Opinion
NO. 01-17-00319-CR
06-12-2018
VICTOR MANUEL LOPEZ, Appellant v. STATE OF TEXAS, Appellee
On Appeal from the 56th Judicial District Court Galveston County, Texas
Trial Court Case No. 16-CR-1952
MEMORANDUM OPINION
Appellant Victor Manuel Lopez appeals his conviction for driving while intoxicated, third offense. In three issues, he argues (1) the evidence was insufficient to establish that he "operated" a vehicle, a necessary element of the crime; (2) the trial court abused its discretion in admitting the officer's testimony regarding the meaning of the term "operate"; and (3) Lopez was egregiously harmed by an alleged error in the jury charge regarding extraneous offenses. We affirm.
Background
In July 2016, Officer S. Theobold was on routine patrol in League City, Texas around 11:30 p.m. when he noticed a car stopped in the road. The car was parked in the northbound lane of a public, two-way road. The car was on, and the engine was running. Officer Theobold drove around the car (using the southbound lane) and saw Lopez who appeared to be asleep in the driver's seat. No one else was in the car.
Officer Theobold approached the car to check on Lopez's welfare and because the car was impeding the roadway. He knocked on the car window and after approximately 20 to 30 seconds, Lopez woke up. According to Officer Theobold, when Lopez awoke, "he initially put his hand on the gear shift" and "it appeared that he was about to put it in drive." Officer Theobold then instructed Lopez not to put the car in drive. He asked Lopez to exit the car, and Lopez complied.
Officer Theobold testified, and the video from his dashboard camera depicts, that he asked Lopez where he was coming from and where he was going. Lopez responded that he was going to his house in South Houston from his twin brother's house. Lopez admitted that he had had two beers. When asked whether he was operating his vehicle on the roadway, Lopez responded "I'm almost home." When Officer Theobold asked him again whether he was driving his vehicle, Lopez responded "I'm almost home, yes, sir."
At other points, Lopez stated that he was coming from his home and his father's house.
Officer Theobold noted that Lopez "did not say that he was parked in front of someone's house, whether he had a friend in the area, whether his father lived there." Officer Theobold testified that the car was registered to Lopez and that he found an open can of Bud Light in the car. He also saw an open can containing a mixed drink.
Although Lopez refused to consent to a breathalyzer test, Officer Theobold conducted three field sobriety tests—the horizontal gaze nystagmus test, the walk and turn test, and the one-leg-stand test. According to Officer Theobold, he witnessed numerous clues of intoxication and concluded that Lopez was sufficiently intoxicated that it was unsafe for him to operate a motor vehicle or to be in a public place.
Officer Theobold placed Lopez under arrest. After obtaining a warrant, Officer Theobold took Lopez to the hospital for a mandatory blood draw around 1:30 a.m.—over two hours after Officer Theobold first approached Lopez's vehicle.
Lopez's blood alcohol level—0.231 grams of alcohol per hundred milliliters of blood—was well over the legal limit of 0.08. At trial, the State introduced the testimony of a forensic scientist in the Texas Department of Public Safety's crime lab. He testified that, where (as here) one's last drink was consumed over two hours before the blood draw, a person would have had to consume approximately 13 standard drinks to have a blood alcohol level of 0.231.
Following a trial, the jury convicted Lopez of driving while intoxicated, third offense, enhanced by two previous convictions. The jury assessed punishment at six years' imprisonment.
Discussion
Lopez appeals, challenging: (1) the sufficiency of the evidence; (2) the officer's testimony on the term "operate"; and (3) the jury charge's statement regarding extraneous offenses.
A. Sufficiency of the Evidence
Lopez urges this Court to conduct independent reviews of factual and legal sufficiency, and he argues that the evidence was insufficient to support his conviction. Well-established, binding precedent precludes the review that Lopez requests, however. And sufficient evidence supports his conviction.
