Pedro Elizondo Martinez, Jr. v. State ( 2015 )

ACCEPTED
03-14-00802-CR
8184965
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/10/2015 3:32:27 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00802-CR
In the FILED IN
3rd COURT OF APPEALS
Court of Appeals for the Third District of Texas AUSTIN, TEXAS
at Austin 12/10/2015 4:54:27 PM
___________________________ JEFFREY D. KYLE
Clerk
No. 13-1936-K26
In the 26th Judicial District Court
Williamson County, Texas
____________________________
PEDRO ELIZONDO MARTINEZ JR.
Appellant
v.
THE STATE OF TEXAS
Appellee
_____________________________
STATE’S BRIEF IN RESPONSE
_____________________________
Jana Duty
District Attorney
Williamson County, Texas
Daniel Sakaida
State Bar No: 24084601
Assistant District Attorney
daniel.sakaida@wilco.org
John C. Prezas
State Bar No: 24041722
Assistant District Attorney
jprezas@wilco.org
405 Martin Luther King, Box 1
Georgetown, Texas 78626
(512) 943-1234
(512) 943-1255 (fax)
STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument as the issues presented in this
appeal are not novel and the record is straightforward. However, if the Court
believes that oral argument would help resolve the matter, the State would request
the opportunity to appear and argue.
IDENTIFICATION OF THE PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), the State
would supplement Appellant’s identification of the list of parties as follows:
Presiding Judge at Trial
 The Honorable Donna King, 26th Judicial District Court, Williamson
County, Texas.
Attorneys for the State
 Mr. Daniel Sakaida (appeal), Assistant District Attorney for Williamson
County, 405 Martin Luther King, Georgetown, Texas 78626.
 Mr. John C. Prezas (appeal), Assistant District Attorney for Williamson
County, 405 Martin Luther King, Georgetown, Texas 78626.
 Mr. Geoffrey Puryear (trial), Assistant District Attorney for Travis County,
509 West 11th St., Austin, TX 78701.
 Mr. Oscar Ryan Salinas (trial), Assistant District Attorney for Bexar County,
101 W. Nueva St., Sans Antonio, TX 78205.
ii
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT .............................................. ii
IDENTIFICATION OF THE PARTIES .................................................................. ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES.................................................................................... iv
STATEMENT OF FACTS ........................................................................................1
SUMMARY OF THE ARGUMENT ........................................................................7
REPLY TO ISSUES FOR REVIEW .........................................................................7
I. There was sufficient evidence for the jury to find that Appellant’s vehicle
was a Deadly Weapon.............................................................................................7
A. There was sufficient evidence for a rational jury to find beyond a
reasonable doubt that Appellant’s vehicle was used in a reckless or dangerous
manner ...............................................................................................................11
B. There was sufficient evidence for a rational jury to find beyond a
reasonable doubt that Appellant’s vehicle posed an actual, and not merely
hypothetical, danger to others ............................................................................17
II. The trial court did not err in allowing testimony about a prior accident on
Interstate 35, and even if error, the brief testimony to that end presented no
reversible harm......................................................................................................22
A. The trial court did not abuse its discretion in admitting testimony about a
prior accident, as it was relevant to show the officer’s actions and to support
the Deadly Weapon Finding ..............................................................................22
B. The trial court did not abuse its discretion in admitting the testimony
under Texas Rule of Evidence 403 ....................................................................25
C. Even if admitting the testimony was error, it was harmless as it was
limited, not inflammatory, and not emphasized by the State ............................29
PRAYER ..................................................................................................................33
