Valerie Thompson v. State ( 2011 )

Affirmed and Memorandum Opinion filed June 2, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-00343-CR

Valerie Thompson, Appellant

v.

The State of Texas, Appellee

On Appeal from the County Court at Law No 1

Fort Bend County, Texas

Trial Court Cause No. 139137

MEMORANDUM OPINION

In eleven issues, appellant Valerie Renee Thompson challenges her conviction for driving while intoxicated on the grounds that the trial court erred (1) in charging the jury; (2) by denying her motion to suppress evidence; (3) by admitting evidence of a field-sobriety test; and (4) by failing to strike the testimony of a police officer who did not honor a subpoena.  We affirm.

BACKGROUND

During the evening of August 2008, appellant was stopped for speeding by Missouri City Police Officer William Vogt.[1]  When Officer Vogt approached appellant’s vehicle, he smelled a strong odor of alcohol.  Appellant admitted that she had had a few drinks “an hour or two” before being stopped by Vogt.  He asked her to exit the vehicle and administered field-sobriety tests consisting of the horizontal-gaze nystagmus (“HGN”) test, the walk-and-turn test, and the one-leg stand test.  During the HGN test, Vogt observed four of six clues indicating intoxication.  He observed four of eight clues indicating intoxication when he administered the walk-and-turn test to appellant.  When he administered the one-leg stand test, he observed two of four clues indicating intoxication.  Because he initially administered the HGN test with appellant facing oncoming traffic, on the suggestion of his supervisor, he re-administered the test with appellant facing away from traffic.  He observed the same clues upon re-administration of the test.  Additionally, Vogt smelled a strong odor of alcohol emanating from appellant.  He arrested appellant for driving while intoxicated.

After placing appellant in the back of his patrol vehicle, officers searched her vehicle and found a paper cup filled to the top with what appeared to be beer and an opened, cold can of beer in the center console.  The top of the cup had been crushed by having the lid of the console closed on it, which caused the beer to spill into the console tray.  An officer discovered a bottle of warm beer lying on the front passenger floorboard inside a plastic grocery bag.  When Vogt read her the statutory warnings and requested that she provide a breath sample, appellant refused to do so.  She signed the statutory warning form.  Vogt then transported appellant to the Missouri City jail for paperwork before taking her to the Fort Bend County jail. 

At appellant’s trial, Vogt testified as recited above.  Additionally, the trial court admitted the videotape from Officer Vogt’s patrol vehicle, which recorded the entire encounter with appellant beginning with his pursuit of her vehicle for speeding until he transported her to the Missouri City jail. 

As is relevant to this appeal, during the charge conference, appellant’s counsel objected to the charge on grounds that it:

· included in the definition of intoxication having an alcohol concentration of 0.08 or more (the “per se definition of intoxication”);

· instructed the jury that the State is not required to prove the exact date alleged in the information;

· failed to instruct the jury that the defendant has a constitutional right to remain silent;

· failed to include in the charge language that the defendant is presumed innocent;

· included the following language in the charge:  “It is not required that the prosecution prove guilt beyond all possible doubt.  It is required that the prosecution’s proof exclude all reasonable doubt concerning the Defendant’s guilt.”; and

· Failed to include separate verdict forms finding the defendant guilty of driving while intoxicated (a) by not having the normal use of her mental faculties because of alcohol and (b) by not having the normal use of her physical faculties because of alcohol.

These objections were overruled.  The trial court charged the jury and included verdict forms permitting the jury to find appellant “not guilty” or “guilty” as charged in the information.  The jury returned a verdict of “guilty.”

The State and appellant reached an agreement on punishment, and the trial court entered appellant’s sentence accordingly. After appellant’s motion for new trial was overruled, this appeal timely followed.

ANALYSIS

A.        Alleged Jury-Charge Errors

In issues one through seven and eleven, appellant challenges various portions of the jury charge.  A claim of jury-charge error is governed by the procedures set forth in Almanza v. State.  686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (en banc) (op. on reh’g).  We must first determine whether the trial court erred in its submission of the charge.  Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009).  If error exists and, as here, appellant properly objected at trial, reversal is required if “some harm” resulted, i.e., if the error was “calculated to injure the rights of the defendant.”  Id. (quoting Almanza, 686 S.W.2d at 171). 

