No. 09-09-00375-CR
Submitted on June 2, 2010.
Opinion Delivered October 6, 2010. DO NOT PUBLISH.
On Appeal from the 359th District Court, Montgomery County, Texas, Trial Cause No. 08-12-11262 CR.
Before GAULTNEY, KREGER, and HORTON, JJ.
HOLLIS HORTON, Justice.
Paul Ray Desilets appeals his two convictions for intoxication assault, third degree felonies. See TEX. PEN. CODE ANN. § 49.07 (Vernon Supp. 2010). In his appeal, Desilets raises four issues. In issue one, Desilets claims the State gave him insufficient notice of its intent to seek affirmative deadly weapon findings to establish his use of a deadly weapon at the time he committed the offense. Desilets' last three issues all complain that the trial court erroneously admitted evidence. Finding no reversible error, we affirm the trial court's judgment.
Background
Shortly before midnight on the evening of December 16, 2007, a car driven by Sheri Dugger was struck by another car when she entered the intersection between Highway 105 and F.M. 3083 in Montgomery County. Dugger's two children were travelling as passengers in her car at the time of the collision. Dugger and her son, B.D. both suffered bone fractures from the collision. Although Desilets was not placed under arrest at the scene, Officers Jackie Everitt and Christopher Toocie both testified to having smelled alcohol on Desilets' breath shortly after the accident occurred. Desilets was taken in an ambulance to Memorial Hermann Hospital in The Woodlands. A blood test, taken on December 17, 2007, at 12:38 a.m. reflects that Desilets had a blood alcohol level of 246.5 mg/dL, or over three times the legal limit. The State indicted Desilets on two counts of intoxication assault. See TEX. PEN. CODE ANN. § 49.07. The case was heard by a jury in May 2009. Following the guilt phase of the trial, the jury returned its verdict, finding Desilets guilty on count one, which concerned the injury to Sheri, and on count two, which concerned the injury to B.D. The jury also made affirmative findings that Desilets had used or exhibited a deadly weapon during the commission of the offenses. After a punishment hearing, the jury assessed Desilets' punishment on count one at five years imprisonment and assessed a $10,000 fine. On count two, the jury assessed punishment at six years imprisonment and assessed a $10,000 fine. Subsequently, the trial court cumulated Desilets' sentences. Desilets filed a timely Notice of Appeal. Notice
In issue one, Desilets challenges the adequacy of the State's notice of its intent to seek a deadly weapon finding. Specifically, Desilets advances a due process claim, and he argues that notifying him seven days before trial of the State's intent to seek a deadly weapon finding was inadequate. Desilets contends that the standing discovery order required that he be given ten days notice. The State argues that its notice was sufficient, as the indictment provided Desilets with sufficient notice, and it further provided Desilets with additional and more specific notice seven days prior to trial that it intended to seek a deadly weapon finding. On the day the trial began, Desilets filed a written objection to the State's request to submit a deadly weapon finding. At trial and during the charge conference, Desilets objected to the submission of the deadly weapon issue. The trial court denied Desilets' motion to strike the submission of a deadly weapon finding. The Court of Criminal Appeals has held that a defendant is entitled to notice in some form that the State intends to seek a deadly weapon finding. Ex parte Patterson, 740 S.W.2d 766, 775 (Tex. Crim. App. 1987); see also Ex parte Beck, 769 S.W.2d 525 (Tex. Crim. App. 1989) (overruling Patterson to the extent of any conflict). In Patterson, the Court reasoned that notice was required because the deadly weapon finding in that case impacted the defendant's liberty by denying him "any opportunity to earn an early eligibility date" to obtain parole. Id. at 774. Here, the State filed an amended motion seven days prior to trial that notified Desilets of the State's intent to prove that Desilets "did then and there use and exhibit a deadly weapon, namely, a motor vehicle." Texas law does not specifically define the time period that constitutes timely notice with respect to notifying a defendant of the State's intent to seek a deadly weapon finding. In a concurring opinion, Justice Overstreet has stated that notice provided any time prior to trial is adequate. See Johnson v. State, 815 S.W.2d 707, 715 (Tex. Crim. App. 1991) (Overstreet, J., concurring). The Fort Worth Court of Appeals suggests that the adequacy of the notice depends largely upon the specific facts of a given trial. Hocutt v. State, 927 S.W.2d 201, 204 (Tex. App.