Emale, Mayanio John v. State ( 2012 )

AIfirJIIC(I; Opinion Filed November 30, 2012.
In The
Quiirt of Aiprak
Fifth 1iitrirt of cxa at Ia1tai
No. 05-11-01511-CR
MAYANI() JOHN EMALE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court No. 8
Dallas County, Texas
Trial Court Cause No. MB1034281J
MEMORANDUM OPINION
Before Justices Moseley, Fillmore, and Myers
Opinion By Justice Moseley
Ajury convicted Mayanio John Emale of driving while intoxicated and assessed punishment
at 90 days’ confinement and a $1,500 fine. Emale appeals and, in three issues, argues the evidence
was insufficient to support the conviction; the trial court erred in limiting Emale’s closing arguments
to facts deducible from the record; and the trial court erred by not allowing Emale to conduct voir
dire on a witness to determine whether reasonable suspicion existed for an investigatory detention.
The background of the case and the evidence adduced at trial are well known to the parties thus, we
do not recite them here in detail. Because all dispositive issues are clearly settled in law, we issue
this memorandum opinion. TEX. R. App. P. 47.1. We affirm the judgment of the trial court.
‘The record contains evidence that two drivers were almost struck by Emale when he made
a sharp left turn into oncomin traffic. l’he tun drivers who had almost been struck Ibliowed Emale
and then cornered him when he pulled into a parking lot. One of the drivers called the police while
the other prevented Emale hom driving away by taking his car keys. Officer Travis 1-luckaby
responded to the emergency call and attempted to administer a horizontal gaze nystagmus
intoxication test but stopped because Emale was swaying dangerously and 1—luckahy teared for
Emale’s safety. Emale was arrested and subsequently tried. At trial, both drivers and officer
Iluckaby testi tied they believed Emale was intoxicated because he smelled of alcohol, lacked normal
coordination, and had slurred speech.
In his first point of error, Emale argues that there was insufficient evidence to support his
conviction because the state failed to demonstrate a temporal link between his intoxication and his
operation of a vehicle.
We apply the appropriate legal sufficiency standard of review. See Jackson v. Virginia. 443
U.S. 307, 319 (1979); Adarnes v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). In a legal
sufficiency review. “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.” Adames, 353 S.W.3d at 860. This standard “recognizes the trier of
fact’s role as the sole judge of the weight and credibility of the evidence after drawing reasonable
inferences from the evidence.” Id. We measure the sufficiency of the evidence by the elements of
the offense as defined by a hypothetically correct jury charge. See id. (citing Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997)).
A person commits the offense of driving while intoxicated if the person is intoxicated while
operating a motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2012).
“Intoxicated’ means not having the normal use of 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 ot those substances, or any other substance into the body. Id. 49.0l(2)( ). To support a
conviction lbr DWI, “there must be a temporal link between the defimdant’s intoxication and his
driving, but a conviction can be supported solely by circumstantial evidence.” Kuciemba v. State,
310 S.W.3d 460,462 (Tex. Crim. App. 2010).
Viewing the evidence in a neutral light, we cannot say the evidence of guilt is so obviously
weak as to undermine confidence in the fact finder’s determination, or that the proof of guilt is
greatly outweighed by contrary proof. See Johnson i. State, 23 S.W.3d 1. 1 0—l I (‘[cx. Crim. App.
2000). Here, both drivers testified that they had seen Emale driving—indeed he had almost struck
them with his vehicle—immediately before they cornered him in the parking lot. They testified that
once cornered, they observed signs of intoxication, including slurred speech, inability to sit upright,
lack of normal coordination, and the stench of alcohol . Likewise, Huckaby testified that the engine
of Emale’s car was still warm when he arrived at the scene. This testimony, if credited by the fact
finder, is sufficient to create a direct temporal link between Emale’s intoxication and his driving of
a vehicle. We need not further detail the rest of the evidence. See Sims v. State, 99 S.W.3d 600, 603
(‘[cx. Crim. App. 2003). We conclude the evidence is factually sufficient to support the conviction.