In her first issue, appellant asserts that the trial court erred by instructing the jury, “It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution’s proof excludes all ‘reasonable doubt’ concerning the defendant’s guilt.”  The Texas Court of Criminal Appeals has determined repeatedly that including this exact instruction in a jury charge is not an abuse of discretion.  Mays v. State, 318 S.W.3d 368, 389 (Tex. Crim. App. 2010); Woods v. State, 152 S.W.3d 105, 115 (Tex. Crim. App. 2004) (en banc).  Accordingly, we overrule appellant’s first issue.

In her second issue, appellant argues that the trial court erred “in denying objections to the jury charge when the court overruled the objection to the charge where the court charged in the application paragraph that you could be intoxicated with an alcohol concentration of .08.” She objects to inclusion of this instruction because this definition of intoxication was not included in the charging instrument.  This instruction did not appear in the application paragraph, however.  It was incorporated only in the abstract section of the jury charge:

A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.

“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 of those substances, or any other substance into the body, or having an alcohol concentration of 0.08 or more.

“Alcohol concentration” means the number of grams of alcohol per 210 liters of breath, 100 milliliters of blood, or 67 milliliters of urine.

The application paragraph did not include the per se definition of intoxication:

Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that on or about August 13, 2008, in Fort Bend County, Texas, the defendant, VALERIE RENEE THOMPSON, did then and there, while intoxicated, namely not having the normal use of her mental or physical faculties by reason of the introduction of alcohol into her body, drive and operate a motor vehicle in a public place, then you will find the defendant guilty as of the offense of driving while intoxicated as charged in the information.

Because the application paragraph properly limited the jury’s consideration of the law to the offense as charged, we see no harm caused by the inclusion of this instruction.  See Erickson v. State, 13 S.W.3d 850, 852 (Tex. App.—Austin 2000, pet ref’d).  The State acknowledged that there was no evidence of the level of alcohol concentration in appellant’s body.  Further, the State closed by reminding the jury of the definition of intoxication applicable to this case:  “I want to go back to the definition of Intoxication. You can’t be a little intoxicated. You either are intoxicated or you’re not; and the loss of your mental or physical faculties makes you such, makes you intoxicated.”  Cf. Lambert v. State, No. 12-04-00268-CR, 2006 WL 475422, at *4–5 (Tex. App.—Tyler Feb. 28, 2006, pet. ref’d) (mem. op., not designated for publication) (concluding that error in including per se definition of intoxication in jury definitions was harmless because nothing in prosecutor’s argument suggested jury could convict appellant based on his alcohol concentration).  Because any error the trial court made in including the per se definition of intoxication was not calculated to and did not injure the rights of appellant, we overrule appellant’s second issue.

In her third, sixth, and seventh issues,[2] appellant contends the trial court erred by overruling her objection to the charge because the charge failed to instruct the jury that she, specifically, is presumed innocent.[3] Appellant sought to have the following language included in the charge:

The defendant is presumed innocent of the charge.  All persons are presumed to be innocent, and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.  The law does not require a defendant to prove his innocence or produce any evidence at all.  Unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all the evidence in the case, the presumption of innocence alone is sufficient to acquit the defendant.

. . .

The burden of proof throughout the trial is always on the state, the defendant does not have the burden to prove anything.  The state must prove every element of the offense beyond a reasonable doubt to establish guilt of the offense.  If the state proves every element of the offense beyond a reasonable doubt, then you must find the defendant guilty.  If the state does not prove every element of the offense beyond a reasonable doubt, then you must find the defendant not guilty.  If, after you have considered all the evidence and these instructions, you have a reasonable doubt about whether the defendant is guilty, you must find the defendant not guilty.

The trial court’s charge to the jury provides as follows:

All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.  The fact that a person has been arrested, confined, or indicted for, or otherwise charged with the offense gives rise to no inference of guilt at his trial.  The law does not require a defendant to prove her innocence or produce any evidence at all.  The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all the evidence in the case.

The prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt, and if it fails to do so, you must find the defendant not guilty.  It is not required that the prosecution proves guilt beyond all possible doubt; it is required that the prosecution’s proof excludes all “reasonable doubt” concerning the defendant’s guilt.

We conclude that this portion of the trial court’s charge sufficiently informed the jury that appellant should be presumed innocent.  It also adequately established the proper burden of proof.  In fact, it is substantially similar to the charge requested by appellant.  We overrule appellant’s third, sixth, and seventh issues.

