No. 05-06-01207-CR
Opinion issued January 25, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Criminal Court of Appeals No. 2, Dallas County, Texas, Trial Court Cause No. MB06-61099-M.
Before Justices, WHITTINGTON, MOSELEY, and BRIDGES.
MARK WHITTINGTON, JUSTICE.
Belinda Briley Blair appeals her misdemeanor conviction for driving while intoxicated. After the jury found appellant guilty of the charged offense, the trial judge assessed punishment at 180 days' confinement, probated for twenty-four months, and a $1100 fine. In nine issues, appellant claims the evidence is legally and factually insufficient to support her conviction, the trial judge erred in admitting certain evidence and the cumulative effect of the errors warrants reversal. We affirm the trial court's judgment.
Legal and Factual Sufficiency
In her first and second issues, appellant claims the evidence is legally and factually insufficient to support her conviction. Under these issues, appellant argues there is no evidence she drove the vehicle in question or she was intoxicated. In addressing legal sufficiency complaints, we apply well-known standards: we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). Under a legal sufficiency review, we consider all of the evidence admitted, both properly and improperly admitted, as well as direct and circumstantial evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001); Owens v. State, 135 S.W.3d 302, 306 (Tex.App.-Houston [14th Dist.] 2004, no pet.). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). The reviewing court must give deference to "the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper, 214 S.W.3d at 13 (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). Evidence that rationally supports a guilty verdict beyond a reasonable doubt under the legal sufficiency standard can still be factually insufficient. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007). Evidence is factually insufficient to support the verdict if it is clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. Marshall, 210 S.W.3d at 625. The difference between the legal and factual sufficiency standards is that "the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury's on these questions `albeit to a very limited degree.'" Rollerson, 227 S.W.3d at 724 (quoting Marshall, 210 S.W.3d at 624); Watson v. State, 204 S.W.3d 404, 416-17 (Tex.Crim.App. 2006)). A "factual-sufficiency review is `barely distinguishable' from a Jackson v. Virginia legal sufficiency review." Rollerson, 227 S.W.3d at 724 (quoting Watson, 204 S.W.3d at 415). A person commits the offense of driving while intoxicated if she is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003). "Intoxicated" means "(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, . . . or (B) having an alcohol concentration of 0.08 or more." Tex. Pen. Code Ann. § 49.01(2) (Vernon 2003). We interpret "operating a motor vehicle" very broadly. Strong v. State, 87 S.W.3d 206, 215 (Tex.App.-Dallas 2002, pet. ref'd) (citing Barton v. State, 882 S.W.2d 456, 459 (Tex.App.-Dallas 1994, no pet.) (operating is taking "action to affect the functioning of his vehicle in a manner that would enable the vehicle's use") and Denton v. State, 911 S.W.2d 388, 390 (Tex.Crim.App. 1995) (adopting Barton's definition of "operating a motor vehicle" for offense of unauthorized use of a motor vehicle)). Although appellant claims the evidence is legally and factually insufficient to support her conviction, after reviewing the record, we cannot agree. At trial, Officer Steven Comstra of the Dallas Police Department testified he was certified in the administration of standardized field sobriety tests, including horizontal gaze nystagmus (HGN) test and multiple attention task tests. On January 6, 2006, around 9:50 p.m., he and Officer Janette Fagen were dispatched to an accident call at 900 North Collett Avenue in Dallas. When they arrived, the officers observed two vehicles and a large group of people. The vehicle in front, an older Chevrolet truck, had some bumper displacement, and the BMW car behind the truck had "damage to the right front that looked like it crumpled it in quite a bit." Officer Comstra identified the drivers of the vehicles involved in the accident by "statements given by witnesses who were there and the parties that were involved in the accident"and ensured no one was injured. During his investigation, Officer Comstra verified the BMW was registered to appellant. While speaking with appellant, the officer noticed she had unsteady balance and bloodshot eyes; he also smelled "an alcoholic beverage odor on her breath." When he asked if she had anything to drink, she confirmed she had consumed two glasses of wine with dinner at Houston's Restaurant. Officer Comstra then requested a "DWI element" to respond to the scene. Officer Jeffrey Jones responded and administered the standard field sobriety tests on appellant. Officer Comstra observed most of the tests. He testified appellant "missed most of the clues" on the "walk-and-turn" test and told Officer Jones she was unable to perform the "one-legged stand." At that point, appellant was placed under arrest and transported to jail. Officer Jones testified he responded to the request for a DWI element. Before administering the sobriety tests, he asked appellant several questions, including whether she had anything to drink that evening. Appellant informed the officer she had two glasses of wine around 7:00 p.m. and not very much to eat that evening. According to Officer Jones, appellant's balance was unsteady and she had a moderate smell of alcoholic beverage on her breath. Officer Jones performed the HGN test in which appellant exhibited all six clues; a total of four clues out of the six indicates intoxication. Officer Jones next administered the walk-and-turn test in which she exhibited six out of eight clues. The officer testified exhibiting two of the eight clues indicates intoxication. Finally, when Officer Jones attempted to administer the one-legged-stand test, appellant informed him she could not perform the test. Officer Jones testified he then placed appellant under arrest for driving while intoxicated based on the totality of the circumstances, including that she had been in a wreck and did not perform well on the sobriety tests