John Joseph Foster v. State

ACCEPTED
03-14-00252-CR
5220557
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/8/2015 5:46:34 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00252-CR
FILED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS
5/11/2015 3:00:00 PM
AT AUSTIN
JEFFREY D. KYLE
Clerk
JOHN JOSEPH FOSTER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
On Appeal from Trial Court Cause No. 13-05449-2
In the County Court at Law Number Two, Williamson County, Texas
Hon. Wilford Flowers, Presiding
STATE'S BRIEF
THE HONORABLE DEE HOBBS
WILLIAMSON COUNTY ATTORNEY
JAMES J. LAMARCA
Assistant County Attorney
Williamson County, Texas
State Bar No. 24074568
405 Martin Luther King,# 7
Georgetown, Texas 78626
PHONE: (512) 943-1111
FAX: (512) 943-1120
Attorney on Appeal for the State
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant
John Joseph Foster
Appellate Counsel for Appellant
Kristen Jernigan
207 S. Austin Avenue
Georgetown, Texas 78626
Trial Counsel for Appellant
Eve Alcantar-Schatelowitz
1704 San Antonio Street
Austin, Texas 78701
Jana Ortega
810 W. 18th Street
Austin, Texas 78701
Ed Walsh
405 Round Rock A venue
Round Rock, Texas 78664
Trial Counsel for the State
Brandon Dakroub
Warren Waterman
Assistant County Attorneys
Williamson County Attorney's Office
405 Martin Luther King Street, #7
Georgetown, Texas 78626
Appellate Counsel for the State
James J. LaMarca
Assistant County Attorney
Williamson County Attorney's Office
405 Martin Luther King Street, #7
Georgetown, Texas 78626
11
TABLE OF CONTENTS
Identity of Parties and Counsel ........ ................... ..... ....... .......................................... ii
Table of Contents .................. ... .... .................................................. .......... ................ iii
Table of Authorities .................................. ............... ..... ... ..... ................... ................ iv
Statement of the Case ............................................................ ............ ........................ 1
Statement of Facts ................... ....... ............ ... ............................................................ 1
Summary of the Argument ........................................................................................ 6
Argument .................................. ..................... ...................................................... ...... 7
STATE'S RESPONSE TO APPELLANT'S FIRST POINT OF ERROR ........... 7
STATE'S RESPONSE TO APPELLANT'S SECOND POINT OF ERROR .... 11
STATE'S RESPONSE TO APPELLANT'S THIRD POINT OF ERROR ........ 15
STATE'S RESPONSE TO APPELLANT'S FOURTH POINT OF ERROR .... 17
STATE'S RESPONSE TO APPELLANT'S FIFTH POINT OF ERROR ......... 20
Prayer .............. ........ ........ ................................................................................ ........ 22
Certificate of Compliance .................. .... ..... .... ........ .............. .................................. 24
Certificate of Service ..... ...................... ........ ............................................................ 24
JLI
TABLE OF AUTHORITIES
Cases
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) ....................... 13, 24, 25
Arizona v. Fulmanante, 499 U.S. 279 (1991) ......................................................... 13
Bagheri v. State, 329 S.W.3d 23 (Tex. App. San Antonio 2010) ........................... 25
Baker v. State, 177 S.W.3d 113 (Tex. App.- Houston [1st Dist.] 2005 no pet.) ... 25
Barrientes v. State, No. 03-08-0010 1-CR, 2009 Tex. App. LEXIS 1915 (Tex. App.
-Austin, March 18. 2009, pet. ref d) (not designated for publication) ........ 21,24
Batiste v. State, 888 S.W.2d 9 (Tex. Crim. App. 1994) .......................................... 13
Blackshear v. State, 385 S.W.3d 589 (Tex. Crim. App. 2012) ............................... 12
Brecht v. Abrahamson, 507 U.S. 619 (1993) ........................................................... 12
Camacho v. State, 864 S.W.2d 524 (Tex. Crim. App. 1993) ........... .. .......... ...... .... 25
Chambers v. State, 805 S.W.2d 459 (Tex. Crim. App. 1991) .......................... 16, 18
Clayton v. State, 235 S.W.2d 772 (Tex. Crim. App. 2007) .................................... 15
Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993) .................................. 22,23
Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007) ................................... 26
Doyle v. Ohio, 426 U.S. 610 (1976) ............................................................ .... ........ 11
Estrada v. State, 313 S.W.3d 274 (Tex. Crim. App. 2010) .............................. 13,20
Eun Chae v. State, No. 13-12-00655-CR, 2013 Tex. App. LEXIS 11346 (Tex.
