Gloria Elena Melton v. the State of Texas

Affirm and Opinion Filed May 11, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00543-CR
GLORIA ELENA MELTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2
Kaufman County, Texas
Trial Court Cause No. 17-80274-CC2-F
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Myers, and Justice Partida-Kipness
Opinion by Justice Myers
Gloria Elena Melton appeals her conviction for felony driving while
intoxicated. The trial court sentenced appellant to imprisonment for sixty years.1
Appellant brings two issues on appeal contending (1) the trial court erred by
determining appellant used or exhibited a deadly weapon, an automobile, during the
offense, and (2) that she lacked effective assistance of counsel at trial. We affirm
the trial court’s judgment.
1
The State also alleged for punishment enhancement that appellant had prior convictions for felony
DWI and felony theft. Appellant pleaded true to these allegations. See TEX. PENAL CODE § 12.42(d).
BACKGROUND
On December 6, 2017, shortly after 7:00 p.m., the 911 dispatchers for
Kaufman County received calls about a car on eastbound Interstate 20 swerving into
other lanes and driving only 10 to 45 miles per hour in an area with a 75 mile-per-
hour speed limit. One of the callers stated that whoever was driving the vehicle was
going to cause an accident on the interstate and that “someone’s gonna die.” Another
caller said the vehicle “just like almost slammed right into me.”
Paul Rose testified he was going eastbound on I-20 when he saw a vehicle in
front of him “weaving from shoulder to shoulder all the way across the interstate.”
He called 911, and he stayed behind the vehicle tapping on his brakes to warn drivers
behind him. He testified the vehicle was mostly driving 30 to 70 miles per hour, but
it came to a stop two or three times, and he had to slam on his brakes to avoid hitting
it. A couple of other cars had to swerve onto the shoulder. At one point, the vehicle
exited the interstate onto the service road. Then, the vehicle got onto the entrance
ramp for the interstate, stopped, and then backed down the entrance ramp going the
wrong way. Rose testified he “was afraid somebody was going to get hurt or killed.”
Deputy Sheriff Charles Carr testified that when he got behind the vehicle, it
pulled over to the side of the road, almost hit the guardrail, returned to the main lanes
of the interstate, and then pulled back onto the side of the road into the grass. The
vehicle stopped, moved forward again, stopped again, moved forward again, and
finally stopped. When Carr approached the vehicle, appellant was in the driver’s
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seat. There was an open 32-ounce beer can on the center console and “a gallon-size
jug of some kind of alcohol between her and the driver’s side door.”2 Appellant told
Carr she was headed to Waco. Carr asked appellant to get out of the vehicle, and
when she tried to, the vehicle moved forward because she did not have it in “Park.”
When appellant and Carr got the vehicle into Park and appellant got out of the
vehicle, she could hardly stand. She said she was headed to Waco, which was in the
wrong direction from where she was driving. Carr testified that with the traffic on
I-20 that night, appellant’s driving at speeds near 10 miles per hour and weaving
from shoulder to shoulder was capable of causing an accident resulting in “injury or
death.” Carr asked the dispatcher to send a Department of Public Safety (DPS)
trooper to assist with the DWI investigation.
DPS Trooper Alan Hale testified he performed the horizontal gaze nystagmus
test on appellant, and he “observed six out of possible six clues.” Appellant was not
able to complete the other intoxication tests, which were the finger-count and ABC
tests. Hale testified that on the finger-count test, appellant “was unable to touch her
thumb to her ring finger on the first attempt. And then she gave up on it.”3 Hale
determined that, in his opinion, appellant was intoxicated, and he arrested her. Hale
2
Trooper Allen Hale testified that the can of beer was almost empty and that the bottle of alcohol was
a bottle of 80-proof vodka that “looked like there was a couple or several swigs taken out of it.” Hale
searched appellant’s car and found a receipt indicating the vodka had been purchased at 6:49 p.m. that
evening.
