Opinion
NUMBER 13-16-00543-CR
05-03-2018
DONALD COUTHREN, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 361st District Court of Brazos County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Justice Benavides
By two issues, appellant Donald Ray Couthren II challenges his conviction for driving while intoxicated, third or more, a third-degree felony. See TEX. PENAL CODE ANN. §§ 49.04, 49.09 (West, Westlaw through 2017 1st C.S.). Couthren alleges that (1) the trial court committed error by denying his motion for new trial and (2) there was insufficient evidence to support a deadly weapon finding. We affirm.
I. BACKGROUND
Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this case was transferred to this Court from the Tenth Court of Appeals in Waco. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2017 1st C.S.).
Couthren was charged by indictment with two felony counts: (1) driving while intoxicated, third or more and (2) aggravated assault with a deadly weapon. See id. §§ 22.02(a)(2), 49.04, 49.09 (West, Westlaw through 2017 1st C.S.). The State proceeded to trial on the driving while intoxicated charge, but also included a deadly weapon element during trial. See id. § 1.07(17)(B) (West, Westlaw through 2017 1st C.S.).
Based on the testimony, on June 16, 2012, Couthren drove towards downtown Bryan on Highway 6, near Tabor Road, when Frank Elbrich stepped in front of Couthren's vehicle. Couthren's vehicle collided with Elbrich, whose head hit the front windshield. Couthren loaded Elbrich into his vehicle and proceeded to 504 N. Washington, near downtown Bryan. Couthren testified that he had loaned his second vehicle to Jennie Rios, his ex-girlfriend, and he wanted to take his second vehicle in order to drive Elbrich to the hospital.
Police were called out to a disturbance. Initially, Couthren and Rios argued, but then multiple males that were at the home came out and "jumped" Couthren. When police arrived, Couthren was standing in the front yard, with minor lacerations to his face. Bryan Police Officer Andrew Doran made contact with Couthren, who recounted the assault. As they were speaking, Officer Doran testified that he could smell alcohol on Couthren's breath. Officer Doran then noticed the damage to Couthren's windshield and discovered Elbrich inside the vehicle. Officer Doran explained that Couthren said he was driving on Highway 6, near Tabor, when Elbrich stepped out in front of his vehicle and Couthren hit him.
Officer Crystal O'Rear testified that Couthren stated he had been "jumped" and as they were speaking, Officer O'Rear noticed a strong odor of alcohol, slurred speech, bloodshot eyes, and that Couthren was swaying as he stood. Officer O'Rear stated that Couthren admitted to driving that night, his actions did not make sense to her, and it was "pretty obvious" he was intoxicated. Couthren initially told the officers he had not had anything to drink that night, but later admitted to consuming two Four Loko alcoholic beverages, which contain an elevated level of alcohol. Officer O'Rear asked permission to administer the standardized field sobriety tests and Couthren refused. Based on the totality of the circumstances, Officer O'Rear arrested Couthren.
Rios also testified that Couthren showed up at the house and asked her to take responsibility for hitting Elbrich with the vehicle. Rios she could tell Couthren was intoxicated by the way he "handled" her when he grabbed her arm. Rios did confirm that the men at the home came outside and assaulted Couthren, but she just went inside as it occurred and did not speak to police. Rios also admitted she was currently on probation for a burglary case.
Couthren testified on his own behalf. He stated he did drink two Four Loko drinks the previous day between 2:00 PM and 5:00 PM and went to bed around 10:00 PM. Couthren stated Rios's youngest child woke him up and asked him to bring her mother home from the N. Washington location around 2:00 AM. Couthren testified that he was driving to the N. Washington home when Elbrich stepped in front of his vehicle on the access road of Highway 6. Couthren stated he swerved to the left, but still collided with Elbrich. Elbrich was "out of it," so Couthren decided to take him to the hospital in his own vehicle. He explained that he decided to go to the N. Washington home to get Rios and his other vehicle, because the glass was "splintering" from the broken windshield and falling into the car. Couthren stated he never asked Rios to say she was driving.
Couthren pleaded true to two prior driving while intoxicated offenses and the jury found him guilty of driving while intoxicated, third or more. See id. §49.04, 49.09. The trial court assessed punishment at six years' imprisonment in the Texas Department of Criminal Justice—Institutional Division. Following the denial of a motion for new trial, this appeal followed.
II. MOTION FOR NEW TRIAL EVIDENCE
By his first issue, Couthren alleges the trial court committed error by denying his motion for new trial based on the State failing to disclose material evidence.
