Opinion
NO. 01-15-01017-CR
04-06-2017
DANIEL WAYNE CURTIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 11 Harris County, Texas
Trial Court Case No. 1960764
MEMORANDUM OPINION
A jury found appellant, Daniel Wayne Curtis, guilty of driving while intoxicated, and the trial court assessed his punishment at 180 days' confinement, probated for twelve months, and a $1,000 fine. In two points of error, appellant contends that (1) the evidence is insufficient to establish that he was intoxicated at the time he was driving and (2) the trial court erred in excluding evidence of the eyewitness's motive or bias. We affirm.
Background
On May 7, 2014, Sunil Chacko was driving along the service road of Highway 249 when appellant ran a stop sign and struck the rear passenger side of Chacko's car. Chacko testified that appellant continued driving through the service road, crossing all three lanes, and drove onto the grassy median between the service road and the highway. Appellant then turned left, made a U-turn back onto the one-way service road, crossed the three lanes again, and drove into traffic forcing cars to veer away to avoid hitting him. Appellant then pulled over and stopped. When appellant got out of his truck, he immediately fell to the ground and could not stand up. Chacko testified that he could tell that appellant was under the influence of something and called the police.
When Officer Alex Ramsey with the Tomball Police Department arrived at the scene seven minutes later, he observed that appellant was using his truck to hold himself up. Officer Ramsey testified that appellant had a blank stare, thick slurred speech, and white saliva forming in the corners of his mouth, and that his entire body was shaking. When Officer Ramsey administered the horizontal gaze nystagmus (HGN) test, appellant exhibited all six clues indicating intoxication. At the conclusion of the HGN test, appellant fell over. Officer Ramsey testified that he decided not to conduct the other two standard field sobriety tests because appellant was too unbalanced and he did want to risk appellant falling and hurting himself. Appellant also failed the finger count test as he had difficulty putting his fingers and thumbs together while counting and did not count in the proper sequence.
Captain Grassi, the first responding officer, was not called as a witness at trial.
At the police station, appellant consented to provide a blood specimen. The results of the blood analysis showed that appellant had two controlled substances—Carisoprodol (commonly known as Soma) and Meprobamate—in his system. Dr. Jeff Walterscheid, a co-director of the toxicology lab at the Harris County Institute of Forensic Science, testified that the effects of Carisoprodol and Meprobamate on the human body are very similar to alcohol intoxication and include slurred speech, unsteady balance, an inability to maintain a lane position or respond to traffic cues, and exhibition of HGN. The substances can also cause shakiness, tremors, and foaming around the mouth.
Carisopodrol is the form of the compound when ingested and is metabolized as meprobamate. These compounds are muscle relaxants.
Appellant testified that he stopped at the bank near his home after work to withdraw cash when his hand began to cramp. He testified that he had sustained an injury to his hand in college which required surgery, and that when it is hot outside his hand folds up and he has to take prescribed medication to unfold it. According to appellant, he only took Soma before leaving the bank because he knew that he would be home shortly. Appellant testified that after he left the bank, he ran a stop sign and collided with Chacko. He further testified that he began to feel drowsy when the first responding officer began talking to him.
Appellant also testified that Chacko sued appellant's insurance company for property damage and bodily injury as a result of the accident, and that his insurance company settled the suit. When the State objected to the line of questioning, defense counsel responded that the questions went directly to Chacko's motive and credibility. The following exchange then took place:
Defense Counsel: My ability to bring out why Mr. Chacko is here to testify. My ability to put on my defense. The only reason why he's here is because he sued for bodily injury and for damage to his car that if he doesn't come in and testify that my client is extremely intoxicated then he doesn't get his money. That goes directly to the heart of his credibility and why he's here.The trial court sustained the State's objection.
Prosecutor: Your Honor, it's my understanding that he's already been paid and his vehicle is repaired. I don't think he had anything to gain by testifying. This is also improper time to impeach him or to call his credibility in question because these are all issues that counsel for the defense could have brought up during his cross-examination.
At the conclusion of trial, the jury found appellant guilty of the charged offense. This appeal followed.
Sufficiency of the Evidence
In his first point of error, appellant contends that the evidence is legally and factually insufficient to prove that he was intoxicated at the time he was driving.
Appellant frames his complaint as a challenge to both the legal and factual sufficiency of the evidence. In Brooks v. State, the Texas Court of Criminal Appeals determined that a legal sufficiency standard of review is "indistinguishable" from a factual sufficiency standard of review. 323 S.W.3d 893, 901 (Tex. Crim. App. 2010). Based on Brooks, we no longer perform factual sufficiency reviews. See Ervin v. State, 331 S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd).
A. Standard of Review and Applicable Law
We review appellant's challenge to the sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We examine all of the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2789. The evidence is insufficient under this standard in two circumstances: (1) the record contains no evidence, or merely a "modicum" of evidence, probative of an element of the offense; or (2) the evidence conclusively establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 n. 11, 320, 99 S. Ct. at 2786, 2789 & n. 11; Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009).
An appellate court determines whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)). Because the jury is the sole judge of the credibility of the witnesses and of the weight given to their testimony, any conflicts or inconsistencies in the evidence are resolved in favor of the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
A person is guilty of driving while intoxicated "if the person is intoxicated while operating a motor vehicle in a public place." TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2016). "'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, 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." Id. § 49.01(2) (West 2011).
B. Analysis
Appellant contends that the evidence is insufficient to support his DWI conviction because there is no evidence that he was driving while intoxicated. He argues that although the evidence showed that he had taken a prescription muscle relaxant and later lost the normal use of his mental or physical faculties, it did not establish that he was intoxicated at the time he was driving his truck.
