Kelly v. State

Full title: GEORGE H. KELLY, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: Apr 13, 2005

No. 04-04-00456-CR (Tex. App. Apr. 13, 2005)

Opinion

No. 04-04-00456-CR

Delivered and Filed: April 13, 2005. DO NOT PUBLISH.

Appeal from the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-6123, Honorable Philip A. Kazen, Jr., Judge Presiding.

Affirmed.

Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.

MEMORANDUM OPINION

CATHERINE STONE, Justice.

George H. Kelly was convicted of intoxication assault and aggravated assault. The jury sentenced Kelly, a habitual offender, to life confinement. Kelly raises four issues on appeal. He contends he was denied the right to a speedy trial; the trial court abused its discretion by admitting intoxilyzer test results taken more than two hours after the motor vehicle accident; and the evidence was legally and factually insufficient to support his conviction for intoxication assault. We affirm the trial court's judgment.

Background

On May 10, 2001, at approximately 3:00 p.m., George Kelly was involved in a multiple motor vehicle accident. He was driving a truck in the center of the highway, pulling a trailer full of dirt and gravel. Mylissa Baughman, who was driving one of the vehicles that was involved in the collision, testified that she merged onto the highway where traffic was heavy due to construction. Baughman glanced in her side-view mirror and noticed a truck and trailer being driven erratically. The truck continued to accelerate faster than the flow of traffic and slam on its brakes. The driving behavior of the truck driver made Baughman apprehensive that an accident was imminent and she continued to watch him. Baughman heard a crash and saw the truck hit the back of a minivan driven by Lino Viesca. The force of the collision caused Viesca's minivan to swerve into the next lane, hitting Baughman's vehicle and starting a chain reaction. Baughman's vehicle hit a vehicle driven by Roger Yoakum, which hit a minivan driven by Mary Ann Cantu, which in turn hit a van driven by Daniel Gutierrez. Six vehicles were involved in the collision. Lino Viesca testified that he observed the truck merge onto the highway in his rear-view mirror and noticed that the truck was driving fast and weaving. Viesca could not avoid the collision because he was driving in the center lane of traffic. Viesca exited his vehicle and approached the driver of the truck. When Viesca asked the driver if he was all right, the driver just stared at him. Viesca thought the driver of the truck looked intoxicated and smelled alcohol on him. Daniel Gutierrez also testified he believed the driver of the truck was intoxicated. Officer John Garcia of the San Antonio Police Department was dispatched to the scene of the accident where witnesses informed him the driver of the truck might be intoxicated. Garcia approached the driver, who told him his truck had been struck from behind. The driver of the truck gave Garcia his Texas driver's license, which established his identity as George Houston Kelly, date of birth July 30, 1953. Kelly had bloodshot eyes, slurred speech, was unsteady on his feet, and smelled of alcohol. Kelly admitted he consumed two beers approximately thirty minutes prior to the accident. Garcia administered two field sobriety tests. During the Rhomberg test, Kelly swayed in a circular motion and could not keep his head back. On the one-leg stand test, Kelly hopped on one leg, unable to keep his balance. Garcia did not administer the walk and turn test due to the heavy flow of traffic; he thought conditions were dangerous because Kelly was too unsteady on his feet and might fall toward the moving vehicles. Based on his observations and Kelly's poor performance on the field sobriety tests, Garcia took him into custody on suspicion of DWI. At trial, Kelly's defense counsel argued that Kelly performed poorly on the field sobriety tests because he had just been involved in a motor vehicle accident, not because he had consumed alcohol. At the San Antonio magistrate court, Johnny Ruiz administered the horizontal gaze nystagmus (HGN) test to Kelly and observed four clues. Ruiz did not observe any evidence of a head injury that could have caused the nystagmus. Ruiz noticed that Kelly had bloodshot eyes and believed he was intoxicated. Kelly consented to an intoxilyzer test. The test was conducted at 5:54 p.m., almost three hours after the accident, and reflected Kelly had a blood alcohol content (BAC) of 0.153. Kelly gave a second breath sample two minutes later, at 5:56 p.m., and had a BAC of 0.154. Between the time of the accident and the intoxilyzer test, Kelly did not have anything to eat or drink. Although Kelly told Officer Garcia his truck had been struck from behind, the investigating officer at the scene, Officer Jimmy Hall, concluded that Kelly was at fault. Hall observed the position of the vehicles, examined them for damage, and talked to the witnesses on the scene. The front end of Kelly's truck sustained damage, but there was no evidence of any damage to the trailer or any other part of the truck. Hall believed the accident had been caused by Kelly's inattention, driving under the influence of alcohol, and following the vehicle in front of him too closely. Belen Viesca, the passenger in the minivan struck by Kelly's truck, sustained serious injuries. Belen was taken to the emergency room where physicians discovered she had a bruised kidney and a shattered kneecap that required surgery. Dr. Bruce Conway, Belen's treating physician, testified her kneecap could not have healed without medical attention and she could have suffered complications, including death, if she had remained untreated. Belen remained in the hospital for several days and could not walk or care for herself without aid for approximately four months after the accident. Belen passed away in October 2001 from an unrelated illness.

