Angel Debottis v. the State of Texas ( 2024 )

Affirmed and Majority and Dissenting Opinions filed February 15, 2024.
In The
Fourteenth Court of Appeals
NO. 14-22-00884-CR
ANGEL DEBOTTIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Cause No. 92795-CR
MAJORITY OPINION
After appellant Angel Debottis pleaded guilty to two counts of intoxication
manslaughter, a jury assessed her punishment at fifteen years’ confinement for
each count. She challenges the judgment in two issues. Appellant argues that the
trial court reversibly erred in admitting (1) appellant’s post-Miranda statements
and (2) a toxicology report included in appellant’s medical records. After
reviewing the record and legal authority, we overrule both issues and affirm the
trial court’s judgment.
Background
Appellant consumed several alcoholic beverages and then crashed her car
into another vehicle, killing the other vehicle’s two occupants. Alvin Police
Department Officers Matthew Jrab and John Flores responded to the scene.
Emergency personnel treated appellant in the back of an ambulance. Appellant
admitted to having four alcoholic beverages before driving her car.
While appellant was in the ambulance, Officer Flores told her that she was
in custody for suspicion of intoxication manslaughter and read appellant her
Miranda rights,1 including her right to remain silent. She chose to remain silent.
The ambulance transported appellant to a nearby hospital. Officer Jrab
accompanied appellant to the hospital and stayed with her for several hours, to
“make sure that she didn’t try to flee or anything like that.”
Appellant pleaded guilty to two counts of intoxication manslaughter, and the
case proceeded to a punishment trial by jury. During trial, the court admitted,
among other things, video footage from the officers’ body-worn cameras and
appellant’s medical records from the hospital.
The jury assessed appellant’s punishment at confinement in the penitentiary
for a term of fifteen years for each count. The trial court signed a judgment in
accordance with the jury’s verdict, ordering that the sentence for count two would
run consecutively with the sentence for count one.
Appellant timely appealed.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
Analysis
A. Admission of Post-Miranda Statements
In her first issue, appellant challenges the trial court’s admission of certain
post-Miranda statements. The State introduced evidence that, while in the
hospital, appellant was “flirtatious” with Officer Jrab, was concerned about the
location of her debit card so she could post bond, “giggl[ed] and laugh[ed],” and
said that she believed her life was over. According to appellant, the State relied on
this evidence to suggest that appellant was unconcerned for the victims and
“selfish, recalcitrant, and lacking in remorse,” which probably led the jury to assess
a more severe punishment than it would have without this evidence. Appellant
complains that the State’s use of this evidence to imply a lack of remorse violated
her right to remain silent, which she invoked when advised of her Miranda rights
while in the ambulance.
To safeguard a person’s Fifth Amendment privilege against self-
incrimination, law enforcement officials must inform a person in custody before
questioning that she has the right to remain silent and that any statement she makes
may be used against her in court. Miranda, 384 U.S. at 444; Ramos v. State, 245
S.W.3d 410, 418 (Tex. Crim. App. 2008). Trial comments on a defendant’s
decision to remain silent after receiving Miranda warnings violate due process and
infringe on the right against self-incrimination. See Wainwright v. Greenfield, 474
U.S. 284, 295 (1986); Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App.
1995) (commenting on a defendant’s post-arrest silence is akin to commenting on
his failure to testify at trial because it attempts to raise an inference of guilt arising
from the invocation of a constitutional right). Generally, a comment on a
defendant’s lack of remorse is an impermissible reference to the defendant’s failure
to testify (or otherwise remain silent) because only the defendant can testify as to
3
her own remorse. Swallow v. State, 829 S.W.2d 223, 225-26 (Tex. Crim. App.
1992); Dickinson v. State, 685 S.W.2d 320, 322 (Tex. Crim. App. 1984).
