Opinion
04-21-00248-CR
06-15-2022
Marcos Alberto Ibanez GUTIERREZ, Appellant v. The STATE of Texas, Appellee
DO NOT PUBLISH
From the County Court at Law No. 14, Bexar County, Texas Trial Court No. 623228 Honorable Carlo Key, Judge Presiding
Sitting: Beth Watkins, Justice, Liza A. Rodriguez, Justice, Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Lori I. Valenzuela, Justice
A jury convicted Marcus Alberto Ibanez Gutierrez of driving while intoxicated and the trial court assessed punishment. On appeal, Gutierrez raises five challenges to the judgment: (1) trial counsel rendered ineffective assistance of counsel; (2) the evidence is legally insufficient to support a finding that he drove the vehicle on September 14, 2019; (3) the evidence is legally insufficient to support the amount of restitution assessed in the judgment; (4) the oral pronouncement of sentence conflicts with the sentence imposed in the judgment, and (5) the evidence is legally insufficient to support the amount of costs assessed in the judgment. We reverse a portion of the judgment, reform a portion of the judgment, and affirm as reformed.
BACKGROUND
At trial, the only witness called to testify was San Antonio Police Officer Emilio De La Rosa, who was assigned to the DWI Task Force. On September 14, 2019, De La Rosa was dispatched to the scene of a vehicular crash at the intersection of Babcock Road and Hollyhock Road in Bexar County, Texas. He wore a body camera, and his police car had a dashcam, both of which were recording. Once at the scene, he began a DWI investigation, which included a conversation with Gutierrez.
Both videos were admitted into evidence without objection and played for the jury.
De La Rosa's body camera and his vehicle's camera recorded the interaction between him and Gutierrez. De La Rosa approached Gutierrez and one individual standing with Gutierrez on the sidewalk by the passenger side of the car. The other individual appeared to have been a passenger in the car. During his conversation with Gutierrez, De La Rosa observed a strong odor of intoxicants and slurred speech. He said Gutierrez was polite, willing to speak with him, and wanted to explain what happened. Gutierrez told the officer he was returning from a party but when asked if he had anything to drink, Gutierrez said "no." De La Rosa said there was a passenger in the vehicle with Gutierrez, but his focus was on Gutierrez because Gutierrez said he was the driver. De La Rosa did not know if the passenger was intoxicated because that individual spoke to another office at the scene.
When De La Rosa asked both individuals, "who's driving," Gutierrez replied, "it's mine." De La Rosa then said to Gutierrez, "you were driving", and Gutierrez replied, "yes." At this time, Gutierrez was holding the keys to the vehicle. When De La Rosa asked Gutierrez for his driver's license and insurance card, Gutierrez opened the front passenger side door, reached in, and pulled out his wallet and proof of insurance. De La Rosa also asked Gutierrez if he was hurt, and Gutierrez said he was not hurt, he "was just trying to change lanes," and another driver would not let them pass. When asked why the car was not near the spot where the accident happened, Gutierrez said he wanted to move the car out of the street and park by the curb. Gutierrez expressed concern about the cost of towing the car, and said he did not want to "pay the whole thing" [presumably the tow fee] "because he was a college student." Before the field sobriety tests were conducted, Gutierrez walked to the front of the patrol car and laid his wallet, cell phone, and the car keys on the hood of the car.
When asked if he knew the time, Gutierrez responded 2:00 a.m., which De La Rosa said was off from the actual time by a "significant amount." De La Rosa conducted Standard Field Sobriety Tests ("SFSTs"), which included the Horizontal Gaze Nystagmus ("HGN"), a walk-and-turn, and a one-leg stand. Gutierrez's HGN test revealed six of the six markers for intoxication. During the one-leg stand, Gutierrez hopped around to gain position and swayed his arms for balance. Based on his contact with Gutierrez and the SFSTs, De La Rosa determined Gutierrez was intoxicated and arrested him.
