Shannon Lee Abeyta v. State ( 2009 )

NO. 07-09-0121-CR

NO. 07-09-0122-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

MAY 21, 2009

______________________________

SHANNON LEE ABEYTA,

                                                                                                 Appellant

v.

THE STATE OF TEXAS,

                                                                                                 Appellee

_________________________________

FROM THE 251st DISTRICT COURT OF POTTER COUNTY;

NOS. 41,915-C and 43,143-C; HON. PATRICK A. PIRTLE, PRESIDING

_______________________________

Abatement and Remand

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

           Shannon Lee Abeyta (appellant), acting pro se, perfected an appeal from the trial court’s denial of her motion for DNA testing. In perfecting the appeal, she also requested that counsel be appointed to represent her. None was appointed. Yet, at the time appellant moved for testing, she was entitled to appointed counsel upon proof of indigency. See Spruce v. State, 06-05-00077-CR, 2005 Tex. App. Lexis 6548 (Tex. App.–Texarkana August 17, 2005) (explaining the status of the law); Gray v. State, 69 S.W.3d 835, 837 (Tex. App.–Waco 2002, no pet.) (requiring appointment). Consequently, we abate the appeals and remand the causes to the 251st District Court of Potter County (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:

          1.       whether appellant desires to prosecute the appeals; and

           

          2.      whether appellant is indigent.

          We further direct the trial court to issue findings of fact and conclusions of law addressing the foregoing subjects. Should the trial court find that appellant desires to pursue her appeals, is indigent, and has no counsel, then we further direct it to appoint counsel to assist in the prosecution of the appeals. The name, address, phone number, telefax number, and state bar number of the new counsel, if any, who will represent appellant on appeal must also be included in the court’s findings of fact and conclusions of law. Furthermore, the trial court shall also cause to be developed 1) a supplemental clerk’s record containing the findings of fact and conclusions of law and 2) a reporter’s record transcribing the evidence and argument presented at the aforementioned hearing. Additionally, the trial court shall cause the supplemental clerk’s records to be filed with the clerk of this court on or before June 22, 2009. Should additional time be needed to perform these tasks, the trial court may request same on or before June 22, 2009.

          It is so ordered.

                                                                           Per Curiam

Do not publish.

lant next complains of the trial court’s admission into evidence of the results of her intoxilyzer tests.  Two tests were taken, and the results of same revealed that she had an alcohol concentration of .168 and .164, respectively.  The admission of these results was allegedly error because they were irrelevant, as that term was defined  under Texas Rule of Evidence 401.  Furthermore, assuming they were relevant, their probative value was substantially outweighed by the danger of unfair prejudice; so, they were purportedly subject to exclusion under Texas Rule of Evidence 403.  We overrule the point.

            Standard of Review

            The standard of review applicable to claims implicating the admission of evidence is discussed in Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1990).  We refer the litigants to it.

            Application of Standard

            To the extent that appellant believes the results were irrelevant, we note that the legislature effectively resolved that dispute.  Via §724.064 of the Texas Transportation Code, it declared that “evidence of the alcohol concentration . . . as shown by analysis of a specimen of the person’s blood, breath, or urine or any other bodily substance . . . is admissible” in a prosecution arising from chapter 49 of the Penal Code.  Tex. Transp. Code Ann. §724.064 (Vernon 1999).  (Emphasis added).  Needless to say, trying appellant for operating a motor vehicle in a public place while intoxicated is prosecution arising under Chapter 49 of the Penal Code.  Tex. Penal Code Ann. §49.04 (Vernon Supp. 2002)(appearing under chapter 49 of the Texas Penal Code and criminalizing the act of operating a motor vehicle in a public place while intoxicated).  Furthermore, the results or the intoxilyzer tests here purportedly quantify the alcohol concentration found in appellant’s body.  Thus, the legislature made those results relevant pursuant to §724.064 of the Transportation Code.

            To the extent that appellant invokes Texas Rule of Evidence 403, we read her argument to implicate the concept of retrograde extrapolation.²Â  That is, she believes that the State tendered the intoxilyzer results to illustrate that she had an alcohol concentration of .08 or more while driving. Yet, because the tests were not administered until one and one-half hours after she ceased driving, evidence of the rate at which she eliminated alcohol from her body (i.e. retrograde extrapolation) was necessary to place the tests results in context and render them meaningful.  Without that evidence (which the State did not present), the jury was allegedly free to view the results and simply conclude that since her alcohol concentration exceeded .08 at the time of the test, it did so when the officer stopped her. And, being allowed to so speculate created a substantial danger of unfair prejudice.  Assuming arguendo that this argument may have merit under some circumstances, it does not given those before us.

            The officer who arrested appellant for “driving while intoxicated” had opportunity to witness certain conduct and circumstances before making the arrest.  That conduct consisted of appellant 1) making a wide turn on a public street and “almost colliding with the curb where” the officer stood, 2) weaving three times as she drove down a four block stretch of road, 3) having “a strong odor of an alcoholic beverage on her breath,” 4) appearing “a little disoriented,” 5) appearing “a little confused,” and 6) failing to satisfactorily perform the various sobriety tests administered to her.  The sobriety tests consisted of her attempting to recite her A, B, C’s in a way directed by the officer, stand on one foot while counting to 30, touch her nose with her finger, and walk heel to toe in a straight line for nine paces, turn around, and repeat the task.  Her inability to perform the tests indicated that she suffered from impaired mental and physical faculties.  And, when her inability to perform the tests is coupled to the evidence that her breath smelled of alcohol, one could rationally conclude, beyond reasonable doubt, that appellant was operating a motor vehicle in a public place while intoxicated.³ Consequently, we hold that the trial court’s decision to reject appellant’s attempt to exclude the evidence via Rule 403 fell within the zone of reasonable disagreement and evinced an exercise of legitimate discretion.⁴ 

            Accordingly, the judgment is affirmed.

 

                                                                                                            Brian Quinn

                                                                                                               Justice

 

Do not publish.

 

              

 

 

 

 

 

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            ¹Again, the test focuses upon the conduct and deductions of a reasonable officer under the circumstances.  Given this, we reject appellant’s suggestion that since the officer at bar stopped appellant because he thought he had probable cause to believe she committed a traffic offense, the State could only justify the stop on that basis.  Quite the contrary, if the circumstances permit the court to deduce that a reasonable officer could have justified the stop based upon the existence of circumstances creating reasonable suspicion that criminal activity was afoot, that is all the State need show, irrespective of the subjective motivations of the actual officer.

            ²Retrograde extrapolation involves the computation back in time of the alcohol concentration found in one’s body based upon the speed with which the alcohol is eliminated from the body.  Mata v. State, 46 S.W.3d 902, 908-909 (Tex. Crim. App. 2001).  Furthermore, the speed with which alcohol is eliminated depends upon a myriad of factors, as discussed in Mata.

            ³According to statute, the State may prove one to be intoxicated by 1) establishing that the person did not have the normal use of mental or physical faculties by reason of the introduction of alcohol or any other substance into the body or 2) having an alcohol concentration of .08 or more. Tex. Penal Code Ann. §49.01(2) (Vernon Supp. 2002).

            ⁴In holding as we do, we need not address the State’s proposition that §724.064 of the Texas Transportation Code permits the admission of intoxilyzer results irrespective of the limitations expressed in Rule 403. We do note, however, that Rule 403 has been applied in situations wherein the legislature has previously declared particular evidence admissible.  See e.g., McCoy v. State, 10 S.W.3d 50 (Tex. App.–Amarillo 1999, no pet. ) (involving art. 38.37 of the Texas Code of Criminal Procedure).