Summary
holding that "a Franks claim must be raised in a motion to suppress, and the trial court must be made aware of the claim at the suppression hearing," otherwise a defendant fails to preserve error
Summary of this case from Sanchez v. StateOpinion
NO. 03-15-00246-CR
02-19-2016
Mark Gordon McMurphy, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NO. CR2014-106, HONORABLE JACK H. ROBISON, JUDGE PRESIDINGMEMORANDUM OPINION
A jury convicted appellant Mark Gordon McMurphy of the felony offense of driving while intoxicated. Punishment, enhanced by four prior felony convictions, was assessed at 60 years' imprisonment. The district court rendered judgment on the verdict. In two points of error on appeal, McMurphy asserts that the evidence is insufficient to support his conviction and that the district court abused its discretion in denying his motion to suppress. We will affirm the judgment of conviction.
See Tex. Penal Code §§ 49.04(a), 49.09(b)(2).
BACKGROUND
The jury heard evidence that, on the night of October 3, 2013, Matthew Porter, a clerk at a convenience store located in Garden Ridge, observed a Chevy Impala pull into the gas-pump area of the store property and "stop abruptly." Porter testified that the driver of the vehicle, later identified as McMurphy, got out of the car and "began yelling different obscenities and incoherent thoughts." Porter also testified that no one else was inside the vehicle at the time. Porter recounted that he walked up to McMurphy, began speaking with him, and offered him a cigarette. During the course of speaking with him, Porter testified, he came to believe that McMurphy was "drunk," based on "the way he was speaking, the way he was standing," his "mannerisms," and Porter's observation that "his eyes were really red." Porter then returned to the store and told the other clerk to call the Garden Ridge Police Department. The other clerk did so, and the police arrived shortly thereafter.
Officer Bryan Pelata responded to the call and testified that when he arrived at the store, he made contact with McMurphy and "asked [him] if he was okay." According to Pelata, McMurphy told him that "he was fine." However, Pelata noticed that McMurphy's eyes were "bloodshot and glossy" and that he had "slurred speech" and a "strong" odor of alcohol on him. Pelata also observed a half-full, 32-ounce bottle of malt liquor in the passenger seat of the vehicle. Pelata proceeded to ask McMurphy if he had been driving. According to Pelata, McMurphy told him that "his girlfriend" had been driving the car. When Pelata asked McMurphy who his girlfriend was, McMurphy identified her as "Nancy" but told Pelata that "he did not know her last name." Pelata also testified that when he asked McMurphy where his girlfriend was, McMurphy told him that "as soon as [Nancy] saw [Pelata] pull up, she took off." However, Pelata had not observed anyone leaving the store when he arrived. Suspecting McMurphy to be intoxicated, Pelata proceeded to administer the standardized field sobriety tests, all of which, Pelata testified, McMurphy failed. Pelata then placed McMurphy under arrest for driving while intoxicated.
Pelata further testified that he subsequently asked McMurphy for a sample of his blood. After McMurphy refused, Pelata explained, he obtained a warrant for his blood and transported him to a hospital, where McMurphy's blood was drawn. The results of the blood draw were admitted into evidence. According to the evidence presented, McMurphy's blood-alcohol content at the time of the draw was .168, over twice the legal limit. Based on this and other evidence, the jury found McMurphy guilty of the offense of driving while intoxicated and assessed punishment as indicated above. The district court rendered judgment on the verdict, and this appeal followed.
ANALYSIS
Sufficiency of the evidence
In his first point of error, McMurphy asserts that the evidence is insufficient to sustain his conviction. When reviewing the sufficiency of the evidence to support a conviction, we consider all of the evidence in the light most favorable to the verdict to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. We must consider all the evidence in the record, whether direct or circumstantial or properly or improperly admitted. We assume that the jury resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict, and we defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony.