3
The video recording from Hale’s squad car showed Hale asked appellant to recite the alphabet
beginning with the letter “H” and ending with the letter “S.” Appellant said she was a teacher and familiar
with the alphabet, but she appeared not to understand the instructions, and she did not perform this test.
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testified that stopping in the traffic lanes on I-20, traveling from shoulder to shoulder
of the interstate, and going the wrong way down an entrance ramp with the traffic
he observed on the interstate that evening could cause an accident and “result in
serious bodily injury or death.”
The video from Hale’s squad car showed the eastbound interstate highway
was two lanes wide and the traffic was passing at high speed, sometimes at a rate of
two or three cars per second, and sometimes with a few seconds between cars.
DPS Sergeant Audry O’Leary testified she was riding with Hale when they
went to the scene. O’Leary testified that appellant was intoxicated due to the
introduction of alcohol into her body. O’Leary testified that a driver weaving from
shoulder to shoulder in the traffic conditions shown on the video of the stop could
cause a crash resulting in “serious bodily injury or death.”
A judge issued a warrant authorizing seizure of samples of appellant’s blood.
The samples of appellant’s blood were taken at 10:25 p.m., about three hours after
appellant stopped driving. A sample was tested and found to have an alcohol
concentration of 0.371 grams of alcohol per 100 milliliters of blood. See PEN. §
49.01(2)(B) (“‘Intoxicated’ means: . . . (B) having an alcohol concentration of 0.08
or more.”).
Appellant pleaded “no contest” to the charge of DWI. She testified she had
no memory of the events leading up to her arrest. She did not remember buying
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alcohol or being stopped by the police. She testified she has a seizure disorder. She
admitted having seven prior DWI convictions.
DEADLY WEAPON
In her first issue, appellant contends the State failed to present sufficient
evidence to support the trial court’s finding that appellant used or exhibited a deadly
weapon, to wit, an automobile, in the commission of the offense.
When assessing the sufficiency of the evidence, we review the record to
determine whether, after viewing the evidence in the light most favorable to the
verdict, any rational trier of fact could have found beyond a reasonable doubt that
appellant’s vehicle was used or exhibited as a deadly weapon. Couthren v. State,
571 S.W.3d 786, 789 (Tex. Crim. App. 2019). An automobile is not a statutory
deadly weapon per se, but the trier of fact can find it was a deadly weapon if it was
used in a manner that was capable of causing death or serious bodily injury. Id.; see
TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (defining “deadly weapon”). Whether a
deadly weapon finding in a driving-while-intoxicated case is appropriate is
“dependent upon specific testimony in the record about the manner of use.”
Couthren, 571 S.W.3d at 790 (quoting Brister v. State, 449 S.W.3d 490, 494 (Tex.
Crim. App. 2014)). “To support a deadly weapon finding, there must be evidence
that the manner of driving was capable of causing death or serious bodily injury apart
from the fact of a collision and the defendant’s intoxication.” Id.
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The evidence in this case shows appellant was driving mostly between 10 and
45 miles per hour on an interstate highway with a 75-mile-per-hour speed limit. She
was driving erratically, crossing lanes and moving from the left shoulder to the right
shoulder and back again. Although no collisions occurred, other vehicles on the road
had to take evasive maneuvers to avoid hitting appellant. Rose testified appellant
came to a complete stop on the interstate at least twice and that he had to slam on
his brakes to avoid a collision. Rose stated in his call to the 911 dispatcher that
appellant was “all over the road” and almost hit an 18-wheeler. Another caller to
911 said, “He’s going to cause a wreck. . . . Someone’s gonna die.” A third caller
said appellant “almost slammed right into me.” Rose testified he was afraid someone
was going to get hurt or killed. The law-enforcement witnesses testified appellant’s
driving, as described by Rose and the other 911 callers, was capable of causing death
or serious bodily injury. From the video exhibits, the trial court could see the amount
of traffic on the roadway and determine whether appellant’s driving as described by
the witnesses was capable of causing death or serious bodily injury. That evidence
supports the trial court’s finding that appellant’s automobile was a deadly weapon.
