No. 13-03-249-CR
Memorandum Opinion Delivered and Filed April 21, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the County Criminal Court at Law No. 7, of Harris County, Texas.
Before Justices RODRIGUEZ, CASTILLO and GARZA.
GARZA, Justice.
Following a jury trial, appellant, Mandy Renee Gorom, was convicted of driving while intoxicated, sentenced to 180 days' confinement in the Harris County Jail, and assessed a fine of $600.00. The trial court placed appellant on community supervision for 18 months. By four issues, appellant challenges her conviction claiming that the trial court erred in (1) permitting the State to question the arresting officer regarding a previously dismissed DWI charge against appellant because such evidence was not relevant, (2) permitting the State to question the arresting officer regarding the previous DWI charge against appellant because the probative value of the testimony was substantially outweighed by the danger of unfair prejudice, (3) permitting expert testimony from a witness not included in the State's Notice of Intention to Use Expert Testimony, and (4) refusing to instruct the jury in accordance with article 38.22 of the Texas Code of Criminal Procedure as to the legality of questioning appellant. We affirm.
I.
Appellant contends in her first and second issues that the trial court erred in admitting evidence at the guilt/innocence phase that appellant, while being transported to the station, told Deputy Gaudreau that her first charge of driving while intoxicated was dismissed. Appellant contends that such evidence is not relevant and its probative value was substantially outweighed by the danger of unfair prejudice. Forgoing any determination as to whether the trial court erred in admitting the complained of evidence, we note that the erroneous admission of evidence constitutes nonconstitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). Any such error must be disregarded unless it affected a substantial right of the defendant. TEX. R. APP. P. 44.2(b); Woods v. State, 152 S.W.3d 105, 109-10 (Tex.Crim.App. 2004). A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. Woods, 152 S.W.3d at 109. Assuming, arguendo, that the trial court erred in admitting appellant's statement, we would nevertheless overrule appellant's first two issues because any such errors did not affect appellant's substantial rights. See TEX. R. APP. P. 44.2(b). The record reflects that sometime after midnight on December 12, 2002, the Nassau Bay Police Department dispatched Officer Miller to the intersection of NASA Road 1 and NASA Drive, where Officer Miller found appellant asleep behind the steering wheel of her vehicle. Officer Miller attempted to wake appellant by knocking on the window and by shining his flashlight in her face but was unsuccessful. Officer Miller observed that appellant's vehicle, which was positioned in front of a stop light, was in drive and appellant's foot was on the brake. To prevent the vehicle from launching forward, he and a second officer positioned their police cars directly in front and behind appellant's vehicle. Officer Miller testified that he had knocked on appellant's window for about one minute or so before moving his vehicle and then continued to try to get appellant's attention by knocking, yelling, and shining his flashlight in her face for another two to three minutes before appellant finally responded. Officer Miller testified that when appellant woke up, he asked her to roll the window down or open the door. He asked her to put the vehicle in park. He testified that appellant went for the radio instead of the gear shift and that he had to put the vehicle in park himself. According to Officer Miller, appellant was unaware of what was going on; she was in a stupor and took a while to figure out that he was a police officer. When she rolled down her window, an extremely strong odor of alcohol emerged from the vehicle. Officer Miller asked appellant for identification and she gave him her business card. Appellant's speech was slurred and her eyes were glassy and bloodshot. Officer Miller believed appellant was "obviously intoxicated, extremely intoxicated." Because Officer Miller was just outside his jurisdiction, he had Precinct 8 Deputy Constable Gaudreau investigate the incident. Deputy Gaudreau testified that she received the dispatch call at 1:20 a.m. She testified that appellant's car was stopped right before the intersection of NASA Road 1 and a side street. She stated that when she arrived at the scene she first spoke to Officer Miller and then met with appellant who was still seated in her vehicle. Deputy Gaudreau noted that appellant was disoriented, smelled of alcohol, and had red eyes. Deputy Gaudreau conducted field sobriety tests, which appellant failed because appellant was swaying and couldn't keep her balance. Although appellant was cooperative, she laughed during the tests. Given this overwhelming proof of appellant's guilt, we cannot conclude that the trial court's allegedly erroneous admission of testimony concerning appellant's prior charge of DWI had a substantial and injurious effect or influence on the jury's determination of the verdict. Accordingly, we overrule appellant's first and second issues. See id. II.