CERTIFICATE OF COMPLIANCE .......................................................................34
CERTIFICATE OF SERVICE ................................................................................34
iii
INDEX OF AUTHORITIES
CASES
Brister v. State,
449 S.W.3d 490 (Tex. Crim. App. 2014) ........................................... 9, 10, 26
Chambers v. State,
805 S.W.2d 459 (Tex. Crim. App. 1991) ........................................................8
Clayton v. State,
235 S.W.3d 772 (Tex. Crim. App. 2007) ........................................................8
Devoe v. State,
354 S.W.3d 457 (Tex. Cim. App. 2011) .......................................................23
Drichas v. State,
175 S.W.3d 795 (Tex. Crim. App. 2005) ............. 9, 11, 18, 19, 20, 21, 25, 26
Farris v. State,
819 S.W.2d 490 (Tex. Crim. App. 1990) ........................................................8
Foley v. State,
327 S.W.3d 907 (Tex. App.—Corpus Christi 2010) .....................................26
Garrett v. State,
851 S.W.2d 853 (Tex. Crim. App.1993) .........................................................7
Gigliobianco v. State,
210 S.W.3d 637 (Tex. Crim. App. 2007) ............................................... 27, 28
Jackson v. Virginia,
443 U.S. 307 (1979).....................................................................................7, 8
Johnson v. State,
932 S.W.2d 296 (Tex. App. —Austin 1996, pet. ref’d) ................................27
Johnson v. State,
967 S.W.2d 410 (Tex. Crim. App. 1998) ......................................................31
iv
Keller v. State,
No. 03-13-00501-CR, 2014 Tex. App. LEXIS 12506 at *13-14 (Tex. App.—
Austin Nov. 20, 2014, no pet.) (mem.op., not designated for publication) ..27
King v. State,
895 S.W.2d 701 (Tex. Crim. App.1995) .........................................................8
King v. State,
953 S.W.2d 226, 273 (Tex. Crim. App. 1997) ..............................................32
Losada v. State,
721 S.W.2d 305 (Tex. Crim. App. 1986) ........................................................8
Mann v. State,
12 S.W.3d 89 (Tex. App.—Austin 2000) (aff’d 58 S.W.3d 132 (Tex. Crim.
App. 2001) ........................................................................................ 10, 11, 18
Mann v. State,
58 S.W.3d 132, 132 (Tex. Crim. App. 2001) ................................................10
Matson v. State,
819 S.W.2d 839 (Tex. Crim. App. 1991) ........................................................8
Montgomery v. State,
810 S.W.2d 372 (Tex. Crim. App. 1991) (op. on reh’g) ...............................23
Moses v. State,
105 S.W.3d 622, 627 (Tex. Crim. App. 2003) ..............................................24
Motilla v. State,
78 S.W.3d 352 (Tex. Crim. App. 2002) ................................................. 31, 32
Muniz v. State,
851 S.W.2d 238 (Tex. Crim. App.1993) .........................................................8
Russo v. State,
228 S.W.3d 779 (Tex. App.—Austin 2007, pet. ref’d) .................................23
Sierra v. State,
280 S.W.3d 250 (Tex. Crim. App. 2009) ..................................................9, 10
Solomon v. State,
49 S.W.3d 356 (Tex. Crim. App. 2001) ........................................................31
v
Sorrells v. State,
343 S.W.3d 152 (Tex. Crim. App. 2011) ........................................................9
State v. Duran,
396 S.W.3d 563 (Tex. Crim. App. 2013) ........................................................9
Tucker v. State,
369 S.W.3d 179 (Tex. Crim. App. 2012) ........................................................9
Tyra v. State,
897 S.W.2d 796 (Tex. Crim. App. 1995) ......................................................10
Will. v. State,
946 S.W.2d 432 (Tex. App—Fort Worth 1997) aff’d in part, rev’d in part,
970 S.W.2d 566 (Tex. Crim. App. 1998) ................................... 18, 19, 21, 26
Winegarner v. State,
235 S.W.3d 787 (Tex. Crim. App. 2007) ......................................................27
RULES
Tex. R. App. Proc. 44.2(b). ......................................................................................31
vi
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF FACTS
The state wishes to clarify the following facts to supplement those addressed
in Appellant’s brief.
At about 9:30 on the evening of October 30, 2013, one Officer Morris was
responding to an incident on the southbound side of Interstate 35 in Williamson
County when he observed a single-car accident take place on the northbound side
of the Interstate.1 At trial, Deputy Rodolfo Pena testified that he responded to the
accident,2 followed shortly thereafter by Officer David McDonald3 and his trainee
Officer John Cochran.4
When the Deputy Pena arrived at the scene of the accident, he found
Appellant’s truck facing south into oncoming traffic in the fast northbound lane on
Interstate 35, with Appellant’s bumper and some beer cans also on the road.5
Deputy Pena testified that Appellant needed to lean against his truck for stability,
that his speech was slurred, that he smelled of alcohol, and that he had admitted to
1
R.R. III:56-57.
2
R.R. III:23-24.
3
R.R. III:118.
4
R.R. III:32-33.
5
R.R. III:24, 33-34.
1
having a few drinks before driving.6 Deputy Pena also testified that the roads were
“a little bit wet” because it had been raining, and that there was light traffic when
he arrived on scene.7
Officers McDonald and Cochran took over the scene from Deputy Pena once
they arrived.8 Officer Cochran observed that several beer cans from a cooler in
Appellant’s truck were thrown onto the roadway from the accident, and took
photographs of the same.9 Further, Appellant was still leaning against his truck,
had red, bloodshot, and glassy eyes, smelled of alcohol, had difficulty
remembering events, and had trouble even finding his wallet.10 Appellant told
Officer Cochran that he had consumed four to six alcoholic beverages an hour
prior to the accident.11 Officer Cochran confirmed that while Appellant refused to
participate in the standard field sobriety tests, Appellant’s actions and behaviors
were consistent with intoxication.12 However, because of an error, Officers
believed that Appellant had only one previous conviction for Driving While
Intoxicated, and therefore did not seek a blood draw warrant as they normally
6
R.R. III:24, 121.
7
R.R. III:28.
8
R.R. III:25.
9
R.R. III:34-35, State’s Exhibits 2-6.
10
R.R. III:39, 46 (Officer Cochran), R.R. III:121 (Officer McDonald).
11
R.R. III:40.
12
R.R. III:41.
2
would have if they had been aware that Appellant’s conduct was in fact a felony
offense.13
The officers filled out a Texas Department of Transportation crash report,
and listed “Failure to maintain a single lane” as a contributing factor to the
accident, with use of alcohol and speeding as possible contributing factors.14
The location where Appellant crashed on Interstate 35 was very dangerous,15
in the far left of three lanes after dark. At trial, Appellant’s counsel stated that there
was a “bunch of traffic flying past”16 and said traffic was moving “fairly
quickly.”17 Indeed, the video from Officer Cochran’s car-mounted camera admitted
as State’s Exhibit 7—later slightly redacted and admitted as Court’s Exhibit 1—
shows a steady stream of vehicles passing the scene shortly after the accident.
Officer Cochran testified that this accident happened around 9:30, relatively early
in the evening, and that it is not abnormal for many vehicles to be on Interstate 35
near the location of this accident, including some with families.18
13
R.R. III:48-49, 85.
14
R.R. III:89.
15
R.R. III:119.
16
R.R. III:78.
17
R.R. III:77.
18
R.R. III:51.
3
Applicant told the officers that he “hydroplaned” into the concrete wall,
totaling his truck.19 However, there is no mention in the record of any standing
water on the Interstate, and indeed, there was testimony that the surface of the road
was only “a little bit wet.”20 Further, there was a substantial paved shoulder
separating the lane of traffic from the concrete wall with sufficient room to park a
patrol car where Appellant would have crashed.21 Therefore, Appellant would have
needed to stray a substantial distance out of his lane on a straight stretch of
Interstate 35 to strike the wall. There were street lights illuminating the Interstate
around the scene as well.22
After being arrested and placed in the back seat of the patrol car, Applicant
was “a bit sleepy” and had trouble staying awake, a possible sign of intoxication.23
Appellant also made incriminating admissions while seated in the back, including
that he had been drinking, that he should have just gone home, and that he was
drinking and driving and wrecked.24
Early in Officer McDonald’s direct examination, the State asked “And you
say I-35 is dangerous or at least this area is dangerous. Do you have any
19
R.R. III:58.
20
R.R. III:28.
