Richard Cadena v. State

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RICHARD CADENA,                                          )

                                                                              )     No.  08-05-00158-CR

Appellant,                          )

                                                                              )                     Appeal from the

v.                                                                           )

                                                                              )     168th District Court

THE STATE OF TEXAS,                                     )

                                                                              )     of El Paso County, Texas

Appellee.                           )

                                                                              )     (TC# 20040D02265)

                                                                              )

O P I N I ON

Richard Cadena appeals his conviction for felony driving while intoxicated.  The jury found Appellant guilty of the offense and the trial court assessed punishment at 10 years= imprisonment, probated to 10 years= of community supervision.  In two issues, he challenges the legal and factual sufficiency of the evidence to sustain his conviction and contends the trial court erred in allowing the State to present testimony regarding oral statements made by Appellant after his arrest. We affirm.

On April 10, 2004, El Paso Police Officer Richard Orozco responded to a dispatch for a two-vehicle accident occurring around the 10700 block of Rushing and Seguin. When he arrived, he saw two vehicles in the parking lot of the convenience store at that location.  One was a Gray Refrigeration truck and the other was an SUV.  Officer Orozco identified Appellant as the driver of the Gray Refrigeration truck. Other people at the scene were Sheila Frye, her husband and children, and Appellant=s wife.  Sheila Frye and the other people standing by were pointing towards Appellant. Ms. Frye was distraught and very concerned.  That was when Officer Orozco observed Appellant.  Appellant was leaning up against his vehicle, next to his driver=s side door swaying back and forth. Appellant looked like he could not stand on his own and appeared to be intoxicated.  Appellant=s eyes were Aglossy.@ Officer Orozco smelled a strong odor of alcohol coming from Appellant=s person and observed that Appellant=s speech was slurred.  Officer Orozco asked Appellant if he was okay.  In response, Appellant stated, A[d]ude, just got involved in a car accident.  I=ve had a few beers.  I only live a few blocks away from here.  Don=t call the cops.@  Officer Orozco was wearing his police uniform at the time.

After talking to Appellant, Officer Orozco believed he was highly intoxicated by alcohol.  The officer contacted Officer Charles Walker of the DWI task force.  At the time, Officer Orozco noticed a woman at the scene crying and very upset.  He later learned that this woman was Appellant=s wife.^[1]  When Officer Walker arrived, he took over the interview with Appellant and Officer Orozco began talking to Sheila Frye, who told him what had happened.  Officer Orozco did an accident report.  In his testimony, Officer Orozco admitted that when he arrived at the scene he did not know, in fact, that Appellant was driving the vehicle.  Officer Bion Bell, who arrived to assist Officer Orozco, testified that he saw Officer Orozco in the parking lot with the two vehicles involved in the car accident--Appellant=s vehicle and the vehicle that he ran into. Officer Bell, however, conceded that he did not witness the accident.

Officer Charles Walker testified that when he arrived at the scene, Officer Orozco was standing with Appellant next to the open door of the refrigeration van.  Officer Walker directed Appellant to a place in front of his patrol car so that he could ask Appellant to perform a series of field sobriety tests.  Officer Walker noticed that Appellant was staggering, had unsteady balance, and could hardly stand up without stumbling.  Appellant=s speech was slurred and he had bloodshot eyes.  Officer Walker smelled a very strong odor of an alcoholic beverage on Appellant=s breath.  He also noted that Appellant was swaying and his eyes had a droopy, sleepy, groggy appearance to them.

Appellant refused to perform the field sobriety tests. Officer Walker read Appellant the DIC-24 statutory warning form and then requested a breath sample.  Appellant refused to take the breath test, and at that time, he was arrested, handcuffed, put into the patrol car, and taken to the police station.  At the station, Officer Walker took Appellant to the intoxilyer room, removed the handcuffs, advised Appellant that he was in an audio and video-recording room, and again asked Appellant to perform the field sobriety tests.  Appellant again refused to perform the tests.  The videotape showed Appellant swaying, stumbling, and unable to stand in one spot.  Officer Walker described Appellant=s speech as very slow and sluggish and he was stuttering badly.  Officer Walker concluded the interview when Appellant began complaining of an asthma attack.  Based on his experience and observations, Officer Walker formed the opinion that Appellant did not have normal use of his physical or mental faculties because of alcohol consumption.