Appellant argues the evidence showed her driving was not capable of causing
death or serious bodily injury because all the other vehicles managed to avoid
collisions. Appellant states, “Functionally, said testimony demonstrate[s] that
Appellant was able to operate her vehicle in such a way as to avoid contact with
other drivers on the roadway.” We disagree—that evidence shows the other drivers
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were able to operate their vehicles so as to avoid contact with appellant; it is not
necessarily evidence that appellant was able to avoid the other drivers. Moreover,
the test is not whether a collision occurred. “[T]he statute itself does not require
pursuing police officers or other motorists to be in a zone of danger, take evasive
action, or require appellant to intentionally strike another vehicle to justify a deadly
weapon finding.” Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005).
Instead, the test is whether the evidence showed that appellant’s manner of driving
was capable of causing death or serious bodily injury apart from any collision and
appellant’s intoxication. Couthren, 571 S.W.3d at 790. The witnesses and the
callers to 911 describing appellant’s driving presented evidence that her driving was
capable of causing death or serious bodily injury.
Appellant asserts that no testimony “showed how this type of use or operation
of a motor vehicle would be more dangerous than any other driving struggling with
a flat tire, mechanical failure of the vehicle, or some other type of visual or personal
impairment.” The State had no burden to establish that appellant’s driving was more
dangerous than those situations, which, depending on the circumstances could also
be capable of causing death or serious bodily injury.
Appellant points to the fact that appellant pulled off to the side of the road,
that Carr did not testify he was endangered by appellant’s use or intended use of her
vehicle, and that Carr testified that any intoxicated person on the road is deadly.
Because appellant was already pulling over to the side of the road, and, eventually
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stopped, Carr was not an eyewitness to appellant using her vehicle as a deadly
weapon. Appellant is correct that Carr’s testimony that any intoxicated driver is
deadly is not evidence supporting a deadly weapon finding because the deadly
weapon finding must be based on evidence “apart from the fact of . . . the defendant’s
intoxication.” Couthren, 571 S.W.3d at 790 (emphasis added). Other evidence,
however, including Rose’s testimony and the 911 calls, described appellant’s
dangerous driving.
Appellant states that no evidence showed slow driving was capable of causing
death or serious bodily injury. We disagree. The prosecutor asked Carr whether
driving at speeds near 10 miles per hour on Interstate 20 was “capable of causing an
accident”; Carr answered, “It can be fatal.” The prosecutor asked Hale and O’Leary
whether stopping in the middle of I-20 in the traffic shown on the video exhibits
would be capable of causing an accident resulting in death or serious bodily injury,
and they testified that it was.
Moreover, appellant was not just driving slowly. She was also driving at an
unsteady speed, sometimes stopping entirely, while being unable to stay in a single
lane of traffic. Rose testified that a couple of cars pulled onto the shoulder to avoid
appellant. The relevant issue before the trial court was whether appellant’s driving
overall, not merely one aspect of her driving, was capable of causing death or serious
bodily injury. The prosecutor described to Carr, Hale, and O’Leary appellant’s
manner of driving as reported by Rose, who drove behind appellant, and by the other
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911 callers, and Carr, Hale, and O’Leary testified that the manner of driving
described by the prosecutor was capable of causing death or serious bodily injury.
We conclude the evidence was sufficient to support the trial court’s finding
that appellant used or exhibited a deadly weapon. We overrule appellant’s first issue.
INEFFECTIVE ASSISTANCE OF COUNSEL
In her second issue, appellant contends she did not receive effective assistance
of counsel.
Standard of Review
To prove a claim of ineffective assistance of counsel, appellant must show (1)
his trial counsel’s performance fell below an objective standard of reasonableness
and (2) there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. Strickland v. Washington,
466 U.S. 668, 687–88 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.
2011). “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694. In reviewing counsel’s performance,
we look to the totality of the representation to determine the effectiveness of counsel,
indulging a strong presumption that counsel’s performance falls within the wide
range of reasonable professional assistance or trial strategy. See Robertson v. State,
187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006).
