Danny Stone v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-93-105-CR



DANNY STONE,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY,

NO. 36435, HONORABLE LINDA A. RODRIGUEZ, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of driving while intoxicated. Tex. Rev. Civ. Stat. Ann. art. 6701l-1 (West Supp. 1994). ⁽¹⁾ The county court at law assessed punishment at incarceration for two years and a $600 fine, but suspended imposition of sentence and placed appellant on probation.

On the night of February 15, 1992, Manfred Kremkus and his family were driving home on a rural Hays County highway when an automobile driven by appellant turned into their path and collided with them. David Borque of the Hays County Sheriff's Department and Dana Moore of the Department of Public Safety were called to the scene of the accident. Kremkus, Borque, and Moore each testified that appellant had a strong odor of alcoholic beverage about his person. Appellant's eyes were bloodshot, his face was flushed, and he was unsteady on his feet. Appellant had urinated in his pants. Moore administered several field sobriety tests on appellant at the scene, most of which appellant failed. Kremkus, Borque, and Moore were each of the opinion that appellant was intoxicated. Following his arrest, appellant took an intoxilyzer test that indicated an alcohol concentration of 0.21.

In his first point of error, appellant contends the evidence is legally insufficient in four respects. First, he asserts that the intoxilyzer result was not stated in terms of grams per 210 liters of breath. This assertion is contradicted by a reading of the testimony of Antonio Ortiz, the technical supervisor responsible for the intoxilyzer machine. Second, appellant complains there is no evidence that a person with an alcohol concentration of 0.21 would not have the normal use of his mental faculties by reason of the alcohol concentration. Such evidence is unnecessary, since an alcohol concentration of 0.10 or more constitutes intoxication as a matter of law. Article 6701l-1(a)(2)(B). Third and fourth, appellant notes the absence of testimony regarding "the effects of metabolization of the rate of absorption of alcohol in a person's body," and contends there is no evidence that his alcohol concentration was 0.21 at the time he was driving. We believe the jury could reasonably infer from the evidence that appellant's alcohol concentration exceeded 0.10 at the time of the accident. ⁽²⁾ Moreover, the testimony describing appellant's appearance following the accident is sufficient to establish that he did not at that time have the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body. ⁽³⁾ Viewing the evidence in the light most favorable to the verdict, a reasonable trier of fact could find each element of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 (1979); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). Point of error one is overruled.

Appellant next complains that the court erred by admitting the intoxilyzer printout in the absence of the necessary predicate for a business record. Tex. R. Crim. Evid. 803(6). This contention does not comport with appellant's objection at trial. Tex. R. App. P. 52(a). Point of error two is overruled.

Appellant contends in another point of error that Kremkus should not have been permitted to give his opinion as to appellant's intoxication because he did not have an opportunity to observe the relevant facts. Kremkus testified that he spoke to appellant after the accident and watched appellant perform the field sobriety tests. We find no merit to appellant's contention and overrule point of error five.

Appellant also urges that the trial court should have granted his motion for mistrial after the State bolstered one of its witnesses during voir dire. The prosecutor told the jury panel that Ortiz was an expert on the operation of intoxilyzer machines. Appellant's objection was sustained and the panel was instructed that the expertise of the witness would be determined during the trial. We believe this admonishment was sufficient to cure any error. Point of error four is overruled.

Finally, appellant contends the jury panel should have been discharged because it was not assembled from a jury wheel containing names taken from driver's license records. Tex. Gov't Code Ann. § 62.001 (West Supp. 1994). To successfully challenge a criminal conviction for noncompliance with the Government Code's jury selection procedures, the defendant must establish that such noncompliance compromised the fairness of his trial. Lewis v. State, 815 S.W.2d 560, 563 (Tex. Crim. App. 1991). Appellant argues that the failure to comply with the statute was "inherently harmful" and did not "allow for a jury to be picked from a fair representation of the racial makeup of the County." The record contains no evidence of the racial makeup of Hays County or of the jury panel. Appellant has not met his burden of establishing harm. Point of error three is overruled.

The judgment of conviction is affirmed.

Before Chief Justice Carroll, Justices Aboussie and B. A. Smith

Affirmed

Filed: February 9, 1994

Do Not Publish

1. The amendment to article 6701l-1 effective September 1, 1993, has no bearing on this cause.

2.   In addition to the testimony of the various witnesses, the jury saw a videotape of appellant at the scene of the accident taken with a camera mounted in Moore's patrol car.

3.   The jury was authorized to convict appellant on a finding of intoxication under either statutory definition. Article 6701l-1(a)(2)(A), (B).