Garry v. State

Full title: ALBERT GARRY, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: May 18, 2009

No. 05-08-00646-CR (Tex. App. May. 18, 2009)

Opinion

No. 05-08-00646-CR

Opinion Filed May 18, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.

On Appeal from the County Court at Law, Hunt County, Texas, Trial Court Cause No. CR0701755.

Before Justices RICHTER, LANG, and MURPHY.

MEMORANDUM OPINION

Opinion By Justice RICHTER.

A jury convicted Albert Garry of misdemeanor driving while intoxicated (DWI) following testimony that he had been driving erratically and failed three field sobriety tests. Upon the jury's recommendation, the trial judge assessed a suspended 180-day sentence and a $2000 fine. In four issues, Garry now asserts we should reverse his conviction because of error in the (a) charging instrument, (b) admission of certain evidence, (c) closing argument, and (d) jury charge. We affirm.

The Charging Instrument and Jury Charge

Garry's first and fourth issues stem from the information charging him with DWI under section 49.04 of the Texas Penal Code. Under that section, 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(a) (Vernon 2003). Section 49.01(2) of the penal code provides two definitions for "intoxicated": (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;" and (B) "having an alcohol concentration of 0.08 or more." Id. § 49.01(2). The information here tracked the language of section 49.04 and also tracked the language of section 49.01(2)(A), but omitted the word "body." Specifically, the information alleged that Garry

did . . . unlawfully drive and operate a motor vehicle in a public place . . . while intoxicated by not having the normal use of his mental and 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 these substances or any other substance into his.

Arguing it failed to allege an offense because the word "body" was missing, Garry objected to the information but not until after the jury had been impaneled and sworn and the State had made its opening statement. Finding Garry's objection untimely and relying on Sanchez v. State, 138 S.W.3d 324 (Tex.Crim.App. 2004), the trial judge overruled Garry's objection and stated he would allow the word "body" to be included in the anticipated jury charge's paragraph defining "intoxication" and the paragraph authorizing conviction. Garry immediately objected to the inclusion of the word "body" in the anticipated charge but the trial judge overruled his objection. Garry objected again at the charge conference, arguing the word "body" could not be included in the charge because the charge relied on the information and the information did not contain the word, but he was again unsuccessful. In his first issue, Garry asserts the court erred in overruling his objection to the information. In arguing this point, Garry recognizes that objections to charging instruments must be brought "before trial." See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005); Sanchez, 138 S.W.3d at 330. Although he did not object before trial began, Garry asserts his objection was "sufficiently timely" because he lodged it before testimony started. Garry maintains, without citing any supporting authority, see Tex. R. App. P. 38.1(i), that his objection was "sufficiently timely" and the trial court's ruling erroneous because "the true import of Sanchez is to prevent defendants from withholding objections from the trial court and then raising them for the first time on appeal." We agree the "import" of " Sanchez" is to prevent the defendant from "sandbagging" the State. Sanchez, 138 S.W.3d at 328. But, to prevent the "sandbagging," the trial judge must, prior to trial, be able to "ensure the complaint is not defective", see Sanchez, 138 S.W.3d at 328, or if defective allow the State to "repair" the defects, see Teal v. State, 230 S.W.3d 172, 176 (Tex.Crim.App. 2007). Once the jury has been impaneled and sworn, it is too late. See id. at 177 ("Texas law now requires the defendant to object to any error in the indictment before the day of trial and certainly before the jury is impaneled."). Because Garry lodged his objection after the jury had been impaneled and sworn, his objection was not timely and the trial court did not err in overruling his objection. We resolve Garry's first issue against him. In his fourth issue, Garry argues the court erred in submitting a jury charge that "expanded on" the charging instrument by "adding" the word "body." Arguing the word "body" is an element of DWI, Garry maintains, again without supporting authority, see Tex. R. App. P. 38.1(i), that its omission from the information precluded its inclusion in the jury charge. Undoubtedly, a court's charge may not expand on the allegations in the charging instrument. Garcia v. State, 640 S.W.2d 939, 941 (Tex.Crim.App. [Panel Op.] 1982). Nor may a charge include an element not contained in the charging instrument. Rodriguez v. State, 18 S.W.3d 228, 232 (Tex.Crim.App. 2000). As the State points out, Garry's argument fails, however, because "body" is not an element of DWI. The elements of DWI are (1) operating a motor vehicle (2) in a public place (3) while intoxicated. Tex. Penal Code Ann. § 49.04(a); Ramirez v. State, 263 S.W.3d 40, 42 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). While "body" is a part of the definition of intoxicated, the definitions of "intoxicated" serve an evidentiary or proof function at trial and do not constitute an essential element of DWI. See State v. Barbernell, 257 S.W.3d 248, 256 (Tex.Crim.App. 2008). Because "body" is not an essential element of DWI, the court did not improperly include the term in the charge. We resolve Garry's fourth issue against him.

