Brent Alan Dalton v. State

Opinion issued January 12, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00837-CR
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BRENT ALAN DALTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 13
Harris County, Texas
Trial Court Case No. 1944593
MEMORANDUM OPINION
A jury convicted appellant, Brent Alan Dalton, of driving while intoxicated
(“DWI”),1 and the trial court assessed his punishment at confinement for sixty
days. In his sole point of error, appellant argues that the evidence is legally
1
See TEX. PENAL CODE ANN. § 49.04 (Vernon Supp. 2015).
insufficient to prove a temporal link between his driving and intoxication so as to
establish that he was guilty of DWI.
We affirm.
Background
Deputy P. Magee, with the Harris County Precinct 4 Constables’ Office,
testified that at approximately 4:30 p.m. on February 8, 2014, he received a
dispatch to respond to a report of an erratic driver who had forced another car off
the road. The report from dispatch stated that the vehicle involved was a maroon
Chevrolet Silverado pickup truck, and the dispatcher provided him with a license
plate number. Once Deputy Magee found the truck matching the description from
dispatch, he followed it into a parking lot and activated his emergency lights.
However, the driver, later identified as appellant continued to drive slowly through
the parking lot before coming to a brief stop. Deputy Magee then used the public
address system in his patrol car to command appellant to park his vehicle, turn off
his engine, and remain in his truck. Rather than comply, appellant drove away, and
Deputy Magee followed him through the parking lot until appellant stopped again.
Deputy Magee again advised appellant over the public address system to stop his
vehicle, roll down his window, and remain in his vehicle.
Once appellant stopped his vehicle, he exited the driver’s side of the truck
and approached Deputy Magee in his patrol car. Deputy Magee testified that he
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commanded appellant at least two more times to stop and return to his vehicle, but
appellant did not comply. Deputy Magee noticed that appellant “didn’t seem to
have the best balance” as he approached. Deputy Magee also observed that no one
else was in the truck. By this time, Deputy L. King had arrived on the scene and
approached appellant from behind. Deputy Magee testified that Deputy King was
able to detain appellant and place him in handcuffs in the back of her patrol car. In
addition to the fact that appellant was not steady on his feet, Deputy Magee noticed
that when appellant spoke to another deputy on the scene his “speech was
obviously slurred” and “there was no consistent train of thought.” Appellant was
examined by EMS and then Deputy King took him to the Houston Police
Department’s (“HPD”) “Central Intox” facility for evaluation.
Deputy King testified that she also received the same dispatch as Deputy
Magee. When she arrived on the scene in the parking lot, she observed appellant
approaching Deputy Magee. She stated that appellant was approaching Deputy
Magee “aggressively,” and she testified that appellant “was staggering, but he was
charging in [Deputy Magee’s] direction.” Deputy King approached appellant from
behind and detained him. She stated that appellant had “blood shot eyes, slurry
speech, was unable to stand by himself. I mean, I literally had to hold him to take
him back to my car.”
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Deputy King noticed that appellant had “EKG tags” on him, so she asked
appellant if he was under a doctor’s care. He told her that he took Lorcet for
seizures and that he had Guillain-Barre syndrome. Regarding the Guillain-Barre
syndrome, Deputy King testified that she was not familiar with that illness, that
appellant explained to her later that it affects the nervous system, and that she did
not know whether that illness affected appellant’s balance. Appellant also told
Deputy King that he had been to the bank and the hospital earlier in the day.
Deputy King stated that appellant did not mention why he had been at the hospital
and that “[h]e just kept going in and out. One minute, he would try to talk; and then
he will go out whereas you couldn’t hear or understand nothing he was saying.”
Deputy King offered to contact someone for appellant. Appellant told her to
call his wife, but he could not remember his wife’s name or phone number.
Eventually, another deputy found appellant’s cell phone and was able to contact his
wife. Deputy King also called EMS to assess appellant and make sure he did not
have any “medical concerns that we needed to address.” EMS evaluated appellant
and released him back to Deputy King. Deputy King transported appellant to
HPD’s “Central Intox” for an evaluation because she suspected that he was
intoxicated, but she did not think he had been consuming alcohol because she did
not smell alcohol on his breath.