The State responds that the record shows no Miranda violation because the
hospital conversations at issue did not stem from a custodial “interrogation,” and
because an accused’s volunteered statements following Miranda warnings are
admissible, even if the statements were made while in custody. The State cites
Pugh v. State, 624 S.W.3d 565 (Tex. Crim. App. 2021), Cross v. State, 144 S.W.3d
521, 527 (Tex. Crim. App. 2004), and Crawford v. State, 648 S.W.3d 461 (Tex.
App.—San Antonio 2021, no pet.)), for the proposition that when a suspect
invokes her right to remain silent but then initiates “small talk” with law
enforcement, she “waives her Fifth Amendment rights, and its protections fall
away.”
We will presume without deciding that the challenged portions of
appellant’s post-Miranda conversations with Officers Jrab and Flores in the
hospital, together with testimony that appellant did not inquire about the victims,
amounted to an impermissible comment on appellant’s silence as a lack of remorse
and was erroneously admitted. Admission of evidence in violation of appellant’s
Fifth Amendment right to remain silent would be constitutional error, see Ramos,
245 S.W.3d at 419, which we review under the constitutional harmless-error
standard. See Tex. R. App. P. 44.2(a). Under this standard, we must conclude that
the error was harmful unless we determine “beyond a reasonable doubt that the
error did not contribute to the conviction or punishment.” Id. Factors we consider
include “the nature of the error (e.g., erroneous admission or exclusion of
evidence, objectionable jury argument, etc.), whether it was emphasized by the
State, the probable implications of the error, and the weight the jury would likely
4
have assigned to it in the course of its deliberations.” Snowden v. State, 353
S.W.3d 815, 822 (Tex. Crim. App. 2011).
Appellant cites portions of Officer Flores’s testimony to support her
contention that the State’s repeatedly emphasized her lack of remorse:
Q. Okay. Now you’ve been there 20 plus minutes. Correct?
A. Yes, sir.
Q. Has she asked you about the victims at all?
A. No, sir.
Q. Asked you if anybody is doing all right that was out on scene?
A. No, sir.
Q. Did she ask about her debit card?
A. Yes, sir.
Q. Did she ask about her debit card a couple of times?
A. Yes, sir.
Q. And was it after it couldn’t be located it appears that she first
showed signs of emotion?
A. Yes, sir.
Q. Okay. And did you hear her make some comment about how she
wasn’t going to be able to bail out of jail tonight because she didn’t
have her debit card?
A. It was intelligible [sic] to me at the time. I couldn’t understand.
Q. Were you able to hear it now?
A. Yes, sir.
Q. Okay. So that was when she showed emotion. Not about the two
deceased people. Correct?
A. That’s correct, sir.
...
Q. And to you what does her main concern appear to be at this point
in time?
5
A. Undergarments.
Q. Okay. Her underwear?
A. Yes, sir.
Q. Not the condition of [] anybody or anybody’s family members.
Correct?
A. No, sir.
Q. But retrieving her underwear. Correct?
A. Yes, sir.
This brief testimony came during a longer examination of Officer Flores,
who was one of fifteen prosecution witnesses (in addition to four defense
witnesses). Appellant also points to the officers’ body-cam videos, but it is unclear
from the record how much of the videos were played to the jury. Based on our
review of the exhibits, the periodic small talk between appellant and Officer Jrab,
which was punctuated by long periods of silence, comprised at most fifteen to
twenty minutes of a two-and-a-half-hour-long video of Officer Jrab’s presence at
the hospital.2 The video of Officer Flores’s twenty-minute presence at the hospital
included the questions from appellant regarding the whereabouts of her debit card
and underwear. Again, these interactions with appellant were only a few minutes
long. Notably, the State did not refer to Officer Flores’s testimony, or either
2
The prosecutor and Officer Jrab had the following exchange:
Q. So the video is for the jury to see and they can see the entirety of the video. Is
that correct?
A. Correct.
Q. But the last -- and it’s not quite 30 minutes. It’s a little under 30 minutes -- is
where a conversation takes place between you and the Defendant. Is that correct?
