Opinion
NO. 03-15-00703-CR
06-27-2017
Miguel Hidrogo Cardiel, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
NO. CR-13-0465 , HONORABLE JACK H. ROBISON, JUDGE PRESIDING MEMORANDUM OPINION
A jury convicted Miguel Hidrogo Cardiel of driving while intoxicated (subsequent offense). See Tex. Penal Code § 49.09(b). Punishment was assessed at two years' imprisonment, but the trial court suspended imposition of the sentence and placed him on community supervision for eight years. In one issue, Cardiel complains of charge error. We will affirm the judgment.
BACKGROUND
At trial, San Marcos Police Department Officer Ed Bradshaw testified that he was dispatched to the parking lot of an outlet mall, where he observed that Cardiel's truck had been involved in a minor accident with another vehicle. While investigating the accident, Officer Bradshaw testified that he noticed the smell of alcohol on Cardiel's breath, that his speech was slurred, that his eyes were glassy, and that he observed Cardiel attempting to use a shirt to cover up an open can of beer in the cup holder between the driver and passenger seats. Officer Bradshaw recalled that Cardiel admitted to drinking three beers. Officer Bradshaw stated that he administered the standardized field sobriety tests to Cardiel, which indicated that Cardiel was intoxicated, and a video of Cardiel performing the field-sobriety tests was admitted without objection. Officer Bradshaw testified that Cardiel refused to provide a breath specimen, despite his having administered to Cardiel a warning about the consequences of not providing a specimen of blood or breath. Officer Bradshaw acknowledged that nothing prevented him from getting a warrant for a specimen of Cardiel's blood.
Cardiel testified that he was unable to do the tests that the officer wanted him to perform because he was disabled, had bad legs, and could not stand for long periods of time. He testified that his physical ailments included knee problems requiring surgery, back and neck problems, being born with one leg shorter than the other, a heart condition, arthritis, and gout. Cardiel's wife, Nancigale Price Cardiel, also testified about her husband's physical ailments. Cardiel acknowledged that he was nonetheless able to mow his yard and had walked behind the mower for 3½ hours on the day of his arrest. Cardiel also acknowledged having consumed about 2½ beers on the afternoon of his arrest and taking medications for his disabilities, but he denied that he was intoxicated. He testified that he refused to provide a breath specimen.
DISCUSSION
Cardiel contends that the trial court erred by submitting an instruction authorizing the jury to convict him of DWI based on an alcohol concentration of 0.08 or more when there was no evidence at trial of his blood-alcohol content. Cardiel acknowledges that he did not object to the charge at trial, but contends that he was egregiously harmed by the erroneous charge.
Standard of review for charge error
We review a claim of jury-charge error using the procedure set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). We first determine whether there is error in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If we determine the trial court erred, we must then determine whether sufficient harm resulted from the charge error to require reversal. Ngo, 175 S.W.3d at 743. When, as here, the defendant makes no objection to the charge at trial, he must claim that the error was "fundamental" and will not obtain reversal unless "the error is so egregious and created such harm that he has not had a fair and impartial trial—in short, egregious harm." Almanza, 686 S.W.2d at 171. In determining whether there was egregious harm, we consider "the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole." Id. The defendant must have suffered actual, not theoretical harm. Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011). Jury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016).
The record shows that Cardiel did not merely fail to object to the charge but specifically denied having any objections to it. When the court asked defense counsel whether there were any objections to the charge, counsel responded, "None by the Defense."
Conviction for DWI (subsequent offense) requires proof that the person was intoxicated while operating a motor vehicle in a public place and that the person was previously convicted of DWI. Tex. Penal Code §§ 49.04(a), 49.09(b). Intoxication, in relevant part, means (1) not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body, or (2) having an alcohol concentration of 0.08 or more. Id. § 49.01(2). The two definitions of intoxication provide alternate means for the State to prove intoxication, rather than alternate means of committing the offense. Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012).
Jury charge on intoxication
The trial court must provide the jury with "a written charge distinctly setting forth the law applicable to the case." Tex. Code Crim. Proc. art. 36.14. Here, the instructions in the court's charge addressed intoxication in the sections titled "Accusation" and "Definitions":
The state has alleged intoxication by—The application paragraph of the charge stated:
1. not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body or
2. not having the normal use of physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body, or
3. having an alcohol concentration of 0.08 or more.
. . . .
"Intoxicated" means either (1) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (2) having an alcohol concentration of 0.08 or more.
You must determine whether the state has proved, beyond a reasonable doubt, four elements. The elements are that—
1. the defendant operated a motor vehicle in Hays County, Texas, on or about the 6th day of April, 2013 and
2. the defendant did this in a public place; and
3. the defendant did this while intoxicated, by either—
a. not having the normal use of mental faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body, or
b. not having the normal use of physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body, or
c. having an alcohol concentration of 0.08 or more; and
4. the defendant was convicted of both—
a. on the 29th day of September, A.D. 2006, in Cause No. 05-10-00107-CRF in the 81 st District Court of Frio County, Texas, for the offense of Driving While Intoxicated; and
b. on the 9th day of June, A.D. 1994, in Cause No. 406188 in the County Court at Law No. 5 of Travis County, Texas, for the offense of Driving While Intoxicated.
