Opinion
10-19-00406-CR
04-27-2022
GEMMA ALEJANDRA CLEMENTE BRAVO, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish
From the County Court McLennan County, Texas Trial Court No. 20170343CR1
Before Chief Justice Gray, Justice Johnson, and Justice Smith
MEMORANDUM OPINION
TOM GRAY, CHIEF JUSTICE
Gemma Alejandra Clemente Bravo was convicted of the misdemeanor offense of driving while intoxicated and sentenced to 180 days in jail. The trial court suspended the sentence and placed Bravo on community supervision probation for 18 months. Because the trial court did not abuse its discretion in denying Bravo's challenge for cause or in denying Bravo's motion for mistrial, assuming the trial court erred in qualifying a witness as an expert and in permitting testimony of retrograde extrapolation, Bravo was not harmed, and Bravo's article 39.14 issue is inadequately briefed, the trial court's judgment is affirmed.
Appellant's last name may actually be hyphenated: Gemma Alejandra Clemente-Bravo. However, neither the charging instruments nor the trial court's judgment contain a hyphen. We follow the trial court's judgment and do not hyphenate appellant's last name. We will refer to appellant, in a shorthand manner, as Bravo.
Background
Bravo had been in Austin, Texas going to bars on 6th Street. Shortly before leaving to return home, she drank two alcoholic beverages: a Long Island Iced Tea and a vodka and water. North of Waco, near the town of West, while driving her vehicle, she collided with the back of a tractor/trailer. After performing poorly on field sobriety tests, Bravo was arrested for driving while intoxicated.
Challenge for Cause
In her first issue, Bravo complains that the trial court erred in denying her challenge for cause of a venire member, and that error caused her constitutional harm. Bravo challenged venire member #5 for cause because, when asked by the State if 180 days was a sufficient maximum punishment for a misdemeanor DWI, this venire member said it was not; it was "a little too light." Although Bravo admitted that she was not asking the jury to assess punishment, she thought "that still could be a disqualifying type of question," in that it caused Bravo to doubt whether the venire member could be fair in guilt/innocence. The trial court replied that "whatever feelings she may have on punishment are not relevant to a disqualification at this point," and denied the challenge.
A venire member is challengeable for cause if the member has a bias or prejudice against the defendant or the law on which the State or the defendant is entitled to rely. Tex. Code Crim. Proc. art. 35.16(a)(9), (b)(3), (c)(2); Hudson v. State, 620 S.W.3d 726, 731 (Tex. Crim. App. 2021); see also Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009). When reviewing a trial court's decision to deny a challenge for cause, we reverse only for a clear abuse of discretion. Hudson, 620 S.W.3d at 731; Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010). See Gardner, 306 S.W.3d at 295-96 (review a trial court's ruling on a challenge for cause with considerable deference).
Punishment was not an area of the law on which Bravo was entitled to rely because Bravo was not asking the jury to assess punishment. Bravo does not point to anything else that may have been stated by venire member #5 which might show a bias against Bravo. Accordingly, the trial court did not clearly abuse its discretion in denying Bravo's challenge for cause.
Bravo's first issue is overruled.
Expert Testimony
In her second issue, Bravo contends the trial court abused its discretion when it qualified Department of Public Safety Trooper Jeremy Amis as an expert witness in field sobriety testing and on the Intoxilyzer and that by doing so, violated Bravo's constitutional rights of confrontation, effective assistance of counsel, and due process.
Initially, we note that Bravo did not present any argument or authority regarding the right of confrontation, effective assistance of counsel, or due process in her brief. Accordingly, those arguments, if intended to be reviewed, are inadequately briefed and present nothing for review. See Tex. R. App. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011); see also Neville v. State, 622 S.W.3d 99, 104 (Tex. App.-Waco 2020, no pet.).
Bravo's briefed argument only concerns the trial court's decision to qualify the trooper as an expert. We review a trial court's decision to admit or exclude expert testimony for an abuse of discretion, and we may not reverse those rulings unless they fall outside the zone of reasonable disagreement. Blasdell v. State, 384 S.W.3d 824, 829 (Tex. Crim. App. 2012). Pursuant to Texas Rules of Evidence 702 and 705, three requirements must be met before expert testimony can be admitted: "(1) The witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case." Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); see Tex. R. Evid. 702; 705; Wolfe v. State, 509 S.W.3d 325, 335 (Tex. Crim. App. 2017). These requirements are commonly referred to as (1) qualification, (2) reliability, and (3) relevance. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). The proponent of the expert evidence has the burden to show these three requirements by clear and convincing evidence. Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). See also Rhomer v. State, 569 S.W.3d at 669 ; Wolfe, 509 S.W.3d at 335.
Bravo argues in her brief that because the trooper did not have his training manuals for either the field sobriety testing or the Intoxilyzer, the trial court had no basis on which to qualify the trooper as an expert.