Motion For a Speedy Trial

In his first issue, Kelly contends the trial court erred in denying his motion for a speedy trial.

A. Standard of Review

A bifurcated standard of review is applied in reviewing a trial court's decision on a speedy trial claim. Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002). When using a bifurcated standard of review, we employ an abuse of discretion standard for the factual components and a de novo standard for the legal components to the trial court's decision. Id. Because Kelly did not prevail on his speedy trial claim, we must presume the trial court resolved any disputed fact issues in the State's favor and are required to defer to these implied findings of fact that the record supports. See State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App. 1999).

B. Analysis

The Sixth Amendment to the United States Constitution, as extended to the states through the Fourteenth Amendment, guarantees the criminally accused the right to a speedy trial. Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967). Similarly, the Texas Constitution guarantees the right to a speedy trial. Tex. Const. art. I, § 10; Hull v. State, 699 S.W.2d 220, 221 (Tex.Crim.App. 1985). The inquiry as to whether the accused's right to a speedy trial has been violated is the same under both the United States and the Texas constitutions. Floyd v. State, 959 S.W.2d 706, 709 (Tex.App.-Fort Worth 1998, no pet). In determining whether a defendant's right to a speedy trial has been violated, we must balance four factors: 1) the length of the delay; 2) reasons for the delay; 3) assertion of the right; and 4) prejudice to the defendant resulting from the delay. See Barker v. Wingo, 407 U.S. 514, 530-34 (1972); Munoz, 991 S.W.2d at 821. The conduct of both the prosecutor and the defendant must be weighed in balancing the four factors, and no single factor is a necessary or sufficient condition to the finding of a speedy trial violation. See Barker, 407 U.S. at 530, 533; Munoz, 991 S.W.2d at 821.

1. Length of the Delay

The length of delay is a triggering mechanism for analysis of the other Barker factors. Munoz, 991 S.W.2d at 821. The length of delay is measured from the time the defendant is arrested or formally accused. Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App. 2003). Generally, a delay of eight months or longer is considered "presumptively prejudicial" and triggers speedy trial analysis. State v. Rangel, 980 S.W.2d 840, 843 (Tex.App.-San Antonio 1998, no pet.). Kelly contends his right to a speedy trial attached in May 2001 when he was arrested for driving while intoxicated. The State notes that the DWI charge was dismissed and argues that Kelly's right to a speedy trial did not attach until his arrest and indictment for the intoxication assault charge in August 2003. However, because the delay between the time of the arrest and indictment for the charged offense and time of trial was ten months and thus presumptively prejudicial, the remaining three Barker factors are triggered. This factor weighs in favor of Kelly.

2. Reasons for the Delay

The State has the burden of justifying a lengthy delay. Id. There was no hearing on the motion to dismiss, and the record is silent as to the reason for the delay. When the record is silent regarding the reason for the delay, we presume neither a deliberate attempt by the State to prejudice the defense nor a valid reason for the delay. Dragoo, S.W.3d at 314. This factor weighs less heavily against the State.