he administered. Once she was transported to jail and placed in the "intoxilyzer room," she was administered her Miranda rights and offered a blood test. Officer Jones testified that, based on his observations and training, appellant's level of intoxication was such that he believed she had more than two drinks that night. He further testified that she had lost the normal use of her mental and physical faculties. During Officer Jones's testimony, the State offered, without objection, the videotape of the events that occurred while appellant was in the intoxilyzer room. On the videotape, appellant again performed sobriety tests, including the one-legged stand. After the officer gave her instructions for the one-legged stand, appellant stated, "I don't know if I could do that if I was sober." Appellant also stated she had been up since 4:30 a.m., had two drinks, consumed some chips at dinner, and was driving home at the time of the accident. After the State rested, appellant called her sister, Vicki Briley-White, who testified she believed appellant appeared "normal" on the videotape. According to Briley-White, appellant had mood swings and that was normal for her. She conceded she was not with appellant on the night in question and did not know how many drinks appellant had that night. Viewed in the light most favorable to the judgment, the evidence shows appellant had at least two glasses of wine and later was involved in a two-vehicle accident on a public street in Dallas. At the scene, appellant told the investigating officers she had been driving the BMW car and that she had two drinks that evening. After observing appellant, Officer Comstra believed her to be intoxicated and called for a DWI element. Officer Jones arrived and administered two sobriety tests which indicated appellant was intoxicated. Appellant declined to attempt the third sobriety test. According to Officer Jones, appellant had lost the normal use of her mental and physical faculties. This evidence establishes appellant was intoxicated while operating a motor vehicle in a public place. After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction for driving while intoxicated. Furthermore, after reviewing all the evidence in this case, we cannot conclude that the great weight and preponderance of evidence contradicts the jury's verdict. Thus, the jury was rationally justified in finding guilt beyond a reasonable doubt. We conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's first and second issues. Admission of Evidence
In her third through eighth issues, appellant challenges the admission of evidence. We review a trial judge's decision to admit or exclude evidence under an abuse of discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005); Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Absent an abuse of discretion, we do not disturb a trial judge's ruling on the admissibility of evidence. See Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App. 2005); Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000); Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994). In her third and fourth issues, appellant claims the trial judge erred in admitting her "involuntary accident scene statements" that she was driving. Under these issues, appellant claims her statements were involuntary custodial statements made in the absence of Miranda warnings. Initially, we question whether these issues are properly before us. At trial, appellant objected to Officer Comstra's testimony on the ground she was required under Texas law to respond to the officers' questions while they were investigating the accident. Appellant did not object on the ground that her Fifth Amendment rights were violated or that the officer failed to read her Miranda rights to her. Because the complaint appellant raises on appeal does not conform to the one raised in the trial court, appellant failed to preserve error for our review. Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002); Porath v. State, 148 S.W.3d 402, 410 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (if objection made in trial court differs from complaint on appeal, defendant fails to preserve error for review). Even assuming we were to address these issues, we would reject them. "The United States Supreme Court has held that a traffic stop does not constitute `custody' for Miranda purposes." State v. Stevenson, 958 S.W.2d 824, 828 (Tex.Crim.App. 1997) (citing Berkemer v. McCarty, 468 U.S. 420 (1984)). In Berkemer, the suspect was stopped and asked to perform a field sobriety test. Berkemer, 468 U.S. at 423. After the suspect failed the tests, the officer asked the suspect whether he had used intoxicants. The suspect admitted he had and was subsequently arrested. Berkemer, 468 U.S. at 423. Concluding that a police officer asking a suspect "a modest number of questions" and requesting him "to perform a simple balancing test at a location visible to passing motorists . . . cannot fairly be characterized as the functional equivalent of formal arrest," the Supreme Court held the suspect was not in custody until the formal arrest. Berkemer, 468 U.S. at 442. Thus, the police officer was not required to read the suspect his Miranda rights. See Berkemer, 468 U.S. at 442. Similarly, in Stevenson, the Texas Court of Criminal Appeals addressed the investigation of a single-car accident that escalated from a consensual encounter to an investigative detention. Stevenson, 958 S.W.2d at 829. The Court concluded that whether the accident investigation may have "become a DWI investigation after the officer discovered a reason to doubt the veracity of appellee's claim that his wife drove the car" did not convert the investigation into an arrest. Stevenson, 958 S.W.2d at 829. In this case, Officer Comstra arrived at the scene of a traffic accident and began investigating the accident. One of the first questions he asked appellant was whether she had been driving. He later asked appellant if she had been drinking. Officer Comstra was investigating the accident and the fact that it became a driving while intoxicated investigation does not convert the situation into an arrest. There is no evidence in the record that Officer Comstra had objectively created a custodial environment and communicated his intent to arrest appellant. See Abernathy v. State, 963 S.W.2d 822, 824 (Tex.App.