App.- Corpus Christi, September 5, 2013, no pet.) (not designated for
publication) ........ ........... ............. ............................................................... ........... 23
Fletcher v. Weir, 455 U.S. 603 (1982) .................................................................... 11
IV
Ford v. State, 305 S.W.3d 530 (Tex. Crim. App. 2009) .... ..................................... 12
Franklin v. State, 693 S.W.420 (Tex. Crim. App. 1985) .................................. 12, 14
Green v. State, 934 S.W.2d 92 (Tex. Crim. App. 1996) ................................... 19, 22
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ........................................ 15
Jackson v. Virginia, 443 U.S. 307 (1974) ..................................... .......................... 15
Miranda v. Arizona, 384 U.S. 436 (1966) ........... ......................... .......................... 11
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ................ 19, 20, 22
Orona v. State, 791 S.W.2d 125 (Tex. Crim. App. 1990) ...................................... 14
Poole v. State, 974 S.W.2d 892 (Tex. App.- Austin 1998, pet. ref d) ...... 20, 21,24
Porter v. State, 709 S.W.2d 213 (Tex. Crim. App. 1986) ...................................... 26
Rey v. State, 897 S.W.2d 333 (Tex. Crim. App 1995) ............................................ 13
Sanchez v. State, 707 S.W.2d 575 (Tex. Crim. App. 1986) .................................... 12
Sarinana v. State, No. 03-13-00167-CR, 2014 Tex. App. LEXIS 9524 (Tex. App.-
Austin, August 27, 2014, pet. ref d.) (not designated for publication) ...... ......... 23
Tex. Dep't ofPub. Safety v. McHugh, 2014 Tex. App. LEXIS 11733 (Tex. App.-
Austin, Oct. 24, 2014, no pet.) ............................................................................. 25
Urtado v. State, 333 S.W.3d 418 (Tex. App.- Austin 2011, pet. ref d) ................ 13
Webb v. State, 760 S.W.2d 263 (Tex. Crim. App. 1988) ........................................ 20
Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) ................................... 26
Wheatfallv. State, 882 S.W.2d 829 (Tex. Crim. App. 1994) .... ..... ........................ 14
v
Statutes
TEX. CODE. CRIM. PROC. art 38.08 ................. .... ... ... .. .. .......... ............ ... .. ..... ... .. ...... 12
TEX. PEN. CODE §49.04(a) .... ..... ......... .............. ............ ......... ............ ..... ..... ...... ... ... 16
Rules
TEX. R. APP. P 44.2(a) ............................................................................................. 14
TEX. R. APP. P. 33.1 ... ..... ... ................................. ............. .... ................. .. ...... ..... ...... 13
TEX. R. APP. P. 38.2(a)(l)(B) .......... .. ............................. .... ..................................... .. 5
TEX. R. APP. P. 9.4(i)(2)(C ................. ................. ................ ..................... ..... .......... 28
TEX. R. EVID. 401 .............. ............. ... ..... ...... .. .......................... .. ......... .... ................ 20
TEX. R. EVID. 402 .............. ................. ... .. ... ........................... .... ... ....... .. ............... ... 20
TEX. R. EVID. 403 .. .... ..................................................... ... ................. ......... ............ 20
Constitutional Provisions
TEX. CONST. art. I §10 ............................................................................................. 12
Vl
STATEMENT OF THE CASE
Appellant's brief contains a satisfactory statement of the case. See TEX. R.
APP. P. 38.2(a)(l)(B).
STATEMENT OF FACTS
On June 29, 2013, at approximately 11:00 p.m., Grayson Kennedy, an off-
duty deputy with the Williamson County Sheriffs Office, observed a vehicle he
later learned was driven by Appellant, rapidly approach his car and almost strike it
as he passed. (RR4: 111-12). He also observed Appellant run a red light. (RR4:
113). At that point, Dep. Kennedy called the Cedar Park Police Department to
report Appellant's hazardous driving. (RR4: 113). At trial, a recording of that
phone call was entered into evidence as State's Exhibit 1 and played for the jury.
(RR4: 121). During the call, Dep. Kennedy stated that Appellant was going in
excess of 75 miles per hour in a 60 mile per hour zone. (RR4: 122). Appellant then
continued to go through a red light without slowing down. (RR4: 123-24). When
Appellant left the city limits of Cedar Park, Dep. Kennedy called the Williamson
County Sheriffs Office to inform them of Appellant's hazardous driving. (RR4:
124). At trial, a recording of that phone call was entered into evidence as State's
Exhibit 2 and played for the jury. (RR4: 125). During this phone call, and again on
direct examination, Dep. Kennedy stated that while he was trying to follow
1
Appellant, he was going 90 miles per hour and Appellant was pulling away from
him. (RR4: 126). Again, this all took place in a 65 mile per hour zone. (RR4: 126).
