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holding evidence factually sufficient, despite testimony that tie rod on appellant's car broke and caused her to lose control, because jury was free to believe officer's testimony
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No. 05-04-01269-CR
Opinion Filed July 19, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause No. 002-80713-03. Affirmed.
Before Justices WHITTINGTON, MOSELEY and LANG-MIERS.
OPINION
A jury convicted Chrysty Marchal Gray of driving while intoxicated and assessed her punishment at confinement for 100 days and a $500 fine. In six issues, Gray argues (1) the trial court erred by denying her motion to dismiss the information on speedy trial grounds, (2) the evidence is legally and factually insufficient to support the jury's verdict, and (3) the trial court erred in admitting hearsay evidence. Finding no error, we affirm.
I. Speedy Trial
In her first issue, Gray argues the trial court erred by denying her motion to dismiss the information because the State failed to afford Gray a speedy trial.A. Standard of Review
The United States and Texas Constitutions guarantee the accused the right to a speedy trial. U.S. Const. amend. VI; Tex. Const. art. I, § 10; Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002). We review the trial court's decision on a speedy trial claim in light of the arguments, information, and evidence before the trial court at the time it ruled. Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App. 2003). Our review of the trial court's decision is bifurcated: we apply an abuse of discretion standard to the factual components and a de novo standard to the legal components. State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App. 1999). Because the trial court denied Gray's motion, we must presume the trial court resolved disputed factual issues in the State's favor and defer to the implied factual findings supported by the record. Id.; Kelly v. State, 163 S.W.3d 722, 726-27 (Tex.Crim.App. 2005). We must uphold the trial court's ruling if it is supported by the record and is correct under the applicable law. Shaw v. State, 117 S.W.3d 883, 889 (Tex.Crim.App. 2003). When credibility of a witness is involved, deference to the trial court "is especially appropriate." Kelly, 163 S.W.3d at 727. The fact finder may completely disregard a witness' testimony. Id.B. Discussion
In determining whether a defendant was denied her right to a speedy trial, we must balance the conduct of both the State and the defendant. The factors to be weighed include, but are not necessarily limited to, the length of the delay, the State's reasons for the delay, the defendant's effort to obtain a speedy trial, and the prejudice to the defendant. See Barker v. Wingo, 407 U.S. 514, 530 (1972); Zamorano, 84 S.W.3d at 648. No single factor is necessary or sufficient to establish a violation of the right to a speedy trial. Barker, 407 U.S. at 533; Zamorano, 84 S.W.3d at 648. We must balance all of the factors with any other relevant circumstances. Barker, 407 U.S. at 533; Zamorano, 84 S.W.3d at 648.1. Length of Delay
The length of delay is measured from the time the defendant is arrested or formally accused. Dragoo, 96 S.W.3d at 313; Ervin v. State, 125 S.W.3d 542, 546 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Pre-accusation delay is not counted against the State. See United States v. Marion, 404 U.S. 307, 313 (1971); Ervin, 125 S.W.3d at 546. A speedy trial claim will not be heard unless the length of the delay is, on its face, unreasonable under the circumstances. Doggett v. United States, 505 U.S. 647, 651-52 (1992); Barker, 407 U.S. at 530. This first factor acts as a "triggering mechanism" for the other Barker factors. Shaw, 117 S.W.3d at 889. Generally, a delay over eight months is sufficient to trigger a speedy trial inquiry. Shaw, 117 S.W.3d at 889. Here, Gray was arrested February 5, 2003 and charged by information on April 24. Her case was not tried until June 2004. The State concedes a delay of fourteen months is sufficient to trigger a review of the remaining Barker factors. This factor weighs slightly against the State.2. The State's Reasons for the Delay
The State has the initial burden of justifying a lengthy delay. Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App. 1994). When the State does not offer a reason for the delay, this factor is weighed, although not heavily, in favor of finding a speedy trial violation. Dragoo, 96 S.W.3d at 314. In the absence of an assigned reason for the delay, a court may presume neither a deliberate attempt on the part of the State to prejudice the defense nor a valid reason for the delay. Id. Gray was the sole witness at the hearing. She testified she was out on bond for the DWI case until October 2003. When the State formally charged her with DWI, it also charged her with possession of methamphetamine, a state jail felony. While the DWI case was reset twice for Gray to hire an attorney, her bond in the possession case was forfeited and Gray was placed in jail. In October, the trial court appointed an attorney to represent Gray in the DWI case. This attorney also represented her in the possession case. On December 18, 2003, Gray entered a negotiated plea of guilty in the possession case and was sentenced to confinement for nine months in a state jail