The jury heard testimony that after appellant ran a stop sign and struck Chacko's car, he drove erratically by crossing all three lanes of the service road twice and drove into traffic, forcing cars to veer away to avoid hitting him. The jury also heard evidence that appellant fell to the ground immediately upon exiting his truck and could not stand up. Officer Ramsey testified that when he arrived at the scene soon after the accident, appellant was using his truck to hold himself up and exhibited numerous signs of intoxication, including a blank stare and thick slurred speech, and that he had white saliva at the corners of his mouth and his entire body was shaking. In light of appellant's erratic driving and the evidence of his severe intoxication immediately after he exited the vehicle, the jury could have reasonably inferred that appellant was intoxicated while driving. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010) (noting evidence of erratic driving, post-driving behavior such as stumbling, swaying, slurring or mumbling words, inability to perform field sobriety tests or follow directions, and bloodshot eyes logically raises inference that defendant was intoxicated at time of driving); Colura v. State, ___ S.W.3d ___, 2016 WL 7473948, at *5 (Tex. App.—Houston [1st Dist.] Dec. 29, 2016, no pet.) (concluding that officer's testimony that he observed defendant making rapid multi-lane changes, pulling up to stop lights at high rate of speed, and engaging in behavior that looked like street racing before stop, and that defendant's eyes were glassy and bloodshot, his breath smelled of alcohol, and he had coordination and balance problems, constituted evidence of intoxication at time of driving). As the sole judge of the credibility of the witnesses and of the weight given to their testimony, the jury was entitled to disbelieve appellant's testimony that he did not begin to feel the effects of the medication until after the accident. See Wesbrook, 29 S.W.3d at 111.
Viewing all of the evidence in the light most favorable to the jury's verdict, we hold that the evidence was sufficient for a rational fact finder to have found beyond a reasonable doubt that appellant was driving while intoxicated. Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2789. We overrule appellant's first issue.
Evidence of Bias or Motive
In his second point of error, appellant contends that the trial court erred in excluding evidence that Chako had sued appellant as a result of the accident. He argues that this evidence was admissible to show Chacko's bias and motive and that the trial court's exclusion of this evidence violated his Sixth Amendment right to confrontation.
A. Applicable Law and Standard of Review
"A defendant is entitled to pursue all avenues of cross-examination reasonably calculated to expose a motive, bias, or interest for the witness to testify." Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996); Smith v. State, 236 S.W.3d 282, 292 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd). The constitutional right of confrontation is violated when appropriate cross-examination is limited. Hurd v. State, 725 S.W.2d 249, 252 (Tex. Crim. App. 1987). However, the trial court maintains broad discretion to impose reasonable limits on cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence. Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). Cross-examination regarding a civil suit may be appropriate to show an interest or bias on the part of the witness. See Carroll, 916 S.W.2d at 499-501.
We review a trial court's decision to exclude evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court abuses its discretion only if its decision is "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008).
B. Analysis
Appellant argues that evidence that Chako sued him was relevant to Chacko's motive and credibility because Chacko needed appellant to be found guilty of DWI so Chacko could recover his damages. He contends that the trial court's refusal to allow him to introduce evidence that Chako had filed a lawsuit and obtained a settlement from appellant's insurance company violated his right to confrontation. Appellant's argument is unavailing for several reasons.
First, the record reflects that defense counsel never attempted to question Chacko about his bias or motive to testify. On cross-examination, defense counsel asked Chacko:
Q: We talked briefly. Thanks for coming. Question. You said, you told me this before, that you watched all of this happen you pulled over, got out of your car, watched all this happen and then [appellant] pulled over and then the rest is kind of what we have, what we see on video and all this kind of stuff.Appellant's argument that his right to confrontation was violated fails because defense counsel never attempted to cross-examine Chacko to attack his alleged motive to testify or show bias on his part.
A: Right.
Q: Okay. Nothing further.
Second, the record reflects that defense counsel did, in fact, elicit testimony about Chacko's receipt of settlement proceeds from appellant's insurance company. Appellant testified that Chako sued appellant's insurance company claiming property damage as well as bodily injury, and that the insurance company had settled the suit. The State objected, but only after the evidence had already been introduced, and the trial court did not instruct the jury to disregard the evidence. In fact, defense counsel later argued in closing that "if [Chacko] doesn't show up and testify against us, he gets no money. . . . If he's not here to say that [appellant] is wasted and driving all over the road and going down the wrong way on a street that had a two-way driveway, then he doesn't get his check." Thus, appellant argued beyond the evidence presented at trial in support of his theory that Chacko was biased or had a motive to testify as he did.
Third, appellant's testimony that his insurance company had already settled Chacko's suit refutes appellant's claim that Chacko's motive to testify that appellant was intoxicated was so that he could obtain compensation from appellant's insurance company. Hoyos v. State, 982 S.W.2d 419, 421 (Tex. Crim. App. 1998) (concluding trial court did not err in excluding evidence of anticipated lawsuit where defense failed to establish that civil lawsuit would cause witness to be biased in her testimony in criminal case); see also Macias v. State, No. 04-01-00801-CR, 2002 WL 31863769, at *2 (Tex. App.—San Antonio Dec. 24, 2002, no pet.) (memo op., not designated for publication) ("There must be some 'reason to believe that the lawsuit might cause the complainant to be biased in the testimony presented at the criminal trial.'") (quoting Hoyos, 982 S.W.2d at 421). Because the trial court did not abuse its discretion, we overrule appellant's second point of error.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Chief Justice Radack and Justices Brown and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).