4
Deputy King testified that appellant agreed to give a breath sample and
perform standardized field sobriety tests, which were administered by an HPD
officer who was certified to perform the tests. Deputy King stated that his breath
sample “tested all zeros,” showing that he was not under the influence of alcohol.
Appellant was also evaluated by HPD Officer D. Ciers, with the HPD DWI task
force, who was certified as a drug recognition expert. The officers then requested
that appellant give a blood sample, but he refused. Deputy King testified that
appellant then had a seizure and was transported to the hospital. She obtained a
search warrant to get a sample of appellant’s blood. Deputy King received the
signed search warrant at 11:41 p.m., and the blood sample was taken at the hospital
pursuant to the warrant.
HPD Officer B. Bougere testified that she administered some standardized
field sobriety tests to appellant, during which he demonstrated signs of
intoxication. Officer Bougere also administered appellant’s breath test, which
indicated that he was not under the influence of alcohol. She likewise noticed that
appellant had glassy eyes, was swaying, and his speech was slurred.
Officer Ciers testified that he was a certified drug recognition expert with
special training and experience to evaluate and recognize suspects who are under
the influence of some sort of drug. He testified that the other investigating officers
asked him to evaluate appellant because they believed appellant was under the
5
influence of something other than alcohol. Officer Ciers first saw appellant
between 9:30 and 9:40 p.m. and observed that appellant had slow, slurred speech,
that his balance and walking were “unsteady,” his coordination was sluggish, and
he “looked a little disoriented.” As part of his evaluation, Officer Ciers interviewed
appellant, who informed him that he had diabetes and Guillain-Barre syndrome.
Appellant told Officer Ciers that he was taking prescription medications—Norco, a
sleep aid, Elavil, a central nervous system depressant, and Phenergan. Appellant
told Officer Ciers that he took the Norco and Elavil at around 5:00 p.m., which
appellant described as being approximately fifteen minutes before driving.
However, Officer Ciers stated that 5:00 was after the time appellant was stopped
by the Precinct 4 constables. Officer Ciers testified that someone taking Elavil or
another central nervous depressant would have characteristics similar to someone
under the influence of alcohol, which is also a central nervous system depressant:
“[s]low, sluggish, disoriented, slurred speech, drunk-like behavior.” He testified
that central nervous system depressants, like the ones appellant admitted to taking,
were typically active in a person’s system for between one and eight hours.
Officer Ciers testified that he administered the HGN test to appellant and
that appellant demonstrated six out of six clues of intoxication on that test.
Appellant also demonstrated four out of eight clues of intoxication on the walk-
and-turn test and two out of four clues of intoxication on the one-legged-stand test.
6
Officer Ciers testified that appellant also demonstrated other characteristics—such
as lowered pulse rate, blood pressure, and body temperature—of someone under
the influence of a central nervous system depressant. Officer Ciers concluded,
based on his evaluation of appellant, that appellant was under the influence of a
central nervous system depressant. On cross examination, Officer Ciers
acknowledged that he was not familiar with Guillain-Barre syndrome and did not
know if that could have affected appellant’s performance during his examination.
Officer Ciers also stated that someone having a diabetic episode could demonstrate
behavior similar to that of an intoxicated person, but he understood that the EMTs
had checked appellant’s blood sugar and reported that it was within the normal
range, and Ciers did not believe that appellant was having a diabetic episode at the
time of the evaluation.
HPD Officer S. Johnson testified that he assisted Deputy King with her
investigation of appellant once she arrived at the Central Intox facility. He
participated in administering statutory warnings to appellant, filling out the report,
and obtaining the warrant and blood sample. Officer Johnson testified that when he
informed appellant that they had obtained a warrant and that appellant would have
to give a blood sample, appellant fell to the floor in the fetal position and told him
that he was having a seizure and could not move. Officer Johnson stated that he
called paramedics, who assessed appellant and eventually transported him to the
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hospital where the blood was drawn. Appellant was eventually released from the
hospital to Officer Johnson’s custody, and the doctor told Officer Johnson that
appellant was treated for dehydration. Officer Johnson returned appellant to jail,
where he was booked for the offense of DWI.