Trooper Amis had his training manual for field sobriety testing from when he was at the DPS Academy with him at the hearing. He did not have the current supplement of the manual at the hearing or a manual for the Intoxilyzer. Assuming without deciding that, because some of these manuals were not at hand for the hearing, the trial court abused its discretion in qualifying the trooper as an expert, we now consider whether Bravo was harmed.
The Amarillo Court of Appeals has affirmed a trial court's order suppressing HGN test results when the State failed to prove the trooper followed any of the techniques he was trained to follow under the NHTSA manual when the trooper did not have the current manual and there was no testimony or evidence regarding whether the standards of the current manual were met. See State v. Cabral-Tapia, 572 S.W.3d 751 (Tex. App.-Amarillo 2019, pet. ref'd). We express no opinion whether the Amarillo case controls the preliminary question in this issue which is whether the trial court abused its discretion.
Generally, errors concerning the admission of the State's evidence over a defendant's objections are non-constitutional errors. See Easley v. State, 424 S.W.3d 535, 539 (Tex. Crim. App. 2014); Washington v. State, 457 S.W.3d 634, 636 (Tex. App.-Waco 2015, no pet.). Thus, any error in admitting Trooper Amis's expert testimony should be disregarded unless the error affected Bravo's substantial rights. See Tex. R. App. P. 44.2(b); Washington, 457 S.W.3d at 636. "[S]ubstantial rights are not affected by the erroneous admission of evidence 'if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.'" Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) (quoting Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)).
In reviewing the record in this case, we find that Trooper Amis's testimony regarding the field sobriety exercises and the Intoxilyzer was not the only evidence of Bravo's intoxication; Bravo admitted to the trooper to being intoxicated. She also admitted to having two alcoholic beverages shortly before she began driving. Further, Eloisa Esparza, the technical supervisor for the Texas Department of Public Safety working in the Waco crime lab, stated that the Intoxilyzer used by the McLennan County Jail was certified by the State of Texas and put into use in the spring of 2016. Esparza testified that intoxication is defined by the State of Texas as "the, per se, limit of .08 grams of alcohol per 210 liters of breath." She also testified that Bravo's two breath test results from the Intoxilyzer were .109 and .100 grams of alcohol per 210 liters of breath. The printout of those results was admitted into evidence. No other witnesses testified during the trial; and Bravo rested after Esparza testified.
Thus, after examining the record as a whole, we cannot say any error in qualifying Trooper Amis as an expert influenced the jury or had more than a slight effect on the jury.
Accordingly, Bravo was not harmed, and her second issue is overruled.
Retrograde Extrapolation
In her third issue, Bravo contends the trial court abused its discretion when it admitted expert testimony regarding retrograde extrapolation and that by doing so, violated Bravo's constitutional rights of confrontation, effective assistance of counsel, and due process.
Again, we note that Bravo did not present any argument or authority regarding the right of confrontation, effective assistance of counsel, or due process in her brief. Accordingly, those arguments, if intended to be reviewed, are inadequately briefed and present nothing for review. See Tex. R. App. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011); see also Neville v. State, 622 S.W.3d 99, 104 (Tex. App.-Waco 2020, no pet.).
Bravo's briefed complaint centers on the failure of the sponsoring witness, Eloisa Esparza, the Texas Department of Public Safety Technical Supervisor, to follow the guidelines in the Court of Criminal Appeals' opinion in Mata, when calculating her extrapolation testimony. Assuming without deciding the trial court abused its discretion by admitting the complained-of testimony, we move to a determination of whether Bravo was harmed.
Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001).
Generally, a trial court's error in admitting retrograde extrapolation testimony does not rise to the level of constitutional error. See Bagheri v. State, 119 S.W.3d 755, 762-63 (Tex. Crim. App. 2003); see also Owens v. State, 135 S.W.3d 302, 310 (Tex. App.- Houston [14th Dist.] 2004, no pet.). Thus, we must disregard the error if we have fair assurance that it did not influence the jury, or had but a slight effect. Tex.R.App.P. 44.2(b); Bagheri, 119 S.W.3d at 763; Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).
The question of harm is not whether there was sufficient evidence to support the verdict. Bagheri, 119 S.W.3d at 763; see Neale v. State, 525 S.W.3d 800, 811 (Tex. App.- Houston [14th Dist.] 2017, no pet.). Overwhelming evidence of guilt is but only one factor in the analysis. See Motilla v. State, 78 S.W.3d 352, 356-57 (Tex. Crim. App. 2002); Veliz v. State, 474 S.W.3d 354, 362 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd). Instead, we consider the entire record, including testimony, physical evidence, jury instructions, the State's theories and any defensive theories, closing arguments, and voir dire if applicable. Id.; Veliz v. State, 474 S.W.3d 354, 362 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd). "More specifically, the reviewing court should consider whether the State emphasized the error, whether the erroneously admitted evidence was cumulative, and whether it was elicited from an expert." Id.; Burns v. State, 298 S.W.3d 697, 703 (Tex. App.-San Antonio 2009, pet. ref'd); Neale v. State, 525 S.W.3d 800, 811 (Tex. App.-Houston [14th Dist.] 2017, no pet.).