In his brief, McMurphy challenges both the legal and factual sufficiency of the evidence. However, in 2010, the Court of Criminal Appeals held that the legal and factual sufficiency standards of review are "indistinguishable" and that the legal-sufficiency standard "is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). We will accordingly analyze McMurphy's sufficiency arguments solely within the rubric of the legal-sufficiency standard of review.
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Jackson, 443 U.S. at 318-19; Brooks, 323 S.W.3d at 899; Clayton, 235 S.W.3d at 778; see Tex. Code Crim. Proc. art. 38.04.
A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. On appeal, McMurphy does not contest the element of intoxication. Instead, he claims that the evidence is insufficient to show that he (1) operated a motor vehicle and (2) operated the vehicle on a "public road or highway."
See Tex. Penal Code § 49.04(a).
McMurphy quotes the language used in the court's charge to the jury. However, in our sufficiency analysis, we are to "compare the elements of the crime as defined by the hypothetically correct jury charge to the evidence adduced at trial." Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "A hypothetically correct jury charge is one that 'accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.'" Id. (quoting Malik, 953 S.W.2d at 240). Here, McMurphy was indicted for being intoxicated while operating a motor vehicle in a "public place." Accordingly, we are to consider whether the evidence is sufficient to support that element of the offense.
Regarding his first claim, McMurphy points to evidence tending to show that he was standing outside the vehicle when Officer Pelata made contact with him and that Pelata did not observe him driving the vehicle. However, the store clerk testified that when he saw the vehicle pull into the gas station, there was only one person inside the vehicle, and that person was McMurphy. Moreover, despite McMurphy's claim that his girlfriend "Nancy" was driving the vehicle, Pelata testified that no one else was inside the vehicle when he made contact with McMurphy, and he saw no one leave the store when he arrived. Based on this and other evidence, the jury could have reasonably inferred that it was McMurphy who had operated the motor vehicle.
We similarly find no merit to McMurphy's contention that the evidence is insufficient to prove that he operated a motor vehicle in a public place. A "public place" is defined as "any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops." In this case, the store clerk testified that the public had access to the area where McMurphy had been driving his vehicle, and Officer Pelata testified similarly. Based on this and other evidence, the jury could have reasonably found that the gas-pumping area on the convenience store property was a "public place" and that McMurphy had been operating his motor vehicle in it.
Tex. Penal Code § 1.07(a)(40).
See York v. State, 342 S.W.3d 528, 537 (Tex. Crim. App. 2011) ("A gas station is a shop, and it and the area around it are places to which the public has access.").
Based on the combined and cumulative force of the evidence summarized above and all reasonable inferences therefrom, considered in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that McMurphy committed the offense of driving while intoxicated.
We overrule McMurphy's first point of error.
Motion to suppress
In his second point of error, McMurphy asserts that the district court abused its discretion in denying his motion to suppress. Specifically, he claims that Officer Pelata made false statements in the probable-cause affidavit that was used to support the issuance of the warrant authorizing the seizure of McMurphy's blood. McMuphy contends that those statements should have been struck from the affidavit pursuant to Franks v. Delaware, and that if they had been struck, the remaining statements would not have supported a finding of probable cause for the blood draw. Thus, in McMurphy's view, the results of the blood draw should have been suppressed.
The statements at issue were that (1) prior to arresting McMurphy, the officer had spoken to witnesses at the gas station who had observed McMurphy's behavior; and (2) prior to conducting field-sobriety tests on McMurphy, the officer had asked him whether he had any medical conditions that might impair his performance on the tests.
438 U.S. 154, 155-56 (1978); see Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App. 2007); Cates v. State, 120 S.W.3d 352, 355-56 (Tex. Crim. App. 2003); Emack v. State, 354 S.W.3d 828, 837-39 (Tex. App.—Austin 2011, no pet.).