1. Standard for Factual and Legal Sufficiency
Texas law forecloses Lopez's argument that we must conduct separate reviews of legal and factual sufficiency. In 2010, the Court of Criminal Appeals directed intermediate courts to apply a single standard of review to legal and factual sufficiency challenges in criminal cases. Brooks v. State, 323 S.W.3d 893, 901-02 (Tex. Crim. App. 2010) (determining separate standard should no longer be applied to review factual sufficiency of evidence). Our Court has explained that we "are bound to follow the Court of Criminal Appeals, and we apply the Jackson sufficiency standard of review to complaints styled as legal or factual sufficiency challenges concerning the elements of a criminal offense." Kiffe v. State, 361 S.W.3d 104, 109-110 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd); see also Ervin v. State, 331 S.W.3d 49, 53 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). We do not disregard this binding precedent.
2. Analysis
Applying the requisite standard, we review the sufficiency of the evidence in the light most favorable to the verdict and then determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Acosta v. State, 429 S.W.3d 621, 624-25 (Tex. Crim. App. 2014). The jury is the sole judge of witness credibility and the weight to be attached to witness testimony. When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and we defer to that determination. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014). Moreover, direct and circumstantial evidence are equally probative. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). Not every fact presented must directly indicate that the defendant is guilty, so long as the cumulative force of the evidence is sufficient to support a finding of guilt. Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015).
Reviewing the evidence in the light most favorable to the jury's verdict, we conclude that sufficient evidence supports Lopez's conviction.
The Texas Penal Code provides that a person commits the offense of driving while intoxicated when the person "is intoxicated while operating a motor vehicle in a public place." TEX. PENAL CODE 49.04(a); Kirsch v. State, 357 S.W.3d 645, 649-50 (Tex. Crim. App. 2012). The Code does not define the term "operating." Kirsch, 357 S.W.3d at 650. The Court of Criminal Appeals has held that a person "operates" a vehicle when "the totality of the circumstances [ ] demonstrate that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle's use." Id. at 650-51; Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995). Viewing the totality of the circumstances, "many Texas juries have rendered guilty verdicts even when the evidence showed that the operator did not successfully make the vehicle 'go.'" Kirsch, 357 S.W.3d at 650 (collecting cases).
Lopez does not dispute that he was intoxicated or in a public place; he challenges only the jury's finding that he was "operating" a vehicle. But the undisputed evidence showed that Lopez's car was in the roadway, the engine was running, Lopez was sitting in the driver's seat, the car was registered to him, and no other person was nearby. Additionally, Lopez admitted to Officer Theobold that he had been driving and was on his way home. Officer Theobold also testified that Lopez grabbed the gear upon being awoken, and that the brake light was on, indicating that Lopez had engaged the brake. On this record and considering the totality of the circumstances, the fact finder could reasonably have inferred that Lopez was "operating" his car. See, e.g., Hearne v. State, 80 S.W.3d 677, 680 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (fact-finder could reasonably infer that appellant was "operating" his truck when evidence showed truck was parked in moving lane of traffic, engine was running, appellant was in driver's seat, truck was registered to appellant, and no other person was nearby).
See also Paty v. State, No. 01-14-00923-CR, 2016 WL 4375263, at *3-4 (Tex. App.—Houston [1st Dist.] Aug. 16, 2016, no pet.) (mem. op., not designated for publication) (sufficient evidence established "operation" of vehicle when appellant was only person in truck, truck was turned "on" and "in gear" as it sat in drive-through lane, appellant was passed out behind wheel, and when he awoke, appellant told officer "he was going home" from friend's house); Dornbusch v. State, 262 S.W.3d 432, 437-38 (Tex. App.—Fort Worth 2008, no pet.) (evidence was sufficient to establish appellant operated vehicle where he was found in driver's seat either asleep or passed out and vehicle was in parking lot with headlights on, engine running, radio playing loudly, and car was not in park; whether appellant was merely keeping warm or operating his vehicle was fact question for trial court to resolve); Barton v. State, 882 S.W.2d 456, 459-60 (Tex. App.—Dallas 1994, no pet.) (driver who was asleep at wheel with feet on clutch and brake, engine idling, and car in roadway protruding into intersection, and who then engaged clutch and changed gears upon being awakened by police, operated vehicle). The Kirsch court declined to extend several of these cases on the grounds that "operate" is not a legal term, so it should not be defined in the jury charge. But that conclusion does not render these cases unpersuasive in a sufficiency of the evidence determination.