A. Yes, ma’am.
Q. Okay. Prior to that there is not a whole lot of talking going on. It’s just you in
the room watching her on the hospital bed. Is that right?
A. Correct. Yes, ma’am.
6
officer’s body-cam video, during closing argument. We do not find that the State
placed meaningful emphasis on appellant’s post-incident lack of remorse during
the trial.3 This factor weighs against a finding of harm.
Next, we consider the probable implications of the presumed error and the
weight the jury would likely have assigned to the evidence at issue during its
deliberations. Appellant argues that the erroneous admission of the body-cam
footage and the officers’ related testimony probably led the jury to sentence
appellant “more harshly.” Appellant cites “substantial” mitigating factors that she
claims would have lessened appellant’s sentence but for the erroneous admission
of the challenged evidence—her youth, evidence of post-offense rehabilitation,
strong family and community support, acceptance of responsibility, apparent
trauma from childhood separation from the nuclear family, and lack of criminal
history.
The record does not support appellant’s claim that the challenged evidence
probably led the jury to sentence appellant more harshly than it otherwise would
have had the evidence been excluded. The implications of admitting the
challenged evidence are not likely to have had a significant impact when
considering the record as a whole. Appellant effectively neutralized the potential
negative impact of the evidence during her cross-examination of the State’s
3
Appellant also relies on a portion of Officer Jrab’s testimony in which the State asked,
“You stated earlier that you didn’t think that her behavior at the hospital was inappropriate. But
giggling and laughing after killing two people, three and a half hours after killing those two
people, is that appropriate behavior?” Officer Jrab answered, “No, ma’am.” This testimony,
however, was in response to defense counsel’s question asking Officer Jrab, “In your
conversation with her at the hospital was there anything about her demeanor that seems
inappropriate?” Officer Jrab answered, “No.” Because defense counsel, not the prosecutor,
opened this line of questioning, and because the cited testimony was so fleeting, we cannot say
that the State emphasized appellant’s supposed lack of remorse during Officer Jrab’s testimony.
See Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000) (directing reviewing courts to
consider the character of the alleged error and how it might be considered in connection with
other evidence in the case).
7
witnesses and by presenting controverting testimony during her case-in-chief. For
example, on cross-examination, Officer Jrab acknowledged that appellant, while in
the ambulance, showed concern for others and asked more than once whether she
had hurt anyone. When appellant overheard on the police radio that two people
were killed, Officer Jrab saw appellant begin crying. Appellant also called four
witnesses during her case-in-chief, each of whom testified regarding her remorse
and her acceptance of responsibility. Additionally, during closing arguments,
appellant’s attorney asserted that “[h]er very first statement [to police] is taking
responsibility for this.” Her attorney also posited to the jury that appellant pleaded
guilty knowing she was going to prison and that she had not “earned” community
supervision.
Moreover, there was substantial evidence countering the mitigating evidence
produced by appellant, on which the jury likely placed great weight in assessing
the sentences. The most significant piece of evidence was the video of the accident
itself, which clearly captured the speed of appellant’s vehicle and the violent nature
of the impact. Such videos are often the “most compelling evidence.” Johnson v.
State, No. 14-93-00367-CR, 1994 WL 622048, at *1 (Tex. App.—Houston [14th
Dist.] Nov. 10, 1994, pet. ref’d) (not designated for publication); accord Diamond
Offshore Servs. Ltd. v. Williams, 542 S.W.3d 539, 542 (Tex. 2018) (“A video can
be the single most compelling piece of evidence in a case, captivating the jury’s
attention like no other evidence could.”). The video showed appellant driving “off
the road” at sixty-five miles per hour, and seemingly without braking, headlong
into the driver’s side of the victims’ car, which was stopped and waiting to turn
into the roadway. The force of the impact killed the two occupants almost
instantly and propelled their car into a power pole, which in turn caused a
8
transformer to “explode.” Emergency responders had to use the “jaws of life” to
access the victims’ car and retrieve their bodies.