            Appellant asserts in issue four that the trial court erred in including in the jury charge an instruction on the statute of limitations.  However, appellant cites no authority in her argument in support of this assertion.  This issue has not been properly briefed and thus presents nothing for our review.  See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”).  Accordingly, we overrule her fourth issue.

In issue five, appellant complains that the trial court erred in denying her request to charge the jury that she has a constitutional right to remain silent.  As is relevant to this issue, the trial court instructed the jury as follows:

Our law provides that a defendant may testify in her own behalf if she elects to do so.  This, however, is a privilege accorded a defendant, and in the event she elects not to testify, that fact cannot be taken as a circumstance against her.  In this case, the defendant has elected not to testify, and you are instructed that you cannot and must not refer or allude to that fact throughout your deliberations or take it into consideration for any purpose whatsoever as a circumstance against the defendant.

If any juror starts to mention the defendant’s election not to testify in this case, then it is the duty of the other jurors to stop him at once.

Rather than citing any law to support her contention,[4] appellant relies on the Texas Criminal Pattern Jury Charges of the State Bar of Texas: 

We have been using McClung Jury charges for criminal Practice for years.  Was it ever based on a study such as the Texas Criminal Pattern Jury Charges of the State Bar of Texas (page 35).  The answer is no. It is time the courts of Texas approve these charges as they are based on a committee of volunteers of the State Bar of Texas.

Again, because appellant has not cited any authority, this issue has not been adequately briefed.  See Tex. R. App. P. 38.1(i).  We overrule her fifth issue.

            In appellant’s eleventh issue, she asserts that the trial court erred by failing to provide two separate verdicts:  one asking the jury if it found appellant guilty of driving while intoxicated by loss of normal mental faculties and another asking the jury if it found appellant guilty by loss of normal physical faculties. The apparent gravamen of appellant’s complaint is that a unified verdict form could lead to lack of jury uniformity on the issue of manifestation of intoxication.  This court has previously held that jury unanimity is not required on the issue of whether a defendant has lost the normal use of mental or physical faculties.  See Bradford v. State, 230 S.W.3d 719, 723 (Tex. App.—Houston [14th Dist.] 2007, no pet.).  Because jury unanimity is not required on this issue, the trial court did not err in rejecting appellant’s requested verdict forms.  See id. at 722–23.  We overrule appellant’s eleventh issue.

B.        Motion to Suppress Evidence

            In issue eight, appellant asserts that the trial court erred in overruling her motion to suppress evidence because the State failed to offer any evidence in support of its contention that Officer Vogt had probable cause to stop and arrest appellant.  This argument, however, is belied by the record.  The record reflects that the trial court took the motion to suppress with the trial and that appellant agreed to this procedure:

The Court:  Motion to Suppress?

[Appellant]:  The[] arrest as to probable cause.  I guess we can do that later.

The Court:  We’ll carry that with the trial.

. . .

[Appellant]:  Then we’re going - - before we get it, anything after the arrest, we need to show probable cause.  We need a Motion to Suppress Hearing outside the presence of the jury.

The Court:  All right.  Just let me know when you’re ready for it[.]

. . .

[Appellant]:  Judge, I’m not sure that we can get - - I need a hearing outside the presence of the jury.  I don’t have a problem with it going to everything to cross-examination if she wants to.

. . .

[Appellant]:  [B]ut we can go on and put on all the testimony they want up to the time when they - - they say you arrested her.  At that point we have to have a motion to suppress.  She can put on all the testimony of that witness - -

The Court:  That’s just what I suggested you do.

[The State]:  Thank you, Your Honor.

The Court:  That way once you put the evidence on, we can have arguments.  We don’t have to have any more testimony probably. 

We review a trial court’s suppression ruling under an abuse-of-discretion standard.  Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996) (en banc).  At a suppression hearing, the trial judge is the sole fact-finder.  Arnold v. State, 873 S.W.2d 27, 34 (Tex. Crim. App. 1993).  We give almost total deference to the trial court’s determination of historical facts when supported by the record, particularly if the findings turn on witness credibility and demeanor.  See State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim. App. 2000) (en banc); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).  The same deference is accorded to determinations of mixed questions of law and fact if their resolution depends upon witness credibility and demeanor.  Ross, 32 S.W.3d at 856.  Issues that present purely legal questions are considered under a de novo standard.  Id.

