this case, an
appellate court will search only for “some harm.” Abdnor v. State, 871 S.W.2d
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726, 732 (Tex. Crim. App. 1994). In other words, a properly preserved error
will require reversal as long as the error is not harmless. Almanza, 686 S.W.2d
at 171. In making this determination, “the actual degree of harm must be
assayed in light of the entire jury charge, the state of the evidence, including
the contested issues and weight of probative evidence, the argument of counsel
and any other relevant information revealed by the record of the trial as a
whole.” Id.; see also Hutch, 922 S.W.2d at 171; Hess, 224 S.W.3d at
516–17.
After reviewing the entire jury charge, the state of the evidence, and the
arguments of counsel, we hold that the instruction in this case, albeit improper,
was not harmful to Appellant. Absent the instruction in question, the charge
is wholly unexceptional. It contains no other erroneous or questionable
sections, and the application paragraph properly instructs the jury to find
Appellant guilty if “you find from the evidence beyond a reasonable doubt that
in Tarrant County, Texas, on or about the 18th day of September, 2006, the
defendant, Rodney Dick Helm, Jr., did then and there operate a motor vehicle
in a public place while . . . intoxicated.” See Tex. Penal Code Ann. § 49.04
(Vernon 2003). The charge then states “[u]nless you do so find beyond a
reasonable doubt or if you have a reasonable doubt thereof, you will acquit the
defendant and say by your verdict, not guilty.” The charge also properly
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defined intoxication to mean “not having the normal use of one’s mental or
physical faculties by reason of the introduction of alcohol into the body.” See
Tex. Penal Code Ann. § 49.01(2)(A). Assuming, as we must, that the jury
followed the instructions of the trial court, Colburn v. State, 966 S.W.2d 511,
520 (Tex. Crim. App. 1998), we cannot say that the erroneous instruction
reduced the State’s burden of proof in any way.
The weight of the probative evidence militates against harm, too. See
Almanza, 686 S.W.2d at 171. Appellant turned in front of an oncoming
vehicle, almost causing a wreck that was averted only because the other
vehicle slammed on its brakes. His breath smelled of alcohol, his eyes were
bloodshot, his speech was slurred, and he swayed when he walked. Officer
Espinoza saw him place something on the floor of his vehicle, which the jury
could have reasonably concluded was the mostly-empty whiskey bottle.
Appellant exhibited four clues of intoxication on the HGN test, and he refused
to take other field sobriety tests or submit a breath sample. Evidence favorable
to Appellant’s defense is the video made at the jail, in which he does not exhibit
obvious signs of intoxication, though he does sway back and forth. While this
is not a “slam-dunk, falling-down drunk” type of case, we cannot say, given the
weight of the evidence as a whole, that the court’s instruction harmed
Appellant. See Hess, 224 S.W.3d at 516.
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Additionally, once the trial court admitted testimony regarding Appellant’s
refusal to take the breath test, both parties were free to argue that fact to the
jury. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000),
cert. denied, 532 U.S. 944 (2001); Hess, 224 S.W.3d at 516. Accordingly,
the State argued, “Don’t you think if he wasn’t intoxicated, he would have
[submitted to additional testing]?” Appellant’s counsel pointed out that a
suspect does not have to submit to a breath test, but conceded that the jury
could consider the fact that he refused to submit. Therefore, the jury did not
need any judicial instruction to focus its attention on the refused test. See
Brown v. State, 122 S.W.3d 794, 803 (Tex. Crim. App. 2003); Hess, 224
S.W.3d at 517. Although the State referred to Appellant’s refusal three times
during its closing, the record demonstrates that the prosecution did not
emphasize the court’s instruction, focus the jury’s attention on that instruction,
or exploit the instruction by placing the weight of the trial court behind it. See
Hess, 224 S.W.3d at 511. Accordingly, we hold that the instruction was
harmless under the facts of this case, and we overrule Appellant’s third issue.
We also overrule his second issue, in which he argues that the trial court erred
by failing to grant him a new trial based on the trial court’s erroneous charge
instruction.
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Conclusion
Having concluded that the trial court erred by specifically instructing the
jury that it could consider Appellant’s refusal to a breath test but further
concluding that the error was harmless under the evidence and circumstances
of this case, we affirm the trial court’s judgment.
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DAUPHINOT, J. filed a dissenting opinion.
PUBLISH
DELIVERED: August 31, 2009
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-430-CR
RODNEY DICK HELM, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 7 OF TARRANT COUNTY
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DISSENTING OPINION
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Because I believe that Appellant suffered some harm from the erroneous
jury instruction, I dissent.
The majority accurately sets out the underlying facts of the case and
conscientiously analyzes the applicable law as applied to those facts. I must
disagree, however, with the majority’s interpretation of those facts.
Under the Almanza analysis, “[i]f the error in the charge was the subject
of a timely objection in the trial court, then reversal is required if the error is
‘calculated to injure the rights of defendant,’ which means no more than that
there must be some harm to the accused from the error.” 1 Because Appellant
timely objected to the charge error, in determining whether some harm exists,
this court must review the entire jury charge, the evidence, the jury argument,
and “any other relevant information revealed by the record of the trial as a
whole.” 2
Although it is true that Officer Espinoza said that Appellant made an
unlawful turn, he also testified that when Appellant turned left, the other truck
was a little “less than a block” away. If the approaching truck had to skid and
cause its brakes to screech, it could only be because it was approaching at an
excessive speed. Under ordinary circumstances, there is ample time to turn in
front of a vehicle that is a little “less than a block” away.
Additionally, Officer Espinoza did not decide to pull Appellant over until
he saw Appellant pull into the parking lot of a strip club. Even then, Officer
Espinoza did not turn on his overhead lights, and, in fact, he did not do the
things an officer normally does when giving a ticket, nor did he give Appellant
a ticket. The officer instead placed Appellant in the cage in the back of his
1
… Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op.
on reh’g).