A review of the record in this appeal reveals that the State did not emphasize the extrapolation testimony. It did not reference potential retrograde extrapolation testimony during voir dire or its opening statement. The State's extrapolation evidence was brief-less than a page in the reporter's record-and the State did not emphasize the importance of the testimony. During closing argument, the State made only brief references to the testimony. The record does not indicate, through jury notes, questions, or other evidence, that the retrograde extrapolation testimony substantially swayed the jury's deliberations. The sponsoring witness, Esparza, was not promoted as an "expert" in retrograde extrapolation. Rather, she testified briefly as to her education and training and based her extrapolation testimony on her experience and training. Further, the extrapolation testimony was cumulative of other evidence of intoxication in this case, such as: (1) the field sobriety testing results, wherein Bravo failed to satisfactorily perform the walk and turn test and the one-leg stand test and wherein Bravo's eyes exhibited 6 out of 6 clues of intoxication during the HGN test; (2) the breath test results; (3) testimony and the video of Bravo's performance on the field sobriety tests; and (4) testimony and the DWI interview form which indicated Bravo admitted that she had two alcoholic beverages and was intoxicated. Finally, we note that Bravo did not present any defense witnesses who could have undermined the strength of the State's case.
Based on our review of the record, and in light of the factors enunciated in Bagheri, we are fairly assured that the extrapolation testimony did not influence the jury, or had but a slight effect. Bravo's third issue is overruled.
Motion for Mistrial
In her fourth issue, Bravo contends the trial court erred in denying Bravo's motion for mistrial after the trial court sustained an objection to Trooper Amis's explanation regarding what is meant by a "decision point." After discussing how Bravo performed on the walk and turn field sobriety test, the following took place:
A. Those are the six clues in the walking stage for a total of eight clues.
Q. Trooper, what's a decision point?
A. Two clues is the decision point in this test.
Q. And what do we mean by decision point?
A. The studies have been shown that with two clues in this by a point - using the 0.08 method that two clues -
[COUNSEL]: I object, Judge.
THE WITNESS: -- is a sign of intoxication on it.
[COUNSEL]: I object.
The reporter, who had been having trouble hearing the participants in the trial, asked the trooper, "I'm sorry. Using the 0.08 method, two clues -- please finish." Trooper Amis could not finish the answer for the reporter before Bravo objected again.
In the trial court's chambers, Bravo complained that the trooper was attempting to equate two decision clues to a 0.08 blood alcohol concentration, which she claimed was inadmissible. The trial court sustained the objection, granted a request to instruct the jury to disregard, but denied Bravo's motion for mistrial. When the parties were back in front of the jury, the trial court instructed the jury to disregard the last statement from the trooper.
We review the trial court's denial of a motion for mistrial for an abuse of discretion. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). We uphold the trial court's ruling if it was within the zone of reasonable disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010). "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Hawkins, 135 S.W.3d at 77. Granting a mistrial is appropriate when error is "so prejudicial that expenditure of further time and expense would be wasteful and futile." Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).
Although this case does not present an improper argument issue, we still use the Mosley factors in determining whether the answers given in response to the prosecutor's questions warranted a mistrial: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks), (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004) (citing Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) and Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)). See also McFatridge v. State, No. 10-08-00049-CR, 2011 Tex.App. LEXIS 2620, at *12 (Tex. App.-Waco Apr. 6, 2011, pet. ref'd) (not designated for publication).
Although the trooper finished his sentence over Bravo's objection and the reporter repeated some of the offending information in order to clarify the testimony, the complained-of testimony was not particularly clear. Trooper Amis did not expressly testify that two clues on the walk and turn test establish a blood alcohol concentration (BAC) over the legal limit and did not offer a specific BAC for Bravo. The trial court gave an instruction to the jury to disregard the trooper's testimony, which the jury was presumed to follow. Further, we find that the conviction was just as certain absent the improper response. Balancing the above factors, we find that the trial court did not abuse its discretion by denying Bravo's motion for mistrial.
Appellant's fourth issue is overruled.
Demonstrative Evidence
In her final issue, Bravo contends the trial court erred in allowing the State to use a video as a demonstrative exhibit when it had not been disclosed pursuant to article 39.14 of the Texas Code of Criminal Procedure to Bravo during the discovery process. Bravo presents no argument or authority as to how this evidence fits within the parameters of article 39.14, what was her burden and the State's burden for requesting or producing evidence, or what the parameters are for determining harm if the trial court erred. Bravo simply makes a reference to article 39.14 and concludes the trial court erred because the video was subject to disclosure and the State did not disclose it during discovery. This is not enough. Accordingly, this issue is inadequately briefed and presents nothing for review. See Tex. R. App. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011); see also Neville v. State, 622 S.W.3d 99, 104 (Tex. App.-Waco 2020, no pet.).
Bravo's fifth issue is overruled.
Conclusion
Having overruled each issue on appeal, we affirm the trial court's judgment.
Affirmed.