Finally, Jessica Ayala, a forensic scientist, testified regarding the results of
appellant’s toxicology tests. She stated that appellant’s blood tested positive for the
presence of marijuana and marijuana metabolites, hydrocodone, nordiazepam,
diazepam, and temazepam. Ayala testified that marijuana “can have a range of
effects” and that it could cause “sedation, hallucinations,” or increased pulse or
blood pressure. She stated that hydrocodone was a central nervous system
depressant, so it had the opposite effect and would “slow[] everything down,”
including pulse rate and blood pressure. It could cause “dizziness, incoordination,
confusion, and sedation.” Ayala testified that nordiazepam, diazepam, and
temazepam were all benzodiazepines and were also central nervous system
depressants with similar effects to the hydrocodone.
The jury convicted appellant of DWI, and the trial court assessed his
punishment at confinement for sixty days.
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Sufficiency of the Evidence
In his sole point of error on appeal, appellant argues that the evidence was
insufficient to support his conviction because there was insufficient evidence of a
temporal link between his intoxication and his operation of the vehicle.
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact
finder could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that
Jackson standard is only standard to use when determining sufficiency of
evidence). Our review of “all of the evidence” includes evidence that was properly
and improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). Furthermore, direct and circumstantial evidence are treated equally, and
circumstantial evidence is as probative as direct evidence in establishing the guilt
of an actor. Id. Circumstantial evidence alone can be sufficient to establish guilt.
Id. The fact finder is the exclusive judge of the facts, the credibility of the
witnesses, and the weight to be given to the testimony. Bartlett v. State, 270
S.W.3d 147, 150 (Tex. Crim. App. 2008). We may not re-evaluate the weight and
credibility of the evidence or substitute our judgment for that of the fact finder.
9
Will. v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); see also Clayton,
235 S.W.3d at 778 (“When the record supports conflicting inferences, we presume
that the factfinder resolved the conflicts in favor of the prosecution and therefore
defer to that determination.”).
A person commits the offense of DWI if he “is intoxicated while operating a
motor vehicle in a public place.” TEX. PENAL CODE ANN. § 49.04 (Vernon Supp.
2015). The Penal Code defines “intoxicated” as “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, a combination of two or more of those
substances, or any other substance into the body.” Id. § 49.01(2)(A) (Vernon
2011). The State does not need to establish the exact time that the defendant was
operating the vehicle to prove he was driving while intoxicated. See Kuciemba v.
State, 310 S.W.3d 460, 462–63 (Tex. Crim. App. 2010); Kennemur v. State, 280
S.W.3d 305, 314 n.8 (Tex. App.—Amarillo 2008, pet. ref’d). However, the State
must show a “temporal link” between the defendant’s intoxication and his
operation of the vehicle—there must be proof from which the jury can conclude
that, at the time of the driving in question, the defendant was intoxicated.
Kuciemba, 310 S.W.3d at 462; Zavala v. State, 89 S.W.3d 134, 139 (Tex. App.—
Corpus Christi 2002, no pet.). Driving while intoxicated may be supported solely
by circumstantial evidence. Kuciemba, 310 S.W.3d at 462.
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B. Analysis
The State had to prove that appellant operated a motor vehicle in a public
place while he was intoxicated, i.e., while he did not have “the normal use of [his]
mental or physical faculties by reason of the introduction of . . . a drug . . . or any
other substance into [his] body.” See TEX. PENAL CODE ANN. §§ 49.01(2)(A),
49.04. Deputy Magee testified that he observed appellant driving his truck, that
appellant exited the driver’s side of the truck, and that no one else was in the
vehicle with appellant at the time he was stopped. Furthermore, both Deputy
Magee and Deputy King testified regarding appellant’s condition at the time of the
stop. Deputy Magee noticed that appellant did not follow his commands, “didn’t
seem to have the best balance,” had “obviously slurred” speech, and was unable to
form a “consistent train of thought.” Deputy King stated that when she arrived on
the scene, appellant “was staggering, but he was charging in [Deputy Magee’s]
direction,” that appellant had “blood shot eyes, slurry speech, [and] was unable to
stand by himself.” She also stated that appellant could not remember his wife’s
name or phone number and that “[h]e just kept going in and out. One minute, he
would try to talk; and then he [would] go out whereas you couldn’t hear or
understand [anything] he was saying.”
