Mino Turnbow v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00438-CR
MINO TURNBOW APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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Appellant Mino Turnbow appeals his conviction for felony driving while
intoxicated (DWI). We affirm.
On a Saturday night, Lake Dallas Police Officer William Soye pulled over a
white pickup truck for the traffic offense of turning without signaling. Officer Soye
approached the truck as Appellant exited its driver’s side and stepped into a mud
puddle. When the officer asked Appellant for his driver’s license and proof of
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See Tex. R. App. P. 47.4.
insurance, Appellant, leaning against the truck and smelling strongly of an
alcoholic beverage, produced an expired license and a paper invoice. The officer
pointed out that Appellant had handed him an invoice instead of proof of
insurance, and he asked if Appellant was okay. Appellant replied that he was not
okay, that he had been out with friends. The officer asked again for proof of
insurance, to which Appellant replied, ―I know I’ve been drinking, but I’ve been
out with some friends.‖
Suspecting that Appellant was intoxicated, Officer Soye administered the
horizontal gaze nystagmus test (HGN). Appellant exhibited five out of six clues
of intoxication on the HGN. The officer then had Appellant attempt the walk-and-
turn test. On that test, Appellant displayed eight out of eight clues of intoxication.
Because Appellant seemed unsteady on his feet––he had swayed during the
HGN and had stumbled on the walk and turn––Officer Soye did not have him
attempt the one-leg stand, fearing that it would be unsafe to do so. Instead, he
asked Appellant to recite the alphabet from ―E‖ to ―X.‖ Appellant started with the
letter ―A‖ and continued to the letter ―Z.‖ Finally, Officer Soye had Appellant
perform the ―Romberg test,‖ an exercise that involves touching the thumb to each
finger in sequence. Appellant was unable to perform this test according to the
officer’s instructions.
Officer Soye concluded that Appellant had lost the normal use of his
mental or physical capabilities due to having consumed alcohol, and he arrested
him for DWI.
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During the book-in process at the jail, Officer Soye learned from dispatch
that Appellant had prior DWI convictions, which raised the instant offense to a
felony. He asked Appellant to submit a breath sample for testing, but Appellant
refused. At that point, Officer Soye decided to get a warrant for a sample of
Appellant’s blood.
After obtaining the warrant, Officer Soye drove Appellant to Denton
Regional Medical Center, where phlebotomist Tara Okeola withdrew a sample of
Appellant’s blood for analysis. The sample was later forwarded to the
Department of Public Safety Crime Lab in Garland, where chemist Andrew
Macey measured its alcohol concentration at 0.26 grains of alcohol per 100
milliliters of blood––more than three times the legal limit.
A grand jury indicted Appellant for felony DWI. Ten days before trial,
Appellant requested technical documentation related to the DPS lab’s analysis of
his blood specimen. Six days before trial, the State responded by providing
Appellant with approximately 280 pages of documents. On the day of trial,
Appellant filed a written, unsworn motion for continuance asking for thirty more
days to review the documents and to hire an expert to assist him. The trial court
denied the motion for continuance; the trial went forward; the jury convicted and
assessed punishment at thirty-eight years’ confinement; and the trial court
sentenced Appellant accordingly.
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0Motion for Continuance
In his first issue, Appellant contends that the trial court abused its
discretion by denying his motion for continuance filed on the day of trial. Ten
days before trial, Appellant had requested discovery documents that the State
supplied within four days of the request. On the day of trial, Appellant filed a
written, but unsworn motion for continuance asking for a month to review the
documents and to hire an expert to assist his review.
The Texas Code of Criminal Procedure provides that all motions for
continuance must be sworn to by a person having personal knowledge of the
facts relied on for the continuance. Tex. Code Crim. Proc. Ann. art. 29.08
(Vernon 2009); Dewberry v. State, 4 S.W.3d 735, 755–56 (Tex. Crim. App.
1999), cert. denied, 529 U.S. 1131 (2000); see Montoya v. State, 810 S.W.2d
160, 176 (Tex. Crim. App.), cert. denied, 502 U.S. 961 (1991). Because
Appellant’s motion for continuance is unsworn, the trial court did not abuse its
discretion by denying it. We overrule Appellant’s first issue.