A jury convicted Gutierrez of driving while intoxicated and the trial court assessed punishment at, among other things, 180 days' confinement, probated. This appeal by Gutierrez ensued.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his first issue on appeal, Gutierrez contends trial counsel rendered ineffective assistance of counsel because she did not object when De La Rosa attempted to quantify Gutierrez's blood alcohol concentration ("BAC") based only on the results of the SFSTs.
A. Standard of Review
A defendant is entitled to effective assistance of counsel under the United States Constitution and the Texas Constitution. U.S. Const. amend. VI; Tex. Const. art. I, § 10. To establish ineffective assistance of counsel, the appellant must show: (1) trial counsel's assistance fell below an objective professional standard of reasonableness and (2) counsel's actions prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). An appellant "bears the burden of proving by a preponderance of the evidence that counsel was ineffective." Thompson, 9 S.W.3d at 813.
"To establish deficient performance, an appellant must show counsel's assistance 'fell below an objective standard of reasonableness.'" Vega v. State, 610 S.W.3d 79, 82 (Tex. App.- San Antonio 2020, no pet.) (quoting Thompson, 9 S.W.3d at 812). "An appellant must overcome the 'strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.'" Id. The appellant "'must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Id. "To defeat the presumption of reasonable professional assistance, 'any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.'" Thompson, 9 S.W.3d at 814 (citation omitted). "If no reasonable trial strategy can justify counsel's choices or conduct, performance necessarily falls below an objective standard of reasonableness." Vega, 610 S.W.3d at 82 . "However, few cases demonstrate such deficiency on direct appeal because the record is unlikely to include any explanation by trial counsel, and 'we can [frequently] conceive of potential reasonable trial strategies that counsel could have been pursuing.'" Id. at 82-83 (citation omitted).
"Once an appellant establishes deficient performance, the appellant must then establish prejudice." Id. at 83. An appellant "must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Thompson, 9 S.W.3d at 812. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
B. Analysis
SFSTs are a reliable indicator of intoxication. See Emerson v. State, 880 S.W.2d 759, 768 (Tex. Crim. App. 1994). However, an officer may not correlate a defendant's performance on the test to a precise BAC. Id. at 769 ("We are unable to conclude, however, that the HGN technique is a sufficiently reliable indicator of precise BAC."). "An officer trained to administer the standardized sobriety tests may opine that a defendant was under the influence of alcohol, but he or she may not opine about that defendant's specific BAC." Burkett v. State, 179 S.W.3d 18, 34 (Tex. App.-San Antonio 2005, no pet.).
"Alcohol concentration" is defined as "the number of grams of alcohol per: (A) 210 liters of breath; (B) 100 milliliters of blood; or (C) 67 milliliters of urine." Tex. Pen. Code § 49.01(1).
Gutierrez complains about the following testimony from De La Rosa:
Q. Okay. Let's talk about - so let's talk about NHTSA. Are there minimum clues of intoxication that NHTSA provides for when you're doing the standardized field sobriety tests?
A. Yes.
Q. Were those minimum amount of clues observed in the defendant?
A. Yes.
Q. Okay. And what does NHTSA say about when a person - when an officer, who had been trained, observed those minimum amount of clues? I know I worded it a little funky. I am sorry. Let me reword it for you. What does NHTSA say when you observe those minimum amount of clues in an individual? [Emphasis added.]
A. That they're over the illegal limit.[Emphasis added.]
Field sobriety tests are advocated by the National Highway Traffic Safety Administration ("NHTSA"), a division of the United States Department of Transportation. In Texas, police officers must complete an NHTSA-approved, State-sponsored training course to be certified to administer field sobriety tests.
On appeal, Gutierrez does not dispute the reliability or application of the SFSTs conducted by De La Rosa. Instead, he contends trial counsel failed to object when the State exceeded the proper scope of testimony concerning the results of the tests when the officer stated, "they're over the illegal limit." We disagree with Gutierrez's characterization of De La Rosa's statement.
De La Rosa never correlated Gutierrez's performance on the field sobriety tests to an exact blood alcohol content. Instead, he answered a hypothetical question posed by the prosecutor: "What does NHTSA say when you observe those minimum amount of clues in an individual?" Reading the officer's statement in context, we cannot conclude trial counsel's assistance fell below an objective professional standard of reasonableness.