facility. On that same date, Gray was to appear in the DWI case, and Gray testified she told her attorney she wanted a trial. Her attorney advised against it. The trial court's docket sheet shows the DWI case was reset for a plea in January 2004 and was reset two more times for a plea between February and March 2004. While this was going on, Gray was transferred to a state jail facility and did not hear from her attorney after December 2003. On April 8, 2004, Gray mailed a handwritten letter to the county clerk requesting a speedy trial in the DWI case. The trial court issued a bench warrant for Gray's appearance on May 19. The court's docket entry on that date shows Gray had released her court-appointed attorney, hired a new attorney, that "negotiations opened up again," and the case was reset to May 24. On May 24, Gray's new attorney reported that Gray wanted a speedy trial. The trial court set the case for pretrial hearing on June 2 and for jury trial on June 14, 2004. On the day the case was set for trial, Gray's attorney filed a motion to dismiss the information on speedy trial grounds. The State did not offer any testimony explaining the reasons for the delay in bringing Gray to trial. However, the State argued that defense strategy could have caused Gray's attorney to advise against a trial in the DWI case prior to disposition of the possession case to prevent a heavier sentence, that the case was reached as expeditiously as possible, and that the delay was caused by Gray's lack of communication with her attorneys. Over the fourteen months from formal charge to jury trial, Gray had three attorneys on the DWI case. She testified she never discussed a trial with her first attorney. Her second attorney was not appointed until October 2003, and as late as December 2003, this attorney advised against a trial. The record contains no evidence Gray objected to any of the resets. After requesting a speedy trial in April 2004, Gray's third attorney reset the case two more times for plea negotiations. Good faith plea negotiations is a valid reason for delay and is not weighed against the State. Munoz, 991 S.W.2d at 824 (citing Barker, 407 U.S. at 530-32). We find no evidence the State deliberately delayed trial of the DWI case to impede the defense. And we conclude much of the delay was the result of plea negotiations. This factor does not weigh against the State.3. Assertion of the Right to a Speedy Trial
A defendant has no duty to bring herself to trial-courts and prosecutors have the primary burden to assure cases are tried. Barker, 407 U.S. at 527. Nevertheless, a defendant does have some responsibility to assert her right to a speedy trial. See Harris v. State, 827 S.W.2d 949, 957 (Tex.Crim.App. 1992). A defendant's failure to seek a speedy trial makes it difficult to prevail on a speedy trial claim on appeal. Shaw, 117 S.W.3d at 890. The longer the delay, the more likely it is that a defendant who really wanted a speedy trial would have taken some action to obtain one. Id. In this case, Gray did not request a speedy trial for almost a year after charges were filed in the DWI case. During that time, her case was reset several times for a plea or plea negotiations. The first indication that Gray wanted a trial was in December 2003, when she advised her court-appointed attorney that she wanted to try the case. But she did not request a speedy trial for another four months. Her case was tried in June 2004. Only six months' delay occurred between her first expression of a desire for a speedy trial until her trial, and only two months between her formal request for a speedy trial and the trial. Once her request was made known, the trial court granted it. Gray's request was filed tardy, the trial court issued a bench warrant for her appearance after her first request, and she was given a trial within two months after her first request. This factor weighs in the State's favor. See Kelly, 163 S.W.3d at 728-29.4. Prejudicial Effect of the Delay
Prejudice must be assessed in light of the interests the right to a speedy trial was designed to protect: (1) prevention of oppressive pretrial incarceration, (2) minimizing anxiety and concern of the accused, and (3) limiting the possibility the defense will be impaired. Barker, 407 U.S. at 532. Even when a delay is presumptively prejudicial, an appellant must nevertheless show she has been prejudiced by the delay. Russell v. State, 90 S.W.3d 865, 873 (Tex.App.-San Antonio 2002, pet. ref'd). Only "some showing" of prejudice, not "actual prejudice," is required. Munoz, 991 S.W.2d at 826. Once the appellant has made such a showing, the burden shifts to the State to refute that prejudice. Russell, 90 S.W.3d at 873. The State must show that the accused "suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay." Munoz, 991 S.W.2d at 826 (quoting Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex.Crim.App. 1973)). In this case, Gray was on bond pending the resolution of the DWI case. The only reason she was incarcerated prior to her DWI trial was because she failed to make a court appearance in the possession case and subsequently pleaded guilty in that case to a nine-month sentence. Accordingly, Gray's pretrial incarceration was unrelated to the DWI case. But she argues she was prejudiced by the delay when the parole officer refused to interview her about early release in the possession case because of the pending DWI case. She claimed that it caused her to suffer mental anguish and depression, for which she sought treatment from a prison psychiatrist. Eligibility for parole is not a guarantee parole will be granted. See Tex. Code Crim. Proc. Ann. art. 37.07(4) (Vernon Pamph. 