Blood Test Results
In his next two issues, Appellant challenges the trial court’s denial of his
motions to suppress evidence of the blood test results. First, he claims that the
results should have been suppressed because the blood-draw warrant was
defective in that its supporting affidavit did not provide a substantial basis for the
magistrate to find probable cause.
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Sufficiency of the Warrant Affidavit
When the government draws a blood specimen to determine a suspect’s
blood alcohol concentration, it performs a ―search‖ under the Fourth Amendment.
See Schmerber v. California, 384 U.S. 757, 770 (1966); Beeman v. State, 86
S.W.3d 613, 616 (Tex. Crim. App. 2002). A warrant satisfies the Fourth
Amendment so long as its supporting affidavit provides the issuing magistrate
with a substantial basis for finding probable cause. Illinois v. Gates, 462 U.S.
213, 238–39 (1983). An affidavit for a search warrant provides the magistrate
with a substantial basis for finding probable cause when it recites facts and
circumstances known by the officer from a trustworthy source that would justify a
person of reasonable caution in the belief that a crime has been committed and
that evidence of the crime may presently be located in the place to be searched
at the time the warrant is issued. See Cassias v. State, 719 S.W.2d 585, 587
(Tex. Crim. App. 1986); Ferguson v. State, 573 S.W.2d 516, 520 (Tex. Crim.
App. 1978), cert. denied, 442 U.S. 934 (1979). In assessing the sufficiency of a
search warrant affidavit, we limit our review to the four corners of the affidavit.
Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App.), cert. denied, 543 U.S.
944 (2004); Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992), cert.
denied, 507 U.S. 921 (1993). We interpret the affidavit in a commonsense and
realistic manner, recognizing that the magistrate was permitted to draw
reasonable inferences. Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App.
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2006); Hankins, 132 S.W.3d at 388; see Rodriguez v. State, 232 S.W.3d 55, 61–
64 (Tex. Crim. App. 2007).
The affidavit in this case states:
On Saturday 12/27/08 at approximately 2235 hours, I Officer Soye
#249, observed a white Chevy pickup . . . fail to signal when turning
off E Hundley Dr on to Gotcher. . . . After my light came on I
observed the vehicle swerve, slow down[,] stop[,] and then pull
ahead again to another location farther down Gotcher. I made
contact with the driver, identified by TX DL . . . [as Appellant] . . . .
While talking to [Appellant] I could smell a strong odor of an alcoholic
beverage emitting for [sic] his breath and/or person. I asked him if
[he] was drinking and he said ―Yes I had three or four beers at the
American Legion.[‖] I performed the Standardized Field Sobriety
Test’s. [sic] I observed 5 out of 6 clues in [HGN]. I performed the
Nine Step Walk and Turn and I observed 8 out of 8 clues. I
attempted to perform the One Leg Stand but was unable to due to
his unstableness. I performed the ABC’s and he could not recite
from letter E to X. I performed the finger count and he could not
perform. I read the DIC 24 to [Appellant] and he refused to provide
a specimen. I determined [Appellant] was operating a motor vehicle
in a public place while intoxicated.
Appellant contends that nothing within the four corners of the affidavit
established that he might have been intoxicated. Read in a commonsense and
realistic manner, however, the officer’s observations reported in the affidavit––
Appellant’s truck’s swerving, strong odor of alcohol on his breath, admission that
he had consumed ―three or four beers,‖ performance on the field sobriety tests,
and refusal to submit to breath testing––would lead a person of reasonable
caution to infer that Appellant had been driving while intoxicated and that his
blood would contain evidence to that effect. See Davis, 202 S.W.3d at 154;
Cassias, 719 S.W.2d at 587; Tex. Dep’t of Pub. Safety v. Cortinas, 996 S.W.2d
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885, 888–89 (Tex. App.—Houston [14th Dist.] 1998, no pet.). We hold,
therefore, that the affidavit provided the magistrate with a substantial basis for
finding probable cause and that the trial court did not err by denying Appellant’s
motion to suppress on the ground that the warrant was defective. See Gates,
462 U.S. at 238, 103 S. Ct. at 2332; Cortinas, 996 S.W.2d at 888–89.
Accordingly, we overrule Appellant’s second issue.