Appellant has the burden of establishing both prongs by a preponderance of
the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). “An
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appellant’s failure to satisfy one prong of the Strickland test negates a court’s need
to consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.
App. 2009); see also Strickland, 466 U.S. at 697. Generally, a silent record that
provides no explanation for counsel’s actions will not overcome the strong
presumption of reasonable assistance. Goodspeed v. State, 187 S.W.3d 390, 392
(Tex. Crim. App. 2005). “It is a rare case in which the trial record will by itself be
sufficient to demonstrate an ineffective-assistance claim.” Nava v. State, 415
S.W.3d 289, 308 (Tex. Crim. App. 2013). In the rare case in which trial counsel’s
ineffectiveness is apparent from the record, an appellate court may address and
dispose of the claim on direct appeal. Lopez, 343 S.W.3d at 143. However, “[i]f
trial counsel has not been afforded the opportunity to explain the reasons for his
conduct, we will not find him to be deficient unless the challenged conduct was ‘so
outrageous that no competent attorney would have engaged in it.’” Nava, 415
S.W.3d at 308 (quoting Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App.
2012)). When, as in this case, the record on appeal is silent regarding counsel’s
actions, we may not speculate to find trial counsel ineffective. See Thompson v.
State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).
Hearsay and Right of Confrontation
Appellant argues her counsel was ineffective for failing to object to hearsay
evidence, the 911 calls. We disagree. Out-of-court statements that are present sense
impressions or excited utterances are excepted from exclusion as hearsay. See TEX.
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R. EVID. 803(1), (2). A statement is a present sense impression if it is “describing
or explaining an event or condition, made while or immediately after the declarant
perceived it.” Id. 803(1). The recordings of the two callers who did not testify
described their observations of appellant’s driving immediately after observing it.
Rose’s 911 call described appellant’s driving while he observed it. Therefore, all
the calls were excepted from the hearsay exclusion rule by the exception for present
sense impressions.
Also, hearsay statements are admissible as excited utterances when they
“relat[e] to a startling event or condition, made while the declarant was under the
stress of excitement that it caused.” Id. 803(2). The trial court could determine that
a vehicle traveling 30 to 50 miles per hour below the rest of the traffic while weaving
back and forth across an interstate highway would be a startling event or condition,
and the trial court could also determine that the three callers were under the stress of
the excitement from the event when they talked to the 911 operator. Therefore, the
calls were admissible as excited utterances. We conclude appellant has not shown
her counsel was ineffective for failing to object to the 911 calls as hearsay.
Appellant argues that, except for Rose’s 911 call, the recordings of the other
911 calls violated appellant’s right of confrontation and that her counsel was
ineffective for failing to object to the calls on confrontation grounds. “The
Confrontation Clause of the Sixth Amendment guarantees that ‘[i]n all criminal
prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses
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against him.’” Vinson v. State, 252 S.W.3d 336, 338 (Tex. Crim. App. 2008)
(quoting U.S. CONST. amend. VI). The Confrontation Clause prohibits the
“admission of testimonial statements of a witness who did not appear at trial unless
the witness was unavailable to testify, and the defendant had a prior opportunity for
cross-examination.” Id. (quoting Crawford v. Washington, 541 U.S. 36, 53–54
(2004)). Thus, the question is whether the 911 calls were testimonial, which we
determine de novo. See Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to
meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.
Vinson, 252 S.W.3d at 338 (quoting Davis v. Washington, 547 U.S. 813, 813–14
(2006)). In Vinson, the court of criminal appeals stated that in Davis v. Washington,
the Supreme Court
noted a non-exhaustive list of factors to consider when determining
whether statements were made during on ongoing emergency: 1)
whether the situation was still in progress; 2) whether the questions
sought to determine what is presently happening as opposed to what
has happened in the past; 3) whether the primary purpose of the
interrogation was to render aid rather than to memorialize a possible
crime; 4) whether the questioning was conducted in a separate room,
away from the alleged attacker; and 5) whether the events were
deliberately recounted in a step-by-step fashion.