During all of this, Dep. Kennedy observed Appellant commit additional traffic
violations, including failing to dim his bright headlights, and failing to maintain a
single lane. (RR4: 129-30). Appellant's traveling in excess of the speed limit
continued along the I-35 frontage road, and on to I-35 itself, reaching speeds in
excess of 100 miles per hour. (RR4: 135, 137, 140). Appellant also continued to be
unable to maintain a single lane, and failed to signal his lane changes. (RR4: 136,
139). Ultimately, Trooper Joseph Stuart with the Department of Public Safety was
able to stop Appellant. (RR4: 143). Trooper Stuart did not personally observe
Appellant commit any traffic violations. (RR5: 21 ).
When Trooper Stuart made contact with Appellant, he noticed that
Appellant's car smelled of alcohol. (RR4: 176). Upon being asked whether he had
been drinking, Appellant admitted that he had a beer and another drink, starting at
approximately 7:00 that night. (RR4: 179). He reiterated this response later on,
clarifying that the second drink was a vodka drink. (RR4: 201). Trooper Stuart then
administered standardized field sobriety tests on Appellant, beginning with the
Horizontal Gaze Nystagmus test. (RR4: 188). While the test normally consists of
three parts, yielding a total of six possible clues of intoxication, Trooper Stuart
admitted that he forgot to conduct the last part. (RR4: 188). Nevertheless, the other
2
two parts of the test yielded four clues of intoxication, the threshold number of
clues that indicate intoxication. (RR4: 189). Trooper Stuart then administered the
Walk and Tum test, yielding a total of two clues, meeting the threshold number of
clues to indicate intoxication. (RR4: 197). The Walk and Tum test was followed by
the One Leg Stand test, which also yielded a total of two clues, also meeting the
threshold number of clues to indicate intoxication. (RR4: 197). After these tests,
Trooper Stuart came to the conclusion that Appellant was intoxicated and placed
him under arrest. (RR4: 201, 206). Before placing him under arrest, Trooper Stuart
allowed Appellant to sit in his car. (RR4: 198-99). Also before placing Appellant
under arrest, Trooper Stuart turned his body microphone off for about 20 seconds.
(RR4: 201). He testified at trial that during this time, nothing was said. (RR4: 202).
Trooper Stuart then had a conversation with Trooper Nathaniel Head who was
assisting in keeping the scene safe, about what he should do. (RR4: 202). At one
point Trooper Stuart told Trooper Head that "the clues weren't solid." (RR4: 204).
At trial, Trooper Stuart explained that he meant that he had the minimum number
of clues on each test, not that he was not sure that the clues existed. (RR4: 204).
Trooper Head also testified that he had an opportunity to view the video of Trooper
Stuart's investigation, and based on what he saw, that he would have made the
same decision to arrest Appellant. (RR5: 58-59). Trooper Stuart proceeded to arrest
Appellant and transported him to the Williamson County Jail. (RR5: 6)
3
Upon arrival at the jail, Trooper Stuart brought Appellant to the intoxilyzer
room where he obtained a sample of Appellant's breath. (RR5: 6-7). At trial,
Trooper Stuart testified that continuously observed Appellant the required 15
minutes before beginning the test. (RR5: 9). The circumstances of that 15 minute
waiting period were a point of contention at trial. At a pre-trial hearing, Trooper
Stuart testified that he watched the Appellant in the intoxilyzer room through a
window for the required period of time. (RR2: 61). He also stated that there was
another certified intoxilyzer operator in the room with Appellant. (RR2: 64). At
trial, Trooper Stuart admitted that he had not remembered the events of that night
correctly during the pre-trial hearing and that there was no window and no other
operator. (RR5: 13 ). He admitted to his errors, and stated that he did in fact stay
with Appellant through the observation period. (RR5: 14).
After the required 15 minute observation period, Appellant gave two
samples of his breath, which showed blood alcohol concentrations of 0.092 and
0.090, above the legal limit of 0.080. (State's Exhibit 10). Appellant was then
booked into the Williamson County Jail by Lieutenant Dwayne Williams. (RR5:
73 ). During the intake process, Lieutenant Williams noted that Appellant was upset
and apologetic. (RR5: 73). He also smelled an odor of alcohol on Appellant's
breath. (RR5: 74, 77).
4
At trial, the State called Zack Kilborn, the breath testing technical supervisor
with the Department of Public Safety in Austin. (RR5: 79). Mr. Kilborn is
responsible for the maintenance of the breath testing instruments in the Central
Texas area. (RR5: 70). At the time of Appellant's test, the instrument he used was
completely operational. (RR5: 85). Copies of the instrument records were admitted
into evidence without objection. (RR5: 88). Mr. Kilborn explained exactly how the
instrument worked and why the results were completely reliable, including the
functioning of any safeguards against radio, chemical, or other interference. (RR5:
88-99, 103-105).
The Appellant called a number of witnesses as well, including A.J. Keirn, a
private investigator who challenged Deputy Kennedy's timeline of events. (RR5:
127). Essentially, Mr. Keirn testified that by his testing and driving the same route
as Appellant and Dep. Kennedy, he arrived at the locations described by Dep.