2004-05); Scheanette v. State, 144 S.W.3d 503, 510 n. 3 (Tex.Crim.App. 2004). There is no evidence Gray would have been granted early release other than mere speculation. Her release date was July 19, 2004, over a month after the DWI case was tried. Gray did not offer any evidence that the mental anguish and depression she experienced was any greater than the normal level of anxiety experienced by people under similar circumstances. See Shaw, 117 S.W.3d at 890. Gray also argues she lost witnesses who were material to her defense because of the delay. To show prejudice caused by lost testimony, Gray must show the witnesses were unavailable at the time of trial, the witnesses' testimony was relevant and material to her defense, and she exercised due diligence to locate the witnesses for trial. Swisher v. State, 544 S.W.2d 379, 382 (Tex.Crim.App. 1976). Because prejudice is obvious when witnesses are unavailable, Gray need only show the witnesses were believed to be material to the case. Phillips v. State, 650 S.W.2d 396, 402 (Tex.Crim.App. 1983). At the hearing on her motion to dismiss, the State argued the witnesses were unavailable because Trooper Lopez failed to identify them in his report. As a result, neither the State nor the defense had access to these witnesses. The State argued the witnesses' absence actually helped Gray because Lopez's notes showed the witnesses would have corroborated Gray's erratic driving and intoxicated-like behavior at the scene. Gray argued these witnesses could have rebutted the State's contention that Gray was intoxicated while driving. She argues the witnesses could have testified she used drugs after the accident and became intoxicated after the accident because they saw her trying to pull up her pants as she exited the vehicle and saw a syringe fall to the ground. Of course, these witnesses, who were in other vehicles traveling the same highway as Gray, would not be able to testify she had not used drugs before the accident, unless they had been in her presence. There is no such evidence. We do not see how this testimony would have been material to Gray's defense, especially in light of their other apparent statements that she was driving erratically before the accident. Gray next complains she has lost much of her own memory regarding the accident due to the delay, which may cause her to exercise her right not to testify to avoid saying "I don't remember" in front of the jury. However, Gray failed to explain this "bare assertion" of memory loss. See Munoz, 991 S.W.2d at 829. Gray must show that her loss of memory is significant to the case. Id. ("lapses of memory" must be "significant to the outcome"). She failed to make this showing. Gray has failed to show any oppressive pretrial incarceration or that her defense has been impaired due to the delay. At most, she has shown she suffered anxiety at the prospect of no early release in the possession case. On this record, we conclude the prejudice caused by the delay was minimal, if any. This factor weighs against finding a violation of Gray's right to a speedy trial. In balancing the Barker factors, the delay attributable to the State was not particularly long; the delay was due in part to Gray's need for time to retain a lawyer and to plea negotiations; Gray's assertion of the right to a speedy trial was tardy, although somewhat persistent once made; within two months of making her request, the trial court granted her request; and the prejudice resulting from the delay was minimal, if any. As a result, we conclude the trial court did not err by denying Gray's motion to dismiss the information because the State failed to afford her a speedy trial. We resolve Gray's first issue against her.II. Sufficiency of the Evidence
In issues two through four, Gray challenges the legal and factual sufficiency of the evidence to support the finding she was driving while intoxicated from the introduction of hydrocodone.A. Standard of Review and Applicable Law
In a legal sufficiency challenge, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In a factual sufficiency challenge, we view the evidence in a neutral light to determine whether the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). If evidence supporting the verdict, when considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, the evidence is insufficient. Id. Similarly, when evidence exists both to support the verdict and contrary to the verdict, the evidence supporting the verdict is insufficient if it is so weak that the beyond-a-reasonable-doubt standard could not have been met. Id. at 485. Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000); Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). And the fact finder is free to accept or reject any or all of the evidence presented by either side. Thomas v. State, 3 S.W.3d 89, 92 (Tex.App.-Dallas 1999), aff'd, 65 S.W.3d 38 (Tex.Crim.App. 2001). A person commits the offense of driving while intoxicated "if the person is intoxicated while operating a motor vehicle in a public place." Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003). The information charged appellant with driving while intoxicated under three theories: (1) the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; (2) the introduction of alcohol and a controlled substance or drug, namely hydrocodone; and (3) the introduction of a controlled substance, namely, hydrocodone. See Tex. Pen. Code Ann. § 49.01(2)(A) (Vernon 2003). The jury charge defined "intoxicated" as "not having the normal use of mental or physical faculties by reason of the introduction of controlled substance into the body" and in the application paragraph, named hydrocodone as the controlled substance.B. Discussion
