Victor Huff v. State ( 2010 )

NO. 07-10-00174-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 29, 2010
VICTOR HUFF, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2010-426,874; HONORABLE CECIL G. PURYEAR, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
A Lubbock County jury found appellant, Victor Huff, guilty of driving while
intoxicated, a third or greater offense.1 Following a punishment trial to the bench, the
trial court imposed a ten-year sentence. Appellant timely appealed his conviction,
contending that the State improperly shifted the burden of proof to him during voir dire,
that the State engaged in improper jury argument, and that the trial court erred by
refusing to include a proposed instruction on alternate causes for loss of mental or
physical faculties. We will affirm.
1
See TEX. PENAL CODE ANN. § 49.04(a) (Vernon 2003); see also id. § 49.09(b)(2)
(Vernon Supp. 2010) (making third or greater offense a third-degree felony).
Factual and Procedural History
On August 1, 2009, appellant rear-ended a pickup truck driven by Dustyn Blasig.
Blasig noted that appellant was quite unsteady on his feet following the accident.
Appellant provided Blasig with his insurance information and his driver’s license, and
Blasig called 911. They began waiting for law enforcement to arrive. According to
Blasig, after some time waiting, the still unsteady appellant went behind his car and
urinated. After about an hour, appellant explained that he needed to leave and did so,
leaving his insurance papers with Blasig. About ten minutes after appellant left the
scene, Officer Christopher Claybrook of the Lubbock Police Department arrived.
As Blasig gave his account of the event, he noticed appellant driving by on a
nearby road. Parts of appellant’s damaged car were sparking as they scraped the road,
and, apparently, he was honking his horn as he drove. Blasig alerted Claybrook, who
then began pursuit of appellant. Claybrook stopped appellant to investigate whether he
was intoxicated, as Blasig’s account of appellant’s behavior suggested to Claybrook.
When Claybrook approached appellant’s vehicle, he noticed the odor of ingested
alcohol and appellant’s “thick-tongued and slurred” speech. Appellant admitted to
having consumed four beers. Claybrook administered standardized field sobriety tests,
and, because appellant’s performances on those tests indicated he was intoxicated,
Claybrook arrested him. Claybrook read him the mandatory statutory warnings, and
appellant refused to provide a breath specimen.
Appellant was charged with driving while intoxicated, a third or greater offense.
The jury found him guilty, and the trial court assessed a ten-year sentence. He timely
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appealed said conviction to this Court, bringing three points of error. He contends that
the State impermissibly shifted the burden of proof to him during voir dire, that the State
engaged in improper jury argument, and that the trial court erred by refusing to instruct
the jury on alternate causes for loss of mental or physical faculties.
Shifting the Burden of Proof in Voir Dire
Appellant complains of the following exchange between the State and the venire:
STATE: When the officer asks that person, “Are you going to give a
specimen of your breath,” who says “Yes” or “No”?
VENIREMAN: The Defendant.
STATE: Okay. And when they say “No,” whose fault is it we don’t have
that evidence?
VENIREMAN: Theirs.
STATE: Okay. And that comes back to—here is my question for
everybody. Is anybody going to hold it against the State if we don’t have a
breath test? Because, you see, there are going to be those circumstances
where we don’t have a breath test because the defendant refused to give
one. Okay?
Anybody say, “I’ve got to have a breath test?”
Or can everyone say, “The law gives us three ways to determine
intoxication, loss of mental, loss of physical, or a breath alcohol
concentration?”
Appellant concedes that no objection was lodged to this line of questioning by the State.
Indeed, our review of the record confirms that no such objection was made.