SUFFICIENCY OF THE EVIDENCE TO SUPPORT CORPUS DELICTI DOCTRINE
In his second issue, Gutierrez asserts the evidence is legally insufficient to support a finding that he drove the vehicle on the night of the accident. Although Gutierrez told De La Rosa he was driving the vehicle, Gutierrez contends this extrajudicial admission-standing alone-is not legally sufficient evidence to sustain a finding that he was, in fact, the driver. Gutierrez argues other evidence must corroborate his statement and, because there is no corroborating evidence in the record, the trial court ignored the corpus delicti requirement that an extrajudicial admission be corroborated.
A. Standard of Review
We review the evidence in the light most favorable to the verdict. Romano v. State, 610 S.W.3d 30, 34 (Tex. Crim. App. 2020). This standard applies whether the case was proven by direct or circumstantial evidence. Id. We must defer to the fact-finder and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Id. The fact-finder is responsible for judging the credibility of witnesses and may find credible all, some, or none of the testimony that the witnesses give. Id. We may not re-evaluate the weight and credibility of the record evidence and substitute our judgment for the jury. See Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). If the evidence falls within a zone of reasonable disagreement, we must assume jurors made all inferences in favor of the verdict and disregard other possible inferences. Id. at 922.
"In cases involving extrajudicial confessions when 'beyond a reasonable doubt' is the burden, not only must the evidence be legally sufficient under Jackson but also it must tend to show the corpus delicti of the offense." Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021). "To determine if the corpus delicti of an offense is shown, an appellate court must examine all the evidence except the defendant's extrajudicial confession to see if it shows that 'the 'essential nature' of the charged crime was committed by someone.'" Id. (citation omitted); see also Gribble v. State, 808 S.W.2d 65, 70 (Tex. Crim. App. 1990) ("[T]he extrajudicial confession of a criminal defendant must be corroborated by other evidence tending to show that a crime was committed."). "The purpose of the corpus delicti rule is to prevent convictions based on confessions to imaginary crimes." Harrell, 620 S.W.3d at 914. "The analysis focuses on only whether someone committed the crime, but it is not as rigorous as the Jackson legal sufficiency review." Id. "The corpus delicti of DWI is that someone operated a motor vehicle in a public place while intoxicated." Id. "In a corpus delicti analysis, the extrajudicial confession of a defendant is not considered, and identity need not be proven." Id.; Gribble, 808 S.W.2d at 70 ("It need not be corroborated as to the person who committed it, since identity of the perpetrator is not a part of the corpus delicti and may be established by an extrajudicial confession alone."). "But under Jackson, all the admitted evidence is considered, and proof of identity is required." Harrell, 620 S.W.3d at 914.
The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
B. Analysis
At trial, the State was required to prove Gutierrez was "intoxicated while operating a motor vehicle in a public place." See Tex. Pen. Code § 49.04(a). We conclude the evidence is sufficient under Jackson because a rational jury could find each essential element of the offense beyond a reasonable doubt when considering all the admitted evidence, including Gutierrez's extrajudicial confession. There is no dispute that the car was operated in a public place. Gutierrez stated he had been driving the vehicle and there was ample evidence he was intoxicated because, in addition to the failed SFSTs, he smelled of intoxicants and had slurred speech.
We also conclude the evidence is sufficient to show the corpus delicti of the offense of driving while intoxicated. As stated above, the identity of the perpetrator is not part of the corpus delicti. See, e.g., Harrell, 620 S.W.3d at 914; Chambers v. State, 866 S.W.2d 9, 15 (Tex. Crim. App. 1993); Gribble, 808 S.W.2d at 70. Absent Gutierrez's statement that he was the driver, the evidence shows two individuals were in the car at the time of the accident, Gutierrez explained the accident happened when they were trying to change lanes, and Gutierrez had possession of the car keys. Gutierrez was arrested for driving while intoxicated because De La Rosa believed he had lost normal control of his mental or physical faculties and was operating a motor vehicle in a public place. "If [Gutierrez] had been driving, he was guilty of DWI." See Harrell, 620 S.W.3d at 915 ("While the evidence indicates that Appellant was driving, we stress that proof of identity is not required in a corpus delicti analysis."). Although the record does not indicate whether the other individual in the car was arrested, "[i]f [he] had been driving, [he] also [may] have been guilty of DWI." Id. ("The evidence tends to show that someone in the minivan was operating it on the highway when 911 was called.").