1. Driving Gray argues the evidence is legally and factually insufficient to support the jury's determination she was driving the vehicle because, without Lopez's hearsay testimony of what witnesses said, the only evidence was her extrajudicial confession. We disagree. Lopez testified that based on his investigation, he identified Gray as the driver of the vehicle. At the scene, Gray told Lopez she was traveling southbound on highway 121, swerved to avoid water on the road, struck a sign and ended up in the ditch facing northbound. Lopez confirmed Gray's description of the accident by observing the evidence at the scene, but he did not see any water on the roadway. The accident involved one car, the car was registered to Gray, and there was no evidence anyone else was in the car. Gray's fiance, Roger McKinley, testified Gray called him about the accident. Although she did not say she was the driver, Gray said she was on her way home from her stepmother's house and that she was half a mile from her exit off highway 121 when the accident occurred. She described the car making "an abrupt turn to the right" and she "could not catch it. It just kept going. There was no correcting it." This evidence corroborates Gray's statement to Lopez that she was the driver.2. Intoxicated from hydrocodone
Gray argues the evidence is insufficient to support the jury's determination she was intoxicated from hydrocodone because the State offered no expert testimony to connect her behavior to the use of hydrocodone. We disagree. Lopez testified as an expert trained in the detection of DWI. At that time, he had three years experience as a trooper with the Texas Department of Public Safety and eight years as a military policeman in the Marines. He explained that there are three standardized field sobriety tests he uses to determine whether a person is intoxicated from alcohol or certain drugs. Lopez administered these tests to Gray, and she failed all of them. Additionally, Lopez observed Gray at the scene. She seemed confused, fumbled for words, had difficulty making complete sentences and putting her thoughts into words, and her behavior did not wear off with time as it would had it been caused by anxiety from the accident. He did not detect the odor of alcohol, so he suspected Gray was under the influence of a drug. He asked Gray for a blood specimen and she refused. Gray told Lopez she had taken hydrocodone the night before, and Lopez testified that hydrocodone is a controlled substance. He found an empty prescription bottle for hydrocodone in the car and loose pills in the vehicle. As the videotape of the intoxilyzer room was played, Lopez described for the jury Gray's performance on the field sobriety tests. He noted all six clues on the horizontal gaze nystagmus and lack of smooth pursuit on the vertical gaze nystagmus. Gray was unable to maintain balance on the walk-and-turn test and Lopez stopped the test for Gray's safety. She was unable to perform the one-leg stand. Gray's behavior on the videotape was animated, ranging from swaying, rocking back and forth, squatting, kneeling, lying down, to flailing her arms. Her mood varied from crying to talkative to screaming. Lopez testified Gray was unable to follow instructions or perform any of the tests. Without objection, Lopez testified he concluded Gray had lost the normal use of her physical faculties from the introduction of a narcotic. He suspected the narcotic was the hydrocodone. The fact that Lopez had been trained in the detection of intoxication from alcohol and certain drugs and had the opportunity to and did observe Gray's behavior made him competent to form an opinion that appellant was under the influence of a narcotic. See Pointer v. State, 467 S.W.2d 426 (Tex.Crim.App. 1971); Hudson v. State, 453 S.W.2d 147 (Tex.Crim.App. 1971). The evidence supports Lopez's opinion. In Gray's defense, McKinley testified he examined the vehicle after the accident and observed a broken tie rod end on the right side. He had examined the car a month earlier and found nothing wrong. He concluded the tie rod broke, causing Gray to lose control and hit the sign. In McKinley's opinion, the accident could not have caused the broken tie rod, but he was not qualified as an accident reconstruction expert and did not explain the basis of his conclusion. We conclude this evidence is legally and factually sufficient to support the jury's finding that Gray was driving while intoxicated from hydrocodone. We overrule Gray's second, third, and fourth issues.III. Admissibility of Evidence