Kennedy at different times than Dep. Kennedy testified to. (RR5: 136-37).
Additionally, Appellant called Charles Foster, a retired peace officer, who testified
that he reviewed the patrol video from Trooper Stuart taken on the night of the
arrest. (RR5: 145-46). Mr. Foster alleged that Trooper Stuart made mistakes in
conducting the tests and giving instructions which, according to Mr. Foster,
invalidated the tests. (RR5: 149-50, 159). Deputy Deanna Lewis testified that
Trooper Stuart could not have watched Appellant through the intoxilyzer room
5
window as he stated he had when testifying at the pre-trial hearing. (RR5: 183).
Finally, Appellant called Mary Catherine McMurray, an expert and independent
consultant on the Intoxilyzer 5000. (RR6: 5). Ms. McMurray testified that she did
not believe that the breath tests were reliable for reasons including an alleged
failure to check for potential outside interference, such as radio interference, even
though the instrument would not give a reading if there was interference. (RR6: 12,
RR5: 103-04). She also believed that the instrument was not properly calibrated.
(RR6: 23). After Ms. McMurray's testimony, the defense rested and closed.
SUMMARY OF THE ARGUMENT
Appellant's first point of error should be overruled because while the State
made an alleged comment on Appellant's right to remain silent, Appellant failed to
preserve error by a proper objection and brings this point for the first time on
appeal. A proper objection is a prerequisite to alleging that the State commented on
a defendant's silence. Furthermore, even if there was error, said error would have
been harmless.
Appellant's second point of error should be overruled because there was
more than sufficient evidence that Appellant was intoxicated by loss of the normal
use of his physical and mental faculties, including his poor driving and the results
of the standardized field sobriety tests. Additionally, there was evidence that
6
Appellant's blood alcohol concentration was greater than 0.080, as evidenced by
the results of his breath test, showing a blood alcohol concentration of 0.092 and
0.090.
Appellant's third and fourth points of error should be overruled as the trial
court did not abuse its discretion in admitting the recordings of Deputy Kennedy's
phone calls. The phone calls were relevant substantive evidence of Appellant's
intoxication and constituted same-transaction contextual evidence. Additionally,
Appellant has shown no case law that shows the suppression of similar evidence in
similar situations.
Appellant's fifth point of error should be overruled because the evidence of
Appellant's bad driving was same-transaction contextual evidence and such
evidence is not subject to a limiting instruction.
ARGUMENT
I. STATE'S RESPONSE TO APPELLANT'S FIRST POINT OF ERROR
The United States Constitution prohibits the State from commenting on a
defendant' s post-arrest silence once they are given their Miranda warnings. 1 Doyle
v. Ohio, 426 U.S. 610, 617-18 (1976); Fletcher v. Weir, 455 U.S. 603, 607 (1982).
This prohibition arises from the unfairness of assuring a suspect they have the right
1
Miranda v. Arizona, 384 U.S. 436 (1966).
7
to remain silent, and then using that silence against him. Brecht v. Abrahamson,
507 U.S. 619, 628 (1993). The United States Constitution does not however
prohibit the use of a defendant's pre-Miranda silence. Fletcher v. Weir, 455 U.S. at
606-07.
Unlike the United States Constitution, the Texas Constitution prohibits the
State from using any of the defendant's post-arrest silence, whether or not Miranda
warnings had been given. Sanchez v. State, 707 S.W.2d 575, 579-80 (Tex. Crim.
App. 1986). Use of such silence is a violation of the prohibition against self-
incrimination. See Tex. Const. art. I § 10; Tex. Code. Crim. Proc. art 38.08; see also
Franklin v. State, 693 S.W.420, 428 (Tex. Crim. App. 1985)(Article 38.22 of the
Texas Code of Criminal Procedure has consistently been construed as prohibiting
proof of an accused's silence while under arrest and which tends to communicate
thoughts of the defendant of an incriminating nature).
A threshold requirement for presenting a point of error on appeal is the
preservation of that error at the trial court. See Blackshear v. State, 385 S.W.3d
589, 590 (Tex. Crim. App. 2012), citing Ford v. State, 305 S.W.3d 530, 533 (Tex.
Crim. App. 2009). If an issue has not been preserved for appeal, the court of
appeals should not address that issue. Ford, 305 S.W.3d at 533. In order to
preserve a complaint for appellate review, the record must show that the complaint
was made to the court by timely objection, request, or motion, and the trial court
8
ruled on the objection, request, or motion. TEX. R. APP. P. 33.1. If a party fails to
object, any alleged error has been waived. Estrada v. State, 313 S.W.3d 274, 302-
03 (Tex. Crim. App. 2010); see Urtado v. State, 333 S.W.3d 418, 426 (Tex. App.-
Austin 2011, pet. ref d).
