James David Robinson, Jr. v. State

ACCEPTED
02-15-00207-CR
SECOND COURT OF APPEALS
FORT WORTH, TEXAS
12/30/2015 10:11:30 AM
DEBRA SPISAK
CLERK
IN THE COURT OF APPEALS FOR THE
SECOND DISTRICT OF TEXAS AT FORT WORTH
FILED IN
JAMES ROBINSON, § 2nd COURT OF APPEALS
FORT WORTH, TEXAS
APPELLANT §
12/30/2015 10:11:30 AM
§ DEBRA SPISAK
v. § No. 02-15-00207-CR
Clerk
§
THE STATE OF TEXAS, §
APPELLEE §
STATE'S BRIEF
FROM COUNTY CRIMINAL COURT NO. 5
DENTON COUNTY, TEXAS
TRIAL CAUSE NUMBER CR-2012-04882-E
THE HONORABLE COBY WAD DILL, JUDGE, PRESIDING
PAUL JOHNSON
Criminal District Attorney
Denton County, Texas
Oral argument is requested
only if Appellant is CATHERINE LUFT
requesting argument. Assistant Criminal District Attorney
Chief, Appellate Division
State Bar No. 24013067
1450 East McKinney, Suite 3100
Denton, Texas 76209
(940) 349-2600
FAX (940) 349-2600
catherine.luft@dentoncounty.com
BRITNEY TOMBERLIN
WENDY CORREA
Assistant Criminal District Attorneys
TABLE OF CONTENTS
INDEX OF AUTHORITIES ..................................................................................... ii
STA TEMENT OF THE CASE ................................................................................. 1
STATEMENT OF FACTS ........................................................................................ 2
SUMMARY OF THE STATE'S ARGUMENTS .................................................... 4
STATE'S RESPONSE TO APPELLANT'S POINT OF ERROR ONE
(SUFFICIENCY) .......... ................................................................................ ............. 5
Appellant's Contention ........................................................................................ 5
State's Reply ......................................................................................................... 5
Argument And Authorities ..................... .................... ............... ................. .......... 5
Standard of Review I Pertinent Law ............................................................... 5
The evidence was legally sufficient to
support the jury's guilty verdict ...................................................................... 6
CONCLUSION AND PRAYER ............................................................................. 10
CERTIFICATE OF COMPLIANCE ...................................................................... I 0
CERTIFICATE OF SERVICE ................................................................................ 11
INDEX OF AUTHORITIES
Cases
Bigby v. State
892 S.W.2d 864 (Tex. Crim. App. 1994) overruled in part
on other grounds by Tennard v. Dretke 542 U.S. 274,
124 S. Ct. 2562, 159 L. Ed. 2d 384 (2004) ............................................................ 9
Brooks v. State
323 S.W.3d 893 (Tex. Crim. App. 2010) ........................................................... 5, 6
Carrasquillo v. State
No. 01-10-00217-CR, 2011 Tex. App. LEXIS 8943
(Tex. App.- Austin Nov. 10, 2011, pet. dism'd)
(not designated for publication) .............................................................................. 8
Denton v. State
911 S.W.2d 388 (Tex. Crim. App. 1995) ... .. .......................................................... 6
Dickson v. State
642 S.W.2d 185 (Tex. App.- Houston [14th Dist.] 1982, pet. ref'd.) .................. 8
Duenez v. State
735 S.W.2d 563 (Tex. App.- Houston [14th Dist.] 1987, pet. ref'd) ................... 8
Hernandez v. State
939 S.W.2d 173 (Tex. Crim. App. 1997) (en bane) (same) ................................... 9
Jackson v. Virginia
443 U.S. 307, 99 S. Ct. 2781, 61L.Ed.2d 560 (1979) ..................................... 5, 6
Kirsch v. State
357 S.W.3d 645 (Tex. Crim. App. 2012) ..................................... .......................... 6
Middlebrook v. State
803 S.W.2d 355 (Tex. App.- Fort Worth 1990, pet. ref'd) ................................... 8
11
Priego v. State
457 S.W.3d 565 (Tex. App.- Texarkana 2015, pet. refd) .................................... 6
Santos v. State
No. 01-94-01063-CR, 1995 Tex. App. LEXIS 3079
(Tex. App.- Houston [1st Dist.] Dec. 7, 1995, no pet.)