Phlebotomist
Next, Appellant contends that the trial court erred by not suppressing the
blood test results because the phlebotomist did not possess a license by the
State of Texas to draw blood. In short, he argues in his third issue that the
phlebotomist was not qualified because she was not certified.
We know of no authority for excluding from evidence the results of
analyses performed on blood specimens drawn by phlebotomists who do not
possess licenses issued by the State. Appellant notes that his trial counsel cited
our opinion in State v. Johnston, 305 S.W.3d 746 (Tex. App.—Fort Worth, 2009,
pet. granted), for such a proposition, but Johnston does not support Appellant’s
contention; moreover, Appellant does not argue with any force that it does.
What we did observe in Johnston was that the Fourth Amendment requires
that once the police obtain a valid warrant for blood, the subsequent search must
be reasonable. Id. at 752 (citing Beeman, 86 S.W.3d at 615–16). We review de
novo whether a blood draw was reasonable by examining the totality of the
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circumstances. Id. at 753 (citing Kothe v. State, 152 S.W.3d 54, 62–63 (Tex.
Crim. App. 2004)).
Our review of the totality of the circumstances as set out in the record
shows that the blood draw in this case was reasonable. Appellant was taken to a
sanitary room in a hospital, where a phlebotomist, who had been employed as
such by the hospital for four years, had sixteen years’ experience, and had
performed over 50,000 blood draws, sterilized Appellant’s arm with soap and
water, and collected a sample of his blood into a sealed blood sample kit
provided by the officer. Because we see nothing in the record to suggest that the
blood draw under these circumstances was unreasonable, the trial court did not
err by denying Appellant’s motion to suppress on the grounds that the
phlebotomist was not properly certified. See State v. Bingham, 921 S.W.2d 494,
496 (Tex. App.—Waco 1996, pet. ref’d). Accordingly, we overrule Appellant’s
third issue.
Evidence Sufficiency
Appellant’s fourth and fifth issues are challenges to the legal and factual
sufficiency of the evidence to support his conviction. Because the court of
criminal appeals has recently overruled Clewis, we review Appellant’s sufficiency
of the evidence claims under the standard set out in Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); see Brooks v. State, No. PD-0210-09,
2010 WL 3894613, at *1 (Tex. Crim. App. Oct. 6, 2010).
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Prior DWI Conviction
In issue four, Appellant claims that the State failed to prove one of the two
prior DWI convictions it had alleged to raise the offense to a felony. Specifically,
he contends that one of these priors was not proven beyond a reasonable doubt
because the judgment from that case did not have Appellant’s fingerprint on it.
To establish that a defendant has been convicted of a prior offense, the
State must prove beyond a reasonable doubt that (1) a prior conviction exists,
and (2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d
919, 921 (Tex. Crim. App. 2007); Paschall v. State, 285 S.W.3d 166, 174 (Tex.
App.—Fort Worth, 2009, pet. ref’d). No specific document or mode of proof is
required to prove these two elements. Flowers, 220 S.W.3d at 921. There is no
―best evidence‖ rule in Texas that requires that the fact of a prior conviction be
proven with any document, much less any specific document. Id. While
evidence of a certified copy of a final judgment and sentence may be a preferred
and convenient means, the State may prove both of these elements in a number
of different ways, including (1) the defendant’s admission or stipulation, (2)
testimony by a person who was present when the person was convicted of the
specified crime and can identify the defendant as that person, or (3) documentary
proof (such as a judgment) that contains sufficient information to establish both
the existence of a prior conviction and the defendant’s identity as the person
convicted. Id. at 921–22 (citations omitted).
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Ordinarily, the proof that is adduced to establish that the defendant on trial
is one and the same person that is named in an alleged prior criminal conviction
or convictions closely resembles a jigsaw puzzle. Human v. State, 749 S.W.2d
832, 835–36 (Tex. Crim. App. 1988) (op. on reh’g). The pieces standing alone
usually have little meaning. Id. at 836. However, when the pieces are fitted
together, they usually form the picture of the person with the alleged prior
conviction or convictions. Id.