There are exceptions to the above rule. Some error is of such magnitude as
to constitute a "structural defect affecting the framework within which the trial
proceeds." Arizona v. Fulmanante, 499 U.S. 279, 309-10 (1991); Rey v. State, 897
S.W.2d 333, 344-45 (Tex. Crim. App 1995). When such error occurs, an objection
is not necessary to preserve it. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1985). The great majority of constitutional errors are not structural errors.
Batiste v. State, 888 S.W.2d 9, 13 (Tex. Crim. App. 1994). Structural error only
occurs when the error strips a defendant of basic protections without which a
criminal trial cannot reliably determine guilt or innocence. Fulmanante, 499 U.S.
at 309-10. Some examples of such error include the denial of the right of self-
representation, denial of the right to a public trial, and denial of the right to
assistance of counsel. !d.
The State's comment on a defendant's post-arrest silence is not an exception
to the requirement that the complaining party preserve error. Error from a comment
on post-arrest silence can be waived by failing to properly object. Franklin, 693
9
S.W.2d at 428; see also Wheatfall v. State, 882 S.W.2d 829, 836 (Tex. Crim. App.
1994), cert denied, 513 U.S. 1086 (1995).
In the instant case, Appellant made no objection to the State's question about
Appellant's silence at the jail. Therefore, Appellant has failed to preserve and
waived any alleged error and cannot bring it up for the first time on appeal.
Furthermore, even if Appellant had objected, any alleged error would have
been harmless. TEX. R. APP. P 44.2(a) states that in a case of constitutional error,
"the court of appeals must reverse a judgment of conviction or punishment unless
the court determines beyond a reasonable doubt that the error did not contribute to
the conviction or punishment." When performing this analysis, a court is to
consider the following factors: (1) the source of the error; (2) the nature of the
error; (3) whether the error was emphasized and its probable collateral
implications; (4) the weight a juror would probably place on the error; and (5)
whether declaring the error harmless would encourage the State to repeat it with
impunity. Orona v. State, 791 S.W.2d 125, 130 (Tex. Crim. App. 1990). The
State's question was asked in a line of questioning regarding additional statements
made by Appellant. No objection was made to draw attention to the comment.
Additionally, the State never brought up that question or Appellant's silence any
other time throughout the trial. Given the additional evidence of Appellant's guilt,
including Appellant's blood alcohol concentration of 0.092/0.090, it is highly
10
unlikely that the jury put any weight at all on that comment when reaching their
verdict. For the foregoing reasons, Appellant's first point of error should be
overruled and denied.
II. STATE'S RESPONSE TO APPELLANT'S SECOND POINT OF
ERROR
An appellate court rev1ewmg the legal sufficiency of the evidence
supporting a conviction must determine whether any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt, viewing
the evidence in the light most favorable to the State. Jackson v. Virginia, 443 U.S.
307, 318-19 (1974); Clayton v. State, 235 S.W.2d 772, 778 (Tex. Crim. App.
2007). This standard places full responsibility on the trier of fact to resolve
conflicts in the testimony, weigh the evidence, and draw reasonable inferences
from basic facts to ultimate facts. Jackson, 443 U.S. at 319. An appellate court
engaging in a legal sufficiency review must only determine whether the inferences
drawn by the trier of fact are reasonable "based upon the combined and cumulative
force of all the evidence when viewed in the light most favorable to the verdict."
Clayton, 235 S.W.3d at 778 (quoting Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.
Crim. App. 2007)).
To convict Appellant for driving while intoxicated, the State had to prove
beyond a reasonable doubt that appellant was intoxicated while operating a motor
11
vehicle in a public place. See TEX. PEN. CODE §49.04(a). "Intoxicated" means: "(a)
not having the normal use of mental or physical faculties by reason of the
introduction of alcohol, a controlled substance, a drug, a dangerous drug, or a
combination of two or more of those substances or any other substance into the
body; or (b) having an alcohol concentration of 0.08 or more. See id; § 49.01(2).
As will be seen below, there was more than sufficient evidence for the jury to
convict Appellant for Driving While Intoxicated.
Appellant's argument that there was insufficient evidence for a Jury to
determine that he was intoxicated consists of three parts: (1) Trooper Stuart was
unbelieveable and unreliable in his testimony; (2) Trooper Stuart's handling of the
standardized field sobriety tests was incorrect; and (3) the breath test results were
unreliable. (Appellant's Brief at p. 16-19).
The jury, as fact finder, is entitled to judge the credibility of the witnesses,
and can choose to believe all, some, or none of the testimony presented by the
parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). While
Trooper Stuart testified differently at the pre-trial hearing than at trial, he explained
his previous answers, and testified that his testimony at trial was correct. (RR5: 13-
14 ). Trooper Stuart testified that he was confused during the pre-trial hearing but
was then sure that his trial testimony was true and correct. It is reasonable that the
12
JUry decided to believe Trooper Stuart's trial testimony, even given his pnor
statements.
