No. 05-02-01747-CR
Opinion issued October 30, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause No. 2-80518-01. AFFIRMED
Before Chief Justice THOMAS AND Justices JAMES and FITZGERALD.
Opinion By Justice JAMES.
Timothy Franklin Carr appeals his conviction for driving while intoxicated, second offense. After the jury found appellant guilty, the trial court sentenced appellant to 120 days in jail and a $1000 fine. Appellant brings two points of error contending (1) the trial court erred when it allowed the attorneys to present additional jury argument after the jurors had begun their deliberations, and (2) the evidence is factually insufficient to support appellant's conviction. We affirm appellant's conviction.
ADDITIONAL ARGUMENT
After the jury had deliberated about eight hours over two days, the foreman sent a note to the trial court stating the jurors were unable to agree and requesting advice on how to proceed. The trial court proposed to the attorneys submitting an Allen charge to the jury and stated he would allow each side five additional minutes of argument to the jury if the attorneys wanted it. Neither the prosecution nor the defense objected to this proposal. The trial court summoned the jury, read the Allen charge, and allowed the attorneys five additional minutes to argue. The court then retired the jury to deliberate further. The next day, the jury returned a verdict of guilty. In his first point of error, appellant contends the trial court's allowance of additional jury argument after the jury had begun deliberating deprived appellant of due process of law in violation of the Fourteenth Amendment to the United States Constitution. Appellant did not object to the trial court's allowance of jury argument after the reading of the Allen charge, so appellant has not preserved this issue for appellate review. Tex.R.App.P. 33.1; see also Saldano v. State, 70 S.W.3d 873, 889 n. 74 (Tex.Crim.App. 2002) (unobjected constitutional error is not preserved for appellate review). Even if the issue were preserved, it would lack merit. Appellant asserts his right to due process was violated by the additional argument because article 36.27 of the code of criminal procedure requires written communications after deliberations begin, and article 36.22 prohibits a person from being with the jury while it is deliberating. See Tex. Code Crim. Proc. Ann. art. 36.22, .27 (Vernon 1981). However, the jury's deliberations were suspended during the reading of the Allen charge and the argument, so there was no violation of article 36.22. Furthermore, article 36.22 allows a person to "converse" with the jurors about the case in the trial court's presence and with the trial court's permission. See id. art. 36.22. In this case, the attorneys' arguments were in the trial court's presence and with the court's permission, so the argument complied with article 36.22. Article 36.27 requires that communication between the trial court and the jury be in writing; however, the article does not prohibit the trial court allowing the attorneys to deliver additional jury argument. Accordingly, we conclude appellant has not shown the trial court violated article 36.27. Besides these arguments, appellant does not explain how the allowance of additional argument in this case violated appellant's right to due process or constituted an abuse of discretion. Accordingly, we overrule appellant's first point of error. FACTUAL SUFFICIENCY OF THE EVIDENCE
In his second point of error, appellant contends the evidence is factually insufficient to show appellant was intoxicated. In analyzing whether the evidence was factually sufficient to support the conviction, we must determine "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We must set the verdict aside only if it is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Id.; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The police officer saw appellant drive past him at sixty-one miles per hour in a thirty-five-mile-per-hour zone. After appellant nearly hit a curb, the officer pursued appellant and stopped him. The officer's car was fitted with a video camera, and the events occurring after the stop were video and audio recorded. Appellant explained to the officer he had consumed four drinks during the evening, two beers and two glasses of wine. The officer testified appellant's eyes were bloodshot and glassy and his breath smelled of alcoholic beverages. The officer used three field sobriety tests: the horizontal gaze nystagmus (HGN) test, the walk and turn, and the one-legged stand. On the HGN test, appellant indicated all six clues; appellant also had vertical nystagmus, which indicates a high level of intoxication. On the walk-and-turn test, appellant took ten steps instead of nine as instructed, and he did not step heel-to-toe every time. On the one-legged stand, appellant touched his foot to the ground four times in counting to sixteen, and he swayed significantly. The officer arrested appellant. At the police station, appellant was placed in the intoxilyzer room where he was again videotaped. Appellant refused to submit a sample of his breath for testing. The officer permitted appellant to repeat the walk-and-turn and the one-legged-stand tests, and appellant performed better on these in the police station than he did on the side of the road. At trial, appellant testified that despite the four drinks he had consumed, he was not intoxicated when he was driving. However, appellant also testified he "might have felt a little something" after drinking the two beers. Appellant argues the evidence is factually insufficient because he and the arresting officer presented conflicting testimony about the extent of appellant's intoxication and appellant performed adequately on the tests at the police station. However, appellant did not perform adequately on the tests on the side of the road immediately after he was stopped. The officer testified a person's performance on the tests improves with repetition. Also, appellant's performance of the tests at the police station was nearly an hour after he was stopped and more than half an hour after he performed the tests on the side of the road. After a neutral review of all the evidence, we cannot conclude the jury's verdict of guilty is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We hold the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second point of error. We affirm the trial court's judgment.