We overrule Emale’s first point of error.
in his second issue, Ernale argues the trial court erred when it limited Emale’s closing
arguments to evidence actually presented at trial.
The standard of review for improper jury argument is abuse of discretion. Powell v. State,
63 S.W.3d 435, 438 (Tex. Crim. App. 2001). The Court of Criminal Appeals identified five areas
of permissible jury argument: summation of evidence, reasonable deductions from evidence,
response to detendants argument, plea br law entbrcement, and invited argument Albiar v. State.
739 S.W.2d 360. 362 (Tex. Crim, App. I 987). A reftrence to facts not supported by the record is
improper argument. Al/ridge v. State, 762 S.W.2d 146, 155 (Tex. Crim. App. 1988).
Here, during closing, argument, Emale’s counsel alluded to the possibility that Emale’s
intoxication was caused by a pain pill he had taken between the time he pulled his car over and the
arrival of law enforcement officers, thus negating the temporal link between his driving and his
intoxication. A search of the record shows that no evidence was presented that Emale possessed or
consumed pain pills. Because Emale’s counsel’s allusion to pain pills references facts not supported
by the record, the trial court did not abuse its discretion by limiting that line of argument. As such.
we overrule Emale’s second point of error.
In his third issue, Ernale argues the trial court erred when it refused to allow him to voir dire
Officer Huckaby regarding the existence of reasonable suspicion for his detention.
To preserve error regarding a trial court’s decision to exclude evidence, the complaining party
must comply with Rule of Evidence 103 by making an “offer of proof’ which sets forth the
substance of the proffered evidence. AIavs v. State, 285 S.W.3d 884. 889 (Tex. Crim. App. 2009).
A mere statement of intent to question a witness regarding the existence of reasonable suspicion is
insufficient to preserve error. See Love v. State, 861 S.W.2d 899, 901 (Tex. Crim. App. 1993).
Rather, the party must present the court with a concise statement that conveys the content of the
testimony the party desires to elicit from the witness. id.
Here, Emale preserved nothing for our review. During direct examination of Huckaby,
following a question concerning outward signs of intoxication, counsel for Emale interjected, “I’m
gonna make an objection based on reasonable suspicion in detaining the defendant. Permission to
voir dire the witness?” The objection was overruled and no offer of proof was made.
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Merely stating a desire to ask questions about Huckaby’s basis for reasonable suspicion. as
Emale’s counsel did here, did not apprise the trial court ofthe basis for the objection or the testimony
desired. Because Emale failed to make an offer ofproof. he preserved nothing for our review. We
overrule Emale’s third point of error.’
Emale attempts to raise a new, fourth issue in his reply brief. A reply brief is only allowed
to address matters raised in the appellee’s brief. See ‘FEX. R. APP. P. 38.3; Barrios i’. State, 27
S.W.3d 313,322 (Ta. App.—Houston[ 1st Dist] 2000, pet. ref’d). Issues may not be raised for the
first time in a reply brief. See Barrios. 27 S.W.3d at 322. Because Emale did not raise the relevant
issueinhisoriginalbriefandtheStatedidnotraisetheissueinitsbriefEmalemaynotnisethe
issue for the first time in his reply brief. Accordingly, we decline to address Emale’s fburth issue.
Having overruled all of Emale’s points trial court
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quite extensively during oross.ccaminstion.
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JUDGMENT
MAYANIO JOHN EMALE, Appellant Appeal from the County Criminal Court No.
8 of Dallas County, Texas. (Tr.Ct.No.
No. 05-1 1-0151 1-CR V. MB 10342813).
Opinion delivered by Justice Moseley,
THE STATE OF TEXAS, Appellee .Justices Fillmore and Myers participating.
Based on the (‘ourts opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered November 30, 2012.
F!
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J I jM OSEL bY
KJSTICE