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holding that because appellant did not object to the prosecutor's statement asking the jury to place themselves in the shoes of the victim, appellant failed to preserve the issue for appeal
Summary of this case from Egloff v. StateOpinion
No. 04-04-00010-CR
Delivered and Filed: June 15, 2005. DO NOT PUBLISH.
Appeal from the County Court, Atascosa County, Texas, Trial Court No. 22521, Honorable Olin B. Strauss, Judge Presiding. Affirmed.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Richard Daniel Berry was found guilty by a jury of driving while intoxicated and was sentenced to 180 days confinement in jail and a fine of $800.00. The trial court then suspended his sentence and placed him on probation for eighteen months. Berry brings two issues on appeal. We overrule both issues and affirm the judgment of the trial court.
Background
According to Berry, on March 17, 2001, he went to a bar in San Antonio, Texas with his friend Bruce Turner. They both drank two beers and played a couple of games of darts while waiting for another friend. When his friend arrived, the three men left the bar. They then stopped for food at a fast-food restaurant and went to Turner's house in Pleasanton, Texas. Berry remained at Turner's house for thirty to forty-five minutes before heading home to Mathis, Texas. He had driven about five miles when he had an asthma attack. He took his eyes off the road, looking in his glove compartment for Primatene Mist. He looked up from the glove compartment when he "heard the rat-a-tats," indicating that he was traveling outside of his lane. When he looked back to the road, he saw a police officer on the side of the road, conducting a stop of another vehicle. He kept traveling down the road. According to Berry, he does not have a rear-view mirror, only two side mirrors. Thus, he did not notice that the officer was signaling him to pull over. Once Berry saw the officer's car, he pulled over. Officer Brian Vajdos, a sergeant with the Department of Public Safety, was conducting a traffic stop near mile post 104 when he heard a vehicle approach from behind him. According to Officer Vajdos, as the car crossed onto the shoulder, it ran over the rumble strip, indentations made in the road to alert the driver when he or she crosses the white line. Officer Vajdos then observed the vehicle move back to the right lane, cross the center stripe, and then go into the left lane. When the vehicle passed, Officer Vajdos left the original stop and pursued the swerving vehicle. Officer Vajdos caught up with the vehicle near mile post 103. When the vehicle did not respond to emergency lights, Officer Vajdos sounded the siren. After approximately two miles, the vehicle finally slowed because civilian traffic ahead of the vehicle slowed. The vehicle then "pulled over onto the shoulder, used his turn signal, and then pulled all the way off into the bar ditch, probably two or three feet." The vehicle did not have a rearview mirror. Officer Vajdos ordered the driver out of the car, and Berry emerged from the driver's side door. Officer Vajdos asked Berry why he had not stopped earlier. Berry replied that because he did not have a rearview mirror, he had not seen the officer. During the course of questioning Berry, Officer Vajdos got close to him and smelled alcohol on Berry's breath. According to Officer Vajdos, Berry's speech was also slow and slurred; his eyes were glassy. When Officer Vajdos asked Berry whether he had been drinking, Berry admitted to having consumed four sixteen-ounce beers. Officer Vajdos, being certified to administer field sobriety tests, conducted three standardized field sobriety tests on Berry. According to Officer Vajdos, Berry failed each test, and because he failed the tests, he was arrested for driving while intoxicated by not having the normal use of his mental or physical faculties by introduction of alcohol into his body. According to Berry, because he was worried that the Primatene Mist inhaler he had used would affect the breathalyzer results, he refused a breathalyzer test at the police station. He did, however, offer to give a blood test, believing that the Primatene Mist would not affect the results of a blood test, but Officer Vajdos refused, stating that he did not need a blood test. Although Berry claimed he was reaching for his Primatene Mist in the glove compartment, according to Officer Vajdos, no inhaler was found when the car was inventoried. Berry was found guilty of driving while intoxicated. He brings two issues on appeal. First, he argues that a statement made by the trial court before opening statement was error. Second, he argues that his conviction is not supported by legally and factually sufficient evidence.Statement by Trial Court