With regard to the vehicle at the scene, Officer Walker testified that the VIN number of the vehicle, a 2004 E-250 white van, was 1FTN24L5YHB03483 with Texas license plate number 3MDP23.  Officer Bell recalled that he remained at the scene until a Gray Refrigeration representative arrived and released the vehicle to one of its employees.

Kare Waretin, office manager and controller of Gray Refrigeration, testified that Appellant was an employee of the company for about one year.  On the date of the alleged offense, Appellant was working as a heating and cooling technician, a job which involved a lot of driving.  The company=s truck number 45, with VIN number 1FTN24L5YHB03458, had been issued to Appellant during the month of April.  Ms. Waretin stated that on April 12, Appellant came into her office and told her that he had been pulled over and cited for DWI, but was not guilty and had refused to take the breathalyzer test.  He told her that the police officer thought he was intoxicated because of the medication he was currently taking.  He did not tell her that he had been involved in an accident.  Ms. Waretin stated that no auto insurance claim was filed and no post-accident drug test was done--two activities which would have been indicative of an accident.  According to Ms. Waretin, technicians, such as Appellant, who have a van or truck checked out to them, are absolutely not suppose to allow other people to drive those vehicles.

In his defense, Appellant presented evidence that he had various medical conditions, including a speech impediment, anxiety, depression, and a herniated disk, some of which required him to take medication.  Appellant=s wife testified that in April 2004, Appellant was taking librim and Effexor for his anxiety; Nexium for his heartburn; hydrocodone and Ultracet, for his back pain; and Zyrtec for his allergies.  According to his wife, Appellant did not take his medications on the day of his arrest.  Between 11 and 11:30 a.m., she observed Appellant drinking a 24-ounce can of Bud Light. She did not see him drink anything else before he left the house at 12:30.  Defense counsel argued that the indicators observed by the police and interpreted as being due to intoxication were instead caused by a nervous condition and other ailments.

In Issue One, Appellant contends that the evidence is legally and factually insufficient because the State failed to present evidence that he operated a motor vehicle.

In reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Hernandez v. State, 946 S.W.2d 108, 110-11 (Tex.App.--El Paso 1997, no pet.).  We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact.  See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991).  Instead, our duty is to determine whether if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict.  See Adelman, 828 S.W.2d at 421-22.  In so doing, any inconsistencies in the evidence are resolved in favor of the verdict.  Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct and circumstantial evidence cases. Earhart v. State, 823 S.W.2d 607, 616 (Tex.Crim.App. 1991); Geesa v. State, 820 S.W.2d 154, 158 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000).

In reviewing the factual sufficiency of the evidence, we must determine whether considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004).   Evidence can be factually insufficient if the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt.  Id. at 484-85.  Thus, balancing all the evidence, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met and the guilty verdict should not stand.  Zuniga, 144 S.W.3d at 485.  This standard acknowledges that evidence of guilt can Apreponderate@ in favor of conviction but still be insufficient to prove the elements of the offense beyond a reasonable doubt.  Id. Our evaluation, however, should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  See Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).  We will not set aside the judgment unless the evidence supporting the verdict is so weak as to be clearly wrong and manifestly unjust.  Zuniga, 144 S.W.3d at 481.  A clearly wrong and manifestly unjust verdict occurs where the jury=s finding Ashocks the conscience@ or Aclearly demonstrates bias.@ Id.  An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant=s complaint on appeal.  Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