Id. at 339 (citing Davis, 547 U.S. at 829–30)).
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The two callers’ statements were made during an ongoing emergency. The
situation was still in progress, i.e., appellant was still driving erratically on the
interstate. The 911 operators’ questions asked the callers where their emergency
was. The callers spontaneously described the situation. The operators did not ask
about past events. The primary purpose of the questions was to determine the nature
of the emergency and to determine a course of action to alleviate the emergency,
which in this case was to dispatch law enforcement officers to the scene to assess
the situation. The questioning was not conducted to memorialize a crime. The
events were not recounted in a step-by-step fashion; instead, the callers’ provided
spontaneous descriptions of the situation. We conclude the recordings of the 911
calls were not testimonial and did not implicate appellant’s right of confrontation.
See Neal v. State, 186 S.W.3d 690, 694 (Tex. App.—Dallas 2006, no pet.).
Therefore, appellant’s counsel was not ineffective for failing to assert the evidence
violated appellant’s right of confrontation.
Retrograde Extrapolation Testimony
Appellant argues her counsel was ineffective for not objecting to the
retrograde-extrapolation questions the prosecutor asked the forensic scientist who
tested appellant’s blood sample.
In this case, the forensic scientist testified that she could not say what the
alcohol elimination rate was for a specific individual, “but I can give . . . an average
for a regular average person.” The prosecutor then asked how many drinks it would
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take for a female weighing approximately 150 pounds to get to a blood-alcohol
concentration of .371, and the witness answered, “Approximately 15, 16” standard
drinks, meaning a 12-ounce beer, 5 ounces of “normal wine,” or one to one-and-a-
half ounces of distilled liquor. The prosecutor then asked if it was possible, based
on elimination, that a person who was driving at 7:15 p.m. and who had blood drawn
at 10:25 p.m. and did not consume alcohol in between could have had a higher
alcohol concentration at the time of driving. The forensic scientist answered, “It’s
possible, yes.”
On cross-examination by defense counsel, the forensic scientist testified, “The
standard normal regular person eliminates about .02 per hour,” so appellant likely
“would have eliminated .05, .06.” Defense counsel asked if that “would have put
her at over .4,” and the forensic scientist answered, “Yes, very likely.”
Appellant asserts the evidence presented by the prosecutor was inadmissible
because the State failed to show the forensic scientist was qualified as an expert on
retrograde extrapolation or that her testimony on the subject was reliable. Appellant
does not assert on appeal that defense counsel was ineffective for his questioning the
witness about retrograde extrapolation on cross-examination.
In Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001), the supreme court
discussed the admissibility of retrograde-extrapolation testimony. The court
emphasized that an expert witness’s testimony on this subject must be reliable. The
witness must be able “to apply the science and explain it with clarity.” Id. at 916.
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The witness must also “demonstrate an awareness of the subtleties of the science and
the risks inherent in any extrapolation.” Id. The court, in determining whether the
evidence was reliable, should consider: “(a) the length of time between the offense
and the test(s) administered; (b) the number of tests given and the length of time
between each test; and (c) whether, and if so, to what extent, any individual
characteristics of the defendant were known to the expert in providing his
extrapolation.” Id.
Appellant argues, referring to the evidence elicited by the prosecutor, “The
admission of such prejudicial and inadmissible evidence had no strategic value and
only served to harm appellant.” Appellant cites the case of Blumenstetter v. State,
135 S.W.3d 234 (Tex. App.—Texarkana 2004, no pet.), but she does not explain
how the opinion applies to this case. In Blumenstetter, the defense counsel testified
that he did not know about Mata before the trial and that his strategy was to argue
that the expert witness was guessing and that no one really knew the defendant’s
level of intoxication. Id. at 247. Counsel said he thought if he had objected, then
the State would have proved the witness’s qualifications and solidified his testimony
to the jury. Id. The court of appeals stated it was “highly unlikely” that the State
could have proven the testimony was reliable. Id. The court of appeals concluded
counsel’s assistance fell below an objective standard of reasonableness because he
did not object to the retrograde-extrapolation testimony. Id. at 247–48. However,
the court concluded counsel’s failure to object to the evidence did not affect the
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outcome because that evidence was cumulative of evidence showing the defendant
was intoxicated while driving. Id. at 250.
