Opinion
NUMBER 13-14-00384-CR
01-21-2016
JASON CHAVEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the County Court at Law No. 2 of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Chief Justice Valdez
Appellant, Jason Chavez, was convicted of one count of driving while intoxicated ("DWI"), and the trial court sentenced appellant to ninety days in the Nueces County Jail. See TEX. PENAL CODE ANN. § 49.04 (West, Westlaw through 2015 R.S.). By two issues, appellant contends that the evidence was insufficient and that the trial court erred by denying his motion for mistrial. We affirm.
Appellant was charged with a class A misdemeanor due to a prior DWI conviction.
I. BACKGROUND
Officer Braden Tackett with the Corpus Christi Police Department responded to a two-vehicle collision. Upon his arrival, Officer Tackett saw appellant in the driver's seat of the vehicle and emergency personnel attempting to pry open the door with a device that Officer Tackett described as a crowbar. Once emergency personnel removed appellant from the vehicle, Officer Tackett performed the Horizontal Gaze Nystagmus test on appellant in the back of the ambulance, which appellant failed. Appellant refused Officer Tackett's request to provide a blood sample. Officer Tackett obtained a warrant for appellant's blood sample, and the results showed that appellant's blood alcohol level was 0.132 grams of alcohol per 100 milliliters of blood. The jury found appellant guilty. This appeal ensued.
II. SUFFICIENCY OF THE EVIDENCE
By his first issue, appellant contends that the evidence was insufficient to establish that he operated a motor vehicle while intoxicated. Specifically, appellant argues that two other people who had been in the vehicle had exited the vehicle prior to Officer Tackett's arrival and that the State presented no direct evidence that he was the driver.
In a sufficiency review, we examine the evidence in the light most favorable to the prosecution to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Brooks v. State, 323 S.W.3d 893, 898-99 (Tex. Crim. App. 2010). The fact finder is the exclusive judge of the facts, the credibility of witnesses, and of the weight to be given testimony. Brooks, 323 S.W.3d at 899. We must resolve any evidentiary inconsistencies in favor of the judgment. Id.
We measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303, 314 (Tex. App.—Corpus Christi 2004, pet. ref'd) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). The offense of DWI occurred if appellant operated a motor vehicle in a public place while intoxicated. See TEX. PENAL CODE ANN. § 49.04.
Officer Tackett testified that he saw appellant sitting in the driver's seat. Although the evidence showed that the vehicle's passenger-side door was open, emergency personnel had to "pry" open the driver's side door with a crowbar in order to remove appellant from the vehicle. From this evidence, the jury could have reasonably inferred that appellant had been pinned into the driver's seat when the accident occurred.
There was evidence that possibly two other individuals were in the vehicle with appellant when the accident occurred. Evidence was also presented that those two individuals left the scene of the accident prior to Officer Tackett's arrival.
In addition, Officer Tackett stated that he read the department's DIC-24 form to appellant, and appellant signed it. The DIC-24 form warns the signatory that he or she has been arrested for acts occurring while he or she operated a motor vehicle and that if he or she refuses the officer's request for a specimen of breath or blood, that refusal may be used as evidence against the signatory and states, "Your license, permit or privilege to operate a motor vehicle will be suspended or denied for not less than 180 days, whether or not you are subsequently prosecuted for this offense." Appellant refused to give his specimen, and after hearing the above warnings, signed the DIC-24 under the following note, "Subject refused to allow the taking of a specimen as evidenced by his/her signature below." And appellant told Officer Tackett that he was coming from a party and "just wanted to get his friends home." From this evidence, the jury could have reasonably inferred that appellant was the driver.
Viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found that appellant operated a vehicle while intoxicated when he was arrested for DWI. See Perez v. State, 432 S.W.2d 954 (Tex. Crim. App.1968) (finding evidence that the defendant was sitting alone in the driver's seat sufficient to show that the defendant operated the motor vehicle); Greene v. State, 640 S.W.2d 645 (Tex. App.—Houston [14th Dist.] 1982, no pet.) (holding that the circumstantial evidence that immediately after an automobile accident, the car was found still smoking, resting partially on the walkway and partially on the street, and the defendant was discovered lying in the front seat of his car with his head toward the passenger's side and his feet toward the driver's side was sufficient to prove the defendant operated the vehicle); Hernandez v. State, 773 S.W.2d 761, 762 (Tex. App.—San Antonio 1989, no pet.) (concluding that the evidence was sufficient to support a finding that the appellant operated a motor vehicle because the appellant was discovered alone in the vehicle shortly after a report was received that the appellant's vehicle was driving in the wrong direction). Accordingly, we overrule appellant's first issue.
III. MISTRIAL
By his second issue, appellant contends that the trial court erroneously denied his motion for mistrial because the State prosecutor commented on appellant's Fifth- Amendment right not to testify. See U.S. CONST. amend V ("No person . . . shall be compelled in any criminal case to be a witness against himself.").
We review the trial court's denial of a motion for mistrial for an abuse of discretion. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). Under this standard, "[w]e view the evidence in the light most favorable to the trial court's ruling," and if the ruling falls within the zone of reasonable disagreement, we will uphold it. Id. We may not "substitute our judgment for that of the trial court," and our analysis is limited to "whether the trial court's decision was arbitrary or unreasonable." Id. We will find that a trial court's denial of a motion for mistrial is an abuse of discretion "only when no reasonable view of the record could support the trial court's ruling." Id.
A comment by the State regarding a defendant's failure to testify is prohibited because it violates the privilege against self-incrimination and the freedom from compulsion to testify. Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001). Whether a comment constitutes an impermissible reference to a defendant's failure to testify depends on "whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify." Id. at 765 (citing Griffin v. California, 380 U.S. 609, 613-14 (1965)). The complained-of comment "must be viewed from the jury's standpoint and the implication that the comment referred to the defendant's failure to testify must be clear." Id. A mere "indirect or implied allusion" to the defendant's failure to testify does not violate the defendant's right to remain silent. Id. Moreover, we must "resolve any ambiguities in the language in favor of it being a permissible argument." Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011).
Here the prosecutor stated, "Defense counsel has a lot of arguments during trial about why his client is not responsible, and I think that's one of the focuses in this case. He didn't want to take responsibility at the time. He refused—." Appellant argues that by making this statement, the prosecutor "argued that the accused did not take responsibility at the time of the collision and has refused to take responsibility at trial." A comment that appellant did not take responsibility at the time of the collision is not a reference to appellant's failure to testify at trial. Moreover, we do not interpret the comment as appellant interprets it. Appellant interprets the comment as stating that "appellant refused to take responsibility at trial." Instead, we interpret the comment as stating that the defense counsel made several arguments during trial concerning why appellant did not commit the offense, which would include attacking the State's evidence. Thus, under our interpretation, the prosecutor did not make a comment on appellant's failure to testify. Given that we interpret the statement differently than appellant, we conclude that the comment is ambiguous. See Randolph, 353 S.W.3d at 891 (explaining that "because there is an 'equally plausible' alternate explanation—the explanation that both the trial judge and prosecutor gave" "[e]ven if the comment [at issue] could be construed as alluding to appellant's failure to testify and take responsibility . . . it was not a direct and necessary comment on appellant's right to silence") (emphasis added). Thus, we cannot conclude that it would have been clear to the jury that the comment referred to appellant's failure to testify. See id.; Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992), overruled in part by Randolph, 353 S.W.3d at 895 ("Language that can reasonably be construed to refer to a failure to present evidence other than from the defendant's own testimony does not amount to comment on failure to testify."). Accordingly, the trial court did not abuse its discretion by denying appellant's motion for mistrial. We overrule appellant's second issue.
VI. CONCLUSION
We affirm the trial court's judgment.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 21st day of January, 2016.