Generally, for a complaining party to preserve error for appellate review, the
record must reflect that the party raised the issue with the trial court in a timely and
specific request, objection, or motion. TEX. R. APP. P. 33.1(a); Griggs v. State, 213
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S.W.3d 923, 927 (Tex.Crim.App. 2007). More specifically, contentions that the State
engaged in improper voir dire questions generally do not present us with fundamental
error such that we can review the issue presented when it was not raised in the trial
court; to preserve error regarding improper voir dire questions, a party must make a
timely, specific objection at the earliest possible opportunity. See Penry v. State, 903
S.W.2d 715, 741, 764 (Tex.Crim.App. 1995) (en banc) (per curiam); Ross v. State, 154
S.W.3d 804, 807 (Tex.App.—Houston [14th Dist.] 2004, pet. ref’d).
With respect to appellant’s assertion that the alleged error is fundamental error,
we note that appellant does not direct us to any authority that expressly supports his
position. However, we acknowledge that the issue he raises does bear some
resemblance to the issue addressed in Blue v. State, 41 S.W.3d 129, 129–33
(Tex.Crim.App. 2000) (plurality op.). In Blue, the court held that the trial court’s
comments to the venire tainted the presumption of innocence by revealing that the
defendant had seriously considered entering into a plea agreement and that the trial
court was frustrated with the time the defendant took in his decision and would have
preferred that the defendant have pleaded guilty. Id. at 130, 132. The Blue court held
that the defendant need not have objected to such comments, that they amounted to
fundamental error of constitutional dimension. Id. at 132. Notably, the Blue court also
emphasized that the comments came from the bench, that it was the trial court
imparting this information to the venire:
In this case, the judge’s comments imparted information to the venire that
tainted the presumption of innocence. A juror who knows at the outset
that the defendant seriously considered entering into a plea agreement no
longer begins with a presumption that the defendant is innocent. A juror
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who hears the judge say that he would have preferred that the defendant
plead guilty might assume that the judge knows something about the guilt
of the defendant that the juror does not. Surely, no trial judge would want
an innocent man to plead guilty, no matter how much delay and expense
he might be causing.
Id. So, the source of the alleged error in the instant case is distinguishable from the
error addressed in Blue.
Here, appellant contends that the State, rather than the trial court, improperly
shifted the burden of proof to him. The Due Process Clause of the Fourteenth
Amendment to the United States Constitution requires that every state criminal
conviction be supported by evidence that a rational trier of fact could find sufficient to
prove all the elements of the offense beyond a reasonable doubt. In re Winship, 397
U.S. 358, 362–64, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); Coit v. State, 808 S.W.2d 473,
475 (Tex.Crim.App. 1991); see also TEX. PENAL CODE ANN. § 2.01 (Vernon 2003)
(codifying the requirement that “[a]ll persons are presumed innocent and no person may
be convicted of an offense unless each element is proved beyond a reasonable doubt”).
So, it could be said that appellant’s contentions go to the absolute systemic requirement
that a defendant be convicted only on proof beyond a reasonable doubt. See Mendez
v. State, 138 S.W.3d 334, 341 (Tex.Crim.App. 2004) (holding that error preservation
requirement does not apply to two types of complaints: waivable-only rights and
absolute systemic requirements). To the extent we are bound by Blue’s plurality opinion
and to the extent Blue could apply to alleged error by the State rather than the trial
court, appellant may not have been required to object to such questions to preserve for
our review his complaint that the State’s questions shifted the burden of proof. 41
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S.W.3d at 132. We, nevertheless, find the alleged error in the instant case further
distinguishable, in terms of degree or impact, from the error addressed in Blue.
From our review of the record of voir dire, we observe that the State made clear
at several points during voir dire that it bore the burden of proving appellant’s guilt
beyond a reasonable doubt. For instance, the State explained that “[i]n our criminal
justice system[,] the State has the burden of proof. It’s my job to prove the case.” The
State continued to discuss, at some length, the presumption of innocence and the
State’s burden of proof, describing it at one point as “the highest standard in our legal
system.” Defense counsel seemingly acknowledged the State’s efforts in discussing the
burden of proof beyond a reasonable doubt when he sought to reemphasize the
placement of the burden: “We talked about beyond a reasonable doubt and we know
that’s the burden of proof that the State is going to have to satisfy to convict [appellant]
of any crime.” Further, the trial court had explained at the beginning of voir dire that “in
a criminal case in the State of Texas, the State has the burden of proof. And that
burden of proof is styled ‘beyond a reasonable doubt.’”