In response, the State argues that McMurphy failed to preserve error on this point in the court below. We agree. To require the trial court to hold a Franks evidentiary hearing and to preserve the issue for appellate review, a defendant must (1) allege deliberate falsehood or reckless disregard for the truth by the affiant, specifically pointing out the portion of the affidavit claimed to be false; (2) accompany these allegations with an offer of proof stating the supporting reasons; and (3) show that, when the portion of the affidavit alleged to be false is excised from the affidavit, the remaining content is insufficient to support the issuance of the warrant. "Thus, specific allegations and evidence must be apparent in the pleadings in order for a trial court to even entertain a Franks proceeding." Accordingly, a Franks claim must be raised in a motion to suppress, and the trial court must be made aware of the claim at the suppression hearing. Here, McMurphy did not raise his Franks claim in his written motion to suppress, nor did he argue any such claim during the suppression hearing. Instead, the record reflects that he raised it for the first time near the end of trial, after the State had rested its case and all of the evidence, including the blood-draw results, had been presented.
Harris, 227 S.W.3d at 85-86; Cates, 120 S.W.3d at 356.
Harris, 227 S.W.3d at 85.
See id. at 85-86.
On appeal, McMurphy claims that he did not know that the affidavit contained misstatements at the time of the suppression hearing. He asserts that he first learned of the misstatements during trial, when, according to McMurphy, certain portions of the officer's testimony contradicted statements that he had made in his affidavit. However, even if we were to assume that this was true and, further, that this lack of awareness excused McMurphy's failure to raise the issue at the suppression hearing, McMurphy did not re-urge his motion to suppress at any time during the officer's trial testimony, when McMurphy claimed to have learned of the misstatements. Nor did he re-urge his motion to suppress at the time the blood-draw results were subsequently offered into evidence. It is well settled that an objection to the admission of evidence must be raised at the "earliest possible opportunity." Here, McMurphy did not do so. Accordingly, he failed to preserve error on his Franks claim in the court below.
We note that Officer Pelata testified at the suppression hearing, and the record reflects that his testimony during the hearing was similar to the testimony that he provided during trial, including the testimony related to the alleged misstatements in his affidavit. McMurphy provides no explanation on appeal for why the testimony that was elicited during the suppression hearing failed to apprise him of the possible Franks issue at that time.
Although McMurphy objected to the admission of the blood-draw results on the ground that the officer "lied under oath," he did not elaborate, request a Franks hearing, or take any of the steps that the Court of Criminal Appeals has held to be necessary to raise and preserve error on a Franks claim. He did not: (1) specifically point out the portion of the affidavit claimed to be false; (2) accompany his allegations with an offer of proof stating the supporting reasons; or (3) show that, when the portion of the affidavit alleged to be false is excised from the affidavit, the remaining content is insufficient to support the issuance of the warrant. See id. at 85.
See Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991); Cannon v. State, 691 S.W.2d 664, 674 (Tex. Crim. App. 1985); see also Nelson v. State, 626 S.W.2d. 535, 536 (Tex. Crim. App. 1981) (concluding that defendant failed to preserve error on motion to suppress when she failed to raise it until after State had rested its case); Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim. App. 1980) (error in admission of confession waived when defendant failed to object during testimony of police officer who obtained confession because "an objection must be urged at the earliest opportunity").
See Harris, 227 S.W.3d at 86; see also Sponsler v. State, No. 03-11-00654-CR, 2013 Tex. App. LEXIS 13812, at *14-17 (Tex. App.—Austin Nov. 8, 2013, pet. ref'd) (concluding that appellant failed to preserve error on Franks claim by failing to raise it until closing argument at suppression hearing); Hanks v. State, No. 11-10-00133-CR, 2012 Tex. App. LEXIS 3703, at *20-22 (Tex. App.—Eastland May 10, 2012, pet. ref'd) (same). --------
We overrule McMurphy's second point of error.
CONCLUSION
We affirm the judgment of conviction.
/s/_________
Bob Pemberton, Justice Before Chief Justice Rose, Justices Pemberton and Bourland Affirmed Filed: February 19, 2016 Do Not Publish