Similarly, during closing arguments, the State emphasized the conscious
choice appellant made to drink and drive, despite being a bartender who
“understands that people who are intoxicated shouldn’t operate motor vehicles,”
and the enormous impact of the crime on the family of the victims, a fifty-five-
year-old mother and her son who was months shy of his twenty-first birthday. The
State referred to the testimony from appellant’s father, Jim, who testified on
appellant’s behalf. Jim testified that appellant felt like “the victims’ family is, you
know, out for blood” and that appellant blamed the district attorney’s office for
being too vindictive against her.
The permissible punishment is between two and twenty years’ confinement
and a fine of not more than $10,000. See Tex. Penal Code §§ 12.33 (second-
degree felony punishment), 49.08(b) (intoxication manslaughter is a second-degree
felony). The jury assessed punishment of fifteen years’ confinement for each
count and did not assess a general fine under section 12.33 for either count.4 The
jury also found that appellant used or exhibited a deadly weapon for each count.
Thus, although the sentences were on the higher end of the statutory range, the jury
did not assess the maximum allowable.5
4
We note that defense counsel explained to the jury that appellant would be eligible for
community supervision (which he had previously said she had not “earned”) if they sentenced
appellant to confinement for two to ten years. The written judgment includes a $100 fine under
Code of Criminal Procedure article 102.0185.
5
During the sentencing hearing, the court granted the State’s motion to stack these two
sentences. The judgment accordingly orders that the punishment for count two would run
consecutively with the punishment for count one. See Tex. Code Crim. Proc. art. 42.08(a).
Appellant does not challenge this aspect of the judgment.
9
Based on our review of the entire record, we conclude that the jury likely did
not give the brief evidence of appellant’s post-Miranda conversations with the
officers significant weight and instead focused, as the prosecutor urged, on the
severity of the acts constituting the offense and “the tragedy [the victims’] family
has had to endure and will endure for the rest of their lives.” We determine beyond
a reasonable doubt that the error, if any, did not contribute to the jury’s assessment
of punishment. See, e.g., Snowden, 353 S.W.3d at 825-26; Fenn v. State, No. 01-
10-00383-CR, 2011 WL 2651914, at *4-5 (Tex. App.—Houston [1st Dist.] July 7,
2011, pet. ref’d) (mem. op., not designated for publication) (assuming prosecutor’s
comment on defendant’s silence was error, error did not contribute to conviction or
punishment).
We overrule appellant’s first issue.
B. Admission of Medical Records
In her second issue, appellant complains about the admission of a lab report
showing that her blood alcohol content two hours after the crash was 0.254. Based
on that test result, a nurse who treated appellant testified that appellant was
suffering from acute alcohol toxicity on the night of the crash.6 Appellant contends
that the lab report is inadmissible hearsay within hearsay. She also asserts what we
construe as a Confrontation Clause argument. We review a trial court’s ruling on
the admission of evidence for an abuse of discretion. See Wells v. State, 611
S.W.3d 396, 427 (Tex. Crim. App. 2020). A trial court abuses its discretion when
its decision lies outside the “zone of reasonable disagreement.” Id.Hearsay is a written or oral statement, other than one made by the declarant
while testifying at the trial or hearing, offered into evidence to prove the truth of
6
A witness testified without objection that the “legal level of intoxication [for drivers]” is
0.08. See Tex. Pen. Code § 49.01(2)(b).
10
the matter asserted; and as such, hearsay is inadmissible evidence unless expressly
excepted or excluded from this general rule by statute or the rules of evidence. See
Tex. R. Evid. 801(a), (d), 802. “If the out-of-court statement is relevant only if the
trier of fact believes that the statement was both truthful and accurate, then the
statement is hearsay.” Coble v. State, 330 S.W.3d 253, 290 n.101 (Tex. Crim.
