Opinion
No. 05-08-01250-CR
Opinion Filed March 31, 2009, April 2, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Criminal Court No. 7, Dallas County, Texas, Trial Court Cause No. MB05-66852-H.
Ms. Lori L. Ordiway, Dallas TX. Mr. Craig Watkins, Dallas County District Attorney, Dallas TX. Ms. Karen R. Wise, Assistant District Attorney, Dallas TX.
Before Justices BRIDGES, O'NEILL, and FITZGERALD. Chief Justice, LINDA THOMAS, Justices JOSEPH B. MORRIS, MARK WHITTINGTON, CAROLYN WRIGHT, JIM MOSELEY, DAVID L. BRIDGES, MICHAEL J. O'NEILL, KERRY P. FITZGERALD, MARTIN RICHTER, MOLLY FRANCIS, DOUGLAS S. LANG, ELIZABETH LANG-MIERS, AMOS L. MAZZANT.
MEMORANDUM OPINION
A jury found appellant Randy Mark Matthews guilty of driving while intoxicated. The trial court assessed punishment at 120 days' confinement, probated for two years, and a $750 fine. In his first two issues, he challenges the legal and factual sufficiency of the evidence because he claims there is no evidence of intoxication at the time he was actually driving his vehicle. In his third issue, he contends the State committed a Brady violation when it failed to disclose that the arresting officer did not perform the required precursor to the horizontal gaze nystagmus (HGN) test. And in his final issue, he argues the trial court failed to pronounce his sentence and afford him the right of allocution. We affirm.
Background
On December 9, 2005, between 12:30 a.m. and 12:45 a.m., Patrick Harris was sitting in his car waiting at a light at the intersection of Preston and Arapaho. While waiting for the light to change, he looked in his rearview mirror and saw a black Porsche swerving all over the road and coming in his direction. He braced for impact. He then felt the impact from the collision, which caused substantial damage to his car. When the driver of the Porsche did not acknowledge the accident or get out to exchange information, Harris honked his horn and tried to get the driver's attention. The driver took off and Harris continued following him and honking his horn persistently. When they both stopped at the next light, Harris rolled down his window and began yelling at the driver to get his attention. Harris never got the driver's attention, but other witnesses stopped him and said they witnessed the accident. One witness, Christopher Adcock, later told an investigator he had a clear view of the incident. Although the night was cold and icy, he stated the driver of the Porsche made no effort to stop, but instead kept going right into Harris's car. Dallas Officer Robert McMillin was working as part of the DWI task force on the night in question and received a dispatch call between 1:00 a.m. and 1:30 a.m. Another officer had already pulled over appellant in a nearby parking lot. When Officer McMillin approached appellant, a strong odor of alcohol emanated from his body, he had slurred speech, blood shot eyes, slow mannerisms, and acted "just perfect for someone that's intoxicated." He said appellant did not know he had been in an accident despite the obvious damage to the front of his car, which included a flat tire. Appellant told Officer McMillin he was coming from Champs sports bar. Martin Baylor, a friend of appellant, testified at trial that the two had gone to the sports bar around 10:30 p.m. He said appellant had two vodka tonics in the span of two hours before leaving around 12:25 a.m. He also testified he saw appellant take an Actifed before leaving. At the scene, Officer McMillin did not ask appellant to perform the one-leg stand test or the walk-and-turn test because appellant was very unsteady, and Officer McMillin did not want him to get hurt. He observed enough, however, to determine appellant was intoxicated so he arrested him and took him to the intoxilizer room at Lou Sterrett. The video from the intoxilizer room, which the jury viewed, shows appellant having difficulty completing the walk-and-turn test, reciting the alphabet, and counting backwards. At one point, he says "I don't mean to be mean to you guys, I'm just drunk." He also refused to provide a breath or blood sample. Appellant was then charged with driving while intoxicated and later convicted by a jury. This appeal followed.Sufficiency of the Evidence
In his first two issues, he challenges the legal and factual sufficiency of the evidence because he claims there is no evidence he was intoxicated at the time he was actually driving his vehicle. The State responds that despite the officer not responding to the scene of the accident until approximately an hour later, the circumstantial evidence surrounding the accident is sufficient to support appellant's conviction for driving while intoxicated. In a legal sufficiency review, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The standard is the same for both direct and circumstantial evidence cases. Burden v. State, 55 S.W.3d 608, 613 (Tex.Crim.App. 2001); Bates v. State, 155 S.W.3d 212, 215 (Tex.App.-Dallas 2004, no pet.). In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether the fact-finder's guilty verdict was rationally justified. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). Under both standards of review, the fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). To convict for the offense of driving while intoxicated, the State must prove appellant was intoxicated while operating a motor vehicle in a public place. Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). Under the penal code, a person is intoxicated if he does not have the normal use of mental or physical faculties by reason of the introduction of alcohol into the body. Tex. Penal Code Ann. § 49.01(2)(a) (Vernon 2003). Appellant asserts the State failed to meet its burden because the two State witnesses never identified appellant as the driver of the vehicle in question and even if Officer McMillin's testimony is given its full weight, he only testified appellant was intoxicated one hour after appellant was driving the Porsche and caused the accident. Thus, no one specifically testified appellant was intoxicated while driving. We disagree with appellant. Although Officer McMillin's testimony alone regarding appellant's intoxication at the scene an hour later presents no direct proof he was intoxicated while driving, it constitutes a part of an accumulation of evidence. See Chaloupka v. State, 20 S.W.3d 172, 175 (Tex.App.