The portion of voir dire of which appellant complains is more in the nature of an
explanation of the law. The law permits the State to introduce evidence of breath or
blood tests, and the State was explaining why it would not have such evidence in this
case. See TEX. TRANSP. CODE ANN. § 724.063 (Vernon 1999); see also id. § 724.061
(Vernon 1999) (making admissible a defendant’s refusal of request to take breath or
blood specimen). The purpose of voir dire examination is to determine whether
prospective jurors hold biases or prejudices that would prevent them from applying the
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law to the facts of the case. Stallings v. State, 47 S.W.3d 170, 174 (Tex.App.—Houston
[1st Dist.] 2001, no pet.). That said, voir dire questions designed to discover a
prospective juror’s views on an issue applicable to the case are proper. Id.
We conclude that the State’s comments, when read in context, did not shift the
burden of proof such that appellant was denied his due process right to a fair trial. See
Runnels v. State, No. AP-75,318, 2007 Tex.Crim.App. Unpub. LEXIS 377, at *20
(Tex.Crim.App. Sept. 12, 2007) (viewing trial court’s comments “as a whole” and
concluding that earlier description of the beyond a reasonable doubt standard indicated
that trial court’s comments did not “trivialize” the State’s burden of proof). From our
review of the record, it is clear that the State, defense counsel, and the trial court
impressed upon the venire that the burden of proof beyond a reasonable doubt lies
exclusively with the State and does not shift to a defendant under any circumstances.
Accordingly, the State’s questioning did not rise to the level of fundamental error
of constitutional dimension and, thus, appellant was required to timely and specifically
object to the cited comments to preserve the issue for appeal. See Blue, 41 S.W.3d at
132; Marshall v. State, 312 S.W.3d 741, 744 (Tex.App.—Houston [1st Dist.] 2009, pet.
ref’d). Any non-fundamental error associated with the State’s questions during voir dire
was not preserved for our review. We, therefore, overrule appellant’s first issue.
Improper Jury Argument
Citing Mosley v. State, 983 S.W.2d 249, 258–59 (Tex.Crim.App. 1998), appellant
contends that, in its closing argument to the jury, the State struck at appellant over the
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shoulders of defense counsel. He maintains that the following statement implied that
the duty of defense counsel was “less than honorable”:
It’s a widely-held principle that everybody in this courtroom knows is that a
defendant, no matter what the evidence may be against him, has the right
to a competent and passionate defense. After sitting here, you have seen,
there is no doubt, the Defendant has availed himself of that. He’s had a
competent, he’s had a passionate defense. But there is also a widely-held
principle that says that sometimes there are cases that aren’t defensible.
Sometimes the evidence is such that all that a Defense Attorney can do is
point away from the evidence. And that’s exactly the situation you have
here.
Appellant concedes that the record does not show that an objection was lodged in
response to the State’s argument. Our review of the record confirms that no such
objection was made. Appellant again asserts that the alleged error is fundamental.
However, contentions that the State struck at a defendant over the shoulders of counsel
have not been treated as fundamental error such that those contentions need not be
preserved for our review. See Threadgill v. State, 146 S.W.3d 654, 667 (Tex.Crim.App.
2004); Stephenson v. State, 255 S.W.3d 652, 659 (Tex.App.—Fort Worth 2008, pet.
ref’d). We find no authority to support the conclusion that the alleged error is
fundamental. See Mendez, 138 S.W.3d at 341.
Because any error associated with the State’s jury argument was not preserved
for our review, we overrule appellant’s second issue. See TEX. R. APP. P. 33.1(a).
Refusal of Jury Instruction
In his third and final point of error, appellant contends that the trial court erred by
refusing to submit the following instruction proposed by appellant: “A person cannot be
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found to be intoxicated if he lacks the normal use of mental or physical faculties for a
different reason, such as disability, illness, fatigue, stress, or clumsiness.”
