Opinion
NO. 09-10-00374-CR
01-18-2012
MICHAEL JAMES BRADLEY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 5
Montgomery County, Texas
Trial Cause No. 09-248361
MEMORANDUM OPINION
A jury found Michael James Bradley guilty of driving while intoxicated. See Tex. Penal Code Ann. § 49.04(a) (West Supp. 2011). The jury assessed punishment at 180 days of jail confinement, probated for a period of two years. Bradley raises six issues on appeal. We affirm the trial court's judgment.
Bradley's first issue challenges the legal and factual sufficiency of the evidence of intoxication. We consider all of the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony, we must defer to the jury's determinations of weight and credibility. Brooks, 323 S.W.3d at 899. A person is intoxicated if he lacks "the normal use of mental or physical faculties by reason of the introduction of alcohol ... into the body[.]" Tex. Penal Code Ann. § 49.01(2)(A) (West 2011).
Two passengers in the vehicle testified for Bradley. Adam Shrum testified that they started their social evening at approximately 7:15 p.m. and that Bradley did not seem to be intoxicated or bear the odor of alcohol at that time. They arrived at Southern Star Brewery around 8:00 p.m. and ate crawfish. The brewery was having a one year anniversary celebration and was serving free beer.
According to Shrum, Bradley told them that he was not supposed to drink because he had a condition known as Barratt esophagus. Bradley did have a beer while they were at the brewery, but Bradley did not enjoy the beer and did not finish drinking it. Shrum had seven or eight beers over two and one-half hours. The beer was served in 12-ounce glasses. They left the brewery about 10:45 p.m. and arrived at a pub called Goose's Acre at 11:15 p.m. Bradley ate pizza and drank a Red Bull. They left at 1:45 a.m. Bradley was their designated driver that evening because they knew he was not supposed to be drinking. Bradley drove his friend's car when they left the Goose's Acre. The owner of the vehicle had consumed four or five glasses of beer. Of Bradley, Shrum said, "I've seen him drink plenty of times in my life and that night he was not drunk." Shrum added that based on years of friendship he could say that Bradley does not have perfect balance.
Clint LaBounty testified that he saw Bradley drink one beer at the brewery, while LaBounty had four beers. Bradley ate pizza and drank a Red Bull at Goose's Acre, while LaBounty had four or five more beers. Bradley did not appear to be intoxicated to LaBounty.
Trooper Jeffrey Green testified that he initiated the traffic stop because the vehicle being driven by Bradley was traveling 61 miles per hour on an interstate highway feeder road with a 45 mile per hour speed limit. Bradley's eyes were red and Green detected the odor of alcohol on Bradley's breath. When Green administered the field sobriety tests, Bradley made no mention of any physical handicaps or disabilities that would affect his ability to perform physical evaluations. When Green administered the horizontal gaze nystagmus test, Green observed the lack of smooth pursuit in Bradley's eyes. Green observed distinct and sustained nystagmus at maximum deviation. However, he did not observe onset of nystagmus prior to 45 degrees. Bradley swayed slightly during the test. On the walk-and-turn test, Bradley experienced difficulty following directions. He stepped off of the line, missed his heel to toe, and turned improperly. Bradley was leaning to the side in an attempt to balance himself without raising his arms. On the one-leg stand test, Bradley hopped and put his foot down, then stopped before he was instructed to cease. The officer expressed his opinion that Bradley was intoxicated by reason of introduction of alcohol into his system.
Bradley's father, David Bradley, testified that Bradley has a hearing deficit. David Bradley also testified that he had watched the video and in his opinion Bradley was not intoxicated.
Bradley argues that this evidence is insufficient to establish intoxication because Bradley has a medical condition that mimics the symptoms of intoxication. He evidently relies at least in part on medical records that were neither admitted into evidence nor published to the jury. Only evidence that the jury considered may be considered in an appellate review of the sufficiency of the evidence. See Kemmerer v. State, 113 S.W.3d 513, 515 n.2 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd) (citing Miles v. State, 918 S.W.2d 511, 512 (Tex. Crim. App. 1996) ("All evidence which the trial judge has ruled admissible may therefore be weighed and considered by the jury, and a reviewing court is obligated to assess the jury's factual findings from this perspective.")). The jury in this case heard testimony that Bradley and his friends admitted that Bradley had consumed alcohol. Although Bradley's friends claimed that Bradley consumed only one beer hours before the traffic stop, the jury could disbelieve that part of their testimony and instead believe the officer's testimony that the odor of alcohol was detectable on Bradley's breath at the time of the stop. See Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). The jury also viewed the video of the traffic stop. The officer's description of Bradley's performance of the field sobriety tests and the officer's opinion that Bradley was intoxicated provide sufficient evidence for a verdict of guilt. See Hartman v. State, 198 S.W.3d 829, 835 (Tex. App.—Corpus Christi 2006, no pet.). We overrule issue one.