At the opening of trial, the trial court stated the following to the jury:As I said before, the opening statements and closing arguments of the attorneys are intended to help you in understanding the evidence and applying the law, but they are not evidence. You must not be influenced in any degree by any personal feeling of sympathy for or prejudice against the State or the defendant. Each is entitled to the same fair and impartial consideration. No statement or ruling or remark which I may make during the presentation of testimony is intended to indicate my opinion as to what the facts are. My opinion as to facts are neither here nor there. You decide the facts, I decide the facts. In this determination you alone must decide upon the believability of the witnesses, and the weight of the evidence, and the value to be given to the evidence. In considering the weight and value of testimony of any witness, you may take into consideration appearance, attitude, behavior of the witness, . . .(emphasis added). Berry contends that the trial court's statement of "You decide the facts, I decide the facts" is an inaccurate representation to the jury in violation of articles 36.13 and 38.04 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981) ("Unless otherwise provided in this Code, the jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed thereby."); id. art. 38.04 (Vernon 1979) ("The jury, in all cases, is the exclusive judge of the facts proved, and of the weight to be given to the testimony . . ."). Berry, however, did not object to the trial court's statement, and as such has not preserved error for appellate review. See Tex.R.App.P. 33.1. In the absence of preservation of error, Berry must show that the trial court committed fundamental error. Texas Rule of Evidence 103(d) authorizes us in a criminal case to take "notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court." Tex. R. Evid. 103(d). "Some rights are widely considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system." Blue v. State, 41 S.W.3d 129, 131 (Tex.Crim.App. 2000) (plurality op.). "A principle characteristic of these rights is that they cannot be forfeited. That is to say, they are not extinguished by inaction alone." Id. Instead, an accused must expressly relinquish a fundamental right. Id. As noted by the court of criminal appeals in Blue v. State, certain comments by a trial court may be so prejudicial to be fundamental error:
In United States v. Bray, 546 F.2d 851 (10th Cir. 1976), the United States Court of Appeals for the Tenth Circuit held that it was plain error when the trial judge's comments and actions damaged the presumption of innocence in the presence of the jury . . . Similarly, the comments of the judge in this case cannot be viewed as fair and impartial. While the judge himself might have been able to maintain impartiality in presiding over the trial, despite his apparent hostility toward the defendant for causing delay, his comments "vitiated the presumption of innocence" before the venire, adversely affecting appellant's right to a fair trial.
The comments of the trial judge, which tainted appellant's presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection. Bray, 546 F.2d at 859; United States v. Lanham, 416 F.2d 1140 (5th Cir. 1969) (actions of trial judge who improperly injected himself into role of prosecutor during trial destroyed neutrality and impartiality of trial atmosphere, defendant's credibility, and defendant's presumption of innocence, and constituted plain error); United States v. Haywood, 411 F.2d 555 (5th Cir. 1969) (trial judge who, in presence of jury, twice interrupted charge and informed defendant of right to allocution, before case was submitted to jury for decision effectively destroyed defendant's presumption of innocence and committed plain error); see also United States v. Filani, 74 F.3d 378 (2d Cir. 1996) (trial court's extended and critical questioning of defendant gave jury impression of partiality and was plain error); United States v. Fernandez, 496 F.2d 1294 (5th Cir. 1974) (prosecutor's argument that sought to impose a "presumption of guilt," together with failure of charge to instruct on the presumption of innocence, was plain error).Blue, 41 S.W.3d at 132-33. Here, however, the trial court's comments do not constitute fundamental error. Looking at the context of the trial court's statement, it is clear that the single sentence made by the trial court, "You decide the facts, I decide the facts," was a misstatement. During its opening instructions to the jury, the trial court repeatedly told the jury that it was the sole judge of the facts and evidence. And, before closing arguments, the trial court read the jury charge to the jury. The jury charge instructed the jury the following:
You are the exclusive judges of the facts proved, of the credibility of the witnesses and of the weight to be given their testimony, but you are bound to receive the law from the Court, which is given [to] you in this charge, and you shall be governed thereby.
Looking at the record as a whole, we hold that the trial court's statements were not fundamental error. Therefore, by failing to object to the trial court's statements, Berry waived any error. Berry's first issue is overruled.