The defendant has stipulated to the prior convictions, the fourth element of the offense charged. Because this element is uncontested, no further evidence regarding the prior convictions is necessary. You are hereby directed to find that element 4 of this felony DWI offense is established.
. . . .
You must all agree on elements 1, 2, and 3 listed above, but you do not have to agree on the method of intoxication listed in elements 3.a, 3.b, and 3c. above.The court's charge tracked the Penal Code's definition of "intoxicated." See Tex. Penal Code § 49.01(2). Cardiel did not object to inclusion of the alcohol-concentration level in the charge. However, no evidence was introduced at trial to show that Cardiel had an alcohol concentration of 0.08 or more.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, and 3 listed above, you must find the defendant "not guilty."
If you all agree the state has proved, beyond a reasonable doubt, each of the three elements listed above, you must find the defendant "guilty."
The jury heard testimony that Cardiel did not provide a breath or blood specimen. Thus, the evidence of intoxication was not Cardiel's alcohol concentration level, but the testimony about the smell of alcohol on Cardiel's breath, his slurred speech, his glassy eyes, his admission to drinking two or three beers, and his poor performance on the standardized field sobriety tests, which indicated that Cardiel was intoxicated. Nevertheless Cardiel contends, without citation to authority, that "allowing a finding of intoxication to be made based upon a theory [of having an alcohol concentration of 0.08 or more] that the State offered no evidence of is both fundamental and egregious."
No egregious harm shown
Applying the factors set forth in Almanza, we conclude that even if there were any error in the charge, it was not egregiously harmful to Cardiel. See Almanza, 686 S.W.2d at 171. The first factor, which requires consideration of the entire jury charge, weighs against a finding of egregious harm because the charge was correct overall and the intoxication references that Cardiel complains of tracked the language of the Penal Code. Cf. Gelinas v. State, 398 S.W.3d 703, 708-09 (Tex. Crim. App. 2013) (noting that jury charge containing misstatement of law weighed in favor of finding egregious harm).
The second factor, the state of the evidence, including the contested issues and weight of the probative evidence, also weighs against a finding of egregious harm. Although Cardiel's intoxication was a contested issue at trial, his alcohol-concentration level was not. The consistent testimony from Cardiel and the officer who arrested him was that Cardiel provided no breath specimen. Further, Cardiel has made no showing that a reasonable juror who thought that Cardiel had not lost the normal use of his mental or physical faculties after his alcohol intake would have been persuaded by this charge to somehow extrapolate that Cardiel had an alcohol concentration of 0.08 or more to convict him. See Cosio, 353 S.W.3d at 777 (concluding that defendant must have suffered actual, not theoretical, harm from jury-charge error).
The third factor, the arguments of counsel, also weighs against a finding of egregious harm because the prosecutor and defense counsel both noted that no alcohol-concentration evidence existed, and they correctly stated the law as applied to the facts that were in evidence. During closing argument, the prosecutor mentioned the three options for proving intoxication but essentially directed the jury to disregard the last option, clarifying that Cardiel had refused to provide a breath specimen and that there was no evidence of his alcohol-concentration level:
[t]he third option is not going to be applicable because it talks about a .08 on a—or a breath alcohol concentration or blood alcohol concentration, which you know we don't have because the defendant refused to provide that information. So what we're
talking about the loss of the normal use of the mental faculties or the loss of the normal use of the physical faculties.Defense counsel also pointed to the lack of alcohol-concentration evidence, noting that the officer who arrested Cardiel could have sought a warrant for a blood specimen from him but did not. See Marshall, 479 S.W.3d at 843 (recognizing that egregiously harmful charge error affects very basis of case, deprives defendant of valuable right, or vitally affects defensive theory).
The fourth and final factor, any other relevant information revealed by the record of the trial as a whole, also weighs against a finding of egregious harm. Throughout the brief trial, the jury was informed that there would be no alcohol-concentration evidence to prove intoxication and that the prosecution's theory was based on the loss of mental and physical faculties, demonstrated in part by Cardiel's performance during standardized field sobriety tests and his interaction with the police during the DWI investigation. There were no questions or notes from the jury indicating confusion about the charge. Cf. Gelinas, 398 S.W.3d at 709 (noting absence of any note from jury during deliberations that would have indicated their confusion about contradictory instruction in charge and concluding that such absence weighed against finding of egregious harm).
Cardiel has not shown that any error in the court's charge caused him egregious harm. See Almanza, 686 S.W.2d at 171. Accordingly, we overrule his appellate issue.
CONCLUSION
We affirm the judgment of conviction.
/s/_________
Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Goodwin and Bourland Affirmed Filed: June 27, 2017 Do Not Publish