The trier of fact fits the pieces of the jigsaw puzzle together and weighs the
credibility of each piece. Flowers, 220 S.W.3d at 923. Regardless of the type of
evidentiary puzzle pieces the State offers to establish the existence of a prior
conviction and its link to a specific defendant, the trier of fact determines if these
pieces fit together sufficiently to complete the puzzle. Id. The trier of fact looks at
the totality of the evidence admitted to determine (1) whether there was a
previous conviction, and (2) whether the defendant was the person convicted. If
these two elements can be found beyond a reasonable doubt, then the various
pieces used to complete the puzzle are necessarily sufficient to prove a prior
conviction. Id.
In this case, the jury, as the trier of fact, had before it all the pieces of the
jigsaw puzzle needed to determine beyond a reasonable doubt that Appellant
had been previously convicted of DWI as alleged in the indictment. The
indictment alleged that Appellant had previously been convicted of DWI on June
21, 1989, in the County Court at Law Number One of Wichita County, Texas, in
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cause number 07-1350-10419. State’s Exhibit 10 is a certified copy of a
judgment and order of probation in The State of Texas v. Mino Scott Turnbow,
cause number 07-1350-10419, from the County Court at Law Number One of
Wichita County. Although there is a place for a fingerprint on State’s Exhibit 10,
the State’s fingerprint expert, Denton County Sheriff’s Office Investigator Larry
Kish testified that the exhibit does not display an identifiable print.
Investigator Kish, however, also testified that, in the morning before that
day’s testimony, he personally took Appellant’s fingerprints in the courtroom on a
ten-print card which was admitted as State’s Exhibit 9. State’s Exhibit 11 is a
certified copy of a May 24, 1990 order modifying probation in cause number 07-
1350-10419, styled The State of Texas v. Mino Scott Turnbow, out of Wichita
County’s County Court at Law Number One. A fingerprint was displayed on
State’s Exhibit 11, which Investigator Kish identified as Appellant’s.
The trial court also admitted State’s Exhibit 13, a certified DPS driving
packet showing the driving record of ―Mino Scott Turnbow.‖ It references a DWI
conviction in Wichita County’s County Court at Law on June 21, 1989, with a
docket number ending in 10419. Included in State’s Exhibit 13 is a driver’s
license photograph which Investigator Kish identified as Appellant. In addition,
the jury could compare the photograph on State’s Exhibit 13 with Appellant who
was present in the courtroom during trial.
Viewed in the light most favorable to the verdict, we hold that the evidence
is sufficient to support the jury’s finding implied by their verdict that Appellant had
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previously been convicted of DWI as alleged in the indictment. Accordingly, we
overrule Appellant’s fourth issue. See Flowers, 220 S.W.3d at 925.
Evidence of Intoxication
In issue five, Appellant contends that the evidence is insufficient to prove
that he was intoxicated while he was driving. Viewed in the light most favorable
to the verdict, the record shows that Officer Soye pulled Appellant over for a
traffic violation; that, after stepping in a mud puddle, Appellant leaned against his
pick-up truck for balance; that he smelled strongly of an alcoholic beverage; that
he admitted that he had been drinking; that he produced the wrong papers—an
invoice—when asked for proof of insurance; that, when asked if he was okay, he
said ―No, I’m not okay, I’ve been out with some friends;‖ that Officer Soye
observed five out of six clues of intoxication on the HGN; that Appellant displayed
all eight clues of intoxication on the walk-and-turn test; that he was too unsteady
for Officer Soye to consider it safe for him to perform the one-leg-stand test; that
he was unable to perform other tests; that he admitted that he was drunk; that he
refused a breath test; that Officer Soye believed that Appellant had lost the
normal use of his physical and mental faculties due to the introduction of alcohol;
and that Appellant’s blood tested positive for alcohol at a concentration over
three times the legal limit. In addition, the jury viewed the videotape taken of the
stop and the arrest. We hold that the evidence is sufficient for a rational jury to
find that Appellant was intoxicated while he was driving, and we overrule
Appellant’s fifth issue.
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Enhancement
In issue six, Appellant complains that the judgment of the trial court
indicates on its face that Texas Penal Code § 12.42 enhancement is not
available. The record shows, however, that the trial court issued a judgment
nunc pro tunc remedying the error of which Appellant complains in this issue.
Accordingly, we overrule Appellant’s sixth issue as moot.
Conclusion
Having overruled all of Appellant’s issues, we affirm the judgment of the
trial court.
PER CURIAM
PANEL: GABRIEL, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 10, 2010
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