-Texarkana 2000, pet. ref'd). Thus, the jury could consider that a strong odor of alcohol emanated from appellant's body, he had slurred speech, blood shot eyes, slow mannerisms, and acted "just perfect for someone that's intoxicated." They could also consider his behavior from the intoxilizer room video in which he failed several sobriety tests and stated, "I don't mean to be mean guys, I'm just drunk" as evidence that he drove while intoxicated. See Salazar v. State, 86 S.W.3d 640, 645 (Tex.Crim.App. 2002) (noting corpus delicti rule applies if some evidence exists outside of the extra-judicial confession which, considered alone or in connection with the confession, shows that the crime actually occurred). Further, when considering the intoxication element, erratic driving and a collision are instances of impaired judgment that can be sufficient to establish that a driver did not have the normal use of his mental faculties. Chaloupka, 20 S.W.3d at 175. Here, Adcock testified he had a clear view of the accident in which appellant hit Harris and made no attempt to first hit his brakes. Harris also testified he saw appellant swerving all over the road before hitting him. Then appellant made no attempt to stop and exchange information despite Harris's repeated attempt to get his attention by honking and yelling at him. When Officer McMillin arrived on the scene, appellant was unaware he has even been in an accident even though his car sustained damage, and he had a flat tire. The lack of judgment, including the total lack of knowledge of being involved in an accident, demonstrated by appellant's conduct indicates he did not have the normal use of his mental faculties. Id. (noting evidence of striking another vehicle, leaving scene of crime, and speeding away were indicative of losing metal faculties). Further, the jury heard testimony appellant consumed two alcoholic beverages and took an Actifed before leaving a sports bar. This, along with Officer McMillin's observations, created an inference that his conduct on the night in question involved the consumption of alcohol and that his erratic driving behavior was attributable to the consumption of alcohol. Appellant presented no contradictory evidence that would suggest he was not driving or became intoxicated after the accident. We acknowledge that Baylor testified on his behalf and claimed appellant was not intoxicated when he left the sports bar; however, the jury was free to disbelieve this testimony. Harvey, 135 S.W.3d at 717. Furthermore, Baylor also testified he had no personal knowledge of appellant's condition at the time of the accident. Thus, we cannot conclude this testimony alone is strong enough to render the verdict clearly wrong or manifestly unjust. Finally, we reject appellant's argument that the only evidence of intoxication came from Officer McMillin an hour after the accident occurred. As stated above, two State witnesses testified to appellant's erratic driving. Further, the jury heard sufficient circumstantial evidence, and the critical issue is that there must be proof from which the fact-finder can conclude that at the time of the driving in question, whenever that might be, the defendant was intoxicated, in other words, a "link" between the driving and the intoxication. See Layland v. State, 144 S.W.3d 647, 651 (Tex.App.-Beaumont 2004, no pet.). Here, we believe the State established this link. After reviewing the evidence, we conclude the evidence is both legally and factually sufficient for the jury to find that appellant operated a motor vehicle while intoxicated. We overrule appellant's first and second issues.Brady Violation
In this third issue, appellant claims the State violated Brady v. Maryland by failing to disclose that Officer McMillin did not perform the precursor to the HGN test. The State responds appellant failed to prove the evidence was material and had it been disclosed, the outcome of the trial would have been different. Under Brady, an appellant shows reversible error if (1) the State failed to disclose evidence, regardless of the prosecution's good or bad faith; (2) the withheld evidence is favorable to him; and(3) the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Brady v. Maryland, 373 U.S. 83, 87 (1963); Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App. 2002). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. U.S. v. Bagley, 473 U.S. 667, 682 (1985). The mere probability that undisclosed evidence may have helped the defense or affected the trial's outcome does not establish materiality in the constitutional sense. Hampton, 86 S.W.3d at 612. Further, whether the evidence is material should be viewed in the context of the overall strength of the State's case. Id. at 613.The State concedes the first two Brady elements; however, the State disagrees that the evidence regarding Officer McMillin's failure to perform one precursor to the HGN test, specifically checking whether appellant's pupils were the same size, was material to the case. Because of the State's concession, we address only the materiality factor. During direct examination, Officer McMillin stated he did not actually remember whether he looked for equal sizing of appellant's pupils so he could not testify to it. Defense counsel then asked to take the officer on voir dire and ask further questions because if an officer fails to check for equal sized pupils, the HGN test is invalid. Based on Officer McMillin's answers, defense counsel moved to strike his testimony regarding the HGN test from the record. The State had no objection to the test being invalidated in this case. The court then instructed the jury accordingly. Appellant contends Officer McMillin's testimony was the only evidence of appellant's intoxication, and he was denied the opportunity to impeach him or discredit his testimony. He argues had he known earlier that the test was invalid, he would have done things "totally differently," like focusing on the possibility of a head injury, and this information likely would have made the difference between conviction and acquittal. We cannot agree. After viewing the strength of the State's entire case as discussed above under our sufficiency review, the jury heard evidence regarding appellant's intoxication from other witnesses besides Officer McMillin. It also heard testimony from a defense witness that appellant consumed two alcoholic beverages and took medication before leaving the sports bar. Further, defense counsel cross-examined Officer McMillin regarding the possibility of a head injury and also argued in closing that "we cannot even rule out a head injury in this case because the officer didn't do his job." Thus, appellant presented his argument that a head injury from the accident may have mimicked the signs of intoxication; however, the jury was free to disbelieve his theory. As such, we cannot conclude that had appellant learned that Officer McMillin failed to establish the proper precursor for validating the HGN test prior to trial, a "reasonable probability" existed that the outcome would have been different. Bagley, 473 U.S. 682. Appellant has presented nothing more than the mere probability that the undisclosed evidence may have helped the defense or affected the trial's outcome, and this alone does not establish materiality in the constitutional sense. Hampton, 86 S.W.3d at 612. We overrule appellant's third issue.