Nos. 05-03-01827-CR, 05-03-01828-CR, 05-03-01829-CR
Opinion Filed November 30, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 366-80047-00, 366-80048-00, 366-80049-00. Affirm as Modified.
Before Justices WRIGHT, RICHTER, and MAZZANT.
CAROLYN WRIGHT, Justice.
Julio Cesar Ortiz appeals his convictions for two counts of endangering a child and one count of intoxication assault. After the jury found appellant guilty, the trial court assessed punishment at 475 days' confinement in a state jail for each of the endangering a child cases, and six years' confinement in the intoxication assault case. In seven issues, appellant generally contends (1) he is entitled to certain back time credit; (2) the trial court erred by allowing certain expert testimony; (3) the evidence is legally insufficient to support a deadly weapon finding; (4) the evidence is factually insufficient to support his convictions; and (5) he was denied his right to a speedy trial. We sustain appellant's first point of error and modify the judgments in cause numbers 05-03-01827-CR and 05-03-01828-CR, we overrule appellant's remaining points of error, and as modified, affirm the trial court's judgments.
The record reflects that Julio Cesar Ortiz has also used the name Simon Ortiz Tristan.
Background
William Peters testified that he and his family were traveling to West Texas when they were involved in a traffic accident shortly before 6:00 a.m. As the Peterses were traveling in their lane, a pickup truck traveling in the opposite direction swerved into their lane and hit them head-on. Peters's wife's leg was broken in two places, her heel was broken, and her nose was broken. All four of the Peters children were also injured. Victoria Gray testified that she was seven-years-old at the time of the accident. She and her younger sister, Daniella, were in the pickup truck that collided with the Peters' truck. According to Gray, she and her sister were in the truck with Avaristo Alvarado, Gray's mother's boyfriend. Alvarado was in the passenger seat, and appellant was driving. The evening before, Gray and her sister had gone with Alvarado and appellant to cash a paycheck and pick up some belongings in Dallas and had been in the truck with the two men the entire night. Appellant and Alvarado stopped twice and bought beer, the first time 12 bottles and the second time a 24-pack of cans. They began acting "crazy," and Gray thought the men were drunk. Before the accident, appellant was weaving and going into the wrong lane. Alan P. Davidson, a former trooper with the Texas Highway Patrol, testified that he investigated the accident in this case. When he arrived at the scene, he searched the truck appellant had been driving. Davidson found beer bottles and an empty twenty-pack container of beer. Davidson went to the hospital and attempted to speak with appellant. Appellant was "passed out," and Davidson was unable to wake him. Davidson smelled the "strong odor of an alcoholic beverage on [appellant's] breath." Davidson suspected appellant was intoxicated, and he requested that a blood sample be drawn for an alcohol level. That sample was drawn at 10:50 a.m. (approximately five hours after the accident) and showed a blood alcohol level of 0.13. When appellant was released from the hospital a couple of days later, Davidson arrested and then later interviewed appellant. During the interview, appellant admitted he was driving the pickup truck and that he had been drinking since about seven o'clock the evening before the accident. However, appellant also said he only drank "two beers" and that he felt he was "okay" to be driving. When Davidson asked appellant if he had been injured in the accident, appellant showed Davidson bruising and redness on his left shoulder that was, in Davidson's opinion, "consistent with somebody in a driver's seat with a shoulder belt on." Dr. William Rohr testified he is the medical examiner for Collin County and is familiar with the concept of retrograde extrapolation. After considering the information he was given in this case, including that appellant's alcohol level at 11:00 a.m. was 0.13 and that appellant was drinking beer until 5:55 a.m. when the accident occurred, Rohr determined that appellant entered the post-absorptive state (the point at which all alcohol was absorbed) at 7 a.m. Using a standard rate of alcohol elimination, and assuming appellant was a moderate user of alcohol, Rohr calculated appellant's blood alcohol level to be approximately 0.20 percent at 7 a.m. Rohr also explained that if appellant was a heavy user of alcohol, his blood level may have been as high as 0.25 at 7 a.m., and if he were a "naive" user, the level would have been about 0.17. In Rohr's opinion, given the information in this case "it is reasonable to assume that at the time of the accident . . . [appellant's] level is going to be much above the [legal limit of] 0.08 percent at the time of the accident." Appellant testified that his friend, Alvarado, borrowed his girlfriend's truck the evening before the accident. He and Alvarado took Alvarado's girlfriend's girls with them to pick up some clothes and to cash a paycheck. Initially, appellant drove the truck. Early in the morning hours, appellant was involved in an accident in Plano, Texas. He had been drinking a "little bit" at that time. The Plano Police responded to the accident, and after appellant successfully performed field sobriety tests, he was allowed to go. They returned to Alvarado's girlfriend's trailer but left again shortly thereafter. They took the girls with them again, and this time Alvarado drove. According to appellant, Alvarado was driving when they had the accident with the Peterses. Appellant admitted that he and Alvarado had been drinking and that they had bought 72 beers during the night, but appellant maintained that he drank only two of the beers. After hearing this and other evidence, the jury found appellant guilty of endangering the two children in the truck he was driving and one count of intoxication assault for the injuries to Peters's wife. This appeal followed. Back Time Credit
