Opinion
No. 07-16-00156-CR
09-29-2017
MAURICIO GOMEZ, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 367th District Court Denton County, Texas
Trial Court No. F-2013-1236-E , Honorable Charles (Coby) Waddill, Presiding
MEMORANDUM OPINION
Before CAMPBELL and PIRTLE and PARKER, JJ.
Appellant Mauricio Gomez was convicted of the felony offense of driving while intoxicated (DWI) and sentenced to nine years' confinement. He raises six issues on appeal. We will overrule each issue and affirm the judgment of the trial court.
See TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2016) (elements of offense of DWI), § 49.09(b)(2) (West Supp. 2016) (enhancement to third degree felony on proof of two prior convictions for any other offense relating to operating a motor vehicle while intoxicated).
Background
The events that led to appellant's conviction occurred at a Denton County convenience store. A motorist, Melanie Bowen, testified she was refueling her vehicle at about midnight when she and her passengers watched as another driver drove away without removing the gas pump nozzle from his vehicle. At trial, she identified the driver as appellant. She said the nozzle dislodged from appellant's SUV on its own as the vehicle moved forward.
As Bowen watched, appellant drove the SUV to a different area of the store's lot, then drove back near the gas pumps, stopping about halfway between two pumps. Appellant remained in the vehicle and Bowen saw him rubbing his face. According to her testimony, appellant "looked really confused, like really out of it." Bowen went inside the store to notify the attendant. Police were called. From inside the store, Bowen watched appellant pull his vehicle forward and strike a pole. He then unsuccessfully attempted to fuel the vehicle. Bowen noticed appellant "didn't seem to be able to . . . walk or function like somebody would normally. He was very stumbly and . . . not balanced."
A sheriff's deputy and a Department of Public Safety trooper responded. The trooper testified that when he contacted appellant at his vehicle he noticed a strong odor of an alcoholic beverage coming from the driver's side window. Outside the vehicle, the trooper noticed appellant smelled strongly of alcohol. Appellant denied drinking alcohol. The trooper described appellant as "lost, didn't know exactly what happened or what was going to happen to him." The trooper then put appellant through three field sobriety tests. Based on the results of those tests, and his observations that appellant struck the pole and had the strong odor of an alcoholic beverage, he arrested appellant for DWI.
With appellant's consent, the trooper transported him to a hospital for a blood draw. Laboratory analysis of the sample revealed 0.223 grams of alcohol per one hundred milliliters of blood. A DPS forensic scientist testified that amount is more than twice the per se threshold in Texas for intoxication. The scientist acknowledged that a person with a blood alcohol concentration of .22 would not have the normal use of their mental or physical faculties.
See TEX. PENAL CODE ANN. § 49.01(2)(B) (West 2011).
Analysis
Second Issue
By his second issue, appellant argues the trial court abused its discretion by failing to suppress the blood sample drawn on the night of his arrest because the blood evidence was compromised when the vial containing the sample was "shaken vigorously." Appellant contends the evidence established the phlebotomist who drew appellant's blood shook the vial of blood "vigorously" and such shaking "could hemolyze the blood cells and could cause damage to them."
The State argues appellant forfeited the issue because it was not the basis for his objection at trial. We agree. When the blood sample was offered into evidence appellant's objection was "chain of custody" and not the corruption argument he urges on appeal.
A motion to suppress is simply a specialized objection to the admissibility of evidence. Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981). Preservation-of-error rules require that the record demonstrate both a timely and specific request, objection, or motion stating the complaint and an adverse ruling by the trial court. TEX. R. APP. P. 33.1(a). Issues on appeal must correspond or comport with objections and arguments made at trial. Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet. ref'd) (citing Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998)). "Where a trial objection does not comport with the issue raised on appeal, the appellant has preserved nothing for review." Id.; see TEX. R. APP. P. 33.1(a); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). The complaint to admission of the blood evidence that appellant raises in this Court presents nothing for our review.
Moreover, even had appellant preserved a complaint challenging the admissibility of the blood sample because it was "shaken vigorously," we would find no abuse of discretion in the trial court's admission of the sample. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). The trial court's ruling will be upheld if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008). "Without evidence of tampering, most questions concerning care and custody of a substance go to the weight attached, not the admissibility, of the evidence." Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997).