On appeal, Gutierrez relies on Threet v. State, 250 S.W.2d 200 (Tex. Crim. App. 1952), to argue there was no independent testimony to support he was the driver. The appellant in Harrell made the same argument and the Court of Criminal Appeals stated he "mischaracterize[d] [Threet]" because "[t]his Court in Threet . . . emphasized that identity is not part of the corpus delicti of DWI." Harrell, 620 S.W.3d at 914.
In this case, loss of normal use of one's facilities was the theory submitted to the jury. See Tex. Pen. Code § 49.01(2).
We conclude the corpus delicti rule has been satisfied and the evidence is legally sufficient because it tends to show that someone operated a motor vehicle in a public place while intoxicated.
RESTITUTION
In his third issue, Gutierrez asserts the evidence is legally insufficient to support the amount of restitution. According to Gutierrez, the State was required to prove his intoxicated driving caused some form of damage and, because it failed to do so, the restitution should not have been ordered. The State counters that Gutierrez invited any error on the trial court's part and, therefore, he cannot complain about the restitution on appeal. We agree with Gutierrez.
"Restitution is not only a form of punishment, it is also a crime victim's statutory right." Hanna v. State, 426 S.W.3d 87, 91 (Tex. Crim. App. 2014); see also Tex. Code Crim. Proc. art. 42.037(a) ("In addition to any fine authorized by law, the court that sentences a defendant convicted of an offense may order the defendant to make restitution to any victim of the offense . . .."). "Restitution serves multiple purposes, including restoring the victim to the status quo and forcing an offender to address and remedy the specific harm that he has caused." Hanna, 426 S.W.3d at 91. "[T]he legislature has also recognized limits on the right to restitution: the amount of restitution must be just; it must have a factual basis in the record; and it may be ordered only to a victim of an offense for which the defendant is charged." Id. "To obtain restitution, the State must prove that appellant's intoxicated driving was the 'but for' and proximate cause of the damage." Id. at 98 (concluding that, "[a]lthough the State was given ample opportunity to offer evidence that it was appellant's intoxicated driving that caused the accident, there was no such proof in this case.").
A defendant's sentence must be pronounced orally in his presence. See Tex. Code Crim. Proc. art. 42.03, § 1(a). "A judgment is the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant. The sentence served shall be based on the information contained in the judgment." Id. art. 42.01(a). The judgment shall reflect . . . [i]n the event of conviction where the imposition of sentence is suspended and the defendant is placed on community supervision, setting forth the punishment assessed, the length of community supervision, and the conditions of community supervision. Id. art. 42.01(a)(10). "The judgment, including the sentence assessed, is just the written declaration and embodiment of that oral pronouncement." Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). "When there is a conflict between the oral pronouncement of sentence and the sentence in the written judgment, the oral pronouncement controls." Id. At the conclusion of the punishment phase, the court orally pronounced sentence as follows:
In Taylor, the order granting Taylor deferred adjudication was set aside and he was not sentenced until his guilt was adjudicated. At that time, the judge did not orally pronounce a fine, but included a fine within the written judgment. The Court of Criminal Appeals concluded that, because the judge did not orally assess a fine as part of Taylor's sentence when guilt was adjudicated, the court of appeals was correct to delete the fine from the judgment. Taylor, 131 S.W.3d at 502.
Okay. So it is $500 fine, court costs, 180 days probated for 16 months, 48 hours of community service, the courses, $500 in restitution to Ramiro Rodriguez, ignition interlock for eight months. I will accept the DWI education and victim impact panel already completed. Supervisory fees will be $40 per month. . . . .
