Leverett v. State

Full title: JAMES MELVIN LEVERETT, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 10, 2007

No. 05-05-01496-CR (Tex. App. Apr. 10, 2007)

Opinion

No. 05-05-01496-CR.

Opinion filed April 10, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the County Court at Law, Grayson County, Texas, Trial Court, Cause No. 2004-2-889. AFFIRMED.

Before Justices MORRIS, WHITTINGTON, and RICHTER. Opinion By Justice Morris.

OPINION

JOSEPH B. MORRIS, Justice.

In this appeal, James Melvin Leverett challenges his conviction for driving while intoxicated. He complains in four issues that the trial court erred in its admission and exclusion of certain evidence and in its denial of his motion for mistrial. We affirm the trial court's judgment.

Factual Background

A highway patrol officer observed appellant's vehicle traveling sixty-eight miles per hour in an area where the posted speed limit was fifty-five miles per hour. The officer activated his patrol car's emergency lights and began to follow appellant's vehicle. The officer then observed the left tires of appellant's vehicle cross the center strip of the highway. Afterward, appellant pulled over his vehicle. When the officer approached appellant's vehicle, he could smell an alcoholic beverage inside. He noticed that appellant's eyes appeared bloodshot. In the officer's opinion, appellant's speech was "at times slow, lethargic, and slightly slurred." The officer asked appellant if he had been drinking, and appellant said he had drunk a couple glasses of wine at dinner. The officer could smell alcohol on appellant's breath. Appellant then submitted to several field sobriety tests. The jury was able to see appellant's performance on the tests because the State introduced into evidence a videotape of appellant's stop and arrest. During the horizontal gaze nystagmus test, according to the officer, appellant exhibited all six clues of intoxication. On cross-examination, the officer testified that the HGN test is eighty-nine percent reliable at determining intoxication. During the walk-and-turn test, appellant exhibited four out of a possible eight clues of intoxication. The officer stated that one of the clues appellant exhibited was starting the test before he was instructed to, but the videotape makes clear the officer did not specifically tell appellant he needed to wait until the officer told him to begin. The officer stated that the walk-and-turn test is seventy-nine percent reliable at determining intoxication. On the one-leg-stand test, appellant showed a single clue of intoxication — putting down his foot during the test. The videotape shows that appellant put his elevated foot down only when the officer reminded him to look at the foot while performing the test. In the officer's perception, appellant was not looking at his elevated foot as the test required. Appellant, however, claimed to the officer that he was actually already looking at the elevated foot when the officer admonished him otherwise. The officer stated that the one-leg-stand test is eighty-three percent reliable. After appellant refused to take a portable breath test, the officer arrested him but did not give him his Miranda ¹ warnings. The officer also spoke to appellant's passenger, his girlfriend. Over appellant's objection that the girlfriend's statement violated his rights under the Confrontation Clause, the trial court permitted the jury to hear the passenger's videotaped response to the officer's question about her ingestion of any alcohol. The girlfriend stated, "I have had some, yes. . . . I haven't had as much as he has but I'm not going [indecipherable] and drive the car because I don't want you to pull me over too." Earlier in the trial, the State had agreed to redact from the videotape the audio portion of the officer's "talking with the passenger that was in the car." The trial court overruled appellant's later objection to the evidence and his motion for mistrial based on the admission of the evidence. During the post-arrest inventory of appellant's vehicle, the officer found two Styrofoam cups with a "little bit" of wine in them. Appellant had told the officer he did not have any open containers of alcohol in his vehicle. The officer testified that appellant would go from being "very upset" with him to trying to be respectful to the officer. In the officer's opinion, appellant's "mood swings" were an indicator of intoxication. The officer also stated that the smell of alcohol was "pretty strong" in his patrol car as he was transporting appellant to jail. Appellant refused to give a blood or breath specimen at the jail. The officer did not repeat the field sobriety tests in the intoxilyzer room of the jail. In the officer's opinion, appellant was intoxicated and had lost the normal use of his mental and physical faculties due to alcohol that night. Appellant was arrested on the night and in the vicinity of a local event that, historically, results in a large number of DWI arrests. Two of appellant's friends testified in his defense. Richard Cieszninski testified that he was with appellant on Cieszinski's boat after the group had gone to dinner and before appellant was pulled over. In Cieszinski's opinion, appellant "definitely" was not intoxicated that night. Cieszinski further opined that appellant's voice and appearance on the DWI videotape was normal for appellant. Cieszinski testified that appellant had leukemia and "since his illness he doesn't drink very much." Cieszinski could not recall ever seeing appellant have more than two glasses of wine following his treatment for leukemia. Bruce Cay also testified for appellant. He stated that he sat at the dinner table with appellant the night of his arrest. Cay recalled appellant drinking "very little" wine. Cay testified that he paid specific attention to appellant because "the guy had been really sick." He also observed appellant just before he left for home. Cay testified that he did not believe appellant was intoxicated. Cay claimed that if he had thought appellant was intoxicated, he would not have let him drive. Cay further claimed he had no concerns about appellant being able to drive a vehicle that night. In Cay's opinion, appellant appeared sober on the DWI videotape.