Bradley's second issue contends that the evidence should have been suppressed based upon the illegality of the traffic stop. Bradley did not file a written motion to suppress or challenge the legality of the stop in a pre-trial hearing. At trial, the officer testified that he "observed a brown SUV traveling southbound on the interstate feeder road of 45 going over the posted speed limit." Defense counsel objected on Fourth Amendment grounds after the officer testified that he determined that the vehicle was traveling in excess of the speed limit by pacing that vehicle with his and then looking at his own speedometer, which registered a speed of 61 miles per hour in what was a 45 miles per hour speed limit zone on the feeder road. The officer stated that he knew his speedometer was working correctly because it must be working in order for his radar to function properly. Defense counsel objected on the ground that "[t]he trooper never testified the speedometer was calibrated." The prosecutor offered to elicit that testimony, and the trial court stated, "At this point I'm overruling your objection." The officer explained that the radar and speedometer work together and that his radar is calibrated at the beginning of every day on which he intends to stop vehicles. The officer stated that he believed the radar calibrated correctly on that day. On voir dire, defense counsel asked the officer if he was certain that he had calibrated his radar unit that day. The officer responded that he would have to check his logs to be certain, and added that he had not brought his logs to court that day. Defense counsel stated, "My objection, Your Honor, would just be speculation." The trial court overruled the objection.
On appeal, Bradley argues that the record shows "that the radar detector either was not properly calibrated or that there was no evidence to show that it was calibrated." Consequently, he argues, there was no evidence to establish probable cause that he was speeding. However, the officer testified without objection that he observed the vehicle traveling in excess of the speed limit. The officer did not need to prove the exact speed at which the vehicle was moving in order to have reasonable suspicion for an investigatory detention. Dillard v. State, 550 S.W.2d 45, 53 (Tex. Crim. App. 1977) (op. on reh'g). Even if the radar had eventually been shown to be inaccurate, the officer would have been justified in relying upon it to develop reasonable suspicion for purposes of conducting a traffic stop. Icke v. State, 36 S.W.3d 913, 915-16 (Tex. App.—Houston [1st Dist.] 2001, pet. ref'd). We overrule issue two.
Bradley's third issue contends that the trial court erred in not allowing Bradley's medical records to be admitted into evidence during Bradley's father's testimony. When defense counsel tendered the records, the prosecutor objected "to any of this based on hearsay. This witness has no personal knowledge." Defense counsel stated, "That's fine. You know what, I'm withdrawing that. That's fine." The trial court replied, "Okay." Bradley made an offer of proof a short time later. See Tex. R. Evid. 103(a)(2), (b). After offering a notice from the Department of Veterans Affairs and taking some testimony from Bradley's father, defense counsel added, "as part of defendant's Bill of Exception No. 2, I'm going to offer these records from Methodist Hospital that have my client's diagnosis of neurofibromatosis." The trial court replied, "Okay."
On appeal, Bradley contends that the records were admissible as business records or as statements made for the purpose of medical diagnosis. See Tex. R. Evid. 803(4), (6). This exception was not presented at trial as a ground for overruling the State's hearsay objection. See Tex. R. Evid. 801(d). The proponent of evidence bears the burden of establishing its admissibility. See Vinson v. State, 252 S.W.3d 336, 340 (Tex. Crim. App. 2008). In this case, Bradley not only did not present Rule 803(4) or 803(6) as an exception to the hearsay rule, he withdrew his tender of the records entirely. Although the medical records are included in the bill of exceptions, Bradley did not make a bill of exceptions on the predicate for admission under either of the hearsay exceptions that Bradley has raised for the first time on appeal. Furthermore, if we assume for the sake of argument that the trial court understood the bill of exceptions to include a proffer of admission, the medical records do not establish that Bradley suffers from a medical condition that is relevant to the prosecution for driving while intoxicated. The records concern diagnostic and surgical procedures on Bradley's esophagus that occurred after the date of the offense. A patient history of neurofibromatosis is mentioned at least twice in the five volumes of records, including a report that states under past medical history that the history is "[s]ignificant for diagnosis of neurofibromatosis as a child. He has had some dyslexia from this, but otherwise has no abnormalities per his mother." The patient history of neurofibromatosis does not show that Bradley has a medical condition that mimics the symptoms of intoxication. Bradley has not suggested any other potential relevance for the records. Exclusion of the records did not affect a substantial right. See Tex. R. App. P. 44.2(b). We overrule issue three.