In his first and second points of error, appellant contends he is entitled to back time credit (1) against his two state jail felonies because the time assessed as punishment together with the time he was in jail prior to sentencing exceeds the maximum sentence allowed for a state jail felony by 115 days; and (2) for the time he spent in the custody of the Immigration and Naturalization Service (INS). After oral argument, appellant and the State reached an agreement regarding appellant's back time credit claims and stipulated that appellant is entitled to 115 days credit against his state jail convictions in cause numbers 05-03-01827-CR (trial court cause number 366-80047-00) and 05-03-01828-CR (trial court cause number 366-80048-00). Consequently, we sustain appellant's first point of error and reform the judgments to reflect 115 days credit in cause numbers 05-03-01827-CR and 05-03-01828-CR, and we overrule appellant's second issue regarding time credit for the time he spent in INS custody. Retrograde Extrapolation
In his third point of error, appellant contends the trial court committed reversible error by allowing Dr. William Rohr to testify regarding retrograde extrapolation. After reviewing the record, we conclude we need not determine if the trial court erred by allowing the complained-of testimony because even assuming it did, any error was harmless. In considering the harm, if any, from the admission of the extrapolation testimony, we must disregard the error if we, "after examining the record as a whole, ha[ve] fair assurance that the error did not influence the jury, or had but a slight effect." Bagheri v. State, 119 S.W.3d 755, 763 (Tex.Crim.App. 2003). In making this determination, we consider the entire record including testimony, physical evidence, jury instructions, the State's theories and any defensive theories, closing arguments, and voir dire if applicable. Id. More specifically, we should consider whether the State emphasized the error, whether the erroneously admitted evidence was cumulative, and whether it was elicited from an expert. Id. Here, the evidence was elicited from an expert; however the State did not, as in Bagheri emphasize the extrapolation testimony. Rather, the focus of the State's case was to show that appellant was driving the car, not Alvarado, as asserted by appellant. The complained-of evidence was cumulative in that the record contains evidence other than the extrapolation testimony showing appellant was intoxicated at the time of the accident. Specifically, Gray testified that she was in the truck with appellant and that he was driving, was drunk, and was acting "crazy." Davidson testified that during his investigation of the accident, he searched the truck and found beer bottles and an empty twenty-pack container of beer. A short time later, when Davidson attempted to speak with appellant in the hospital, appellant was "passed out" and smelled strongly of alcohol. Later, when Davidson interviewed appellant he admitted that he was driving the truck when the accident occurred and that he had been drinking. Thus, there was more than sufficient evidence of intoxication that could more easily have been interpreted by the jury than the extrapolation testimony. Under these circumstances, we conclude the extrapolation testimony is likely to have had only a slight effect on the jury's determination that appellant was intoxicated. We overrule appellant's third point of error. Deadly Weapon
In his fourth point of error, appellant contends the evidence is legally insufficient to support the deadly weapon finding in the intoxication assault case. We disagree. A deadly weapon is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2004-05). The plain language of section 1.07(a)(17)(B) does not require that the actor actually intend death or serious bodily injury; rather, "[t]he placement of the word `capable' in the provision enables the statute to cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force." Bailey v. State, 38 S.W.3d 157, 159 (Tex.Crim.App. 2001). An object qualifies as a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. Id. Therefore, the operation of a motor vehicle may constitute the "use" of a deadly weapon and no intent to use the vehicle as a weapon need be shown to sustain an affirmative finding. Walker v. State, 897 S.W.2d 812, 814 (Tex.Crim.App. 1995). Our review of the record reveals sufficient evidence to show appellant operated the pickup truck he was driving in such a manner as to render it capable of causing serious bodily injury or death. Appellant swerved into the oncoming lane of traffic, collided with the Peters' truck, and seriously injured Mrs. Peters. We conclude this evidence is legally sufficient to support the deadly weapon finding. See Tyra v. State, 897 S.W.2d 796, 798 (Tex.Crim.App. 1995) ("driving an automobile constitutes the use of it and that driving it in a manner capable of causing death or serious bodily injury constitutes it a deadly weapon"). We overrule appellant's fourth point of error. Factual Sufficiency