The phlebotomist testified that a blood draw vial contains an anticoagulant which is mixed with the blood by "gently rock[ing] [the vial] back and forth . . . ." She agreed that "you don't shake it real hard or anything." And she said shaking the vial "really hard" would hemolyze or damage the blood cells. She did not express an opinion whether such damage to the cells might affect the efficacy of the blood alcohol concentration test. Nor did she say she shook the vial of blood she drew from appellant. On cross-examination she agreed with appellant's counsel that "you're instructed there not to shake it five times . . . ." The arresting trooper testified before the phlebotomist. In his testimony, the trooper said he watched as the phlebotomist drew appellant's blood. He volunteered that after obtaining the sample the phlebotomist was "required to shake the vial five to eight times, which I observed . . . ." The trial court was not required to see the trooper's use of the word "shake" as evidence the phlebotomist engaged in the kind of shaking that she said could damage the blood cells. The court heard no further scientific evidence on the question. The record does not support appellant's argument the blood sample evidence was inadmissible because the vial was "shaken vigorously." No abuse of discretion is shown. Appellant's second issue is overruled. Third Issue
The phlebotomist said she inverted the tube to mix the anticoagulant with the blood. Asked to demonstrate, she did so and said, "Invert. Just rock it gently." She agreed that is "what you do every time on these kind [sic] of draws."
In his third issue, appellant argues the trial court abused its discretion by admitting appellant's Department of Public Safety driver's license record, State's Exhibit 19, into evidence because it was not a public record. Appellant's complaint under this issue is not adequately briefed as it provides no citations to the record or relevant case authorities. It therefore presents nothing for our review. See TEX. R. APP. P. 38.1(i) (appellant's brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and the record); Stephens v. State, Nos. 02-15-00046-CR, 02-15-00047-CR, 2016 Tex. App. LEXIS 4790, at *23-24 (Tex. App.—Fort Worth May 5, 2016, pet. ref'd) (mem. op., not designated for publication) (citing Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011) ("We decide that this point of error is inadequately briefed and presents nothing for review as this court is under no obligation to make appellant's arguments for her")).
Moreover, assuming appellant's argument is that a DPS driver's license record does not come within the public records exception to the hearsay rule, we disagree with the argument. See Medrano v. State, 2009 Tex. App. LEXIS 777, at *9-10 (Tex. App.—Houston [1st Dist.] Feb. 5, 2009, no pet.) (mem. op., not designated for publication) (holding "a DPS driver's license record is a public record under Texas Rule of Evidence 803(8), which is an exception to the hearsay rule, Texas Rule of Evidence 802") (citing Tanner v. State, 875 S.W.2d 8, 9-10 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd)). Appellant's third issue is overruled. Fourth and Fifth Issues
By his fourth and fifth issues appellant argues the trial court abused its discretion by admitting State's Exhibit 22, a Dallas County case-disposition computer printout offered to prove one of the two necessary prior DWI convictions, because the printout is inadequate to prove a prior DWI conviction and is void as a judgment under Code of Criminal Procedure article 42.01. TEX. CODE CRIM. PROC. ANN. art. 42.01 (West Supp. 2016). When State's Exhibit 22 was offered at trial, however, appellant objected on the grounds of relevance and "404." As we have noted, issues raised on appeal must comport with objections and arguments made at trial, else they are not preserved for review. Wright, 154 S.W.3d at 241; see TEX. R. APP. P. 33.1(a). We would overrule appellant's fourth and fifth issues for that reason alone. And, even had he preserved the complaint he urges, we would find the argument without merit. See Flowers v. State, 220 S.W.3d 919 (Tex. Crim. App. 2007) (addressing evidentiary value of similar Dallas County printout). Appellant's fourth and fifth issues are overruled. Sixth Issue
Appellant argues in his sixth issue the trial court abused its discretion by admitting State's Exhibit 20, offered to prove appellant's second previous DWI conviction. On appeal, appellant argues one document included in the exhibit, as a judgment nunc pro tunc, is void. When the State offered Exhibit 20 at trial appellant objected on the ground of "404." Here again, because appellant's argument on appeal does not comport with his objection in the trial court, the issue is not preserved for appellate review.
