Opinion
No. 05-14-00507-CR
04-15-2016
FLOR DEMARI BALCARCEL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court No. 3 Dallas County, Texas
Trial Court Cause No. MB10-33676C
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Schenck
Opinion by Justice Schenck
Flor Demari Balcarcel appeals her conviction of driving while intoxicated. In her sole issue on appeal, she challenges the trial court's denial of her motion for mistrial. We affirm the trial court's judgment. Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
FACTUAL & PROCEDURAL BACKGROUND
At approximately 2:15 a.m., a taxi driver observed Appellant swerving and driving very slowly on the freeway. He called 911 to report what he saw, and he continued to follow Appellant until she was pulled over by Officer Drew McBride of the Irving Police Department. Officer McBride initiated a traffic stop during which he smelled the odor of alcohol coming from Appellant's vehicle. He conducted field-sobriety tests, during which Appellant exhibited signs of intoxication. At the conclusion of the field-sobriety tests, Officer McBride arrested Appellant and transported her to the jail. At the jail, Officer McBride read Appellant the statutory warnings, and Appellant provided two breath specimens. He then provided her with a notice that her driver's license would be suspended and confiscated her license.
Appellant pleaded not guilty, and her case proceeded to trial before a jury. At trial and out of the presence of the jury, the trial court considered and denied the State's request to call an expert to testify regarding the process of analyzing Appellant's blood and admonished the State to limit its argument to the fact that Appellant's license was confiscated, but not that it was confiscated because Appellant had "failed a breath test." During closing arguments, the State showed a PowerPoint presentation to support its arguments. Appellant objected to at least one slide as a "misstatement" of the evidence, an objection that may have been directed to a reference to excluded evidence of the breath test. The trial court retired the jury, and Appellant moved for a mistrial. The trial court denied Appellant's motion, recalled the jury, and instructed the jurors not to consider anything they may have seen on the State's slides.
DISCUSSION
I. STANDARD OF REVIEW
We review a trial court's denial of a motion for mistrial for abuse of discretion. Archie v. State, 340 S.W.3d 734, 738-39 (Tex. Crim. App. 2011). To evaluate whether the trial court abused its discretion in denying a mistrial for improper jury argument, we balance the following three factors: (1) the severity of the misconduct (the prejudicial effect), (2) any curative measures (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (strength of the evidence supporting the conviction). Id. at 739. Mistrial is the appropriate remedy when the objectionable events are so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant. Id. Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). II. APPLICABLE LAW
Proper jury argument generally falls within one of four areas: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to an argument of opposing counsel, and (4) plea for law enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011). Counsel is allowed wide latitude in drawing inferences from the evidence so long as those inferences are reasonable and offered in good faith. Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997). III. APPLICATION OF LAW TO FACTS
Appellant argues the trial court abused its discretion in denying her motion for mistrial. She asserts that when the trial judge instructed the State not to mention the breath test, the trial court "held it would be more prejudicial than probative for the jury to hear any reference to the results of the breath test, which results were not admitted into evidence." She contends that the State injected a fact—presumably the results of Appellant's breath test—which had been excluded from evidence and was outside the record. She contends the error is one that is "so prejudicial that an impartial verdict cannot be reached."
A. The Prejudicial Effect of the Prosecutor's Slides
While examining Officer McBride, the State sought to admit a notice of suspension the officer provided Appellant. Appellant did not object, and the trial court admitted the notice. The State then asked the officer to read aloud a portion of the notice that indicated Appellant had provided a breath specimen, an analysis of which showed an alcohol concentration of .08 or greater. Appellant objected, but the trial court overruled the objection because the officer was reading from a document already admitted into evidence.
After Officer McBride's testimony, the State sought to call an expert to testify regarding the process of analyzing Appellant's breath specimen. Out of the presence of the jury, the trial judge denied the State's request to call the expert, finding insufficient evidence to put Appellant's breath test results before the jury. The trial judge also admonished counsel for both the State and Appellant not to argue Appellant failed or passed the breath analysis test. The State then asked whether evidence already admitted could be argued, bringing the trial judge's attention to two facts. The notice included the introductory statement: "Your license, permit or privilege to operate a motor vehicle will be suspended or denied effective 40 days after the date you receive this notice because you." After the statement, the notice included several possible causes for the suspension. This reason was checked: "provided a specimen of breath or blood, and an analysis of the specimen showed an alcohol concentration of .08 or greater following an arrest for an offense involving the operation of a motor vehicle."
During closing arguments, the State showed a PowerPoint presentation. The following exchange appears of record.
DEFENSE COUNSEL: I'm going to object, Your Honor. This slide is a misstatement of the evidence . . .
TRIAL JUDGE: Retire the jury.
DEFENSE COUNSEL: . . . and also . . .
TRIAL JUDGE: Retire the jury.
(OUTSIDE THE PRESENCE OF THE JURY:)
TRIAL JUDGE: Did I not specifically tell you not to make any connection between that [notice] and greater than a .08? Did I not tell you that?
. . . .
TRIAL JUDGE: Did that form up there contradict the order that I gave you?
. . . .
TRIAL JUDGE: Don't turn it . . . I don't want it up there. I don't want anything up there. I don't want any PowerPoint.