2
… Id.; see also Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App.
2000).
2
police unit. Although Officer Espinoza claimed that he saw Appellant sway as
he walked, there was no sway evident in the video taken at the police station
roughly an hour after the arrest. Although the officer said that he smelled
alcohol about Appellant’s person, it was not until he had placed Appellant in the
unit that he was able to determine that the odor of alcohol was “a lot stronger.”
Without advising Appellant of any of the required warnings, the officer
began to question him. Leaving Appellant in the back seat of the unit, from
which Appellant could not exit, the officer searched Appellant’s truck, which
was lawfully parked in the parking lot. It was only then that the officer decided
that Appellant’s speech was “a little bit slurred.”
There was no indication that the officer was concerned for his safety.
Rather, he was searching for evidence. As the Gant court pointed out, a person
secured in the back seat of a police unit cannot reach any weapon in his own
vehicle. An officer, therefore, is not justified in searching an empty vehicle on
the basis of the officer’s safety.3 At no time was Appellant allowed to return
to his truck.
Appellant was seized and put into the cage of the police unit, with doors
that would not open from the inside, before the officer detected a strong odor
of alcohol, before he learned that Appellant had had two drinks, and before he
3
… Arizona v. Gant, 129 S. Ct. 1710, 1716 (2009).
3
unlawfully searched Appellant’s truck and found alcohol. There was no field
sobriety test. Neither officer had a functioning video camera in his unit. The
only evidence of Appellant’s conduct at the scene of the arrest was the
testimony of the police officers. Other than Officer Espinoza’s testimony that
Appellant turned improperly, there was no evidence of impaired driving.
After Officer Norman arrived, he performed an HGN test that showed
some nystagmus, which Norman characterized as “clues of intoxication.”
Appellant’s eyes were also “a little bloodshot.” Appellant did not perform any
other field sobriety tests.
Although there is no visual record of Appellant’s demeanor at the scene
of the arrest, there is a DVD of his demeanor in the police station. The DVD
reveals that Appellant’s speech was not slurred, he did not sway when he
walked, he was steady on his feet, he was able to follow the written and oral
warnings, and he repeatedly and clearly stated that he would not submit to any
testing until his attorney arrived. He repeatedly requested that his attorney be
present. Once a suspect has invoked his Fifth Amendment right to counsel,
police interrogation must cease until counsel has been provided or the suspect
himself reinitiates a dialogue. 4 Yet the officers did not stop their attempts to
4
… Edwards v. Arizona, 451 U.S. 477, 484–85, 101 S. Ct. 1880,
1884–85 (1981).
4
question Appellant and continued to ask him to perform field sobriety tests and
to submit a breath sample. I know of no rule of law that excepts DWI offenses
from the mandate of the Fifth Amendment to the Constitution of the United
States and Edwards v. Arizona. 5
The jury, then, was presented with the fruit of an unlawful search, the
fruit of unlawful questioning, no objective evidence in the form of on-scene
videos, an HGN test, a video taken at the police station that indicated that
Appellant had the normal use of his mental and physical faculties, and a jury
instruction that singled out the breath-test refusal as evidence that the jury
could consider.
In final argument, the prosecutors emphasized Appellant’s refusal of the
tests at the time of arrest. At one point, the prosecutor said,
And he, again, refuses everything. And if you also notice on the
tape, in the middle of nowhere, he says, “Okay, I’m good.” And
then he’s offered a breath test, and he says No. He refuses
everything.
And again,
He refused everything. Don’t you think if he wasn’t intoxicated, he
would have done something? No, he did absolutely nothing and
the defense counsel wants to fault us for that and tell us that we
don’t have enough evidence because the defendant refused
everything.
5
… See id.; see also U.S. Const. amend V.
5
And yet again, “He refuses everything. And what does he say? My attorney
told me not to do anything unless he was here.”
In determining that the charge error was harmless, the majority relies, in
part, on improperly admitted evidence. Admittedly, defense counsel lodged not
a single objection during trial, except for the objection to the jury instruction.
While it is proper to rely on improperly admitted evidence in conducting a
sufficiency review,6 it is not proper to rely on improperly admitted evidence in
determining that the evidence of guilt was of such magnitude that the degree
of harm caused by the improper jury instruction was outweighed by the
quantum of the evidence of guilt. If that were the standard, cumulative error
could outweigh the harm caused by charge error, rendering the charge error
harmless in comparison to the other error in the case. Whether the charge error
is harmless relative to the other error in the case is not the standard for reversal
based on jury charge error.7
The trial court’s instruction singling out the evidence of Appellant’s
refusal to submit to a breath test was an improper comment on the weight of
that evidence. The prosecutor’s argument magnified the injury that Appellant
suffered as a result of the trial court’s error. Additionally, both the jury
6
… Moff v. State, 131 S.W.3d 485, 489–90 (Tex. Crim. App. 2004).
7
… See Almanza, 686 S.W.2d at 171; see also Ovalle, 13 S.W.3d at 786.
6
instruction and the State’s argument implicate Appellant’s invocation of his
right to counsel. Appellant’s refusal was conditioned on his attorney’s absence
and his reliance on his attorney’s instructions. He voiced this explanation
repeatedly on the video. The evidence was at best equivocal on the legality of
the stop, the legality of the seizure, and Appellant’s guilt of the offense.
Appellant therefore suffered some harm from the improper jury charge. This
court should therefore sustain Appellant’s second issue, reverse the trial court’s
judgment, and remand the case to the trial court. Because the majority does
not, I must respectfully dissent.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
PUBLISH
DELIVERED: August 31, 2009
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