Further, even had appellant's complaint been preserved, we could not say the trial court abused its discretion by admitting State's Exhibit 20. State's Exhibit 20 consists of two documents, each in the form of a judgment convicting appellant of misdemeanor DWI committed on January 29, 2010. The first is entitled "Nunc Pro Tunc Judgment of Conviction and Sentence." It was "entered" on March 17, 2011. The second, entitled "Judgment of Conviction and Sentence," was "entered" on March 14, 2011. Even assuming the March 17 instrument were void as a judgment, thus leaving the March 14 instrument as the written judgment evidencing appellant's conviction for misdemeanor driving while intoxicated, the outcome here would not change. Under Penal Code section 49.09(b)(2) the offense of driving while intoxicated under section 49.04 is enhanced to a third degree felony on a showing of two prior convictions "for any other offense relating to the operating of a motor vehicle while intoxicated." TEX. PENAL CODE ANN. § 49.09(b)(2); Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999). Whether in the March 2011 proceeding, the subject of State's Exhibit 20, appellant was convicted of Class A driving while intoxicated as reflected in the March 17 judgment or of Class B DWI as the March 14 instrument shows, the court did not abuse its discretion by admitting the exhibit as evidence of appellant's prior conviction. Appellant's sixth issue is overruled. First Issue
By his first issue appellant challenges the sufficiency of the State's proof of each essential element of felony DWI.
We review the sufficiency of the evidence under the familiar standard of Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). Doing so, we determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319 (emphasis in original). The essential elements of the crime are "the elements of the offense as defined by the hypothetically correct jury charge for the case." Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). The hypothetically correct jury charge "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Johnson, 364 S.W.3d at 294 (quoting Malik, 953 S.W.2d at 240). The law authorized by the indictment is "the statutory elements of the offense . . . as modified by the charging instrument." Johnson, 364 S.W.3d at 294 (quoting Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000)).
To prove a person committed the felony offense of DWI, the State must prove beyond a reasonable doubt that a person operated a motor vehicle in a public place while intoxicated and the person was previously convicted two times of any other offense relating to the operation of a motor vehicle while intoxicated. Cooper v. State, 828 S.W.2d 565, 566 (Tex. App.—Houston [14th Dist.] 1992, no pet.) and TEX. PENAL CODE ANN. § 49.04 (elements of DWI); TEX. PENAL CODE ANN. § 49.09 (requirement for felony enhancement of DWI).
Summarized, the indictment alleged that on or about February 23, 2013, appellant drove or operated a motor vehicle in a public place, while intoxicated. It further alleged appellant was convicted for offenses relating to the operation of a motor vehicle while intoxicated on March 14, 2011 and April 24, 1990, and these two convictions were each final before appellant committed the alleged February 23, 2013 DWI offense.
At the outset we note that appellant's argument on this issue contains discussion of his objections to some of the State's evidence. We have addressed appellant's issues contending evidence was improperly admitted. We do not reconsider those issues in our disposition of his evidentiary sufficiency issue. Instead, reviewing his challenge to the sufficiency of the evidence to sustain his conviction, we consider all the evidence that was before the jury. See Moff v. State, 131 S.W.3d 485, 488-90 (Tex. Crim. App. 2004) (Jackson sufficiency review requires appellate court to consider all evidence the jury was permitted, rightly or wrongly, to consider) (citation omitted); Kirk v. State, 421 S.W.3d 772, 777 (Tex. App.—Fort Worth 2014, pet. ref'd) (same).
Considering all the evidence in the proper light, we agree with the State that, contrary to appellant's argument, Bowen's testimony and that of the arresting trooper provided evidence that appellant operated a vehicle in a public place on the occasion alleged; the blood-alcohol-content evidence permitted a reasonable inference appellant was intoxicated at the time he drove his SUV; and the documentary evidence was sufficient to show appellant had previously been convicted of two DWI offenses. Accordingly, we overrule appellant's first issue.
Conclusion
Having overruled each of appellant's issues, we affirm the judgment of the trial court.
James T. Campbell
Justice Do not publish.