Even if Trooper Stuart's testimony was not believable, there was sufficient
other evidence that the jury could have used to believe beyond a reasonable doubt
that Appellant was intoxicated. First of all, the reckless driving, speeding, and
numerous traffic violations observed by Dep. Grayson show either that Appellant
had lost the normal use of his mental faculties, physical faculties, or both.
Additionally, Trooper Nathaniel Head, testified that while he had not seen the
standardized field sobriety tests in person, given what he knew about Appellant's
bad driving and having seen video of the tests, would have concluded that
Appellant was intoxicated (RR5: 58-59). Lt. Dwayne Williams testified that
during the booking process, he could smell an odor of alcohol on Appellant. (RR5:
74). He further testified on cross-examination that the odor was coming from his
breath. (RR5: 77). He explained that he knew it was from his breath based on the
distinct odor he was familiar with through his experience booking people into jail
for driving while intoxicated and public intoxication. (RR5: 77). Lt. Williams also
described Appellant as apologetic and disappointed. (RR5: 73-74).
Furthermore, Appellant gave two samples of his breath, the first of which
showed his blood alcohol concentration to be 0.090 and the second of which
showed the concentration to be 0.092. (RR5: 90; State's Exhibit 10). Both of these
13
tests showed a blood alcohol concentration higher that the legal limit of 0.080.
Therefore, by the definition of intoxication set forth in TEX. PEN. CODE 49.01,
Appellant was legally intoxicated. Appellant tries to argue that the results of the
test should be discredited because their own expert witness testified that in her
opinion the test results were unreliable. (RR6: 23). However, the technical
supervisor testified that the Intoxilyzer 5000 used in this case was reliable,
calibrated properly, and results could be relied on. (RR5: 79-105). Again, the jury,
as fact finder, is entitled to judge the credibility of the witnesses, and can choose to
believe all, some, or none of the testimony presented by the parties. ChambersL_at
461. A reasonable jury could easily find that the results of the breath test were
valid and reliable. Therefore, because the result of the test showed a blood alcohol
concentration greater than 0.080, a jury could find that Appellant was intoxicated.
There was more than sufficient evidence for a reasonable jury to find that
Appellant was intoxicated. Said evidence consisted of : (1) reckless driving and
multiple violations of traffic laws; (2) an odor of alcohol noticed by both the
arresting officer and the booking officer at the jail; (3) four clues of intoxication
from the horizontal gaze nystagmus test; ( 4) two clues of intoxication from the
Walk and Tum test; (5) two clues of intoxication from the One Leg Stand test; (6)
the testimony of Trooper Head, stating that he believed that Appellant was
intoxicated; and (7) the result of the breath test. Even if you discredit Trooper
14
Stuart's testimony, the fact remains that Appellant's blood alcohol concentration
was 0.092/0.090. A reasonable jury could believe beyond a reasonable doubt that
the breath test results were valid and therefore, Appellant was intoxicated.
Accordingly, Appellant's second point of error should be overruled and denied.
III. STATE'S RESPONSE TO APPELLANT'S THIRD POINT OF
ERROR
A trial court's ruling on the admission of evidence under Texas Rule of
Evidence 403 is reviewed under an abuse of discretion standard and should not be
set aside absent a showing on the record that the trial court abused its discretion by
acting in an arbitrary and unreasonable manner. Montgomery v. State, 810 S.W.2d
372, 379-80 (Tex. Crim. App. 1990). There should be reluctance on the part of an
appellate court to reverse trial court decisions that admit or exclude evidence. !d.
at 378. The fact that a trial judge may decide a matter within his discretion in a
different manner than an appellate judge does not demonstrate that an abuse of
discretion has occurred. !d. at 380. The reviewing court should not reverse a trial
judge whose ruling was within the "zone of reasonable disagreement." Green v.
State, 934 S.W.2d 92,101-102 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200
(1997); Montgomery, 810 S.W.2d at 391.
Under the Texas Rules of Evidence, evidence is relevant if it has "any
tendency to make the existence of any fact that is of consequence to the
15
determination of the action more or less probable than it would be without the
evidence." TEX. R. EVID. 401. "Evidence which is not relevant is inadmissible."
TEX. R. Evm. 402. The rules of evidence also allow for evidence to be excluded if
"its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, or needless presentation of cumulative evidence." TEX. R. Evm. 403.