A. Standard of Review
A trial court's decision to grant a new trial is reviewed only for abuse of discretion, but that discretion is not unbounded or unfettered. State v. Arizmendi, 519 S.W.3d 143, 148 (Tex. Crim. App. 2017); see State v. Zalman, 400 S.W.3d 590, 593 (Tex. Crim. App. 2013). The test for abuse of discretion is not whether, in the opinion of the appellate court, the facts present a suitable case for the trial court's action, but rather, whether the trial court acted without reference to any guiding rules or principles. State v. Simpson, 488 S.W.3d 318, 322 (Tex. Crim. App. 2016). The bare fact that a trial court may decide a matter differently from an appellate court does not demonstrate an abuse of discretion. Id. Appellate courts view the evidence in the light most favorable to the trial court's ruling, defer to the court's credibility choices, and assume that all reasonable fact findings in support of the ruling have been made. Id.
A trial court may not grant a motion for new trial simply because it believes that the defendant has received a raw deal. Arizmendi, 519 S.W.3d at 148. Granting a new trial for a "non-legal or legally invalid reason is an abuse of discretion." Id. (quoting State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007)). There is generally no abuse of discretion in granting a new trial if the defendant (1) articulated a valid claim in the motion, (2) produced evidence or pointed to record evidence that substantiated the claim, and (3) showed prejudice under applicable harmless error standards. Id.; see Herndon, 215 S.W.3d at 907. An appellate court may reverse a trial court's decision on a motion for new trial when the trial court's decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Simpson, 488 S.W.3d at 322.
B. Applicable Law and Discussion
A prosecutor has an obligation to disclose exculpatory evidence if it is material to the defendant's case. See Brady v. Maryland, 373 U.S. 83 (1963). A violation occurs when "a prosecutor 1) fails to disclose evidence, 2) which is favorable to the accused, 3) that creates a probability sufficient to undermine the confidence in the outcome of the proceeding." Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992) (en banc). In order to find reversible error under Brady and United States v. Bagley, a defendant must show that:
1. the State failed to disclose evidence, regardless of the prosecution's good or bad faith;
2. the withheld evidence is favorable to him;
3. the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different.Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002) (citing Brady, 373 U.S. at 83; United States v. Bagley, 473 U.S. 667 (1985)). "Under Brady, the defendant bears the burden of showing that, in light of all the evidence, it is reasonably probable that the outcome of the trial would have been different had the prosecutor made a timely disclosure." Id. "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." Id. The "duty to disclose encompasses both impeachment and exculpatory evidence." Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006) (en banc) (citing Bagley, 473 U.S. 667). "This duty also requires disclosure of favorable evidence only known to the police." Id.
"Consequently, prosecutors have a duty to learn of Brady evidence known to others acting on the state's behalf in a particular case." Id. (citing Kyles v. Whitley, 514 U.S. 419, 437-38 (1995)). "It is irrelevant whether suppression of the favorable evidence was done willfully or inadvertently." Id. "However, the state is not required to seek out exculpatory evidence independently on the appellant's behalf, or furnish appellant with exculpatory or mitigating evidence that is fully accessible to appellant from other sources." Id. at 407.
Couthren filed a motion for new trial alleging that the State did not provide exculpatory or mitigating evidence regarding Rios. Prior to the beginning of trial, the State had signed a motion to revoke Rios's probation on May 4, 2016. The order was signed by the trial court on May 17, 2016, and marked filed on May 24, 2016. Couthren alleges that Rios's credibility was a factor in the case and the notice of her pending motion to revoke and capias for arrest "would have very likely changed the outcome of the verdict" because defense counsel could have explored Rios's possible bias and possibility of an agreement between the State and Rios. Couthren alleges by not disclosing the pending motion to revoke, the State violated its Brady duty. Brady, 373 U.S. at 83.
During a hearing on Couthren's motion for new trial, defense counsel testified that he had the opportunity to attack Rios's credibility with her criminal history and status on probation, her drug use and history, and could ask questions about her pending custody case with Couthren. Counsel also testified that he was not aware of any "deals" between the State and Rios with respect to her testimony in the Couthren trial. The State submitted affidavits from the two prosecutors from the Couthren case which stated they were not aware of the pending motion to revoke probation, even though one of the two had signed the motion. The prosecutor stated he was unaware that Rios was the same person involved in the motion to revoke. The trial court denied Couthren's motion for new trial stating that:
I have in my file documentation that had the prosecution even attempted to look at the clerk's files and see if a motion had been filed they would not have found one at the time they were arguing the case because the testimony concluded an hour before the motion was even filed. So I don't think they've committed any kind of inappropriate conduct whatsoever and the motion for new trial will be denied.