Sufficiency of the Evidence
In his second issue, Berry argues that the evidence is insufficient to support his conviction. We construe this issue as both a legal and factual sufficiency attack on the evidence. A. Legal Sufficiency When conducting a legal sufficiency-of-the-evidence review as prescribed by Jackson v. Virginia, 443 U.S. 307, 319 (1979), we do not weigh the evidence tending to establish guilt against the evidence tending to establish innocence, nor do we assess the credibility of witnesses on each side. Ex Parte Elizondo, 947 S.W.2d 202, 205 (Tex.Crim.App. 1996). We view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319. If the evidence is legally insufficient, a judgment of acquittal must be rendered. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). Driving while intoxicated consists of three elements: 1) operation of a motor vehicle, 2) while intoxicated, 3) in a public place. See Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003). Section 49.01(2) defines "intoxicated" as the following:(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
B) having an alcohol concentration of 0.08 or more.See id. § 49.01(2). Here, Berry was charged with being intoxicated under 49.01(2)(A), not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body. As for the first and third elements, operation of a motor vehicle in a public place, it is undisputed that Berry operated the vehicle at the time in question in a public place. As for the second element, Officer Vajdos's testimony is sufficient to show intoxication. Officer Vajdos testified that as he was conducting a traffic stop for a defective headlight, he became concerned about a vehicle that was crossing onto the shoulder of the road, nearly hitting his police car. Officer Vajdos pursued the car and eventually the offending vehicle pulled over into a ditch, an unusual place for a stop. Officer Vajdos noticed Mr. Berry had slurred speech, glassy eyes, and an odor of alcoholic beverages. Officer Vajdos conducted the standard field sobriety tests that he is trained to perform. According to his testimony, each test result was overwhelmingly in favor of intoxication. Additionally, every witness in the trial, including Berry, testified that Berry had been drinking alcohol on the day in question. The evidence is legally sufficient to show that Berry did not have normal use of his physical and mental faculties because of the introduction of alcohol into the body. B. Factual Sufficiency In conducting a factual-sufficiency review, rather than viewing the evidence in the light most favorable to the prosecution, a neutral review of the evidence is conducted. Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App. 2004). There is only one question to answer in this review: considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Id. at 484. There are two ways in which the evidence may be insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. at 485. Berry first argues that, with respect to the field sobriety tests, Officer Vajdos "misstated the issue of the test's reliability by confusing reliability (trustworthy, worthy of confidence)" with validity. "In other words, the test does not rule out a myriad of conditions other than intoxication that can cause poor scores, which would point to validity." According to Berry, "the Standardized Field Sobriety Test is not standardized as to validity." Berry also argues that Officer Vajdos's "testimony concerning reliability of the [field sobriety] test correlating to a subject's blood alcohol or breath alcohol is an erroneous use of the finding of the test." Additionally, he argues that "the form used by the Texas Department of Public Safety is not well-written, is confusing, and can lead to misunderstanding by a even [sic] sober person, and [Berry's] refusal [to take the breathalyzer] should not be taken as an indication of guilt of intoxication." According to Berry, "the testimony concerning a blood or breath test was confusing to [Berry], to the jury, and is particularly confusing to the general public." These arguments go to the admissibility of the evidence, not the sufficiency of the evidence. As for the admissibility of the evidence, Berry did not object at trial to Officer Vajdos's testimony and, as such, has waived any error on appeal. See Tex.R.App.P. 33.1. Likewise, Berry argues that the closing argument by the State "was improper in that the jury members were asked to place themselves in the shoes of the victim." This argument, however, does not go to the sufficiency of the evidence. Further, Berry fails to include a record citation demonstrating at what point the State made such a statement during closing argument and, as such, has improperly briefed it for appeal. See Tex.R.App.P. 38.1(h). Moreover, in reviewing the record, the only comments by the prosecutor that might be considered asking "the jury members . . . to place themselves in the shoes of the victim" are the following:
The defense is also telling you, "You shouldn't be thinking about the community. It is not about the community." It absolutely is about the community. And I want to ask you, how would you have liked to be driving on the road with Mr. Berry that day when you saw that driving behavior? Would you want one of your kids to be sitting in the passenger seat with him that day? Would you trust your child to drive with him that day, after you have seen everything that occurred? I believe your answer should be no.Berry, however, did not object to these statements. "Before a defendant will be permitted to complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling." Valencia v. State, 946 S.W.2d 81, 82-83 (Tex.Crim.App. 1997). Thus, in addition to improperly briefing this issue, by failing to object at trial, Berry failed to preserve this issue for appeal. Id.; see Tex.R.App.P. 33.1. Berry also contends that he offered explanations for his behavior. He did not stop his car quickly because he did not have a rearview mirror. Although Officer Vajdos testified that Berry told him that Berry had drank four beers, Berry testified that he had only drank "two to three." At trial, when asked why he told the officer that he had had four beers, Berry replied, "When the officer approached my car he said something to me. I can't remember what it was, and I remembered I smarted off to him, 'How many do you want me to drink?'" Officer Vajdos also testified that Berry had offered no injuries or physical handicaps that would prevent him from performing the field sobriety tests. At trial, Berry explained that he did not inform the officer of his asthma attacks because his condition is "not a 24 hour ongoing thing." And, according to Berry, he did tell the officer that he did not know how well he could perform the tests because of his knees. He testified at trial that he has "busted cartilages in both knees from football injuries and baseball injuries when [he] was child." Berry testified that he was not forthcoming with Officer Vajdos because he was reluctant to trust an officer because of a previous bad experience. Berry also emphasizes that the reason he refused to take the breathalyzer test is because he was afraid the medicine he had taken would interfere with the results. And, finally, Berry emphasizes that his eagerness to take a blood test and his friend's testimony of the events of the day (which did not contradict his own) support his innocence. All of Berry's arguments go to the weight of the testimony and his own credibility. Unless the available record clearly reveals a different result is appropriate, we must defer to the jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor of the witnesses' testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). Moreover, as discussed above, Berry's erratic driving, his failure of the field sobriety tests, and the odor of alcohol on his breath, all support the jury's finding of guilt. Viewed neutrally, the evidence shows the jury had enough evidence to rationally find guilt beyond all reasonable doubt. We, therefore, overrule Berry's final issue.