In her third issue, appellant contends that the trial court erred in permitting a witness to give expert testimony even though the witness was not included in the State's Notice of Intent to Use Expert Testimony. Specifically, appellant claims that the State's notice of intent to call "HCSO Officer: S. Gaudreau" did not provide notice that Deputy Gaudreau would testify because the notice listed Deputy Gaudreau as a deputy sheriff, not a deputy constable. The trial court overruled appellant's objection stating that it did not agree with her contention that the discrepancy amounted to no notice at all because it would be the same as calling a person that did not exist. The court stated: "I don't agree with that. I guess if you could convince me that somehow preparation would be different [for a] precinct constable as to deputy sheriff then perhaps we could discuss this." The court further noted that because appellant had not made any attempts to contact the witness, there was no reason to believe appellant was actually harmed by the discrepancy. In Texas, criminal defendants do not have a general right to discover evidence in the State's possession, but they have been granted limited discovery by article 39.14 of the Texas Code of Criminal Procedure. Washington v. State, 856 S.W.2d 184, 187 (Tex.Crim.App. 1993) (citing TEX. CODE CRIM. PROC. art. 39.14 (Vernon Supp. 2004-05). Upon request by the defense, the State must disclose the witnesses who will be used at any stage of the trial. De Pena v. State, 148 S.W.3d 461, 465 (Tex.App.-Corpus Christi 2004, no pet.). This includes expert witnesses. Id. The plain language of article 39.14(b) provides that the court may order one party to disclose its trial witnesses upon the motion of another party. We find that article 39.14(b) has no application here because appellant did not request notice of expert witnesses and the trial court did not order such disclosure. Even if appellant had requested such notice, we would find that the State voluntarily provided appellant with sufficient notice of its intent to call Deputy Gaudreau. Further, even if the State's notice did not provide appellant sufficient notice of its intent to call Deputy Gaudreau, the trial court did not abuse its discretion in admitting the testimony because appellant should have reasonably anticipated Deputy Gaudreau's testimony considering she was the one who conducted the field sobriety tests and was the arresting officer. See id. at 468. We note that appellant also raised a constitutional claim in this issue; however, appellant failed to provide a clear and concise argument for the contentions made and as such the constitutional sub-issue presents nothing for review. See TEX. R. APP. P. 38.1(h). Appellant's third issue is overruled. III.
In her fourth issue, appellant contends that the trial court erred in not instructing the jury in accordance with article 38.22 of the Texas Code of Criminal Procedure as to the legality of questioning appellant while in custody. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon Supp. 2004-05). Appellant claims that she was entitled to an article 38.23 jury instruction with respect to her oral statement to Deputy Gaudreau because there was a factual dispute as to whether she was being interrogated at the time of the statement. We disagree. The protections of article 38.22 and the state and federal constitutions do not apply to custodial statements "which are not confessional in nature and which do not implicate the accused in the offense." See Burns v. State, 807 S.W.2d 878, 882 (Tex.App.-Corpus Christi 1991, pet. ref'd). Because it is uncontroverted that appellant was in custody at the time of the statement, we must determine whether appellant's statement that she had a prior DWI that was dismissed was confessional in nature. We conclude that it was not. The statement did not concede guilt for the instant offense and likewise did not concede guilt for the prior offense. Instead, it merely referred to a previous DWI arrest and the disposition of that arrest. The admission of the statement was not barred by article 38.22. Id. As such, appellant was not entitled to the protection of article 38.22. Appellant's fourth issue is overruled. IV.
The judgment of the trial court is affirmed.