Admission of Evidence

In his second issue, Garry complains of the admission of a certain statement by the arresting officer. Relevant to this issue, the record reflects Garry's erratic driving was reported by Celeste police chief Clint Mott, who was returning from a second job in Dallas and was behind Garry. Texas Department of Public Safety trooper Williams Yanish responded to the report and stopped Garry. At trial, Yanish testified he had not seen any erratic driving, but when he approached Garry, he smelled alcohol and noticed Garry had blood-shot eyes and seemed "disoriented." Yanish testified he commented to Mott, who had stopped behind him "in case he needed help," that Garry "seemed out of it." Yanish's testimony was corroborated in large part by a recording of the stop, which the state admitted into evidence and published to the jury over Garry's hearsay objection to Yanish's comment to Mott. Although the jury heard Yanish's testimony that he commented to Mott that Garry "seemed out of it" before hearing that same statement on the tape of the stop, Garry now asserts the court reversibly erred in overruling his objection. In arguing this point, Garry recognizes that no reversible error occurs in the improper admission of evidence where the same facts are shown by other evidence admitted without objection elsewhere at trial. See Leday v. State, 983 S.W.2d 713, 717 (Tex.Crim.App. 1998); Chapman v. State, 150 S.W.3d 809, 814 (Tex.App. -Houston [14th Dist.] 2004, pet. ref'd). Nonetheless, he argues his conviction should be reversed because Yanish's statement on the tape, made during the stop, was "more valuable to [the] jury" than his trial testimony, elicited "much later and after time for reflection." We disagree. Even if the statement had been excluded, the jury could have still concluded Garry "seemed out of it" by virtue of his behavior at the time of the stop as recorded on the tape. See Chapman, 150 S.W.3d at 814 (rejecting argument that, even though witness's testimony that granddaughter disclosed to him she had been sexually abused cumulative of other evidence, admission of that testimony improperly influenced jury because that witness was most credible and showed he believed child-victim by taking certain steps after the disclosure; jury could have concluded, even without complained-of testimony, that witness believed granddaughter based on his actions after the disclosure). We resolve Garry's second issue against him.

Closing Argument

Garry's third issue concerns his counsel's closing argument during the guilt-innocence phase of trial. Garry's defensive theory at trial was that he was tired and not intoxicated at the time of the stop, which occurred around 2:45 a.m. Although he admitted drinking that night, he testified he had only a 12-ounce beer. Garry also testified he took a Tylenol PM at 4:00 or 5:00 p.m. the previous afternoon, drank the beer around midnight after a 10:00 p.m. dinner with his family, had a slice of pizza around 1:00 a.m., and cereal around 2:00 a.m. By contrast, Yanish testified Garry admitted to him that he drank 16 ounces of beer that night, then admitted drinking 32-ounces of beer, took a Tylenol PM around 1:10 a.m., and had "his last drink . . . at 1:25 a.m." Trying to cast doubt on Yanish's testimony and the inference stemming from Yanish's testimony that Garry's taking a Tylenol PM at 1:10 a.m. along with drinking 32 ounces of beer, with the last drink at 1:25 a.m. was "more consistent" with Garry being intoxicated at the time of the stop than consuming alcohol at midnight, Garry's counsel argued in closing as follows

But you know something, maybe the State just overlooked this, but let's just suppose that he drank one can or two cans of beer as he was crossing the bridge [close to where he was stopped], which we know didn't happen, crossing the bridge, would it be intoxicated 25 minutes later, 20 minutes later. Common sense tells you absolutely not. If he'd done it 45 minutes before, absolutely not. The beer wouldn't have even had an opportunity to work in the system.

Contending counsel's arguments assumed facts not in evidence and was irrelevant, the prosecutor successfully objected to the above argument and Garry now complains of this ruling. Quoting from Arnold v. State, 68 S.W.3d 93, 102 (Tex.App.-Dallas 2001, pet. ref'd) which noted that "[a] defendant in a criminal trial should be allowed to argue any defensive theory supported by the evidence admitted at trial" and "may draw all reasonable inferences from the facts in evidence that are `reasonable, fair, and legitimate,'" Garry maintains the argument was proper and based on "inferences from the State's evidence." The court's ruling, he maintains further, precluded the jury from considering his defensive position that he could not have been intoxicated "even under the State's time line of events" and thus was reversible error. In response, the State argues the court did not err in sustaining the objection because the time line in counsel's argument was not supported by the evidence. We agree. The time lapse between when Garry had his last drink according to Yanish-1:25 a.m.-and when he was arrested-2:45 a.m.-was not twenty minutes, twenty-five, minutes, or even forty-five minutes later as counsel argued. It was well over an hour later. Because counsel's argument was not supported by the evidence admitted at trial, the court did not err in sustaining the State's objection. See Arnold, 68 S.W.3d at 102. We resolve Garry's third issue against him. We affirm the trial court's judgment.