At trial, appellant introduced medical testimony from Lubbock County Jail
physician, Kathryn Hines, M.D., that, due to appellant’s diabetes, appellant’s blood
sugar was checked every few hours during his pretrial incarceration. Hines testified that
one who is suffering from diabetic ketoacidosis, a complication of diabetes, may exhibit
symptoms “similar” to one who is intoxicated: nausea, confusion, vomiting, possible
chest pain, possible abdominal pain, and a fruity smell to one’s breath. She also
testified that one suffering from diabetic ketoacidosis might breathe heavily and would
feel the need to urinate frequently as a result of the body trying to rid itself of ketones.
She also explained a diabetic person’s increased susceptibility to the effects of alcohol.
On August 4, 2009, three days after being arrested, appellant was admitted to
the hospital when he exhibited symptoms consistent with diabetic ketoacidosis. He was
diagnosed with said condition at the hospital. With respect to appellant’s condition at
the time of his arrest, no records were admitted showing his blood sugar levels prior to
the high reading taken on August 4, immediately before he was transported to the
hospital. As a result, there is no direct evidence showing appellant’s blood sugar levels
at or around the time he was arrested. Appellant’s blood sugar levels fluctuated wildly,
according to Hines, even after appellant returned from his one-week stay in the hospital.
After Hines testified, both sides rested and closed. Appellant unsuccessfully
requested inclusion of an instruction regarding alternate causes for loss of faculties.
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Standard of Review
When presented with a jury charge complaint, we review the charge under
Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh’g). Under
Almanza, we must first determine whether error exists in the charge and, if we find
error, whether such error caused sufficient harm to compel reversal. See Ngo v State,
175 S.W.3d 738, 743–44 (Tex.Crim.App. 2005).
Trial Court’s Charge to the Jury Generally
The trial court must provide the jury with “a written charge distinctly setting forth
the law applicable to the case; not expressing any opinion as to the weight of the
evidence, not summing up the testimony, discussing the facts or using any argument in
his charge calculated to arouse the sympathy or excite the passions of the jury.” TEX.
CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007); Walters v. State, 247 S.W.3d 204,
208 (Tex.Crim.App. 2007). The trial court is required to instruct the jury on statutory
defenses, affirmative defenses, and justifications whenever they are raised by the
evidence. TEX. PENAL. CODE ANN. §§ 2.03(d), 2.04(d) (Vernon 2003); Walters, 247
S.W.3d at 208–09. A defendant is entitled to an instruction on every defensive issue
raised by the evidence, regardless of whether the evidence is strong, feeble,
unimpeached, or contradicted, and even when the trial court thinks the testimony is not
worthy of belief. Walters, 247 S.W.3d at 209.
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Inclusion of Special Instructions
Generally speaking, neither the defendant nor the State is entitled to a special
jury instruction relating to a statutory offense or defense if that instruction (1) is not
grounded in the Texas Penal Code, (2) is covered by the general charge to the jury, and
(3) focuses the jury’s attention on a specific type of evidence that may support an
element of an offense or a defense. Id. at 212 (relying on rationale of Giesberg v. State,
984 S.W.2d 245, 250 (Tex.Crim.App. 1998)). In such a case, the non-statutory
instruction would constitute a prohibited comment on the weight of the evidence. Id.
Special, non-statutory instructions, even when they relate to statutory offenses or
defenses, generally have no place in the jury charge. Id. at 211. We will evaluate
appellant’s proposed instruction in light of the three considerations outlined in Walters.
(1) Not grounded in the Texas Penal Code
The Texas Penal Code does not specifically provide a defense, affirmative
defense, or justification in the nature of the instruction proposed by appellant. See TEX.
