State v. Elizabeth Hoskins ( 2014 )

Affirmed and Opinion Filed August 19, 2014
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00416-CR
THE STATE OF TEXAS, Appellant
V.
ELIZABETH HOSKINS, Appellee
On Appeal from the County Criminal Court of Appeals No. 2
Dallas County, Texas
Trial Court Cause No. MB07-20056-M
OPINION
Before Justices FitzGerald, Fillmore, and Evans
Opinion by Justice FitzGerald
Appellee Elizabeth Hoskins was convicted of driving while intoxicated. She timely filed
a motion for new trial and an amended motion for new trial, and the trial judge signed an order
vacating the judgment and granting her a new trial. The State appeals that order. We affirm.
I. BACKGROUND
Appellee was charged with the offense of driving while intoxicated. She pleaded not
guilty, and her case was tried before a six-person jury. Only one witness testified at her trial, a
Texas Highway Patrol Trooper named Louie Borja. Borja testified that he pulled appellee over
for speeding on the Dallas North Tollway at about 12:45 a.m. on January 31, 2007. When he
approached appellee, he noticed she had red, glassy eyes, and he smelled the odor of alcohol. He
arrested her after having her perform certain field sobriety tests.
The jury found appellee guilty. The trial judge decided appellee’s punishment and
sentenced appellee to 120 days in jail, probated for fifteen months. He also imposed a fine of
$600, and he required appellee to perform forty hours of community service.
Appellee timely filed a motion for new trial in which she asserted only that the verdict
was contrary to the law and the evidence. She subsequently filed a timely amended motion for
new trial in which she asserted that the trial judge had erred during voir dire by denying a
challenge for cause, that the jury had committed misconduct by performing field sobriety tests
themselves during deliberations, and that a new trial was warranted in the interest of justice. The
trial judge timely held a hearing on appellee’s amended motion for new trial and signed an order
vacating the judgment and granting a new trial. On the State’s request, the judge signed findings
of fact and conclusions of law.
The State timely filed its notice of appeal from the order granting appellee a new trial.1
II. ANALYSIS
In a single issue on appeal, the State argues that the trial judge abused his discretion by
granting appellee a new trial. We conclude that we must affirm because the State failed to
address one independent basis for the trial court’s order.
The State addresses four possible grounds for the granting of the new trial: the
insufficiency of the evidence, the denial of appellee’s challenge of a veniremember for cause,
jury misconduct, and the interest of justice. But in her motion for new trial, appellee raised two
legally and factually distinct reasons to support her argument that the trial judge should have
granted appellee’s challenge of a veniremember for cause: (1) the veniremember said that she
would lighten the State’s burden of proof, and (2) the veniremember also said that she would
give police officers more credibility than other witnesses. The trial judge granted the motion for
1
See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(3) (West Supp. 2013) (authorizing the State to appeal from an order granting a new trial).
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new trial as to “the voir dire issue” without specifying his reasons. In its appellate brief, the
State addresses only the second reason identified above. In response, appellee filed a brief in
which she argued all issues, including her argument that a new trial was proper based on the
veniremember’s statement that she would lower the State’s burden of proof. Appellee pointed
out that the State’s brief failed to address this basis for appellee’s motion for new trial. The State
did not respond and in fact did not file a reply brief at all. The State’s failure to address all
independent grounds supporting the trial judge’s order is fatal to the State’s appeal.
An appellant, whether the State or the defendant, must challenge all independent bases or
grounds that fully support a judgment or appealable order. “[I]f the trial court’s ruling can be
sustained on an independent ground the appellant must challenge all of the grounds on appeal.”2
If even one independent ground fully supports the complained-of ruling or judgment, but an
appellant does not assign error to that independent ground, we must accept the validity of that
unchallenged independent ground, and thus any error in the grounds challenged on appeal is
harmless because the unchallenged independent ground fully supports the complained-of ruling
or judgment.3 Because the State did not challenge the first of the two “voir dire issues” relied
on by the trial court to grant the motion for new trial, we overrule the State’s issue.
2
Marsh v. State, 343 S.W.3d 475, 479 (Tex. App.—Texarkana 2011, pet. ref’d) (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim.
App. [Panel Op.] 1980) (holding that defendant appealing from revocation of probation must challenge each independent ground for revocation));
see also State v. Sandoval, 842 S.W.2d 782, 785 (Tex. App.—Corpus Christi 1992, pet. ref’d) (holding, in State’s appeal from dismissal of
indictment and information, that the State “must challenge every ground raised in the motions [to dismiss] to preserve its right to appellate
review”).
3
See Moore, 605 S.W.2d at 926; Marsh, 343 S.W.3d at 479; Sandoval, 842 S.W.2d at 785; see also Delacruz v. State, No. 05-12-01354-
CR, 2014 WL 223174, at *12 (Tex. App.—Dallas Jan. 21, 2014, no pet.) (not designated for publication) (“When an appellee objects to evidence
on several independent grounds and, on appeal, the appellant fails to challenge all possible grounds for the trial court[’]s ruling, the appellant
waives any error by not challenging all possible grounds for the trial court[’]s ruling.”); Johns v. State, No. 14-11-00420-CR, 2012 WL 1899195,
at *8 (Tex. App.—Houston [14th Dist.] May 24, 2012, no pet.) (mem. op. not designated for publication) (“By failing to challenge and
adequately brief the basis for the trial court’s ruling, appellant cannot demonstrate that the trial court abused its discretion in admitting the video
interview into evidence.”); State v. Aviles, No. 10-07-00371-CR, 2008 WL 976955, at *1-2 (Tex. App.—Waco Apr. 9, 2008, no pet.) (mem. op.
not designated for publication) (overruling State’s challenge to trial court’s order suppressing evidence because State failed to challenge each
ground for trial court’s ruling).
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III. CONCLUSION
The State failed to brief one of the independent bases supporting the trial judge’s order
granting appellee’s motion for new trial. Accordingly, we affirm that order.
/Kerry P. FitzGerald/
KERRY P. FITZGERALD
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
130416F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
THE STATE OF TEXAS, Appellant On Appeal from the County Criminal Court
of Appeals No. 2, Dallas County, Texas
No. 05-13-00416-CR V. Trial Court Cause No. MB07-20056-M.
Opinion delivered by Justice FitzGerald.
ELIZABETH HOSKINS, Appellee Justices Fillmore and Evans participating.
Based on the Court’s opinion of this date, the trial court’s Order Granting Defendant’s
Motion for New Trial is AFFIRMED.
Judgment entered August 19, 2014
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