21
Court’s Exhibit 1, from 21:54:20 to 21:54:45.
22
Id.; R.R. III:93-94.
23
R.R. III:97-98.
24
R.R. III:102, 104, 148.
4
experience with why it would be considered dangerous?”25 As the Officer began to
answer, Appellant objected to relevance and that the testimony was more
prejudicial than probative. The State argued that the testimony would go to the
deadly weapon finding, specifically showing that cars and accidents on Interstate
35 are in fact capable of causing serious bodily injury or death, particularly when
stopped in a lane of traffic.26 The district court overruled the objection, and the
Officer testified:
I believe it was in 2012. We worked an accident on I-35 about a mile
up from where this accident occurred. A deputy constable was
working an overtime gig providing traffic control for a construction
site, and he was hit in the rear as he was parked with his emergency
lights activated by what was determined to be an intoxicated driver
and he was seriously injured and sent to the hospital.27
This incident was never mentioned again by any witness or attorney in the rest of
the trial, including examinations and argument.
Oscar Salinas, in closing arguments for the State, argued for the deadly
weapon finding based on “common sense.”28 Specifically, Mr. Salinas argued that
such a finding was reasonable given that Appellant had spun out on an interstate,
and hit a concrete wall, totaling his truck.
25
R.R. III:119.
26
R.R. III:120.
27
R.R. III:120.
28
R.R. III:149.
5
In closing arguments, Appellant’s counsel continued to argue that Appellant
had reacted correctly to hydroplaning; “We know that the accident wasn’t his fault.
He hydroplaned. Okay?”29
In response, Geoffrey Puryear for the State argued that Appellant in fact had
not made the right decisions that night, because “if he did, he wouldn’t be in that
wreck.”30 Mr. Puryear went on to argue that the accident was evidence that
Appellant suffered from a loss of mental and physical faculties. Additionally, Mr.
Puryear pointed to the various admissions made by Appellant when he was sitting
in the back of the patrol car, where he admitted to drinking and driving, then
wrecking his vehicle.31 Mr. Puryear also specifically pointed out that the danger
posed by Appellant’s driving was not “hypothetical” because, in part, he was just
as capable of swerving the opposite direction that he did and into a “minivan”
instead of the concrete median he in fact hit.32
29
R.R. III:161.
30
R.R. III:170.
31
R.R. III:170.
32
R.R. III:172-73.
6
SUMMARY OF THE ARGUMENT
First, there was sufficient evidence for the jury to find that Appellant’s
vehicle was, in the manner of its use, a deadly weapon, specifically that Appellant
drove in a reckless or dangerous manner, and that he actually put others in danger.
Second, brief testimony concerning a prior related accident was not improperly
admitted, and even if it was error, the admission was harmless.
REPLY TO ISSUES FOR REVIEW
I. There was sufficient evidence for the jury to find that Appellant’s vehicle
was a Deadly Weapon
Sufficiency of the Evidence
A reviewing court must view the evidence in the light most favorable to the
verdict and determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.33 In conducting a
review of the sufficiency of the evidence, “a reviewing court, ‘…faced with a
record of historical facts that supports conflicting inferences’ must presume—even
if it does not affirmatively appear in the record—that the trier of fact resolved any
33
See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garrett v. State, 851 S.W.2d 853, 857
(Tex. Crim. App.1993).
7
such conflict in favor of the prosecution, and must defer to that resolution.”34
Reconciliation of evidentiary conflicts is solely a function of the trier of fact.35
This standard of review applies to both direct and circumstantial evidence.36
On appeal, a reviewing court should not reevaluate the weight and credibility of
the evidence, but instead considers only whether the jury reached a rational
decision.37 The jury determines the credibility of the witnesses and may “believe
all, some, or none of the testimony.”38 Further, an appellate court should determine
whether necessary inferences are reasonable “based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to the
verdict.”39
The court may also consider “indisputable visual evidence” in the record,
including in video recordings in evidence.40 An appellate court should view video
evidence in the light most favorable to the ruling, and should assume that the finder
of fact “made implicit findings that support” that conclusion.41
34
Matson v. State, 819 S.W.2d 839, 843-46 (Tex. Crim. App. 1991) (quoting Jackson v.
Virginia, 443 U.S. 307, 326 (1979); Farris v. State, 819 S.W.2d 490, 495 (Tex. Crim. App.
1990)); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
35
Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986).
36
See King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App.1995).
37
See Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App.1993).
38
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
39
Sorrells v. State, 343 S.W.3d 152, 156 (Tex. Crim. App. 2011).
40
State v. Duran, 396 S.W.3d 563, 573-74 (Tex. Crim. App. 2013).
41
Tucker v. State, 369 S.W.3d 179, 185 (Tex. Crim. App. 2012).
8
Deadly Weapon
In order to uphold a deadly weapon finding the evidence—viewed in the
light most favorable to the verdict—must demonstrate that: (1) the object meets the
definition of a deadly weapon, (2) the deadly weapon was used or exhibited during
the transaction on which the felony conviction was based, and (3) other people
were put in actual danger.42 In the context of a Driving While Intoxicated case, the
first and third prongs are inherently at issue, and the second prong is generally
satisfied when the defendant was actually driving at the time.
As to the first prong, a vehicle is not a per se deadly weapon by statute, but
may be used in a manner capable of causing death or serious bodily injury when
the manner in which the defendant used the vehicle was reckless or dangerous.43
There is no requirement that the defendant have the specific intent to use the
vehicle as a deadly weapon,44 and reckless or dangerous driving may be
established by a showing that Appellant was “too drunk to control” his vehicle.”45
42
See Brister v. State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014) (citing Drichas v. State, 175
S.W.3d 795, 797-98 (Tex. Crim. App. 2005)); see also Sierra v. State, 280 S.W.3d 250, 255
(Tex. Crim. App. 2009).
43
See Sierra, 280 S.W.3d at 250.
44
Drichas, 175 S.W.3d at 798; Mann v. State, 12 S.W.3d 89, 92-93(Tex. App.—Austin 2000)
(aff’d 58 S.W.3d 132 (Tex. Crim. App. 2001)).