3. Assertion of the Right

The third factor that a trial court must consider is the defendant's assertion of his right to a speedy trial. See Munoz, 991 S.W.2d at 825. The defendant is responsible for asserting or demanding his right to a speedy trial. See id. A lengthy delay or lack of persistence in asserting the right attenuates a speedy trial claim. See Emery v. State, 881 S.W.2d 702, 709 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1192 (1995). Kelly asserted his right to a speedy trial on June 7, 2004, ten months after his arrest and the very day before his trial began. Kelly's delay and lack of persistence in asserting his right to a speedy trial weigh against him. See id.

4. Prejudice Caused by Delay

The final Barker factor takes into account any prejudice suffered by the defendant as a result of the delay. Dragoo, 96 S.W.3d at 315. The prejudice to the defendant is assessed in light of the interests which the speedy trial right is designed to protect. Munoz, 991 S.W.2d at 826. These interests are: 1) preventing oppressive pretrial incarceration; 2) minimizing the anxiety and concern of the accused; and 3) limiting the possibility that the defense will be impaired. Id. Kelly argues he suffered prejudice because Belen Viesca died before trial and was unavailable to testify. An assertion that a witness who dies before trial was not available to testify, without more, is insufficient to demonstrate prejudice in a speedy trial claim. See State v. Smith, 76 S.W.3d 541, 552 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). We overrule this portion of Kelly's argument. Kelly also alleges generally that several witnesses suffered diminished memories due to the time lapse, hindering his ability to effectively cross-examine them. However, "[a] bare assertion of dimming memories does not constitute some showing of an impairment to a defense." State v. Guerrero, 110 S.W.3d 155, 162 (Tex.App.-San Antonio 2003, no pet.) (quoting Munoz, 991 S.W.2d at 829). We conclude Kelly has failed to demonstrate prejudice resulting from the ten month delay. After balancing all four Barker factors, we find the sum of the evidence to weigh in favor of the State. Because Kelly failed to assert his right to a speedy trial until the day before trial, and because he did not introduce any evidence regarding prejudice against him caused by the delay, the extreme remedy of dismissal is not warranted in this case. Kelly's first issue is overruled.

Admissibility of Intoxilyzer Test Results

In his second issue, Kelly contends that the trial court abused its discretion in admitting intoxilyzer test results into evidence because the results were overly prejudicial under Rule 403. We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991). The test for whether a trial court abused its discretion is whether the action was arbitrary or unreasonable. State v. Mechler, 153 S.W.3d 435, 439 (Tex.Crim.App. 2005). All evidence is admissible under Rule 403 unless "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. In Mechler, the Texas Court of Criminal Appeals stated that a Rule 403 analysis includes, but is not limited to, four factors: 1) the probative value of the evidence; 2) the potential to impress the jury in some irrational yet indelible way; 3) the time needed to develop the evidence; and 4) the proponent's need for the evidence." Mechler, 153 S.W.3d at 440. Kelly's argument that admission of his intoxilyzer results was more prejudicial than probative is unpersuasive. First, the intoxilyzer test results were probative of whether Kelly consumed alcohol before operating a motor vehicle and whether he was impaired as a result of his alcohol consumption. Id. (holding that intoxilyzer test results are probative evidence of intoxication under both the per se and impairment definitions of intoxication). Second, the test results would not have impressed the jury in some irrational but indelible way. Although the test results are prejudicial to Kelly, they are not unfairly prejudicial because they relate directly to the charged offense. Id. at 440-41 (holding that "unfair prejudice" only occurs if relevant evidence tends to tempt a jury into a finding of guilt on grounds other than proof of the charged offense). Third, because the test results were proof of the charged offense, the amount of time the State spent developing the evidence is inconsequential since it could not have distracted the jury from the charged offense. Fourth, we consider whether the State needed the evidence to prove Kelly's intoxication. Besides the intoxilyzer test results, the State had eyewitness testimony that Kelly appeared intoxicated, and the fact that he failed two field sobriety tests. In his defense, Kelly's counsel argued he smelled like alcohol because he had consumed two beers thirty minutes prior to the accident. In addition, his counsel argued Kelly performed poorly on the field sobriety tests because he was still jittery from the collision. In light of the State's other evidence proving intoxication, we find the State's need for the intoxilyzer test results was significant. Balancing the aforementioned factors, we hold the sum of the factors weigh in favor of admissibility. Thus, the trial court did not abuse its discretion in admitting the intoxilyzer test results. Kelly's second issue is overruled.