In her fifth and sixth issues, Gray argues the trial court erred in allowing Trooper Lopez to testify that Gray was driving the car erratically. She argues the trial court erred in overruling her objections because the testimony constituted hearsay, speculation, or lacked foundation. Further, she complains the evidence violated her rights under the confrontation clause of the United States and Texas Constitutions. To preserve error that the trial court erroneously admitted evidence, an appellant must make a proper objection and obtain a ruling. Tex.R.App.P. 33.1; see Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991); Posey v. State, 840 S.W.2d 34, 39 (Tex.App.-Dallas 1992, pet. ref'd). Additionally, the objection must be timely, and its basis must be specific unless the particular ground was apparent from the context. See Lankston v. State, 827 S.W.2d 907, 908-09 (Tex.Crim.App. 1992); Young v. State, 820 S.W.2d 180, 185 (Tex.App.-Dallas 1991, pet. ref'd). Texas law generally requires a party to object each time inadmissible evidence is offered. See Ethington, 819 S.W.2d at 858. Any error in admitting the evidence is cured where the same evidence comes in elsewhere without objection. See Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App. 1984). The exceptions to this rule are where the party asks for and receives a running objection and where the party receives a ruling outside the presence of the jury. See Tex. R. Evid. 103(a)(1); Ethington, 819 S.W.2d at 858. We observe at the outset that Gray made no objection to Lopez's testimony based on confrontation clause grounds. Constitutional error may be waived by failure to object at trial. See Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App. 1990). Although Gray generally objected to certain testimony on hearsay grounds, a hearsay objection does not preserve error on the confrontation claim. Holland v. State, 802 S.W.2d 696, 700 (Tex.Crim.App. 1991); Tapia v. State, 933 S.W.2d 631, 633 (Tex.App.-Dallas 1996, pet. ref'd). Gray made no trial objections on constitutional grounds. As a result, Gray failed to preserve error on the confrontation issue. Gray complains of Lopez's testimony that "[t]he witnesses told me that was the driver." Gray objected to the answer based on hearsay and speculation. The trial court sustained the objection and instructed the jury to disregard the response. However, Gray did not move for a mistrial. Gray failed to preserve error for appeal by not pursuing her hearsay objection to an adverse ruling. Gray should have objected, asked for a curative instruction, and finally moved for a mistrial. Brooks v. State, 642 S.W.2d 791, 798 (Tex.Crim.App. [Panel Op.] 1982). An instruction to disregard usually will cure any error. Id. By obtaining all of the relief she requested and not seeking an adverse ruling, Gray has waived her objections to this evidence. Id. Even if Gray had pursued the objection to an adverse ruling, three questions later, the State asked Lopez why he talked to Gray, and Lopez answered, "She was identified as the driver." Gray made no objection to this testimony. Because Gray did not obtain a running objection or a ruling outside the presence of the jury and did not continue to object each time the State elicited testimony about the driver of the vehicle, Gray did not preserve anything for our review on this point. See Ethington, 819 S.W.2d at 859-60. Later, the State asked Lopez whether he believed Gray was operating a motor vehicle. After Lopez responded, "Yes, sir," Gray objected based on speculation and lack of personal knowledge. The trial court overruled the objection. This objection was untimely and is not preserved for our review. See Ethington, 819 S.W.2d at 858. Even if the objection had been timely, the evidence had come in previously without objection. Finally, Gray complains the trial court admitted harmful hearsay by allowing Lopez to testify that the unavailable witnesses told him Gray was driving erratically. However, Gray elicited the testimony:[DEFENSE COUNSEL]. Do you think it would have been helpful to the defense if we had known who those individuals were?[LOPEZ]. I don't believe so. [DEFENSE COUNSEL]. Why is that?
[LOPEZ]. From just what they told me on the scene and how she was driving. They saw her driving erratically, like an intoxicated person. And leave-as a matter of fact, they said she was driving at a high rate of speed and she was also all over the roadway before she actually struck the sign.
[DEFENSE COUNSEL]. I'm going to object to his answer; it calls for hearsay.
[STATE]. Your Honor, his answer is responsive to the question he was asked.THE COURT. I'll overrule. Defense counsel then asked the question again:
[DEFENSE COUNSEL]. Do you think it would have been beneficial to the defense in this case if we had access to those witnesses, yes or no?
[LOPEZ]. Again, no, sir. I think they would have testified to what they told me that day. That she was driving erratically.Defense counsel elicited the first response by asking an open-ended question and cannot complain of error he invited. See Edwards v. State, 813 S.W.2d 572, 576 (Tex.App.-Dallas 1991, pet. ref'd); Jenkins v. State, 948 S.W.2d 769, 776 (Tex.App.-San Antonio 1997, pet. ref'd). Additionally, defense counsel asked the question again and after receiving a similar answer, made no objection. As a result, Gray failed to preserve any error for our review. See Ethington, 819 S.W.2d at 858. We overrule Gray's fifth and sixth issues.