(not designated for publication) ... .. ......................................................................... 8
Tennard v. Dretke
542 U.S. 274, 124 S. Ct. 2562, 159 L. Ed. 2d 384 (2004) ..................................... 9
111
IN THE COURT OF APPEALS FOR THE
SECOND DISTRICT OF TEXAS AT FORT WORTH
JAMES ROBINSON, §
APPELLANT §
§
v. § No. 02-15-00207-CR
§
THE STATE OF TEXAS, §
APPELLEE §
STATE'S BRIEF
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
The Charge ........................................................................ Driving While Intoxicated
(C.R. at 7)
Tex. Penal Code§ 49.04
The Plea ...................................................................................................... Not Guilty
(3 R.R. at 15; 4 R.R. at 39; C.R. at 095-096)
The Verdict (Jury) ............................................................................................. Guilty
(5 R.R. at 45; C.R. at 095-096)
The Punishment ·(Judge) ............... 360 Days in County Jail, Probated for 20 Months
(5 R.R. at 59-60; C.R. at 095-096)
1
STATEMENT OF FACTS
At approximately 1:47 one morning, as Officer Putman sat in his car in a
parking lot with his windows down working on reports, he heard a male and a
female arguing nearby (4 R.R. at 16-17, 77-89, 102-03, 110). Officer Putman saw
a male standing near a car stopped in the far right lane on Eldorado Parkway a
short distance from where Eldorado intersects with Legacy Drive (4 R.R. at 17, 64,
97-98). The male appeared upset and was using profanity, and the female was
walking west on Eldorado away from the car (4 R.R. at 17, 64, 66). Officer Putman
began putting his paperwork away and subsequently saw the car move from
Eldorado, tum right onto Legacy, and then stop on Legacy (4 R.R. at 17, 90-91, 97,
110-11 ). The female was still walking west on Eldorado (4 R.R. at 17-18,
97-99, 111).
Once Officer Putman had put his paperwork aside, he drove past the car
where it was parked on Legacy (4 R.R. at 18, 96, 98, I 04, I 07-08). The male,
Appellant, was now outside by the driver's side of the vehicle and he then
appeared to walk after the female, his wife (4 R.R. at 19-20, 63-64, 66, 77, 98). At
some point, however, Appellant's path changed, and he trotted across Eldorado
and went behind a trailer where he appeared to be hiding (4 R.R. at 20-21, 23 ).
When Officer Putman made contact with him, Appellant seemed really flustered
and the officer could immediately smell an alcoholic beverage on him (4 R.R.
2
at 23, 28, 99-100). Appellant told the officer that it had been a few hours since he
had had any alcohol, but he later told the officer that he was a nondrinker (4 R.R.
at 23). Appellant's shirt was wet and he told the officer that he had taken a big
drink and had spilled some (4 R.R. at 23-24, 27). Appellant's eyes were bloodshot
and glassy, and he slurred his words at times and spoke as though he was talking
with a thick tongue (4 R.R. at 27-28). Appellant became argumentative when the
officer began asking him questions about alcohol, and he told Officer Putman that
it was not against the law to be drunk in America (4 R.R. at 26-27; see 4 R.R.
at 31-32). He also refused to take any field sobriety tests (4 R.R. at 26-27).
Officer Putman arrested Appellant and took him to the department's Intoxilyzer
room where Appellant refused to give a breath specimen (4 R.R. at 28-31, 50-51;
see State's Exhibit l ).
3
SUMMARY OF THE STATE'S ARGUMENTS
State's Reply To Appellant's Point Of Error One
The evidence was sufficient to show that Appellant operated the vehicle as
there was evidence to support that Officer Putman saw Appellant get out of the
driver's seat after the car pulled up on Eldorado, get back into the car as the female
was walking, and make a tum. Additionally, Appellant's wife told an officer that
"I don't really get why he stopped the car. I told him to go ahead and go on and let
me walk."
4
STATE'S RESPONSE TO APPELLANT'S POINT OF ERROR ONE
(SUFFICIENCY)
Appellant's Contention
The evidence was legally insufficient to support the jury's gui lty verdict.
Specifically, the evidence was insufficient to show that Appellant operated
the vehicle.
State's Reply
The evidence was legally sufficient to show that Appellant operated
the vehicle.
Argument And Authorities
Standard of Review I Pertinent Law
When reviewing whether there was sufficient evidence to support a
conviction, an appellate court looks at the evidence presented in the light most
favorab le to the verdict and determines whether "any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
The jury is the sole judge of the witnesses' credibility and of the weight to be given
to their testimony and therefore, a reviewing court defers to the jury's
determinations on these matters rather than substituting its own judgment.
Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). When the evidence
5
in the record can support conflicting inferences, a reviewing court assumes that the
jury resolved the conflict in favor of the prosecution, regardless of whether that
resolution affirmatively appears on the record. Brooks, 323 S.W.3d at 900, n.13
(quoting Jackson, 443 U.S. at 326).
Although the Penal Code does not define the word "operate," for sufficiency
reviews, a person '"operates' a vehicle when 'the totality of the circumstances [ ]
demonstrate that the defendant took action to affect the functioning of his vehicle
in a manner that would enable the vehicle's use."' Kirsch v. State, 357 S.W.3d 645,
650-51 (Tex. Crim. App. 2012) (quoting Denton v. State, 911 S.W.2d 388, 390
(Tex. Crim. App. 1995)); see Priego v. State, 457 S.W.3d 565, 569 (Tex.
App.- Texarkana 2015, pet. ref'd) (stating that term operating is
interpreted broadly).
The evidence was legally sufficient to support the jury's guilty verdict.