45
Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995).
9
As to the third prong, Applicant’s manner of operating the vehicle must have
posed an actual rather than hypothetical danger to others.46 A sufficient showing of
actual danger includes “evidence that another motorist was on the highway at the
same time and place as the defendant when the defendant drove in a dangerous
manner.”47 However, there is no requirement that another person be within a
predetermined “zone of danger” or be forced to take evasive action due to
Applicant’s driving.48 The exact volume of traffic is relevant only if no traffic
exists, a fact which would militate against a deadly weapon finding.49 As this Court
noted, this prong is not satisfied by, “merely a hypothetical potential for danger if
others had been present,” if in reality no persons were.50 More fundamentally, this
prong deals with an object’s capability of inflicting death or serious bodily injury,
not its probability of doing so.51 Law enforcement officers are not to be excluded
from the class of persons capable of being endangered.52
46
Brister, 449 S.W.3d at 494; Mann v. State, 58 S.W.3d 132 (Tex. Crim. App. 2001).
47
Drichas, 175 S.W.3d at 797.
48
Id.
49
Id .
50
Mann, 12 S.W.3d at 92 (emphasis added).
51
Drichas, 175 S.W.3d at 800.
52
Id. at 798.
10
A. There was sufficient evidence for a rational jury to find beyond a
reasonable doubt that Appellant’s vehicle was used in a reckless or
dangerous manner
A rational jury could have reasonably concluded beyond a reasonable doubt
that Applicant’s drove his vehicle in a reckless or dangerous manner. This is not a
case of a minor single-car accident or of a driver briefly evading an officer then
pulling over safely: this is a case where Appellant totaled his truck on a straight,
well-lit section of Interstate 35 after crossing a paved shoulder and hitting a
concrete dividing wall only to end up stopped in a lane of traffic.53 Appellant
claimed at the time to the responding officers that he “hydroplaned” and lost
control of his truck. This was reckless and dangerous driving, no matter how
credible the jury found this statement to be.54
Jury Was Free to Disbelieve
Appellant’s Statements About Hydroplaning
The jury could have reasonably believed that Appellant did not hydroplane,
and that the accident was a direct result of Appellant’s reckless and dangerous
driving. The only evidence of hydroplaning is Appellant’s own statement to the
53
Court’s Exhibit 1, from 21:54:20 to 21:54:45; R.R. III:93-94.
54
The State does not suggest that every Driving While Intoxicated offense involving a single-
vehicle accident (or even every such offense involving the collision with another vehicle) should
support the finding of a deadly weapon. Not even every Driving While Intoxicated offense
involving an accident on an interstate would necessarily justify a deadly weapon finding. Such a
per se result would be contrary to the intent of and jurisprudence surrounding deadly weapon
findings. However, the State does argue that the facts in this specific case do support such a
finding after a careful factual analysis, and that the nature and location of the accident are
probative in that analysis.
11
responding officers, and the jury could have reasonably believe that he fabricated
the hydroplaning as a way to minimize his culpability. He knew he had been
drinking and driving, and he knew he had just wrecked his car on the Interstate.55
The jury could have reasonably concluded that Appellant simply lost control of the
vehicle in a situation where an unimpaired driver would not have, and therefore
that the accident itself was evidence of reckless or dangerous driving.
This conclusion would be bolstered by the actual state of the road at the
scene, as shown by the sworn testimony and admitted video evidence.56 When
officers arrived on scene very shortly after the initial accident, the road was only “a
little bit wet,”57 and the video from the dashboard camera shows no standing water
on the road near the scene, minimizing the likelihood of hydroplaning.58 Testimony
and the video showed that the Interstate was straight and well-lit at the scene.59 The
video also showed that the shoulder between the lane of traffic and the concrete
wall Appellant struck was paved, wide enough to park a patrol vehicle in, and had
55
Appellant said as much in the back seat of the patrol vehicle. R.R. III:148.
56
State v. Duran, 396 S.W.3d 563, 573-74 (Tex. Crim. App. 2013) (Court may consider
indisputable visual evidence in the record); Tucker v. State, 369 S.W.3d 179, 185 (Tex. Crim.
App. 2012) (Court should infer that the finder of fact made implicit findings that support the
finder’s conclusion).
57
R.R. III:28.
58
Court’s Exhibit 1, from 21:54:20 to 21:54:45; R.R. III:93-94.
59
Id.
12
a rumble strip.60 The jury could have reasonably found that these driving
conditions made Appellant’s hydroplaning explanation not credible or likely, and
further found that the accident was a direct result of his reckless and dangerous
driving.
The jury could have also reasonably found that Appellant struck the concrete
median with substantial force. When officers responded shortly after the accident,
they observed serious damage to the front of Appellant’s truck, and that his
vehicle’s bumper had been ripped off and was lying some distance away from the
scene.61 There was also testimony that the responding officers reported that
speeding or failure to control speed was a possible contributing factor.62 The jury
therefore could reasonably infer that Appellant struck the concrete median at a
high rate of speed, and such a conclusion would bolster a finding that his driving
was inherently reckless and dangerous because he was “too drunk to control the
vehicle,” a finding which is supported by viewing the evidence in the light most
favorable to the verdict.63
60
Id.
61
State’s Exhibits 6; Court’s Exhibit 1 from 21:54:20 to 21:54:45, and at 21:58:45.
62
R.R. III:89.
63
Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995) (recklessness established when
defendant was “too drunk to control the vehicle”).