I'm going to instruct the jury to disregard anything they have seen on any PowerPoints that have been presented by the State during final argument, do not consider anything that was up there on those screens . . .
. . . .
DEFENSE COUNSEL: Your Honor, for record purposes, I'm going to have to move for a mistrial.
TRIAL JUDGE: I'm going to deny it at this time.
(IN THE PRESENCE OF THE JURY:)
TRIAL JUDGE: Before the prosecutor concludes her arguments, the State has put some PowerPoint pictures up there during their final arguments. I'm instructing you do not consider anything you've seen on any PowerPoint slides that have been shown there or anything you saw up there. You can listen to what they've said, but don't consider any of those pictures you've seen up there for any reason or any purpose. Do y'all understand me?
Unfortunately, the objected-to slide or slides are not in the record. However, from the foregoing, it is evident that the slides in some way referred to the results of Appellant's breath test. While it thus appears that the State's use of the slide was contrary to the court's earlier order, we note that the jury already had before them evidence that Appellant's license was confiscated because a breath or blood test showed she had an alcohol concentration above .08, and other evidence unrelated to the slides we discuss below. Thus, we conclude the magnitude of the prejudicial effect of the slides cannot have been great. Archie, 340 S.W.3d at 739.
B. Cautionary Instruction by the Judge
As noted above, the trial judge instructed the jury not to consider any of the slides the prosecutor showed. Such instructions to disregard will generally cure error if a prosecutor mentions facts outside the record. Freeman, 340 S.W.3d at 727-28. Indeed, we presume that a jury will follow the trial court's instructions. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). As we do not have the slides before us here, there is nothing in the record to suggest that the jurors saw anything outside the record that would have rendered the instruction ineffective. Instead, it appears as though the slide or slides alluded to the fact Appellant did not pass the breath test, a fact already in evidence in the notice of suspension. However, even if the slide or slides did contain evidence outside the record, we conclude the trial judge's instruction was sufficient to cure any such error. Freeman, 340 S.W.3d at 727-728; Gamboa, 296 S.W.3d at 580.
C. Strength of the Evidence Supporting the Conviction
Finally, we turn to the strength of the evidence supporting the conviction. As mentioned above, a taxi driver first observed Appellant's driving and reported his concerns to the police by calling 911 at approximately 2:27 a.m. The jury heard his testimony, as well as the recorded 911 call, in both of which he described Appellant as swerving and driving very slowly—approximately twenty miles an hour—on the freeway. The taxi driver continued to follow her and report where and how she was driving to the 911 operator until Officer McBride stopped Appellant at approximately 2:36 a.m.
The jury also heard the testimony of Officer McBride who described his interactions with and eventual arrest of Appellant, including his conclusion that "she was definitely intoxicated." The officer testified he noticed the smell of alcohol from Appellant's car and that she was wearing a plastic Budweiser wristband, which he associated with similar wristbands worn at clubs to indicate the wearer's age has been verified as 21 or older. When asked where she had been, Appellant at first said she was coming from her home where she had consumed a couple beers between midnight and 1:30 a.m. and was on her way to a friend's house when the officer stopped her. When asked about the wristband, she admitted she had just come from a bar. Officer McBride explained that after he confirmed Appellant was not injured or suffered any other mental or physical impairments, he performed field-sobriety tests on Appellant, during all of which she exhibited signs of intoxication. He testified that at the conclusion of the field-sobriety tests, he determined she was intoxicated, that her mental faculties were not normal due to the introduction of alcohol, and arrested her for driving while intoxicated.
Officer McBride also testified he inventoried Appellant's car and found seven unopened bottles of Corona and a receipt for two hurricanes from the bar she named earlier when he asked her about her wristband. Later, another search at the jail revealed yet another receipt from the same bar for yet another hurricane, which Officer McBride testified was a drink consisting of several different types of liquor. The receipts were admitted without objection and showed Appellant's tab opened that morning at 12:02 a.m. and closed at 1:19 a.m., approximately one hour before Officer McBride stopped Appellant. As the officer admitted, since the time stamp on the two receipts was the same, the receipt for two hurricanes may or may not have included the single hurricane recorded in the other receipt.
Additionally, the record includes the notice of suspension form admitted into the record. The notice includes a box checked next to the statement that Appellant "[p]rovided a specimen of breath or blood, and an analysis of the specimen showed an alcohol concentration of .08 or greater following an arrest for an offense involving the operation of a motor vehicle." Officer McBride read the above statement into the record as part of his testimony.
The jury was free to consider all of the foregoing evidence in the record as it deliberated over the charge of whether Appellant "did not have the normal use of her mental or physical faculties by reason of the introduction of alcohol." Based on the foregoing, we conclude the evidence supporting Appellant's conviction was very strong.
After considering the three factors above, we conclude the trial judge did not abuse his discretion in denying Appellant's motion for a mistrial. We overrule Appellant's sole issue.
CONCLUSION
We affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47 140507F.U05
JUDGMENT
On Appeal from the County Criminal Court No. 3, Dallas County, Texas
Trial Court Cause No. MB10-33676C.
Opinion delivered by Justice Schenck, Justices Bridges and Lang-Miers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 15th day of April, 2016.