-Fort Worth 1996, pet. ref'd) (declining to adopt a specific deadline for notifying defendant about State's intent to seek a deadly weapon finding). Notice given eleven days prior to trial has been found sufficient, while notice given the Friday before a Monday trial has been found to be insufficient due to both the notice's timing and the inadequacy of the notice's wording. Id. at 203-04 (citing Spelling v. State, 825 S.W.2d 533, 535 (Tex. App.-Fort Worth 1992, no pet.) (concluding that notice given eleven days prior to punishment hearing is adequate). Although Desilets orally requested continuance during trial in order to hire an expert regarding the deadly weapon issue, the trial court did not abuse its discretion in denying a continuance where the motion was neither in writing nor sworn. See Anderson v. State, 301 S.W.3d 276, 279-80 (Tex. Crim. App. 2009); TEX. CODE CRIM. PROC. ANN. arts. 29.03, 29.08 (Vernon 2006). Importantly, because there is no "due process exception" to the preservation requirements governing motions for continuance, the right to present a defense is subject to forfeiture. See Anderson, 301 S.W.3d at 280-81. In this case, the indictment notified Desilets that he was alleged to have caused serious bodily injuries. See Blount v. State, 257 S.W.3d 712, 714 (Tex. Crim. App. 2008). The indictment also alleges that Desilets had operated a motor vehicle while intoxicated, even though it does not specifically describe the vehicle as the instrumentality that had caused the victims' respective injuries. Even if the indictment is considered somewhat ambiguous about whether the victim's injuries were caused by Desilets' use of a motor vehicle, the State's amended motion, filed seven days prior to trial, clarified any doubt about what the State intended to prove at trial. The notice indicates that the State intended to prove that "the defendant did then and there use and exhibit a deadly weapon, namely, a motor vehicle." Under these circumstances, we conclude that the State's notice, given seven days prior to trial, and in the absence of a sworn motion to continue, provided adequate notice of the State's intent to seek a deadly weapon finding based on Desilets using a vehicle to cause serious bodily injury. Desilets' first issue is overruled. Motions to Suppress
In Desilets' second, third, and fourth issues, he argues that the trial court erred in denying his various motions to suppress. In reviewing a trial court's ruling on a motion to suppress, we apply a bifurcated standard of review, giving almost total deference to a trial court's determination of historical facts and reviewing de novo the trial court's application of the law to the facts. Wilson v. State, 311 S.W.3d 452, 457-58 (Tex. Crim. App. 2010) (citing Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). At a suppression hearing, the trial judge "'is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony.'" Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007) (quoting State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999)). In this case, because the trial court did not make explicit fact findings, we view the evidence in the light most favorable to the trial court's ruling, and we assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We will uphold the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006) (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)). Blood Test
In issue two, Desilets argues the trial court erred by denying his motion to suppress a blood test that was taken at the hospital after the collision. Desilets argues that that State violated his Sixth Amendment right to confrontation because he was denied the opportunity to cross-examine the person "who actually took these blood results[.]" According to Desilets, the State provided no evidence to bolster the reliability and accuracy of the blood test. The State argues that because the emergency room doctor ordered the test for the purpose of providing Desilets with medical treatment, the blood test results are non-testimonial. The State contends that medical records created in the course of a patient's treatment, introduced through the business records hearsay exception, are non-testimonial and do not violate a defendant's confrontation rights. See TEX. R. EVID. 803(6); Sullivan v. State, 248 S.W.3d 746, 750 (Tex. App.