13
Even if Appellant Did Hydroplane,
His Driving was Still Reckless and Dangerous
Even if the jury believed Appellant’s statement he “hydroplaned,” the
jury could have still reasonably concluded that Appellant’s vehicle should be
considered a deadly weapon. The jury was presented with no evidence that the
vehicle mechanically failed in any way, and only Appellant’s statement that he
hydroplaned. Hydroplaning is not “a freak accident,” and the jury could reasonably
infer that Appellant was driving in a reckless and dangerous manner by driving on
the Interstate as he did.64 Considering that Appellant totaled his truck into a
concrete wall on a straight, well-lit section of Interstate 35, the jury’s conclusion
could hardly be considered unreasonable.65
While Appellant continues to argue that “Martinez responded correctly to
the hazardous situation when it occurred,”66 the State more accurately argued at
trial that Appellant lost control of his vehicle due to a failure to operate it in a safe
fashion, and he was reckless in putting himself in that hazardous situation:
Don't let them get away with just saying that this hydroplaning was a
freak accident. That's not the way it works. His car didn't get hit by
lightning. It didn't fall into an earthquake crack. He was driving at an
unsafe speed. He couldn't control his car on wet roads. That's what it
comes down to. Was there rain? Absolutely. But he, just like every
64
R.R. III:169-170 (Mr. Puryear, closing for the State).
65
Court’s Exhibit 1, from 21:54:20 to 21:54:45; R.R. III:93-94.
66
Brief for Appellant at 15.
14
one of us, has an obligation to operate his vehicle in a safe fashion
when we're driving out on wet roads and he didn't do so.
And he didn't make the right decision. A split-second decision and he
made the right one? Why didn't he make it home that night instead of
crashing into a median on I-35, a street we all drive on every day. He
didn't make the right decision. If he did, he wouldn't be in that wreck.
So to try and characterize his behavior as something that we should all
emulate, that's just not the way it is, folks. He made the wrong
decision. That's loss of mental faculties, loss of physical faculties
because he couldn't operate that vehicle. That's why he's at where he's
at.67
In finding Appellant guilty, the jury adopted this reasoning over Appellant’s
theory, and that decision should be given deference by this Court. The State went
on to argue that since Appellant clearly was capable of swerving out of his lane,
across the shoulder, and into a concrete median, then he was equally capable of
having swerved the opposite direction and striking a second vehicle at freeway
speeds.68
In short, the jury could have rationally concluded that Appellant’s loss of
mental and physical faculties caused him to respond to the road conditions in a
reckless and dangerous manner. Specifically, if the jury actually believed that
Appellant hydroplaned, the wreck and its severity was evidence that Appellant
responded inappropriately to hydroplaning.69
67
R.R. III:170.
68
R.R. III:170.
69
Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995) (recklessness established when
defendant was “too drunk to control the vehicle”).
15
Further, regardless of if the road was “a little bit wet” or not,70 Appellant
knew it was or had been raining, and that he consciously disregarded the risks that
would be posed by a wet road surface.71 As noted by responding officers, his
failure to control his speed was possibly a contributing factor to the accident.72 Yet,
knowing the surface of the road was a little bit wet, Appellant drove in such a way
as to risk hydroplaning on the freeway, a risk which the jury could have found was
actually realized in the moments before Appellant struck the concrete wall.
The jury also viewed the dashboard camera video from the responding
officers, wherein many other drivers can be seen driving past the scene of the
accident without losing control of their vehicles, implying that hydroplaning was
not an unavoidable event that evening, but was something preventable by proper
driving techniques including controlling the speed of the vehicle on wet roads.
Even taking Appellant at his word, his impaired driving caused him to lose control
of his vehicle on the Interstate, giving the jury grounds to find that Appellant had
driven in a reckless or dangerous manner.
70
R.R. III:28 (Deputy Pena testifying).
71
Tyra, 897 S.W.2d at798.
72
R.R. III:89.
16
B. There was sufficient evidence for a rational jury to find beyond a
reasonable doubt that Appellant’s vehicle posed an actual, and not
merely hypothetical, danger to others
A rational jury could have found, in light of this evidence, that Appellant’s
vehicle was capable of causing serious bodily injury or death, and therefore posed
an actual danger to the other drivers on the Interstate.73 The evidence need not
show that the defendant hit another vehicle, that another driver needed to take
evasive action to avoid being hit, or even that another motorist was within a certain
number of feet of the defendant.74 The capability of causing serious bodily injury
or death is not to be confused with the probability of doing so.75
To be precise, “actual danger” only requires “that another motorist was on
the highway at the same time and place as the defendant when the defendant drove
in a dangerous manner.”76 The Drichas court, citing to an older case from the Fort
Worth Court of Appeals, noted that the exact volume of traffic is not relevant
unless there was no traffic at the time.77 In that 2nd Court of Appeals case, the court
found that a vehicle did not constitute a deadly weapon when there was no
73
See Drichas, 175 S.W.3d at 800.
74
Id.
75
Id.
76
Id. at 799.; Mann, 12 S.W.3d at 92 (noting that the “hypothetical potential for danger” is not
sufficient for this element, but that such hypothetical potential was really only appropriate when
others are not actually present when the defendant drove in a dangerous manner).
77
Id. at 800 (citing Williams v. State, 946 S.W.2d 432, 435-436 (Tex. App—Fort Worth 1997)
aff’d in part, rev’d in part, 970 S.W.2d 566 (Tex. Crim. App. 1998)).
17
evidence that any other motorists were on the highway in question, during the time
that the defendant was driving or during the time that his vehicle was stopped on
the highway.78
In this case, scores of vehicles passed the scene of the accident in the
minutes following the officers arriving on scene.79 While the exact volume of
traffic is not relevant generally, the jury could have reasonably inferred that the
traffic pattern was similar mere minutes before when Appellant wrecked his
vehicle, and that multiple motorists were “on the highway at the same time and
place.”80 This would be a reasonable inference for the jury to draw, and the jury
could conclude that Appellant placed those motorists and their passengers in actual
danger.
When Appellant lost control of his truck, by hydroplaning or not, he by
definition lost control of the direction his vehicle would go. The State highlighted
this in closing arguments, arguing that the vehicle was capable of swerving the
opposite direction, away from the concrete median and instead across the
Interstate.81 For that matter, Appellant may have been driving in any of the lanes of
traffic, and may have lost control across one or more before he struck the median.
78
Williams, 946 S.W.2d at 435.
79
Court’s Exhibit 1, showing over 140 vehicles passing the scene of the accident, and substantial
slowing of traffic needing to avoid Appellant’s car in the lane of traffic.