Legal and Factual Sufficiency

In two issues, Kelly contends the evidence at trial was legally and factually insufficient to support his conviction for intoxication assault. We review the sufficiency of the evidence under the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999) (same); Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App. 2004) (factual sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996) (same). Kelly first complains there was insufficient evidence to prove his identity as the perpetrator of the offense because there was never a direct in-court identification. When a defendant contests the identity element of the offense, we are mindful that identity may be proven by direct evidence, circumstantial evidence, or even inferences. Roberson v. State, 16 S.W.3d 156, 167 (Tex.App.-Austin 2000, pet. ref'd). Although a direct in-court identification is the preferred procedure, where the circumstances do not indicate the likelihood of confusion, that type of identification is not required. Hime v. State, 998 S.W.2d 893, 896 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). If there is no in-court identification of the perpetrator's identity elicited from trial witnesses, no formalized procedure is required for the State to prove the identity of the accused. Clark v. State, 47 S.W.3d 211, 214 (Tex.App.-Beaumont 2001, no pet). The sufficiency of the evidence is determined from the cumulative effect of all the evidence. See Alexander v. State, 740 S.W.2d 749, 758 (Tex.Crim.App. 1987), cert. denied, 511 U.S. 1100 (1994). Although there was no in-court identification of Kelly as the driver of the truck, Officer Garcia ascertained Kelly's identity at the scene of the accident after receiving his Texas driver's license. Garcia, Hall, and Ruiz all referred to Kelly as the driver of the truck throughout their testimony. Nothing in the record suggests there was any confusion about the identity of the person referred to by the witnesses. Further, the driver's license was offered into evidence as an exhibit and contained a photograph of the appellant. The evidence is sufficient to identify Kelly as the perpetrator of the offense. Kelly also contends there was insufficient evidence to support the remaining elements of the intoxication assault offense. The jury was instructed that under Texas law, a person commits intoxication assault when he operates a motor vehicle while intoxicated, and by reason of that intoxication causes serious bodily injury to another. Tex. Pen. Code. Ann. § 49.07(a)(1) (Vernon 2003). Two witnesses at the scene of the accident testified that Kelly appeared to be intoxicated and that he smelled of alcohol. Kelly admitted he consumed two alcoholic beverages thirty minutes prior to the accident. Officer Garcia noticed that Kelly had bloodshot eyes, slurred speech, smelled of alcohol, and was unsteady on his feet. Kelly failed three field sobriety tests, and had a BAC of 0.153 nearly three hours after the accident, which is probative evidence of intoxication under either theory. Viewing this evidence in a light most favorable to the verdict, we hold a jury could rationally conclude that Kelly operated a motor vehicle while intoxicated. A neutral review of the evidence likewise demonstrates that there is factually sufficient evidence to support the jury's verdict. Regarding the second portion of the offense, "serious bodily injury" is defined as "injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ." Id. § 49.07(b). The evidence adduced at trial showed that Belen Viesca suffered a bruised kidney and a shattered kneecap, an injury that required surgery and resulted in limited mobility for several months. Dr. Conway testified he considered the injuries sustained by Belen to be serious bodily injuries that could have resulted in death. There was sufficient evidence for a jury to rationally conclude Belen suffered a serious bodily injury. See Taylor v. State, 71 S.W.3d 792 (Tex.App.-Texarkana 2002, pet. ref'd) (testimony that car accident victim sustained a broken foot that required surgery and caused her limited mobility for several months was sufficient evidence of a protracted impairment, i.e. serious bodily injury). Kelly's third and fourth issues are overruled.

Conclusion

Having overruled all of Kelly's issues on appeal, we affirm the trial court's judgment.