-Houston [1st Dist.] 2008, no pet. ("Numerous Texas courts have held that reports and business records are indeed non-testimonial in nature."). The Sixth Amendment's Confrontation Clause bars the admission of testimonial statements of a witness who does not appear at trial unless the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness. Russeau v. State, 171 S.W.3d 871, 880 (Tex. Crim. App. 2005) (citing Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). "Generally speaking, a statement is 'testimonial' if it is a solemn declaration made for the purpose of establishing some fact." Russeau, 171 S.W.3d at 880-81 (citing Crawford, 541 U.S. at 51). Blood results from blood drawn for medical purposes that are separate from the criminal prosecution are generally not considered "testimonial" because they are not made for the purpose of establishing a fact in a criminal prosecution. See Goodman v. State, 302 S.W.3d 462, 470 (Tex. App.-Texarkana 2009, pet. ref'd) (concluding that laboratory result was not testimonial where blood was not drawn at the request of law enforcement and it was tested for medical purposes). To be "testimonial," blood tests must have been made "primarily for the purpose of establishing or proving past events relevant to a later prosecution." Id. In this case, evidence before the trial court allowed the trial court to reasonably conclude that Desilets' blood was not drawn at the request of law enforcement and that Desilets' blood was tested for purposes that were not connected with his prosecution. See id. The testimony during the suppression hearing supports implied findings that law enforcement officers did not accompany Desilets to the hospital and that law enforcement officers did not request the hospital to draw Desilets' blood. Additionally, the blood alcohol test result admitted into evidence is found within the hospital's records that pertain to Desilets' treatment, and the blood test reflects that Desilets' physician was Dr. Truong. Dr. Truong testified during the trial that he had treated Desilets after the accident for a broken hip socket and a dislocated hip. On the evidence before the trial court, the trial court could have reasonably found that the hospital ordered Desilets' blood to be tested for the purpose of Desilets' receipt of medical treatment, and that the hospital's test had not been ordered to establish a fact in connection with Desilets' criminal prosecution. We further conclude that the trial court could reasonably find that the hospital's blood test was not a test ordered by law enforcement officers. Under these circumstances, the trial court could reasonably conclude that the hospital's blood test was non-testimonial; therefore, Desilets' confrontation rights were not implicated. We conclude the trial court did not abuse its discretion in denying Desilets' motion to suppress the hospital's blood test. Desilets' second issue is overruled. Videotape of Prior Stop
In his third issue, Desilets complains that during the punishment phase of his trial, the trial court erroneously admitted a videotape depicting another traffic stop resulting in Desilets being arrested for driving while intoxicated. During the prior stop, Trooper Louis Niklas arrested Desilets for driving while intoxicated with a child under the age of fifteen. According to Desilets, the State failed to establish the reasonableness of the prior stop. Desilets argues that because Trooper Niklas never testified that Desilets changed lanes in an unsafe manner, the prior stop was invalid. The State contends that Trooper Niklas testified to specific facts indicating that Desilets was driving in an unsafe manner by weaving within his lane and by crossing over the white line. According to the State, the prior stop was not the product of an unreasonable detention. A police officer may lawfully stop and detain a motorist who commits a traffic violation. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). During the punishment phase of Desilets' trial, Trooper Niklas testified that in April 2007, he observed a vehicle cross partially from one lane into another without using a turn signal. See TEX. TRANSP. CODE ANN. §§ 545.060, 545.104(a) (Vernon 1999). He also testified that he observed the vehicle weaving while it was within one of the lanes. According to Trooper Niklas, other traffic on the highway avoided the vehicle by refusing to pass it, even though the vehicle was traveling below the speed limit. Trooper Niklas then stopped Desilets' vehicle. By denying Desilets' motion to suppress the videotape of the prior stop, the trial judge implicitly found the evidence supporting the stop credible. We must give deference to that determination. See St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). In viewing the evidence in the light most favorable to the trial court's ruling, the trial court could have reasonably found that Desilets changed lanes without signaling. The implied finding that Desilets violated section 545.104 of the Transportation Code supports the trial court's ruling on the motion to suppress, making it unnecessary to address whether Desilets also violated section 545.060 of the Transportation Code, which concerns unsafe lane changes. See TEX. TRANSP. CODE ANN. §§ 545.060, 545.104(a). Trooper Niklas articulated specific facts that would lead a reasonable person to conclude that a traffic violation had occurred; therefore, he could conduct a lawful temporary detention. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). We conclude the record supports the trial court's implied finding that Trooper Niklas' traffic stop was lawful. See Carmouche, 10 S.W.3d at 328; Garcia, 827 S.W.2d at 944. We overrule Desilets' third issue. In issue four, Desilets complains the trial court erroneously admitted the videotape of his prior traffic stop because the videotape included an unconstitutional custodial interrogation. Desilets argues that Trooper Niklas subjected him to a custodial interrogation without first reading him his Miranda warnings. The State argues that Desilets waived his right to appellate review of this issue because he failed to assert a Fifth Amendment objection in the trial court. The State further contends that Desilets was never subjected to a custodial interrogation. Although the basis of Desilets' Fifth Amendment complaint was somewhat ambiguous, Desilets referred to the Fifth Amendment twice while Trooper Niklas was examined outside the presence of the jury to support his argument that the videotape should be suppressed. The prosecutor responds and mentions the Fifth Amendment once during his response. Although Desilets' complaint at trial is not entirely clear, Desilets brought his Fifth Amendment claim to the trial court's attention. We conclude that Desilets did not fail to preserve his Fifth Amendment complaint for purposes of appellate review. In his brief, Desilets complains that he was subjected to a custodial interrogation after he was stopped by Trooper Niklas. If the statements on the videotape are the product of a custodial interrogation, they are subject to being excluded since "[u]nwarned statements obtained as a result of custodial interrogation may not be used as evidence by the State in a criminal proceeding during its case-in-chief." Herrara v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). Here, Desilets was in custody before he was placed in Trooper Niklas' patrol car; therefore, the issue is whether Trooper Niklas conducted an "interrogation" after placing Desilets in his police car. See Jones v. State, 795 S.W.2d 171, 172 (Tex. Crim. App. 1990). "'[I]nterrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (footnote omitted). But not every statement made by a defendant after being taken into custody is the product of "interrogation." Police questioning incident to a videotaped sobriety test is activity normally attendant to the arrest and custody of a DWI suspect, and is not normally considered to be interrogation. Jones, 795 S.W.2d at 172. "[A]udio tracks from DWI videotapes should not be suppressed unless the police conduct depicted expressly or impliedly calls for a testimonial response not normally incident to arrest and custody or is conduct the police should know is reasonably likely to elicit such a response." Jones, 795 S.W.2d at 176. Additionally, volunteered statements of any kind are not subject to being excluded under the Fifth Amendment. Id. (citing Innis, 446 U.S. at 300). Having carefully reviewed the videotape, we conclude Trooper Niklas' comments and questions were limited to those types of questions normally attendant to the arrest and custody of DWI suspects. After placing Desilets under arrest, Trooper Niklas asked Desilets if he was taking any medication, where his license was, and whether Desilets' ex-wife could get Desilets' daughter. Because the questions captured on video all consist of the types of questions normally attendant to the arrest and custody of a DWI suspect and because Desilets' statements while inside the patrol car were volunteered, we hold the trial court could have reasonably determined that Desilets' responses were not the products of a custodial interrogation. We further conclude that Desilets volunteered his comments after being placed in the police car, as these comments were made while he was alone. These statements are also not barred by the Fifth Amendment. See Jones, 795 S.W.2d at 176. We overrule Desilets' fourth issue. Conclusion
Desilets has not demonstrated that the trial court committed reversible error. The trial court's judgment is affirmed. AFFIRMED.