When a defendant makes a Rule 403 objection, the trial court must weigh
the probative value of the evidence against any unfair prejudice resulting from its
admission. Poole v. State, 974 S.W.2d 892, 897 (Tex. App. -Austin 1998, pet.
refd) (citing Montgomery, at 389. There is a presumption that in overruling such
an objection, the trial court applied the Rule 403 balancing test and determined the
evidence was admissible. !d. "In balancing probative value and unfair
prejudice under Rule 403, an appellate court presumes that the probative value will
outweigh any prejudicial effect," and therefore, "It is ... the objecting party's
burden to show that the probative value is substantially outweighed by the danger
of unfair prejudice." !d. Additionally, 911 tapes are generally admissible, even if
not absolutely necessary to establish any material fact not otherwise proven in the
State's case, as they provide a framework within which the particulars of the
State's case can be developed. Webb v. State, 760 S.W.2d 263, 276 (Tex. Crim.
App. 1988); Estrada v. State, 313 S.W.3d 274, 300 (Tex. Crim. App. 2010) (911
16
call containing screams from family members upon discovering victim's body
ruled admissible over Rule 403 objection as it provided framework of State's case).
The trial court's decision to admit the recordings is certainly within the zone
of reasonable disagreement. The recordings were probative in showing real time
evidence of Appellant's intoxication, namely the loss of the normal use of his
mental and physical faculties as shown by his poor driving. They also provided a
framework in which the State's case could be developed. Additionally, the burden
is on the Appellant to show that the probative value of the recordings was
substantially outweighed by the danger of unfair prejudice. Poole, at 897.
Appellant cites no case law holding that the admission of similar evidence under
similar circumstances was plain or fundamental error and thus has not met this
burden. See Barrientes v. State, No. 03-08-00101-CR, 2009 Tex. App. LEXIS
1915, at * 10-11 (Tex. App. - Austin, March 18. 2009, pet. ref d) (not designated
for publication). Rather, Appellant makes a conclusory statement that there was no
purpose for the admission of the recordings except to inflame the jury. (Appellant's
Brief at p. 22-23). Because Appellant has not met his burden under Rule 403,
Appellant's third point of error should be overruled and denied.
IV. STATE'S RESPONSE TO APPELLANT'S FOURTH POINT OF
ERROR
17
Appellant's third point of error alleges that the trial court abused its
discretion by admitting Deputy Kennedy's 911 call into evidence because its
admission constituted improper bolstering of Deputy Kennedy's testimony. A trial
court's ruling on the admission of evidence under Texas Rule of Evidence 403 is
reviewed under an abuse of discretion standard and should not be set aside absent a
showing on the record that the trial court abused its discretion by acting in an
arbitrary and unreasonable manner. Montgomery,at 379-80. There should be
reluctance on the part of an appellate court to reverse trial court decisions that
admit or exclude evidence. Id. at 378. The fact that a trial judge may decide a
matter within his discretion in a different manner than an appellate judge does not
demonstrate that an abuse of discretion has occurred. Jd. at 380. The reviewing
court should not reverse a trial judge whose ruling was within the "zone of
reasonable disagreement." Green, at101-102; Montgomery, 810 S.W.2d at 391.
Appellant cites Cohn v. State, 849 S.W.2d 817, 819-20 (Tex. Crim. App.
1993) to state the rule that "bolstering" is "any evidence the sole purpose of which
is to convince the fact finder that a particular witness . . . is worthy of credit,
without substantively contributing 'to make the existence of a fact that is of
consequence to the determination of the action more or less probable than it
would be without the evidence.'" The Court in Cohn goes on to say that TEX. R.
Evm 612( c) is a codification of the bolstering rule, preventing the use of prior
18
consistent statements of a witness for the sole purpose of enhancing his credibility.
Cohn, at 820. However, the Court also notes that "Rule 612(c) says nothing about
the admissibility of substantive evidence that happens to corroborate a witness." !d.
This Court has held that if the evidence "corroborates another witness's story or
enhances inferences to be drawn from another source of evidence, in the sense that
it has an incrementally further tendency to establish [a] fact of consequence," then
it does not constitute bolstering. Sarinana v. State, No. 03-13-00167-CR, 2014
Tex. App. LEXIS 9524, at *5 (Tex. App. -Austin, August 27, 2014, pet. refd.)
(not designated for publication) (citing Cohn, at 820).
The trial court's decision to admit the recordings is certainly within the zone
of reasonable disagreement. Clearly, the 911 calls were not entered into evidence
for the sole purpose of enhancing Deputy Kennedy's credibility. They were offered
as substantive evidence of Appellant's bad driving, which is in itself evidence of
intoxication. Because the 911 calls help establish the fact of Appellant's
intoxication, their introduction does not constitute bolstering. See Eun Chae v.
State, No. 13-12-00655-CR, 2013 Tex. App. LEXIS 11346 at *2 (Tex. App. -
Corpus Christi, September 5, 2013, no pet.) (not designated for publication)
(recording of 911 call did not constitute bolstering even though witness who called
also testified at trial).