The body of the judgment imposes punishment as "a fine of $500.00 and court cost[s] of $460.00 and 16 MTHS in jail." There is no mention of restitution. However, above the body of the judgment is a list that includes "$50 restitution to Romero Rodriguez." Despite this written judgment lacking clarity, we conclude the trial court orally pronounced a sentence that included $500 in restitution to Ramiro Rodriguez.
"The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the prosecuting attorney." Tex. Code Crim. Proc. art. 42.037(k). During the sentencing hearing, the State put on no evidence about the identity of the victim, the type of injury, the amount of the loss sustained, or that Gutierrez's intoxicated driving was the "but for" and proximate cause of the damage. Because the restitution imposed here has no factual basis in the record, we must reverse that part of the judgment ordering the payment of restitution.
COURT COSTS & CONFINEMENT
Finally, Gutierrez challenges the legal sufficiency of the evidence supporting his sixteen-month confinement and the trial court's assessment of court costs.
A. Reformation of Judgment to Reflect Oral Pronouncement of Sentence
At the conclusion of the sentencing hearing, the trial court orally pronounced Gutierrez's punishment as "180 days probated for 16 months." The written judgment states that following the June 8, 2021 guilty verdict, Gutierrez's punishment, "as determined by the court," should be "16 mths in jail." The judgment then states that, following a June 9, 2021 hearing to consider Gutierrez's application for adult probation, his sentence would be as follows: "placed on adult probation for a term of 16 mths effective on the 9th of June, 2021 . . .." On appeal, Gutierrez asserts the sentence in the written judgment conflicts with the court's oral pronouncement of "180 days probated for 16 months," and the judgment should be reformed. The State agrees.
With exceptions that do not apply here, "sentence shall be pronounced in the defendant's presence." Tex. Code Crim. Proc. art. 42.03, § 1(a). When, as here, "there is a variation between the oral pronouncement of sentence and the written memorialization of the sentence, the oral pronouncement controls." Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). "The solution in those cases in which the oral pronouncement and the written judgment conflict is to reform the written judgment to conform to the sentence that was orally pronounced." Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003).
Accordingly, we reform the judgment of conviction for Trial Court Cause Number 623228 that reads "16 MTHS IN JAIL" to read "180 DAYS IN JAIL PROBATED FOR 16 MONTHS."
B. Court Costs
The trial court's judgment assesses court costs in the amount of $460. Gutierrez contends the evidence is legally insufficient to support this amount because the record contains no bill of costs.
In a criminal case, the sufficiency of the evidence supporting court costs is reviewable on direct appeal. See Mayer v. State, 309 S.W.3d 552, 554-56 (Tex. Crim. App. 2010). A trial court is required to assess the costs of court against a convicted criminal defendant. Tex. Code Crim. Proc. art. 42.16. Costs must be substantiated by a bill of costs entered into the record of the case. Id. art. 103.001(b); see also Solomon v. State, 392 S.W.3d 309, 310 (Tex. App.-San Antonio 2012, no pet.).
The clerk's record here does not contain a document entitled "bill of costs." However, the second page of the judgment contains an itemization of court costs totaling $440. Based on this record, we conclude it does not contain any evidence supporting the assessment of $460 in court costs. Accordingly, the trial court did not err in ordering Gutierrez to pay costs, as an imposition of costs as mandated by article 42.16, we hold it erred in ordering him to pay $460 in costs without any support in the record for the difference between the amount itemized in the judgment and the amount assessed in the oral pronouncement. Consequently, we reform the judgment of conviction for Trial Court Cause Number 623228 that reads "Costs of Prosecution $460" to read "Costs of Prosecution $440."
CONCLUSION
We reverse that portion of the judgment ordering restitution and we reform the judgment of conviction for Trial Court Cause Number 623228 that reads "16 MTHS IN JAIL" to read "180
DAYS IN JAIL PROBATED FOR 16 MONTHS" and "Costs of Prosecution $460" to read "Costs of Prosecution $440." The trial court's judgment, as reformed, is otherwise affirmed.