Subsequent field sobriety testing and evaluation by a drug recognition expert
led police to believe that appellant was intoxicated, allowing them to obtain a
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warrant for a blood sample. Appellant told Officer Ciers that he took Norco and
Elavil, two central nervous system depressants, prior to driving, and the blood
sample demonstrated that appellant had numerous central nervous system
depressants in his system. Officer Ciers testified that the central nervous system
depressants would cause someone to exhibit similar behavior to someone under the
influence of alcohol: “[s]low, sluggish, disoriented, slurred speech, drunk-like
behavior.” Officer Ciers also stated that such drugs could stay active in someone’s
system, on average, for up to eight hours.
Appellant argues that even though “there is sufficient evidence to establish
that [he] was intoxicated after he performed the standard field sobriety tests at the
station,” the State presented “no direct or circumstantial evidence to establish the
temporal link between driving and intoxication.” He argues that the dispatch report
was not sufficient to establish that he was driving while impaired2 and that Deputy
Magee did not see him driving erratically. However, as discussed above, Deputy
Magee observed appellant driving, and both he and Deputy King testified
regarding appellant’s condition at the time they encountered him, allowing the jury
to infer that appellant was impaired at the time of the stop.
2
Appellant also argues, in part, that the anonymous report relayed through dispatch
was insufficient to justify his detention. However, he did not challenge his
detention at trial, so he did not preserve this argument for consideration on appeal.
See TEX. R. APP. P. 33.1(a).
12
Appellant also argues that “[t]he State presented evidence that [he] showed
signs of intoxication at the scene but these signs were also symptoms of [his]
multiple medical conditions” and that “without standard field sobriety testing, a
breathalyzer or blood evidence, there was no way to differentiate [his] medical
condition at the scene versus his intoxication.” However, the only evidence of
appellant’s medical conditions was Deputy King’s and Officer Ciers’ testimony
that appellant told them he had medical conditions, including epilepsy and
Guillain-Barre syndrome. Appellant presented no expert or documentary evidence
that he actually had these illnesses or that they could have caused the impairment
testified to by the deputies and HPD officers.
Appellant further argues that because the field sobriety testing was
conducted as much as five hours after the traffic stop and the blood test was
conducted approximately seven hours after the stop, “there is no way to know
whether the drugs found in [his] system [seven] hours after his arrest were
sufficient to impair his driving or [were] even active at the time of driving in this
case.” Both Deputy Magee’s and Deputy King’s testimony, however, allowed the
jury to infer that appellant was impaired at the time of his stop. Furthermore,
appellant told Officer Ciers that he took hydrocodone before driving, and he
refused to submit to a blood sample. See TEX. TRANSP. CODE ANN. § 724.061
(Vernon 2011) (“A person’s refusal of a request by an officer to submit to the
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taking of a specimen of breath or blood, whether the refusal was express or the
result of an intentional failure to give the specimen, may be introduced into
evidence at the person’s trial.”); Bartlett, 270 S.W.3d at 153 (recognizing
defendant’s refusal to submit to breath test is relevant to show consciousness of
guilt). Appellant’s blood test, obtained after police were able to get a warrant,
demonstrated that he had marijuana, hydrocodone, and three kinds of
benzodiazepines in his system approximately seven hours after his arrest. Officer
Ciers testified that these drugs could cause behavior consistent with appellant’s at
the time of his arrest and at the time of his subsequent field sobriety tests and drug
recognition evaluation, and Ciers also testified that such drugs could remain in
someone’s system for an average of one to eight hours after ingestion.
Viewing all of the evidence in the light most favorable to the verdict, we
conclude that the jury could have found beyond a reasonable doubt that appellant
operated a motor vehicle in a public place while he did not have “the normal use of
[his] mental or physical faculties by reason of introduction of . . . a drug . . . or any
other substance into [his] body.” See TEX. PENAL CODE ANN. §§ 49.01(2)(A),
49.04; Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Adames, 353 S.W.3d at 859.
14
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Jennings, Keyes, and Bland.
Do not publish. TEX. R. APP. P. 47.2(b).
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