When, as here, the trial court declines to file findings of fact, we view the evidence in the light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact supporting its rulings, as long as those findings are supported by the record. Id. at 855; Carmouche, 10 S.W.3d at 327–28.  In determining whether a trial court’s decision is supported by the record, we generally consider only evidence adduced at the suppression hearing because the ruling was based on it rather than evidence introduced later.  See Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996) (en banc).  However, where, as here, a motion to suppress is taken with the trial, we may consider the evidence adduced before and during the suppression hearing as relevant to the trial court’s decision to deny the motion.  Saldivar v. State, 209 S.W.3d 275, 281 (Tex. App.—Fort Worth 2006, no pet.). 

A warrantless arrest for an offense committed in an officer’s presence is reasonable if he has probable cause.  Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).  Probable cause exists when a police officer has reasonably trustworthy information sufficient to warrant a reasonable person’s belief that a suspect has committed or is committing an offense.  McGee v. State, 105 S.W.3d 609, 614 (Tex. Crim. App. 2003). 

At trial, Officer Vogt testified that he pulled appellant over because she was speeding.  His detection of a strong odor of alcohol emanating from appellant’s vehicle caused him to conduct field-sobriety testing.  Vogt explained the clues he observed during his field-sobriety testing, and the State stopped his testimony before he stated that he arrested appellant.  The trial court dismissed the jury, and the State presented argument regarding the probable cause Vogt had to conduct the initial traffic stop and developed during the stop to arrest appellant.  The trial court then offered appellant’s counsel the opportunity to cross-examine Officer Vogt. Counsel declined to cross-examine the officer and rested. 

At trial, appellant’s counsel argued that because Vogt’s testimony had not been offered on the motion to suppress, the State had no evidence of probable cause.  This position is directly contradicted by established case law: when a motion to suppress is taken with trial, evidence adduced before and during the suppression hearing is relevant to the trial court’s ruling on the motion.  Saldivar, 209 S.W.3d at 281.  The trial court properly considered the entirety of Vogt’s testimony in ruling on the motion to suppress.

Considering the evidence adduced by the State regarding the reason that Officer Vogt initiated the traffic stop, the observations he made subsequent to the stop that led him to conduct field-sobriety testing on appellant, and the results he reported concerning appellant’s performance on the field-sobriety testing, the State established that Vogt had probable cause to arrest appellant for the offense of DWI.  See Amador, 275 S.W.3d at 878–79. (concluding that officer who initially stopped appellant for speeding developed probable cause to arrest appellant for DWI during traffic stop based on observations made during traffic stop and field-sobriety testing).  Accordingly, we overrule appellant’s eighth issue.

C.        Testimony of Officer Vogt

In her ninth issue, appellant complains that the trial court erred in allowing Officer Vogt to testify regarding the HGN test he performed on appellant because he was not certified to do the field sobriety tests.  In her tenth issue, appellant asserts that the trial court erred in overruling her motion to strike Vogt’s testimony because he failed to honor a subpoena served upon him.

1.         Certification for Performance of HGN

In Emerson v. State, the Court of Criminal Appeals held that because of the scientific nature of the HGN test, a testifying officer must be qualified as an expert in both the administration and technique of the test.  880 S.W.2d 759, 769 (Tex. Crim. App. 1994) (en banc).  To qualify as an expert on the administration of the HGN test, a police officer has to show only that he has received “practitioner certification” by the State of Texas.  Id.  Before trial, Officer Vogt testified that he received a certification to administer the standardized field sobriety tests, which includes the HGN test, through a program at Texas A & M University, which he described as a “practitioner certification” course.  He produced certificates from “Sam Houston Impaired Driving Program,” “Missouri City Department Field sobriety Tests Update 7-7-08,” and Texas A & M University. 

During trial, Vogt testified that in 2003, he was certified as a standardized field-sobriety test practitioner.  He elaborated on his initial training as follows: 

Going through the practitioner’s course and the initial course that I went through, it’s a, I believe, 24-hour class.  It starts off with a day’s worth of instruction and then two days worth of case study where essentially you’re testing a lot of people that had been consuming alcohol and you have to pick accurately those who had been consuming and those who were not intoxicated.