PENAL CODE ANN. §§ 2.03(a) (providing that “[a] defense to prosecution for an offense in
this code is so labeled by the phrase: ‘It is a defense to prosecution . . . .’”), 2.04(a)
(providing that “[a]n affirmative defense to prosecution for an offense in this code is so
labeled by the phrase: ‘It is an affirmative defense to prosecution . . . .’”), 8.01–.07
(defining general defenses and affirmative defenses to criminal responsibility), 9.01–.63
(Vernon 2003 & Supp. 2010) (covering justifications excluding responsibility). Also
absent is an offense-specific defense in the nature of the proposed instruction. See id.
§ 49.04. As a general rule, if the instruction is not derived from the Texas Penal Code,
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it is not “the law applicable to the case” as contemplated by article 36.14. See Walters,
247 S.W.3d at 214.
(2) Covered elsewhere in the jury charge
Again, appellant requested the following charge: “A person cannot be found to
be intoxicated if he lacks the normal use of mental or physical faculties for a different
reason, such as disability, illness, fatigue, stress, or clumsiness.” This proposed
instruction went directly to the cause of appellant’s loss of mental or physical faculties.
The jury charge tracked the relevant portion of the statutory definition of “intoxication”
and, in so doing, required the jury to find that appellant lost the use of his mental or
physical faculties “by reason of the introduction of alcohol, a controlled substance, a
drug, a dangerous drug, a combination of two or more of those substances, or any other
substance into the body.” See TEX. PENAL CODE ANN. § 49.01(2)(A) (Vernon 2003).
An instruction such as the one here—one that goes to an element of the offense
that the State was called on to prove—was the type of instruction addressed in
Giesberg, 984 S.W.2d at 250. In Giesberg, the Texas Court of Criminal Appeals
explained why the trial court did not err in refusing to include an “alibi” instruction:
A defensive issue which goes no further than to merely negate an element
of the offense alleged by the State in its indictment does not place a
burden of proof upon a defendant to establish it. The burden of proof is
upon the State to prove those allegations. An alibi only traverses those
allegations and casts doubt upon whether the State has met its burden.
As a result, an alibi is sufficiently embraced in a general charge to the jury
that the defendant is presumed innocent until he or she is proven guilty
beyond a reasonable doubt. There is ample room within that instruction
for a defendant to effectively argue his defense of alibi to a jury.
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Id. (citations omitted). Accord Noyola v. State, No. 07-03-00473-CR, 2004 Tex.App.
LEXIS 11210, at *4–*5 (Tex.App.—Amarillo December 14, 2004, no pet.) (in appeal of
DWI conviction, relying on Giesberg to conclude that the trial court’s refusal of an
instruction concerning appellant’s diabetic condition was not error).
Likewise, here, the State had to prove beyond a reasonable doubt that appellant
had lost the use of his mental or physical faculties due to the introduction of alcohol into
his body. Alternative causes for his loss of faculties went directly to an element on
which the State bore the burden of proof beyond a reasonable doubt. Further, nothing
in the jury charge prevented the jury from considering whether appellant’s loss of mental
or physical faculties was caused by something other than the introduction of alcohol into
his body. See Walters, 247 S.W.3d at 213. The substance of appellant’s proposed
instruction was adequately addressed in the jury charge.
(3) Focusing jury’s attention on specific type of evidence
Because the defensive issue concerning the cause of the appellant’s loss of
mental or physical faculties was adequately accounted for within the general charge to
the jury, a special instruction on alternate causes for the loss of faculties would have
needlessly drawn the jury’s attention to the evidence concerning appellant’s medical
condition. Therefore, the special instruction on alternate causes for loss of mental or
physical faculties would have constituted an unwarranted comment by the trial court on
the weight of the evidence. See id. at 210; Giesberg, 984 S.W.2d at 250.
The three relevant considerations weigh in favor of the trial court’s refusal of the
proposed special instruction. See Walters, 247 S.W.3d at 212. That being so, the trial
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court did not err by refusing to include the proposed instruction in its charge to the jury.
Accordingly, we overrule appellant’s third and final issue.
Conclusion
Having overruled appellant’s three issues presented on appeal, we affirm the trial
court’s judgment.
Mackey K. Hancock
Justice
Do not publish.
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