Discussion

In his first two issues, appellant complains about the HGN test administered by the arresting officer. He first contends the trial court should not have allowed the officer to testify about the test without first confirming it was administered in conformity with the "standardized procedures" outlined in the DWI Detection Manual published by the National Highway Transportation Safety Administration. He next contends the trial court erred by refusing to permit the defense to put on testimony by a certified peace officer "concerning the proper administration of an HGN test consistent with the standardized procedures outlined in the DWI Detection Manual published by the NHTSA, and to testify that the State's witness failed to so properly administer the HGN test." To begin, the arresting officer did not vary so extremely from the standards for HGN test administration that the results of appellant's test were inadmissible. Small variations in the administration of the test do not render the HGN test results inadmissible or unreliable but may affect the weight to be given to the testimony. Plouff v. State, 192 S.W.3d 213, 219 (Tex.App.-Houston [14^th Dist.] 2006, no pet.) (citing Compton v. State, 120 S.W.3d 373, 378 (Tex.App.-Texarkana 2003, pet. ref'd)). Here, the officer took approximately fifty-three seconds to complete the test but allegedly should have taken at least eighty-two. This difference in timing is not a meaningful variation. Cf. McRae v. State, 152 S.W.3d 739, 744 (Tex.App.-Houston [1^st Dist.] 2004, pet. ref'd) (holding, where officer admitted HGN test was invalid, court abused its discretion in admitting HGN testimony). Moreover, there are intervals in the HGN test where the officer is simply positioning the eyes for the next test, and any variation in the time to do so "would have no effect on the reliability of [the] test." Compton, 120 S.W.3d 379. Accordingly, the trial court did not abuse its discretion in admitting the testimony. We resolve appellant's first issue against him. Appellant next complains the trial court erred in failing to permit the defense to put on a witness to testify that proper procedure under the NHTSA requires that test take at least eighty-two seconds to administer. It appears appellant's expert witness on this matter had not had any training in HGN testing since 1998 and had not performed the test since 1999. Given the particular credentials of this defense witness, we conclude the trial court did not abuse its discretion in refusing to allow the witness to testify. We resolve appellant's second issue against him. In his third issue, appellant complains the trial court committed constitutional error in failing to grant a mistrial when his "rights pursuant to the Confrontation Clause were violated by the surprise introduction and publication of third party statements to the jury." Under the Confrontation Clause of the Sixth Amendment of the United States Constitution, applicable to the states by virtue of the Fourteenth Amendment, in all criminal prosecutions an accused shall have the right to be confronted with the witnesses against him. Bratton v. State, 156 S.W.3d 689, 693 (Tex.App.-Dallas 2005, pet. ref'd). The primary interest protected by the Confrontation Clause is the right of cross-examination. Id. The right applies not only to in-court testimony but also to out-of-court "testimonial" statements introduced into evidence at trial. Id (citing Crawford v. Washington, 541 U.S. 36 (2004)). Testimonial statements may be introduced at trial only when the "declarant is unavailable and the accused has had a prior opportunity for cross-examination." Id. The United States Supreme Court has clarified the definition of a testimonial statement in this manner:

Without attempting to produce an exhaustive classification of all conceivable statements — or even all conceivable statements in response to police interrogation — as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Davis v. Washington, ___ U.S. ___ 126 S. Ct. 2266, 2273-74 (2006). Here, appellant contends the trial court erred when it failed to grant his motion for mistrial after it admitted evidence of appellant's girlfriend stating that appellant had more to drink than she had. The officer questioned appellant's girlfriend after he had already arrested appellant for DWI. The girlfriend was in no danger; she simply needed to get home. Objectively, there was no emergency at the time of the questioning. On the videotape, the officer indicated he was going to question the passenger to see if she could drive appellant's vehicle home. The girlfriend told the officer she had not had as much to drink as appellant but refused to drive his vehicle because she was concerned that she, too, would be pulled over by police. We review a trial court's denial of a motion for mistrial under an abuse of discretion standard. See Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003). Mistrial is appropriate for errors so highly prejudicial and incurable that expenditure of further time and expense in the case would be "wasteful and futile." See Id. The question of whether a trial court abused its discretion in denying a mistrial "involves most, if not all of the same considerations that attend a harm analysis." Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004). This is because, in considering whether to grant a mistrial, the trial court conducts the appellate function of "determining whether improper conduct is so harmful that the case must be redone." Id. In this case, the officer testified appellant smelled of alcohol, had bloodshot eyes, and exhibited various signs of intoxication during field sobriety tests. The officer believed appellant was intoxicated. Appellant's friends, however, claimed he was not intoxicated and did not appear so on the videotape. Appellant admitted to the officer that he had drunk a couple glasses of wine. Appellant's girlfriend, for her part, admitted that she and appellant had been drinking. She did not indicate how much they had to drink, but simply stated that appellant had drunk more than she had. The trial court admitted this evidence and, of course, did not instruct the jury to disregard it. The statement by the girlfriend did not meaningfully add to the evidence against appellant. Appellant himself admitted he had been drinking, and the officer testified about a variety of circumstances demonstrating that appellant had lost control of his mental and physical faculties. Under the facts of this case, we conclude the trial court did not abuse its discretion in denying appellant's motion for mistrial. We resolve appellant's third issue against him. In his fourth issue, appellant complains about comments he made to the police officer after he had been arrested but had not yet received his Miranda warnings. Unbeknownst to him at the time, the comments were videotaped, and that portion of the videotape was played for the jury. In his brief, appellant does not specify which comments in particular he believes were objectionable. He contends simply that the failure to give the Miranda warnings and the failure to advise appellant that he was being videotaped were "calculated" to cause appellant to make "statements." A voluntary oral statement may be inadmissible at trial if it is the result of or stems from custodial interrogation. See Camarillo v. State, 82 S.W.3d 529, 535 (Tex.App.-Austin 2002, no pet.). Custodial interrogation occurs when law enforcement officers initiate questioning of a defendant after he has been taken into custody or otherwise deprived of his freedom of action in any significant way without informing him of his Miranda rights. See Stahle v. State, 970 S.W.2d 682, 690 (Tex.App.-Dallas 1998, pet. ref'd). Offhand remarks that are not designed to elicit a response do not constitute custodial interrogation. Nor do general or routine questions constitute interrogation. See Camarillo, 82 S.W.3d at 535. We do not condone the officer's failure to inform appellant of his Miranda rights at the time of his arrest. Nevertheless, appellant has failed to specify which of his remarks he contends were the result of custodial interrogation following his arrest. Because he fails to support his argument with citations to the record that would allow us to evaluate his contention, he presents nothing for us to review. See Tex. R. App. P. 38.1(h). We resolve his fourth issue against him. We affirm the trial court's judgment.