App. 2010) (internal quotation omitted); Jones v. State, 466 S.W.3d 252, 263 (Tex.
App.—Houston [1st Dist.] 2015, pet. ref’d). A statement about a statement offered
for the truth of the matter asserted is considered hearsay within hearsay.
At trial, defense counsel timely asserted a double hearsay objection to the
entirety of appellant’s medical records, which consisted of 127 pages. When an
exhibit encompasses multiple statements, only some of which are inadmissible
hearsay, an objecting party must identify the specific statements that are
objectionable to preserve any error for appellate review. See, e.g., Whitaker v.
State, 286 S.W.3d 355, 368-69 (Tex. Crim. App. 2009) (global hearsay objection
to audiotapes insufficient to preserve error as to specific statements made within
recording); Barnes v. State, 876 S.W.2d 316, 329 (Tex. Crim. App. 1994) (global
hearsay objection to entire packet of documents insufficient to preserve error as to
specific subset of documents within packet); Hernandez v. State, 599 S.W.2d 614,
617 (Tex. Crim. App. 1980) (op. on reh’g) (when evidence is admitted, a part of
which is admissible and a part of which is not, it is incumbent on the party
objecting to the admissibility of the evidence to specifically point out what part is
inadmissible to preserve the alleged error). Other than the single page of the lab
report containing appellant’s toxicology test results, appellant did not direct the
trial court to any other purported double hearsay within the medical records. Thus,
we confine our evaluation of appellant’s double hearsay argument to the lab report
page that appellant specifically identified. To the extent that appellant complains
11
about the admission of any other portions of the medical records, we conclude that
she did not preserve her appellate complaint because her objection was not
sufficiently specific. See Martin v. State, 151 S.W.3d 236, 240 (Tex. App.—
Texarkana 2004, pet. ref’d) (holding error not preserved when counsel did not
specifically object to embedded hearsay); see Tex. R. App. P. 33.1(a)(1)(A).
When hearsay contains hearsay, the rules of evidence require that each part
of the combined statements be within an exception to the hearsay rule. Tex. R.
Evid. 805; Sanchez v. State, 354 S.W.3d 476, 485-86 (Tex. Crim. App. 2011). The
lab report page was included in the totality of the medical records admitted into
evidence. These records were accompanied by a business records affidavit
consistent with the hearsay exception contained in Rule 803(6). Appellant does
not dispute that the medical records fall within the business records exception to
the hearsay rule.
As to the specific lab report page containing appellant’s blood alcohol test
result, the State argues that page is admissible under the hearsay exception for
statements made for medical diagnosis or treatment. Tex. R. Evid. 803(4). Under
this exception, a hearsay statement is not excluded if it: “(A) is made for—and is
reasonably pertinent to—medical diagnosis or treatment; and (B) describes medical
history; past or present symptoms or sensations; their inception; or their general
cause.” Tex. R. Evid. 803(4). For this exception to apply, the proponent must
show that (1) the out-of-court declarant was aware that the statements were made
for purposes of medical diagnosis or treatment, and that proper diagnosis or
treatment depended upon the veracity of the statements, and (2) the statements are
pertinent to diagnosis or treatment, that is, it was reasonable for the care provider
to rely on the statements in diagnosing or treating the declarant. Taylor v. State,
268 S.W.3d 571, 588-89, 591 (Tex. Crim. App. 2008); Jackson v. State, No. 14-19-
12
00365-CR, 2020 WL 6326373, at *2 (Tex. App.—Houston [14th Dist.] Oct. 29,
2020, no pet.) (mem. op., not designated for publication).