The evidence adduced at trial was sufficient to show that Appellant operated
1
the vehicle. Although Officer Putman said he did not see, or could no longer
remember seeing, Appellant get out of the driver's seat and/or car at the time of
trial, during a license suspension hearing, and during a motion-to-suppress hearing
(2 R.R. at 10, 22-23; 4 R.R. at 60-64, 73-77, 100-102, 108-110), he can be heard
on the recording from his patrol car at the time of the offense - approximately
Appellant does not challenge the jury's finding that he was intoxicated.
6
three-and-a-half years before trial - telling Appellant that he saw him get out of the
driver's seat and telling another officer that he saw Appellant get out of the
driver's seat after the car pulled up on Eldorado, and then saw him get back into
the car as the female was walking and make "that tum right there, trying to cut her
off' (see State's Exhibit 2 [Putman's In Car Video] at 02:01 :56, 02:03:56). 2
Officer Putman testified at trial that the statements he made on the video were
accurate and that one's memory was typically better at the time the actual events
were occurring (4 R.R. at 102). Additionally, Officer Putnam included in his
report, made within hours of the offense, that he observed Appellant get out of the
driver's side of the vehicle (4 R.R. at 73-76, I 09-110). And Officer Putman was
still sure at the time of trial that he saw Appellant standing by the driver's side of
the vehicle when his wife was walking across the road (4 R.R. at 77). He also
testified that he saw the vehicle moving when the female was not in it (4 R.R.
at 100, 111).
Officer Tyler Tibbitts also testified at trial (4 R.R. at 123). When he arrived
on the scene he was prompted to find and make contact with Appellant's wife
(4 R.R. at 126; State's Exhibit 4 [Tibbitts' In Car Video]). On the recording from
Tibbitts' patrol car, Appellant's wife can be heard telling Tibbitts that she was
2
Appellant said "you didn't see me driving while intoxicated" to which
Officer Putman responded "Yes sir I did. I was in the parking lot when you two got in
your argument and you got out of the driver's seat of that car." (State's Exhibit 2
at 02:01 :56).
7
walking home and had wanted Appellant to drive home (State's Exhibit 4 at
01 :54:00) and that "I don't really get why he stopped the car. I told him to go
ahead and go on and let me walk." (State's Exhibit 4 at 01 :54:26). The evidence
was sufficient to show that Appellant operated the vehicle. See Dickson v. State,
642 S.W.2d 185 (Tex. App.- Houston [14th Dist.] 1982, pet. ref'd.) (evidence
supported an inference that defendant was operating the vehicle where appellant
was seen exiting the driver's side door immediately after the vehicle came to a
stop); see also Middlebrook v. State, 803 S.W.2d 355, 360 (Tex. App.-Fort Worth
1990, pet. ref'd); Duenez v. State, 735 S.W.2d 563, 566 (Tex.
App.-Houston [14th Dist.] 1987, pet. ref d); Carrasquillo v. State,
No. 01-10-00217-CR, 2011 Tex. App. LEXIS 8943 , at **15-19 (Tex.
App.- Austin Nov. 10, 2011, pet. dism'd) (not designated for publication);
Santos v. State, No. 01-94-01063-CR, 1995 Tex. App. LEXIS 3079 (Tex.
App.-Houston [1st Dist.] Dec. 7, 1995, no pet.) (not designated for publication).
Further, although Appellant repeatedly told Officer Putman that he had not
been driving and that the officer had not seen him driving, Appellant made several
inconsistent statements to Officer Putman from which a jury could have questioned
his credibi lity. For example, it is clear from the evidence admitted at trial that
Appellant was intoxicated, but Appellant went from telling the officer that he had a
few drinks a few hours before and saying that there was nothing illegal about being
8
drunk in America, to telling the officer that he was a non-drinker (see 4 R.R. at 23;
State's Exhibit 2 at 01:52:34, 01:53:14, 02:00:41). Appellant also went from
saying that his wife had driven the car to saying that she had not driven the car
(State's Exhibit 2 at 01 :53 :56, 02:06:06). Additionally, Appellant denied that the
car was even his (4 R.R. at 28; State's Exhibit 2 at 01:52:00, 01:54:00, 02:06:19). 3
Further, the evidence supports that Appellant attempted to hide from
Officer Putman when the officer began to investigate the disturbance (see 4 R.R.
at 19-21, 23; State's Exh.ibit 2 at 01:50:00, 01:51:32, 01:55:11, 02:04:21). The
jury could have inferred Appellant's consciousness of guilt from his efforts to
avoid apprehension. See Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App.
1994), overruled in part on other grounds by Tennard v. Dretke, 542 U.S. 274,
124 S. Ct. 2562, 159 L. Ed. 2d 384 (2004) (holding that evidence of flight is
admissible as a circumstance from which a jury may draw an inference of guilt);
Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997)
(en bane) (same).
Accordingly, the State requests that this Court overrule Appellant's sole
point of error.
3
His wife later testified that the car actually belonged to a friend (4 R.R.
at 161-162).
9
CONCLUSION AND PRAYER
Appellant's trial was without reversible error. The State prays that
Appellant's conviction and sentence be affirmed.
Respectfully submitted,
PAUL JOHNSON
Criminal District Attorney
Denton County, Texas