Additionally, he testified that he had had a refresher course in 2008, only a month before the offense in this case occurred. 

Vogt’s testimony establishes that he was a certified practitioner.  We conclude that the trial court did not abuse its discretion in permitting Vogt to testify regarding the results of the HGN test.  See id. We overrule appellant’s ninth issue.

2.         Failure to Strike Vogt’s Testimony

Before trial, the trial court conducted a hearing to determine whether Officer Vogt had brought the papers and documents appellant had subpoenaed.  These documents included many of the training manuals for the various DWI certification courses Vogt had attended over the course of his career.  Vogt testified that he brought what he was able to obtain.  He explained that he was unable to find several of the items requested in the subpoena, even though he had searched through his storage space and his residence.  He explained that he had received many of the materials requested when working for another agency and had had a break in service.  Because Vogt had not brought many of the items subject to the subpoena, appellant sought to prevent his testimony entirely because she would be unable to “effectively cross-examine him.”  The record reflects that appellant’s counsel already had many of the items that he asked Vogt to bring with him.  The trial court denied appellant’s motion to exclude his testimony, but stated that appellant could cross-examine Vogt using the materials that her counsel had.

During trial, appellant’s counsel cross-examined Vogt regarding the materials he failed to bring with him to trial.  Counsel impeached Vogt’s qualifications based on the materials he possessed.  After Vogt testified, appellant did not re-urge her motion to strike his testimony on the basis of failure to comply with the subpoena.[5]  Under these circumstances, we cannot say the trial court abused its discretion in denying appellant’s pre-trial motion to strike Vogt’s testimony.  We overrule appellant’s tenth issue.

CONCLUSION

We have overruled each of appellant’s eleven issues.  Accordingly, we affirm the trial court’s judgment.

                                                                        /s/        Adele Hedges

                                                                                    Chief Justice

Panel consists of Chief Justice Hedges and Justices Seymore and Boyce.

Do Not Publish — Tex. R. App. P. 47.2(b).

---

[1] Officer Vogt’s name is misspelled in the reporter’s record as “Voigt.” 

[2] These three issues appear to be substantially the same, so we address them together.  In issue three, appellant asserts:

Did the trial court err[] in denying objections to the jury charge when the court overruled the objection to the charge.  The objection to the charge was that the charge fails to charge the jury that Valarie [sic] Thompson is presumed Innocent of the charge. Further it refers to a defendant, when it should refer to Valarie [sic] Thompson.  It does not apply the law to the facts.

In issue six, appellant contends:

Did the trial court err[] in denying objections to the jury charge when the court overruled the objection to the charge on page (CR. Page 29).  The charge fails to charge the jury that Valarie [sic] Thompson is presumed Innocent of the charge. Further it refers to a defendant, when it should refer to Valarie [sic] Thompson.  It does not apply the law to the facts.

Finally, in issue seven, appellant argues:

Did the trial court err[] in denying objections to the jury charge when the court overruled the objection to the charge (Volume 1 CR page 29) regarding the burden of proof.  The charge fails to charge the jury on the correct charge as to the burden of proof, in that Valarie [sic] Thompson is presumed Innocent of the charge.  Further it refers to a defendant, when it should refer to Valarie [sic] Thompson.  It failed to charge the jury regarding the burden of proof as suggested by Texas Criminal Pattern Jury Charges.

We additionally note that, as in issues four and five, discussed infra, appellant fails to cite any authority in support of issues six and seven.  See Tex. R. App. P. 38.1(i) (requiring an appellant to make a “clear and concise argument for the contentions made, with appropriate citations to authorities and to the record” (emphasis added)).  Because these issues are inadequately briefed, they present nothing for our review.

[3] Appellant’s proposed jury charge does not include appellants name; instead, it refers to “the defendant.”

[4] Appellant quotes Walker v. State, 823 S.W.2d 247, 252 (Tex. Crim. App. 1992) (en banc) (per curiam) (Clinton, J., concurring), in this section of her brief.  This quotation has nothing whatsoever to do with the issue she has raised in this section of her brief; instead, the quoted language from this concurring opinion refers to concurring and dissenting opinions in cases involving charging the jury on the law of parties.  See id. 

[5] Instead, appellant sought to have his testimony stricken from the record because he was not certified by the “National Highway Traffic Safety Association” in conducting field-sobriety testing.