19
Additionally, the burden is on the Appellant to show that the recordings
were inadmissible as mere bolstering evidence. See Poole, at 897. Appellant cites
no case law holding that the admission of similar evidence under similar
circumstances was plain or fundamental error and thus has not met this burden. See
Barrientes at *10-11. Rather, Appellant makes a conclusory statement that there
was no purpose for the admission of the recordings except to bolster Deputy
Kennedy's credibility. (Appellant's Brief at p. 25). Because Appellant has not met
his burden under Rule 403, Appellant's third point of error should be overruled and
denied. Therefore, the recordings were properly admitted and Appellant's fourth
point of error should be overruled and denied.
V. STATE'S RESPONSE TO APPELLANT'S FIFTH POINT OF ERROR
Appellant's fifth point of error alleges that he suffered egregious harm
because evidence of extraneous offenses were introduced at trial and a limiting
instruction was not given instructing the jury that they could not consider that
evidence in determining Appellant's character in conformity with his guilt in the
present case. (Appellant's Brief at p. 29). Under Article 36.19 of the Texas Code of
Criminal Procedure, if there is error in a jury charge and said error is objected to at
trial, reversal is required if the error is calculated to injure the rights of the
defendant. The Court of Criminal Appeals has ruled that this means that reversal is
required if there is "some harm". Almanza, at 171. If the error was not objected to,
20
such error must be "fundamental" and thus reversal is only required if the
defendant has suffered egregious harm such that the defendant has not had a fair
and impartial triaL/d.
The evidence Appellant suggests was inadmissible as evidence of extraneous
bad acts was in fact admissible as same transaction contextual evidence. The Court
of Criminal Appeals has defined same transaction contextual evidence as evidence
of other offenses connected with the offense charged. Camacho v. State, 864
S.W.2d 524, 532 (Tex. Crim. App. 1993). It is evidence which imparts information
essential to undertsnading the context and circumstances of the offense which,
although legally separate offenses, are blended or interwoven.Jd. Clearly, evidence
of Appellant's terrible driving, which included speeding in excess of 100 miles per
hour, running multiple red lights, failing to maintain a single lane, and nearly
colliding with two cars, is essential to understanding the offense of driving while
intoxicated. Numerous courts have held that "bad driving" is evidence of
intoxication. Bagheri v. State, 329 S.W.3d 23, 27 (Tex. App. San Antonio 2010)
(bad driving, including striking a police car, was evidence of intoxication); Baker
v. State, 177 S.W.3d 113, (Tex. App. - Houston [1st Dist.] 2005) Gury free to
consider speeding in evaluating whether defendant was intoxicated); Tex. Dep't of
Pub. Safety v. McHugh, 2014 Tex. App. LEXIS 11733 (Tex. App.- Austin, Oct.
24, 2014, no pet.) (traffic violation could indicate loss of mental faculties).
21
Because "bad driving" is interconnected with understanding the entirety of the
offense of Driving While Intoxicated, evidence of such meets the definition of
same transaction contextual evidence. Therefore, though arguably extraneous bad
acts, the evidence of "bad driving" is admissible.
Not only is the evidence of bad driving admissible, but it does not need a
limiting instruction as the Appellant argues it does. The Court of Criminal Appeals
has held that when evidence is admitted as same transaction contextual evidence,
Texas Rule of Evidence 404(b) is not implicated and the defendant is not entitled
to any limiting instruction concerning the use of that evidence. Delgado v. State,
235 S.W.3d 244, 253 (Tex. Crim. App. 2007). The Court has also noted that when
same transaction contextual evidence "is used to prove a main fact in the case, an
instruction limiting the jury's consideration of this evidence is generally not
required." Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (citing
Porter v. State, 709 S.W.2d 213, 215 (Tex. Crim. App. 1986)). Because the
evidence Appellant argues needed a limiting instruction is in fact same
transactional contextual evidence, no limiting instruction is needed and therefore,
Appellant's fifth point of error should be overruled and denied.
PRAYER
22
The State prays this Honorable Court will affirm the judgment of the trial
court and overrule Appellant's first and second points of error.
Respectfully submitted,
/s/ James J. LaMarca
JAMES J. LAMARCA
Assistant County Attorney
Williamson County, Texas
SBN: 24074568
405 Martin Luther King, # 7
Georgetown, Texas 78626
PHONE: (512)943-1111
FAX: (512) 943-1120
23
CERTIFICATE OF COMPLIANCE
I certify that this Brief contains a word count of 5,274, and thus complies
with the requisites of TEX. R. APP. P. 9.4(i)(2)(C)
Is/ James J. LaMarca
JAMES J. LAMARCA
CERTIFICATE OF SERVICE
I certify that I have sent a true and correct copy of State's Brief to
Appellant's attorney of record, Kristen Jernigan, by electronic service at
Kristen@txcrimapp.com, on the gth day of May, 2015.
Is/ James J. LaMarca
JAMES J. LAMARCA
24