In this case, appellant’s counsel did not testify. “Therefore, appellant has
failed to rebut the presumption this was a reasonable decision.” Thompson, 9
S.W.3d at 814. Furthermore, appellant does not explain how the exclusion of the
retrograde-extrapolation testimony would probably have resulted in a different
outcome. Appellant pleaded nolo contendere to driving while intoxicated, and she
signed a stipulation of evidence admitting to being intoxicated. The laboratory test
of her blood proved her alcohol concentration three hours after she stopped driving
was over four-and-a-half times the legal limit. She failed or did not complete the
intoxication tests Hale administered. Partially consumed open containers of alcohol
were next to appellant in her vehicle. Appellant does not explain how testimony of
appellant’s alcohol concentration being higher than 0.371 affected the outcome of
the case. We conclude appellant has failed to established the prejudice prong of the
Strickland standard because appellant has not shown the result of the trial would
probably have been different if appellant had objected to the
retrograde-extrapolation testimony.
Failure to Designate Expert Witness
Appellant also contends her counsel was ineffective for failing to provide the
State with timely notice of an expert witness. On the second day of the trial,
appellant called her employer, with whom she resided as his housekeeper, to testify
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that appellant did not appear intoxicated in the videos. She also wanted this witness
to explain and confirm her medical conditions to the trial court. The witness had a
medical degree and had been a board-certified anesthesiologist with a subspecialty
in pain management. However, his medical license had been revoked. The State
objected on two grounds to the witness testifying as an expert: first, because he was
not a proper medical expert due to the revocation of his license, and second, because
appellant did not give notice that the witness would be testifying as an expert
witness.
Appellant’s attorney explained to the trial court that he did not learn the
witness had a medical degree until the first day of the trial. The trial court overruled
the State’s objection that the witness was not a medical expert but sustained the
objection to the failure to designate the witness as an expert witness.
The witness testified that appellant’s mental state on the video recordings of
the stop and arrest “did not seem consistent with somebody that had fatal alcohol
levels.” He stated appellant’s “behavior was consistent with postictal syndrome
from her seizure disorder” and that appellant’s “last seizure was approximately ten
years ago.” The State objected that this testimony was expert testimony, not lay
testimony. The trial court sustained the objection because “[a] lay person would
have no knowledge of what you just testified to at all unless they went to medical
school.”
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Appellant argues on appeal, “This was Appellant’s only witness to support
her theory that her impaired condition may have been the result of some other reason,
other than just intoxication.” Appellant does not explain how evidence that her
condition may have been due to some reason other than intoxication would have
affected the outcome of the case. Appellant pleaded nolo contendere to driving
while intoxicated, and she stipulated that she was intoxicated. The laboratory
evidence showed her alcohol concentration three hours after being stopped was more
than four-and-a-half times the legal limit.
We conclude appellant has not overcome the presumption of reasonable
assistance. Her counsel did not testify as to the strategic reasons, if any, he may
have had for his actions, and we decline to speculate as to them. See Thompson, 9
S.W.3d at 814. We overrule appellant’s second issue.
CONCLUSION
We affirm the trial court’s judgment.
/Lana Myers//
LANA MYERS
200543f.u05 JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GLORIA ELENA MELTON, On Appeal from the County Court at
Appellant Law No. 2, Kaufman County, Texas
Trial Court Cause No. 17-80274-
No. 05-20-00543-CR V. CC2-F.
Opinion delivered by Justice Myers.
THE STATE OF TEXAS, Appellee Chief Justice Burns and Justice
Partida-Kipness participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 11th day of May, 2021.
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