In his fifth and sixth points of error, appellant contends the evidence is factually insufficient to support his convictions. Again, we disagree. When reviewing the factual sufficiency of the evidence, we must determine whether a neutral review of the evidence demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence may be factually insufficient when: (1) considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) contrary evidence exists that is strong enough so that the beyond-a-reasonable-doubt standard could not have been met. See id. In examining a factual sufficiency challenge, we defer to the fact finder's determination of the credibility of the evidence. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). In his fifth point of error, appellant contends the evidence is factually insufficient to support his intoxication assault conviction. In particular, appellant maintains that the State failed to show he was intoxicated because the only evidence relied upon by the State to show intoxication was the extrapolation testimony and it was unreliable. Our review of the record shows that contrary to appellant's assertion, the State did not rely solely on the extrapolation testimony by Rohr. In addition to the extrapolation testimony, the record shows Gray testified that appellant had been drinking beer all night and was drunk and acting "crazy." Davidson testified that during his investigation of the accident he searched the truck and found beer bottles and an empty twenty-pack container of beer. A short time later, when Davidson attempted to speak with appellant in the hospital, appellant was "passed out" and smelled strongly of alcohol. Later, when Davidson interviewed appellant he admitted that he was driving the truck when the accident occurred and that he had been drinking. Although appellant claimed to have only drunk two of the 72 beers he and Alvarado purchased, the jury was free to disbelieve that portion of appellant's testimony. After a neutral review of the evidence we cannot conclude that (1) considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) contrary evidence exists that is strong enough so that the beyond-a-reasonable-doubt standard could not have been met. We overrule appellant's fifth point of error. In his sixth point of error, appellant contends that the evidence is factually insufficient to support his convictions for child endangerment. According to appellant, the only evidence showing he was driving the truck was elicited from Gray, who was only seven-years-old at the time of the accident and her "memory from that night was mostly from what her mother told her and not from her actual memory." Again, appellant fails to acknowledge certain evidence in the record. In addition to Gray's testimony, the record shows that appellant admitted he was driving the truck when he was interviewed by Davidson. Further, Davidson testified that when he asked appellant if he was injured in the accident, appellant showed Davidson bruising and redness on appellant's left shoulder that was "consistent with somebody in a driver's seat with a shoulder belt on." Even though appellant claimed that Alvarado and not appellant was driving the truck when the accident occurred, the jury was free to disbelieve appellant's self-serving testimony. After reviewing the entire record, we cannot conclude that (1) considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) contrary evidence exists that is strong enough so that the beyond-a-reasonable-doubt standard could not have been met. We overrule appellant's sixth point of error. Speedy Trial
In his seventh point of error, appellant contends he was denied his constitutional right to a speedy trial. Appellant raises this complaint for the first time on appeal. Because there is a division of authority concerning whether a defendant can raise a speedy trial claim for the first time on appeal, we first consider whether appellant preserved error for our review. In Marin v. State, 851 S.W.2d 275 (Tex.Crim.App. 1993), the Court of Criminal Appeals explained that our legal system has three distinct types of rules (1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request. Id. at 279. The Texas law of procedural default applies only to the last category. Id. Many, but not all, constitutional rights fall within the second category. A defendant need make no request at trial for the implementation of such rights, as the judge has an independent duty to implement them absent an effective waiver by him. As a consequence, failure of the judge to implement these rights that fall within the second category may be urged on appeal whether or not it was first raised in the trial court. Id. Here, we must determine whether a defendant's right to a speedy trial falls within the second or the third category of rights. The United States Supreme Court established four factors by which to evaluate an appellant's speedy trial claim: (1) length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. See Barker v. Wingo, 407 U.S. 514, 530 (1972); Oldham v. State, 5 S.W.3d 840, 846 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd) (op. on remand). At least three of these factors cannot be developed for the record or properly evaluated on appeal without a hearing in the trial court. Oldham, 5 S.W.3d at 846. For example, unless a defendant brings the matter to the attention of the trial court, he or she cannot be said to have asserted his or her right to a speedy trial. Id. Likewise, without a hearing, the prosecution has no opportunity to establish the reasons for the delay, and neither party can adequately establish or refute the existence of prejudice. Id. While the right to a speedy trial is affirmatively guaranteed by both the state and federal constitutions, the United States Supreme Court held that the defendant bears some responsibility to assert the right. See Barker, 407 U.S. at 528. In fact, a defendant's failure to assert the right is an indication that he or she does not want a speedy trial. See id. at 534-36. Thus, we conclude that the right to a speedy trial is a right to be implemented upon request, and that it can be waived by failing to make such a request. See Oldham, 5 S.W.3d at 846. Because appellant did not assert his right to a speedy trial in this case, he has failed to preserve this issue for our review. See id. We overrule appellant's seventh point of error. Accordingly, we affirm the trial court's judgments as modified.