Driving While Intoxicated

A person commits driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place.  Tex.Pen.Code Ann. ' 49.04(a)(Vernon 2003).^[2]  For this offense to be a felony, the State must show the defendant has two prior convictions relating to the operation of, inter alia, a motor vehicle while intoxicated.  Tex.Pen.Code Ann. ' 49.09(b)(2) (Vernon Supp. 2006).   Appellant does not contest the sufficiency of the evidence with regard to his intoxication.  Rather, Appellant contends the State failed to establish that he was driving or operating a motor vehicle.  Operation is found when the totality of the circumstances demonstrate that the defendant took action to affect the functioning of a vehicle in a manner that would enable the vehicle=s use. Denton v. State, 911 S.W.2d 388, 390 (Tex.Crim.App. 1995).  While driving involves operation, operation does not necessarily involve driving.  Id. at 389.

As Appellant notes, no witness testified to seeing Appellant behind the wheel at the time of an accident.  Instead, the State presented evidence that the police responded to a two-vehicle accident, the two vehicles being a Gray Refrigeration van and a sports utility van.  Appellant was observed leaning up against the Gray Refrigeration van, next to the open driver=s side door swaying back and forth. Bystanders, including Sheila Frye who was distraught and very concerned, were pointing towards Appellant when Officer Orozco arrived.  Appellant told Officer Orozco that he had just been involved in an accident.  The Gray Refrigeration van belonged to Appellant=s employer.  The vehicle at the scene was the same one issued to Appellant and no one else was supposed to be driving it.  From these facts, the jury could have reasonably inferred that Appellant was the driver of the refrigeration van because he was leaning against the open driver=s side door, the vehicle belonged to his employer and had been issued to him for his use only, and bystanders made a non-verbal statement that was intended to inform Officer Orozco that Appellant was at fault.  Further, the jury could have reasonably inferred from Appellant=s statement to Officer Orozco that he was the driver at the time of the accident because he was the only person allowed to drive the company van, which was one of only two vehicles involved in the accident.

With regard to Appellant=s statement admitting involvement in the accident, Appellant argues that the State failed to corroborate this extrajudicial confession.  Although driving while intoxicated may not be established solely on a defendant=s extrajudicial confession, it can aid in establishing the commission of the offense if there is corroborating evidence. Turner v. State, 877 S.W.2d 513, 515 (Tex.App.--Fort Worth 1994, no pet.), citing Self v. State, 513 S.W.2d 832, 835 (Tex.Crim.App. 1974).  Thus, in order to be sufficient evidence to sustain a conviction, the extrajudicial confession must be corroborated by other evidence tending to show that a crime was committed.  See Chambers v. State, 866 S.W.2d 9, 15 (Tex.Crim.App. 1993). All that is required is that there be some evidence which makes the commission of the offense more probable than it would be without the evidence.  See id. at 15-6; Gribble v. State, 808 S.W.2d 65, 70 (Tex.Crim.App. 1990).  Here, there was evidence that the vehicle at the scene was the vehicle issued to Appellant, which only Appellant was supposed to be driving.  This is some evidence that sufficiently corroborates Appellant=s extrajudicial statement.

Considering Appellant=s statement that he was just involved in an accident, along with other circumstantial evidence presented, we find that the evidence was sufficient for any rational trier of fact to find beyond a reasonable doubt that Appellant was driving or operating a motor vehicle while intoxicated.  Viewing the evidence in a neutral light, we conclude that the evidence was not too weak to support the guilty finding beyond a reasonable doubt.  Because the evidence is both legally and factually sufficient and Appellant=s extrajudicial confession was sufficiently corroborated, we overrule Issue One.

In his second issue, Appellant argues that the trial court erred in allowing the State to present testimony regarding Appellant=s oral statements made on videotape, even though the trial court had previously suppressed the audio portion of the tape because of its poor quality.^[3]

We review a trial court=s ruling to admit or exclude evidence under an abuse of discretion standard.  Sauceda v. State, 129 S.W.3d 116, 120 (Tex.Crim.App. 2004); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991)(Opin. on reh=g).  An abuse of discretion exists when the trial court=s decision was so clearly wrong as to lie outside the zone of reasonable disagreement, in other words, the trial court=s decision or action was arbitrary, unreasonable, and made without reference to any guiding rules or principles.  Montgomery, 810 S.W.2d at 391.