-San Antonio 1998, pet. ref'd); see also State v. Waldrop, 7 S.W.3d 836, 839 (Tex.App.-Austin 1999, no pet.) (motorist stopped for driving wrong way on one-way street and questioned was not in custody for purposes of Miranda, therefore any statements motorist made were admissible); Hutto v. State, 977 S.W.2d 855, 858 (Tex.App.-Houston [14th Dist] 1998, no pet.) (although motorist involved in single-car accident was questioned and given field sobriety testing, he was not in custody under Miranda standards). Furthermore, on the videotape admitted without objection, appellant states she was driving that evening. See Ramon v. State, 159 S.W.3d 927, 931 (Tex.Crim.App. 2004) (admission of improper evidence will not require reversal if same facts are proved by other testimony). In light of this, we cannot conclude the trial judge erred in admitting Officer Comstra's testimony regarding appellant's statements made during the investigation. We overrule appellant's third and fourth issues. In her fifth issue, appellant claims Officer Comstra's testimony regarding appellant's vehicle registration was "backdoor hearsay" and therefore inadmissible. At trial, Office Comstra was asked whether he checked the vehicle registration. Appellant objected on the ground "that would be hearsay," and the trial judge overruled her objection. Officer Comstra then testified the car was registered to appellant. Although appellant now claims this inadmissible testimony affected her substantial rights, we cannot agree. We first note that rule 803(8) provides an exception to hearsay for records or data compilations of public offices or agencies that set forth "the activities of the office or agency" and "matters observed pursuant to duty imposed by law as to which matters there was a duty to report." Tex. R. Evid. 803(8). Because vehicle registration records are from a public agency charged with the duty of maintaining said records, we cannot conclude the trial judge abused his discretion in admitting the testimony. Furthermore, even assuming the evidence was inadmissible, whether the car was registered to appellant had no bearing on the issue of whether she was driving the car. Appellant admitted to the officers at the scene she was driving. Officer Comstra testified he determined who the drivers were by "statements given by witnesses who were there and the parties that were involved in the accident." Because the issue of car registration was not determinative of whether appellant was driving the car, we could not conclude the error, if any, in admitting this evidence had a substantial and injurious effect or influence on the jury's verdict. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). We overrule appellant's fifth issue. In her sixth issue, appellant claims the trial judge erred in allowing her statement to Officer Jones that she consumed two glasses of wine. Under this issue, appellant again argues her statement was given without the benefit of Miranda warnings. We have previously concluded appellant was not in custody during the investigation of the accident as well as the driving while intoxicated investigation. We note additional reasons, however, for overruling this issue. Officer Comstra testified, without objection, that when he asked appellant if she had been drinking, appellant stated she had two glasses of wine. And on the videotape, appellant admitted having two drinks. See Ramon, 159 S.W.3d at 931; Massey v. State, 933 S.W.2d 141, 149 (Tex.Crim.App. 1996) (admission of same evidence from another source, without objection, waives previously stated objections); Willis v. State, 785 S.W.2d 378, 383 (Tex.Crim.App. 1989) (admission of inadmissible evidence rendered harmless if same or similar evidence is introduced without objection elsewhere during trial). For these reasons, we overrule appellant's sixth issue. In her seventh issue, appellant contends the trial judge erred in overruling her hearsay objection to the admission of the State's exhibit number 1, a diagram depicting the location of two cars on North Collett Avenue near the Gaston Avenue intersection. In her eighth issue, she contends the trial judge erred in overruling her hearsay objection to Officer Jones's testimony, "based upon the hearsay contained in the complained-of State's Exhibit One diagram" that appellant had been driving. Appellant argues that had this inadmissible testimony been excluded, "there would have been nothing before the jury save Appellant's uncorroborated recitation" that she was driving. The diagram shows only the positions of the two vehicles involved in the accident. The diagram does not reflect or indicate who was driving either vehicle or to whom either vehicle was registered. Furthermore, Officer Comstra testified without objection to the location and placement of the vehicles at the accident scene. See Moore v. State, 999 S.W.2d 385, 402 (Tex.Crim.App. 1999) (admission of same evidence from another source, without objection, waives previously stated objections). Similarly, with respect to her eighth complaint (that Officer Jones's testimony she was driving was hearsay), Officer Jones had previously testified he was at the scene because the responding officers "suspected one of the drivers, the defendant, was intoxicated." Because testimony regarding the location of the vehicles and that appellant was one of the drivers was previously admitted without objection, we conclude appellant has waived these issues. We overrule her seventh and eighth issues. In her final issue, appellant argues "the cumulative effect of the foregoing errors warrants a reversal." The Texas Court of Criminal Appeals has stated "[i]t is conceivable that a number of errors may be found harmful in their cumulative effect." Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App. 1999). Nevertheless, in this case, we have examined appellant's allegations of error and concluded they either lack merit or were waived. Under these facts and circumstances, we cannot conclude appellant has shown cumulative error mandating reversal. See Chamberlain, 998 S.W.2d at 238 ("[W]e are aware of no authority holding that non-errors may in their cumulative effect cause error.") We overrule appellant's final issue. We affirm the trial court's judgment.