80
See Drichas, 175 S.W.3d at 800.
81
III R.R. 170.
18
Any vehicle on the northbound side of the Interstate was in actual danger when
Appellant wrecked his truck. The amount of damage to Appellant’s vehicle was
apparent to the jury in both photographic and video evidence, including
Appellant’s bumper laying in the lane of traffic some distance from where his
vehicle came to a rest, and would provide the jury with some indication of the
force of impact.82
Further, this Court should consider the time Appellant left his truck stopped
in the far left lane of traffic on Interstate 35, putting oncoming motorists in actual
danger as a direct result of his reckless and dangerous driving. While Appellant put
on his hazards at some point, there was no evidence that he made any attempt to
remove his vehicle from the traffic lanes. The jury could have reasonably
concluded that Appellant’s reckless driving and failure to remove his vehicle from
the lanes of traffic after spinning out put other drivers in actual danger, and that all
of the oncoming vehicles in that lane would have necessarily needed to take
evasive action from striking Appellant’s vehicle.83
Appellant also put the responding officers Pena, Cochran, and McDonald in
actual danger during the time that Appellant’s vehicle remained facing southbound
in the left hand lane of travel. Deputy Pena arrived shortly after the initial accident,
82
State’s Exhibits 6; Court’s Exhibit 1 from 21:54:20 to 21:54:45, and at 21:58:45.
83
While evasive action is not a necessary finding to uphold a deadly weapon finding, it may be
considered. Drichas, 175 S.W.3d at 799.
19
and parked in such a way to alert oncoming drivers of the stopped vehicle in the far
left lane.84 When officers Cochran and McDonald arrived on scene shortly after,
they also needed to park partly in the lane of traffic, and felt in danger being on the
Interstate in such a situation.85 Officer McDonald, the training officer on scene,
was so concerned about the situation that he “immediately” called for the fire
department to bring a unit out to block the lane and protect them from oncoming
drivers.86 The officers were particularly concerned because they knew from their
experience that being in such a situation was inherently dangerous: specifically,
Officer McDonald testified that a deputy constable had been injured previously
under similar circumstances when that deputy’s patrol vehicle was struck on
Interstate 35 about a mile away from the location of the instant offense.87 In light
of this evidence, the jury could have reasonably concluded that Appellant’s
reckless and dangerous driving put the responding officers in actual danger by
simply responding to the accident.88
84
R.R. III:25.
85
R.R. III:119.
86
R.R. III:119.
87
R.R. III:119-120.
88
See Drichas, 175 S.W.3d at 798 (danger to responding officers may be considered in Deadly
Weapon analysis); but c.f. Williams, 946 S.W.3d at 433 (testimony that defendant’s stopping in a
lane of traffic was “very hazardous” was not enough to sustain a deadly weapon finding because
no other motorists were on the road for the duration of the offense or of the stop. In the instant
case, as previously noticed, scores of vehicles can be seen passing Appellant’s stopped vehicle in
Court’s Exhibit 1).
20
Viewed in the light most favorable to the Deadly Weapon finding, the
evidence was sufficient for the jury to find that Appellant’s vehicle was, in the
manner of its use, a deadly weapon. Alleged point of error one should be denied.
21
II. The trial court did not err in allowing testimony about a prior accident on
Interstate 35, and even if error, the brief testimony to that end presented
no reversible harm
A. The trial court did not abuse its discretion in admitting testimony about
a prior accident, as it was relevant to show the officer’s actions and to
support the Deadly Weapon Finding
Standard of Review
Under Texas Rule of Evidence 401, evidence is relevant if it makes the
existence of a fact that is of consequence to the determination of the action more
probable than it would be without the evidence. Juries are “entitled to know all
relevant evidence surrounding facts and circumstances of the charged offense.”89
Indeed, the thrust of Texas Rules of Evidence 402 and 403 is to favor admissibility
of evidence, and there is a presumption to that end.90
The admissibility of evidence is firmly within the sound discretion of the
trial court and such decisions are not to be disturbed on appeal absent an abuse of
discretion.91 That is, admissibility of evidence is inherently a question for trial
courts, and an appellate court should affirm a trial court’s decision as long as it is
within the “zone of reasonable disagreement.”92 An appellate court “cannot simply
substitute its own decision for the trial court’s” by conducting a de novo review,
89
Devoe v. State, 354 S.W.3d 457, 469 (Tex. Cim. App. 2011).
90
Russo v. State, 228 S.W.3d 779, 799 (Tex. App.—Austin 2007, pet. ref’d).
91
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g).
92
Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
22
and should not conduct a wholly independent judgment of admissibility. 93 Reversal
of a trial court decision regarding admissibility of evidence should be rare “and
only after a clear abuse of discretion.”94
Analysis
The trial court did not abuse its discretion in admitting the brief testimony of
a prior accident on Interstate 35. As an initial matter, officers are generally
permitted to testify as to the reason for their actions in an investigation. As detailed
in Section I(C) supra, this testimony was presented in the by Officer McDonald to
explain why he was concerned for the officer’s safety on the scene, and why he
immediately called for the fire department to provide some protection from and to
oncoming motorists.95
The testimony was also probative as to the actual danger element of the
deadly weapon finding Appellant was charged with. Appellant incorrectly
characterizes this as “hypothetical or speculative testimony” that should not be
used to support a finding of a deadly weapon. 96 To the contrary, the prior accident
was an example of what the hypothetical harm was in the context of the actual
danger in which Appellant placed others. By definition, “danger” implies that the
93
Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
94
Id.
95
R.R. III:119-120.
96
Brief for Appellant at 19.
23
threat of harm exists, without that harm necessarily being inflicted. The deadly
weapon statute considers this, and does not require the State to show that actual
serious bodily injury or death was inflicted, merely that a weapon was capable of
inflicting such harm. To require a showing of actual danger without allowing the
jury to consider what harm that danger references would be illogical. Nevertheless,
Appellant is essentially requesting that this court modify long-standing deadly
weapon jurisprudence by finding that anything short of actual harm is
“hypothetical.”