On cross-examination, defense counsel attacked Officer Walker=s credibility concerning his ability to determine that someone had been drinking an alcoholic beverage by smell.  During his testimony, Officer Walker conceded that non-alcoholic beverages like O=Doul=s have an odor similar to beer.  Officer Walker testified that he believed Appellant had had a beverage that contained alcohol, but admitted that he could not tell from the smell when somebody has had a drink.  Officer Walker also admitted that he did not ask Appellant if he had any medical condition or impairment that would prevent him from successfully completing the sobriety tests.

After the cross-examination, the State prosecutor sought to elicit testimony about particular statements made by Appellant to Officer Walker during the videotaped interview, notwithstanding the suppression of the audio track of the videotape at a pretrial hearing.  The State prosecutor argued that Appellant=s statements--that he had four beers and that he was not under a doctor=s care and his only medication condition was an injured finger--should be admitted to correct the false impression created by defense counsel in its cross-examination of Officer Walker.  The trial court allowed the State to ask Officer Walker questions about these statements.  Before the jury, Officer Walker testified that during the interview, he found out that Appellant had beer, specifically Appellant told him that he had four beers that were Bud.  Officer Walker also stated that Appellant mentioned having an injured finger and when Officer Walker had asked him whether or not he was under a doctor=s care, Appellant had said no.

Rule 107 of the Texas Rules of Evidence permits the introduction of otherwise inadmissible evidence when that evidence is necessary to fully and fairly explain a matter Aopened up@ by the adverse party.  See Tex.R.Evid. 107; Credille v. State, 925 S.W.2d 112, 116 (Tex.App.--Houston [14th Dist.] 1996, pet. ref=d); see also Sherman v. State, 20 S.W.3d 96, 101 (Tex.App.--Texarkana 2000, no pet.)(evidence used to fully explain a matter introduced by the other party need not ordinarily be admissible).

The record shows that Appellant attempted to impeach Officer Walker=s credibility as to basis for his opinion that Appellant had been drinking an alcoholic beverage and for his failure to ask Appellant about any medical condition or impairment that would affect the field sobriety tests.  See Tex.R.Evid. 607 (credibility of a witness may be attacked by any party).  Notwithstanding the inadmissibility of the audio portion of the videotape, the State was entitled to rehabilitate the credibility of Officer Walker=s testimony by showing that Appellant had told the officer that he had four beers and had told him that he was not under a doctor=s care and had no medical condition other than an injured finger--evidence that was on the same subject and was necessary to make the conversations fully understood.  See Sauceda, 129 S.W.3d at 123; Credille, 925 S.W.2d at 116.  Because counsel=s cross-examination of Officer Walker as to his knowledge of Appellant=s alcohol consumption and existing medical conditions created the possibility of confusion and false impressions with the jury, the trial court did not abuse its discretion in admitting the specific statements made by Appellant during the interview.  Issue Two is overruled.

We affirm the trial court=s judgment.

October 5, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

Barajas, C.J., Not Participating

(Do Not Publish)

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^[1] Appellant=s wife arrived at the scene sometime after the accident.

^[2] Intoxication is established by proof of either a blood alcohol concentration greater than .08 or more or the loss of normal use of mental and physical faculties due to 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.  See Tex.Pen.Code Ann. ' 49.01(2).   Appellant was charged with intoxication by not having the normal use of his mental and physical faculties.

^[3] At the suppression hearing, the trial court found that Appellant received the required warnings prior to making his oral statements at the police station and that his subsequent statements were freely and voluntarily given.  Nevertheless, the trial court suppressed the audio portion of the videotape because the voices of the officer and Appellant were not clearly identifiable on the audio track.