Bradley's fourth issue complains that Bradley's father was not permitted to testify about the contents of the medical records. To preserve a complaint for appellate review, the appellant must have obtained an adverse ruling from the trial court. See Tex. R. App. P. 33.1(a). No adverse ruling regarding Bradley's father testimony about the contents of appellant's medical records appears in the record of the proceedings in the trial court. No questions regarding the contents of the records were asked of this witness. Bradley made an offer of proof before the charge was read to the jury, but his offer of proof has no testimony from his father about the contents of those records. Counsel mentioned that the records "have my client's diagnosis of neurofibromatosis" but he neither made a concise statement that contained a reasonably specific summary of the testimony offered by Bradley's father nor stated the relevance of that evidence. See Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim. App. 2009). Although Bradley's appellate briefing of his first issue suggests that appellant has a medical condition that mimics the symptoms of intoxication, the record of the trial court proceedings contains no explanation of how a diagnosis of neurofibromatosis is relevant to any contested issue in the case. Id. This issue is not preserved for appellate review. See Tex. R. Evid. 103(a)(2), (b); see also Tex. R. App. P. 33.1. We overrule issue four.
Bradley's fifth issue complains Bradley's father was not allowed to give his lay opinion as to the extent of appellant's intoxication. Bradley's father stated that he had viewed the video in this case, but when defense counsel asked, "What's your opinion of that[,]" the prosecutor objected that the witness was not qualified to offer an opinion as to the field sobriety tests. The trial court did not rule on that objection. Defense counsel asked Bradley's father, "Do you have an opinion that your son is not intoxicated?" The witness replied, "Yes." Defense counsel asked, "If you felt like he was intoxicated, would you be here?" The witness replied, "No." No questions concerning the walk-and-turn and one-leg tests were asked of Bradley's father, either before the jury or in the offer of proof. The issue is not preserved for appellate review. See id. We overrule issue five.
Bradley's sixth and final issue contends that the trial court erred by seating a juror who "did not speak English." The juror did speak English, as is evident from the record. While the parties were making their strikes, the juror approached the judge and said "that he didn't understand anything that was going on." The prosecutor expressed her concern and suggested that they impanel the next juror. The court determined that the next juror would be Juror No. 20, and invited the parties to talk to the juror who had said he could not understand. The juror stated that he spoke English at the office, "but not a lot." The prosecutor stated, "I believe that he has a language barrier and difficulty understanding and I'm concerned about his qualifications." At that point, defense counsel mentioned that the juror worked for a government agency and Bradley neither moved to strike the juror nor agreed to the State's suggestion that they remove the juror and seat Juror No. 20.
On appeal, Bradley suggests that the juror was disqualified from serving on a jury. See Tex. Code Crim. Proc. Ann. art. 35.16(a)(11) (West 2006) ("A challenge for cause may be made by either the state or the defense for any one of the following reasons: . . . (11) That the juror cannot read or write."). Bradley concedes that he did not challenge the juror at trial, and, as the State notes, Bradley declined the State's suggestion that they excuse the juror by agreement. Bradley argues that "[a]llowing a juror to serve on the jury who did not speak English denied the Defendant the right to a fair trial." Bradley claims that "[t]he juror in question could not have understood significant portions of the testimony and evidence presented nor could he have deliberated in any meaningful way with the other members of the jury." However, other than the exchange between the juror and counsel at the bench during voir dire, there is nothing in the record to support Bradley's contentions.
Three of the grounds for a challenge for cause are absolute disqualifications. See Tex. Code Crim. Proc. Ann. art. 35.19 (West 2006). A disqualification under Article 35.19 must be raised before the verdict is entered unless "the disqualification was not discovered or brought to the attention of the trial court until after the verdict was entered and the defendant makes a showing of significant harm by the service of the disqualified juror." Tex. Code Crim. Proc. Ann. art. 44.46 (West 2006); but see Nelson v. State, 129 S.W.3d 108, 111 (Tex. Crim. App. 2004) (absolute disqualification was "raised" when trial court became aware of the disqualification during jury selection). Those grounds that disqualify a juror "though both parties may consent" are a conviction of misdemeanor theft or a felony, an indictment or other legal accusation of misdemeanor theft or a felony, and insanity. See Tex. Code. Crim. Proc. Ann. arts. 35.16 (a)(2)-(4), 35.19. The ground for disqualification that Bradley argues applies in this case is that the juror could not read or write. See Tex. Code Crim. Proc. Ann. art. 35.16(a)(11). This is not one of the grounds that article 35.19 deems an absolute disqualification. See Tex. Code Crim. Proc. Ann. art. 35.19. Bradley has not shown the juror was disqualified. Bradley was offered the opportunity to excuse the juror by consent before he was seated but declined to do so. We overrule issue six and affirm the judgment.
AFFIRMED.
CHARLES KREGER
Justice
Do Not Publish Before McKeithen, C.J., Kreger and Horton, JJ.