The bar against hypothetical danger is meant to prevent the jury from
considering “what should have happened” were the facts were different from what
they actually were if other individuals were not actually present to be in danger.97
For example, courts have deleted deadly weapon findings when there were few if
any other cars present and the defendant pulled over safely,98 when no other
vehicles were present when the defendant was driving below 10 miles per hour on
an interstate and stopped without hitting anything,99 and when no other motorists
were on the freeway during a single-car accident and the nearest person was in a
97
Drichas, 175 S.W.3d. at 799 (volume of traffic only relevant if no traffic was present,
implying that any other motorist on the road would be satisfactory); Mann, 13 S.W.3d at 92
(noting that the “hypothetical potential for danger” is not sufficient for this element, but that such
hypothetical potential was really only appropriate when others are not actually present when the
defendant drove in a dangerous manner.).
98
Brister, 449 S.W.3d at 495.
99
Williams, 946 S.W.2d at 433-36.
24
building some sixty feet away.100 In each of those fact patterns, any danger was
“hypothetical” as there were no individuals present who could have been put in
danger from the defendant’s driving. In the instant case, the motorists on the
freeway as well as the responding officers were in actual danger where any
oncoming vehicle that night was capable of causing the kind of accident briefly
described by Officer McDonald.101
B. The trial court did not abuse its discretion in admitting the testimony
under Texas Rule of Evidence 403
Rule 403 Balancing Test
Since all evidence tending to show guilt is prejudicial, a trial court must
evaluate if the prejudice is “unfair,” that is, the court examines if the evidence
tends “to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.”102 In close cases under this rule, there is a
presumption favoring admissibility.103 Rule 403 “gives the trial court considerable
latitude to assess the courtroom dynamics, to judge the tone and tenor of the
witness’s testimony and its impact upon the jury, and to conduct the necessary
100
Foley v. State, 327 S.W.3d 907, 916 (Tex. App.—Corpus Christi 2010).
101
Drichas, 175 S.W.3d at 800 (stating that capability to cause injury is the correct inquiry in the
“actual danger” prong, not the probability of so doing).
102
Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990), on reh'g (June 19, 1991)
(citing Advisory Committee's Note to Fed.R.Evid. 403).
103
Johnson v. State, 932 S.W.2d 296, 300 (Tex. App. —Austin 1996, pet. ref’d) (citing
Montgomery, 810 S.W.2d at 377, 378).
25
balancing.”104 “The rule thus allows different trial judges to reach different
conclusions in different trials on substantially similar facts without abuse of
discretion.”105
Texas Courts have developed a multi-factor balancing analysis which a trial
court must apply, even if the factors blend together in practice.106 Specifically, a
trial court should balance:
(1) the inherent probative force of the proffered item of evidence
along with (2) the proponent's need for that evidence against (3) any
tendency of the evidence to suggest decision on an improper basis, (4)
any tendency of the evidence to confuse or distract the jury from the
main issues, (5) any tendency of the evidence to be given undue
weight by a jury that has not been equipped to evaluate the probative
force of the evidence, and (6) the likelihood that presentation of the
evidence will consume an inordinate amount of time or merely repeat
evidence already admitted. Of course, these factors may well blend
together in practice.107
While an appellate court should also use this framework, review of a trial court’s
decision is still subject to an abuse of discretion standard detailed above.
104
Winegarner v. State, 235 S.W.3d 787, 791 (Tex. Crim. App. 2007).
105
Id.
106
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2007); see also, Keller v.
State, No. 03-13-00501-CR, 2014 Tex. App. LEXIS 12506 at *13-14 (Tex. App.—Austin Nov.
20, 2014, no pet.) (mem.op., not designated for publication) (not binding, but persuasive in that
this Court quotes the Gigliobianco balancing factors as still authoritative in contrast to the
Montgomery test on which Appellant relies).
107
Gigliobianco, 210 S.W.3d at 641-642.
26
Rule 403 Factors
1) As discussed Section II(A) supra, the testimony of a serious prior
accident in similar conditions close to this location on the same Interstate was
highly probative for the jury in considering a deadly weapon finding. The jury was
entitled to consider the harm that threatened other passing motorists as well as the
responding officers to the accident. This is particularly true because the testimony
highlighted the fact that the patrol car in the prior accident—like the ones in the
instant case—was stopped on the Interstate with their overhead lights on when it
was struck by an oncoming vehicle. That a serious accident happened in such
similar circumstances previously would illustrate just how actual the danger was to
all parties involved.
2) As to the need for the evidence, the State carries the burden to prove
Appellant guilty beyond a reasonable doubt at trial of all elements, including as to
a deadly weapon. While most jurors would be aware that being stopped on
Interstate 35 in a lane of traffic is inherently dangerous, they might not be aware of
the reality of a continuing danger to responding officers even if their emergency
overhead lights are activated. The best way to illustrate that actual danger was with
a previous case where that threatened harm was realized. Therefore, the State
27
needed this testimony as support for the dangerousness of the situation beyond the
officer’s flat assertion that it was “very dangerous.”108
3) The testimony was unlikely to suggest decision on an improper basis. No
inflaming evidence was admitted, and the testimony about the prior accident was
fairly clinical, only relaying that an officer had been sufficiently injured that he
needed to be transported to the hospital. Such testimony would be relevant to the
jury in deciding if a collision with a vehicle stopped on 35 would be capable of
causing serious bodily injury or death as required by a deadly weapon finding.
Further, the fact that it was a police officer in the prior accident would be no more
inflammatory than the reality that police officers were in actual danger of similar
injury in the instant case.
4) Neither was the testimony likely to confuse or distract the jury, as Officer
McDonald was very clear that he was referring to a different accident. Further, no
graphic details or photographs were presented to the jury. Instead, Officer
McDonald simply relayed why he was concerned for his safety as well as the
safety of Officer Cochran and Deputy Pena the evening of the instant offense.
5) The jury would also be unlikely to give this evidence undue weight in the
instant case. They could not have inferred anything about Appellant’s motivations
from the testimony. Nor could the jury have inferred that such an injury was
108
R.R. III:119.