The record demonstrates that appellant was transported to the hospital after
receiving several injuries during the crash. The medical records reflect the hospital
staff’s diagnosis and treatment, which included a diagnosis that appellant was
suffering from acute alcohol toxicity. The State called as a witness the emergency
room nurse who treated appellant on the night of the incident. She explained that
an analysis of appellant’s blood alcohol content was pertinent to the doctor’s
diagnosis of acute alcohol toxicity. The toxicology report containing appellant’s
blood alcohol level specifically stated that the testing results “should be used for
medical purposes only.” We hold that the blood test performed at the hospital by
hospital staff was conducted for medical diagnosis or treatment, and the test results
were admissible under Rule 803(4). See Garza v. State, No. 13-19-00472-CR,
2021 WL 822301, at *4-5 (Tex. App.—Corpus Christi Mar. 4, 2021, no pet.)
(mem. op., not designated for publication). The trial court did not abuse its
discretion in overruling appellant’s hearsay within hearsay objection to the lab
report.
Appellant appears to raise an additional challenge to the lab report’s
admissibility. Appellant contends that the witness called by the State “could not
lay a proper foundation, as she: i) could not testify that the lab was properly
accredited at the time the testing was conducted; ii) lacked the training and
professional credentials to understand or interpret the test results; and iii) was not
involved in the testing process at the lab.” This argument implicates the
Confrontation Clause. See, e.g., Russell v. State, No. 14-15-00036-CR, 2016 WL
1402943, at *5 (Tex. App.—Houston [14th Dist.] Apr. 7, 2016, pet. ref’d) (mem.
op., not designated for publication) (“As is clear from these excerpts, the objection
13
appellant made to the blood analysis evidence was that he had not had an
opportunity to confront the nurse who had drawn the blood from whom the ‘whole
foundation’ of the ‘blood itself’ was coming. This objection may be construed as a
Confrontation Clause objection and perhaps that the proper foundation had not
been laid to the admission of the blood.”).
The single sentence quoted above from appellant’s brief constitutes the
entirety of appellant’s Confrontation Clause argument. Appellant cites no law
regarding the Confrontation Clause, nor does she substantively explain that the
admission of the toxicology report violated her constitutional rights. Our briefing
rules require an appellant’s brief to contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and the record. Tex. R.
App. P. 38.1(i). Appellant’s Confrontation Clause contention does not comply
with this rule, and therefore we do not address the merit of appellant’s argument.
See Cain v. State, 501 S.W.3d 172, 176 (Tex. App.—Texarkana 2016, no pet.)
(“To the extent Cain’s appeal intends to claim a Confrontation Clause violation, it
is overruled as insufficiently briefed.”); accord also Dewitt v. State, 651 S.W.3d
669, 674 (Tex. App.—Houston [14th Dist.] 2022, no pet.) (“Because hearsay and
the Confrontation Clause are separate grounds to object to the admission of
evidence, we conclude appellant has waived his hearsay complaint due to failure to
properly brief the issue.”).
In any event, we note in closing that any error in the admission of the lab
report was harmless. See Tex. R. App. P. 44.2(b). Not only did appellant plead
guilty to intoxication manslaughter, but ample evidence of appellant’s intoxication
was introduced beyond the toxicology results. Officers Jrab and Flores testified
that, when in the back of the ambulance, appellant admitted consuming four
alcoholic beverages before driving and admitted sitting in her car for twenty
14
minutes before leaving her point of origin “in order to sober up.” Officer Flores
testified that he could “smell alcohol on [appellant].” The jury also watched video
of the accident, which, as described above, showed the forceful collision between
appellant’s car and the victims’ car. We conclude that any error in the admission
of the toxicology results did not affect appellant’s substantial rights. See Blackwell
v. State, No. 03-03-00337-CR, 2005 WL 548245, at *4 (Tex. App.—Austin Mar.
10, 2005, no pet.) (mem. op., not designated for publication).
We overrule appellant’s second issue.
Conclusion
We affirm the trial court’s judgment.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Spain, and Wilson. (Spain, J., dissenting)
Publish — Tex. R. App. P. 47.2(b).
15