The State does have a duty to learn of any Brady evidence known to others acting on the State's behalf, which would include the adult probation department. See Harm, 183 S.W.3d at 406. However, even if Couthren shows the State failed to disclose evidence and the evidence was favorable to him, he is unable to show that there is a reasonable probability the outcome of the trial would have been different. See Hampton, 86 S.W.3d at 612. Couthren's trial counsel testified that he did question Rios about her past criminal history, her past drug use, and her current status on probation for a felony offense. Information regarding her prior conviction was before the jury and it is unlikely the jury would have changed their decision knowing a motion to revoke had been filed. Additionally, Couthren's counsel said he was unaware of any agreements between the State and Rios in exchange for her testimony and the State agreed there was no agreement in place. Couthren is unable to meet the standard required regarding Brady information. See id. We overrule Couthren's first issue.
III. DEADLY WEAPON FINDING
By his second issue, Couthren alleges the evidence was insufficient to support the jury's finding of a deadly weapon.
A. Standard of Review
The "Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). When evaluating a sufficiency challenge, the reviewing court views the evidence in the light most favorable to the verdict to determine whether a rational jury could find the defendant guilty beyond a reasonable doubt. Brooks, 323 S.W.3d at 899; see Jackson, 443 U.S. at 319. The jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and a reviewing court is not to substitute its judgment as to facts for that of the jury as shown through its verdict. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). When the reviewing court is faced with a record supporting contradicting inferences, the court must presume that the jury resolved any such conflict in favor of the verdict, even if it is not explicitly stated in the record. Id.
B. Applicable Law and Discussion
Section 49.04 of the Texas Penal Code prohibits a person from operating a motor vehicle in a public place while in a state of intoxication. See TEX. PENAL CODE ANN. § 49.04. "Intoxicated" in Penal Code Section 49.01(2) is defined as either: "loss of faculties" or "per se" intoxication (i.e., .08 or more alcohol concentration). See id. "Deadly weapon," as defined in Penal Code Section 1.07(a)(17)(B), means "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." See id. § 1.07(a)(17)(B). An affirmative deadly weapon finding has a negative impact on a defendant's eligibility for community supervision, parole, and mandatory supervision. Sierra v. State, 280 S.W.3d 250, 254 (Tex. Crim. App. 2009); see Moore v. State, 520 S.W.3d 906, 908 (Tex. Crim. App. 2017).
To justify a deadly weapon finding under Section 1.07(a)(17)(B), the State need not establish that the use or intended use of an implement actually caused death or serious bodily injury; only that "the manner" in which it was either used or intended to be used was "capable" of causing death or serious bodily injury. See Moore, 520 S.W.3d at 908 (emphasis in original). Nor does the plain language of the provision require that the actor actually intend death or serious bodily injury. Id.
In reviewing this case, we must decide whether, in viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that Couthren used or exhibited his vehicle as a deadly weapon when he was driving while intoxicated. Sierra, 280 S.W.3d at 255. We must determine if the manner in which Couthren used his vehicle when driving while intoxicated was capable of causing death or serious bodily injury. Id. In making this determination, we divide this question into two parts: first, we evaluate the manner in which the defendant used the motor vehicle during the felony; and second, we consider whether, during the felony, the motor vehicle was capable of causing death or serious bodily injury. Id.
In evaluating the first question, we look to the evidence in the light most favorable to the prosecution. See id. at 256. Couthren was driving after consuming two Four Loko beverages, which were determined to have a greater alcohol content than a twelve ounce can of beer. Although the speed in which Couthren was driving is unknown, he testified that he was travelling around thirty miles per hour on a lightly traveled highway access road. We do not know the manner in which Couthren was driving seconds before hitting Elbrich, if Couthren applied his brakes prior to the accident, or for certain, if there were other cars on the road. However, the record shows Couthren had been drinking by his own admission and the testimony of the two officers. Couthren was unable to avoid striking Elbrich at a decent rate of speed, since Elbrich's head broke the windshield upon impact.
Elbrich testified at trial regarding the second question. Although he had no recollection of what had happened, he testified that he woke up in the hospital and suffered six broken ribs, a leg that was broken in two places, and a possible concussion and neck injury due to the collision.
We conclude that a rational fact-finder could infer that Couthren was using his motor vehicle in a manner that was capable of causing death or serious bodily injury regardless of whether he intended to do so. See id. It does not amount to speculation for us to conclude that there was more than "a hypothetical potential for danger if others had been present." Id. (quoting Mann v. State, 13 S.W.3d at 92). Here, another person was present (Elbrich) and was seriously injured by Couthren. We conclude there was sufficient evidence to support the jury's finding of a deadly weapon. We overrule Couthren's second issue.
IV. CONCLUSION
We affirm the judgment of the trial court.
GINA M. BENAVIDES,
Justice Do not publish.
TEX. R. APP. P. 47.2 (b). Delivered and filed the 3rd day of May, 2018.