28
inevitable, as a similar subsequent accident did not occur in the instant case, even
if the danger of such an accident was present.
6) As to the length of the testimony, the officer responded to exactly one
question, with only eight lines of testimony in the record following Appellant’s
objection at trial.109 Over the course of a multi-day felony trial, such testimony
cannot honestly be said to consume an inordinate amount of time, especially
without the admission of any related exhibits.
No factor of the Gigliobianco analysis weighs against admission. Even if the
Court found that the testimony might be given undue weight or that some other
factor militated against admission, the probative value and brevity of testimony
would weight strongly for admission. Therefore, the trial court did not abuse its
discretion in admitting the testimony in question as it was limited, not likely to
confuse or inflame, and was relevant to the deadly weapon finding.
C. Even if admitting the testimony was error, it was harmless as it was
limited, not inflammatory, and not emphasized by the State
Standard of Review
As Appellant admits, if this Court finds that the evidence in question was
improperly admitted, the next step is to conduct a harmless error analysis. Since
the improper admission of evidence is a non-constitutional error, any such error
109
R.R. III:120.
29
“that does not affect substantial rights must be disregarded” on appeal.110
Improperly admitted evidence does not affect a defendant’s substantial rights “if
the appellate court, after examining the record as a whole, has fair assurance that
the error did not influence the jury, or had but a slight effect.”111 The court should
consider everything in the record in conducting this analysis.112 When the State
does not emphasize the erroneously admitted evidence, the deleterious effect, if
any, is minimized.113
Harm Analysis
First, the testimony was not inflammatory. The testimony only briefly
detailed that years before the instant offense, an unrelated drunk driver struck a
deputy constable’s car years ago on the same road, resulting in the officer being
sent to the hospital.114 It could hardly have surprised the jury that an accident on
Interstate 35 could be dangerous, and the testimony did not provide any details that
could shock or disturb a rational juror.
The testimony in question also consisted of the bare minimum the State
needed to make the point for which it was admitted, taking up only eight lines of
110
Tex. R. App. Proc. 44.2(b).
111
Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (quoting Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998)); see also Solomon v. State, 49 S.W.3d 356, 365 (Tex.
Crim. App. 2001).
112
Motilla, 78 S.W.3d at 355.
113
King v. State, 953 S.W.2d 226, 273 (Tex. Crim. App. 1997).
114
R.R. III:120.
30
text in the record.115 No testimony was provided regarding the kind of the injuries
in that accident, nor was the officer involved called to the stand. No exhibits,
photos, or video from that incident were submitted to the jury. The State did not
even ask a follow-up question on the issue. Appellant admits that “the state did not
emphasis [sic] the testimony in argument.”116 To be more exact, the evidence was
never repeated or referenced again in any capacity by any witness or attorney in
any examination or argument.
Instead, Appellant alleges that the State’s response to Appellant’s own
objection stressed the evidence to the jury.117 If Appellant’s counsel did not want to
highlight the testimony for the jury, he could have either glossed over it, or
requested that the argument be conducted in a sidebar conversation. The fact that
Appellant’s counsel did not request a sidebar conference on the objection tends to
show that, even with the ability to judge the climate of the trial at the time, he did
not think that the discussion would be prejudicial to his client. The State is
permitted to respond to objections, particularly when the theory of admissibility is
determinative of the testimony’s admission, and in this case did so in a succinct
115
R.R. III:120.
116
Brief for Appellant at 22.
117
Id.
31
manner.118 Even Appellant’s counsel’s own speaking objection would have
clarified the issue to the jury, as he specifically argued that the testimony regarded
an unrelated incident, and that it should have no real relevance.119
Given that the testimony in question was extremely short and was not
stressed or ever addressed again, the record as a whole provides a fair assurance
that the testimony had no effect on the jury. Therefore, even if this testimony was
improperly admitted, it was harmless and does not provide a ground for reversal.
118
III R.R. 119-120 “MR. SALINAS: Your Honor, it's going to the fact that we have alleged a
deadly weapon in this offense, and it goes to the fact that a motor vehicle is capable of causing
serious bodily injury or death.”
119
III R.R. 119-120 “MR. SAHUALLA: Once again, as we explored with the other officer,
Judge, we need to talk about this case, not what has happened in any other case. That’s not
relevant and the danger of undue prejudice is too great to go into other cases that may have
happened.”
32
PRAYER
Wherefore, the State respectfully requests that this Court affirm the
conviction. Alternatively, if this Court finds that relief is warranted only under the
first alleged point of error, the State respectfully requests that this Court only
modify the judgment in this case by deleting the deadly weapon finding.
Respectfully submitted,
Jana Duty
District Attorney
Williamson County, Texas
/s/ Daniel Sakaida
Daniel Sakaida
State Bar No: 24084601
Assistant District Attorney
405 Martin Luther King, Box 1
Georgetown, Texas 78626
(512) 943-1234
(512) 943-1255 (fax)
daniel.sakaida@wilco.org
/s/ John C. Prezas
John C. Prezas
State Bar No: 24041722
Assistant District Attorney
405 Martin Luther King, Box 1
Georgetown, Texas 78626
(512) 943-1234
(512) 943-1255 (fax)
jprezas@wilco.org
33
CERTIFICATE OF COMPLIANCE
I certify that, after allowable exclusions, the State’s brief contains 8,708
words in compliance with Rule 9.4 of the Texas rules of Appellate Procedure.
_/s/ Daniel Sakaida_______________
Daniel Sakaida
CERTIFICATE OF SERVICE
I hereby certify that on December 10, 2015, I electronically filed the foregoing
document with the clerk of the court for the Texas Court of Criminal Appeals,
using the efile.txcourts.gov system. Via that system, a “Notice of Electronic
Filing” was sent to Appellee’s appellate attorney of record, Ellic Sahualla, 600 W.
13th St., Austin, Texas 78701 at ellic@Sahuallalaw.com.
_/s/ Daniel Sakaida_______________
DANIEL SAKAIDA
34