Lopez attempts to distinguish his case, arguing that no evidence showed when he became intoxicated, and the two open containers in his car could lead a jury to believe that he became intoxicated at some point after he parked the vehicle. We note that the record suggests that Lopez consumed more alcohol than the two containers in his car. But even to the extent that the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and we defer to that determination. Thomas, 444 S.W.3d at 8.
We overrule Lopez's first and second issues.
B. Admissibility of Officer Theobald's Testimony
Lopez also argues that the trial court abused its discretion in permitting Officer Theobald to testify regarding the meaning of the term "operating." It did not.
1. Standard of Review
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). A trial court's ruling will not be reversed unless it falls outside the zone of reasonable disagreement. Id. If the trial court's evidentiary ruling is reasonably supported by the record and correct on any theory of law applicable to that ruling, we will uphold the decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
2. Analysis
Lopez argues the trial court abused its discretion in permitting Officer Theobold to testify regarding what "[he] kn[e]w operating to be" because this testimony was an improper legal definition. Lopez's argument turns on the following testimony:
Lopez preserved error only with regard to his objection that Officer Theobold's proffered testimony constituted an improper legal opinion. See TEX. R. APP. PROC. 33.1. Both parties assert that "invading the province of the jury" is no longer a valid objection. And Lopez did not offer other arguments.
Q. When you say the vehicle was on—go into detail about what you know as operating for the jury?
A. An operator or a vehicle being operated is anyone—
MR. LEWIS: Objection. Your Honor, may we approach?
THE COURT: What's the objection?
MR. LEWIS: Well, Judge, I think he's invading the province of the jury.
THE COURT: Overruled.
THE WITNESS: An operator is anyone operating that motor vehicle or in possession of it so if you were in possession—
MR. LEWIS: I would object to improper legal definition, Judge.
THE COURT: Response?
MR. SMITH: I don't believe he's giving a legal response. Additionally if he's contesting what Officer Theobold was saying, that's left up to cross-examination.
THE COURT: Sure. Overruled.
Q. (By Mr. Smith) You can go ahead.
A. I forgot where I was.
Q. What do you know operating to be in terms of a vehicle, operating a vehicle?
A. Typically operating is what we all know as driving or having custody, care, possession of it.
The trial court did not abuse its discretion in admitting this testimony over Lopez's improper legal opinion objection. The Texas Court of Criminal Appeals has concluded that "operate" is a common term that has not acquired a technical meaning and may be interpreted according to its common usage. Kirsch, 357 S.W.3d at 650. The Court further explained that "[w]hether appellant was operating his [vehicle] was a question of fact to be resolved by the jury." Id. at 652; see also TEX. CODE CRIM. PROC. 36.13. "It was the responsibility of the advocates to argue or refute that the evidence supports that element of the offense." Kirsch, 357 S.W.3d at 652. And a witness is allowed to testify to his opinion if it is "(a) rationally based on the witness's perception, and (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue." TEX. R. EVID. 701.
This legal framework undercuts Lopez's argument. Officer Theobold testified regarding what "operating" meant to him (what he "kn[e]w operating to be"), based on his perception. See id.; Kirsch, 357 S.W.3d at 652. The judge could have concluded that Officer Theobold's testimony would be helpful to the jury in determining the fact at issue—whether Lopez operated a motor vehicle. See TEX. R. EVID. 701. Because, under Texas law, the term "operate" is a common term that may be interpreted according to its common usage, and because whether Lopez was operating his vehicle was a question of fact for the jury to resolve, the trial court did not abuse its discretion in allowing the officer to testify as to the officer's perception of operating.
Officer Theobold also testified that he had worked on more than 25 DWI cases.
In any event, it is well-settled that an error in admission of evidence is cured where the same evidence comes in elsewhere without objection. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). But Lopez did not obtain a running objection or offer an objection every time similar evidence was admitted. Instead, Officer Theobold testified on numerous occasions about what operating meant to him, and Lopez did not reassert his objection. Because the allegedly objectionable testimony (the officer's perception of "operating") came in elsewhere, even if we assume error, Lopez cannot establish harm with regard to the single instance of Officer Theobold's testimony at issue here. See Chamberlain v. State, 998 S.W.2d 230, 235 (Tex. Crim. App. 1999) ("It is well established that questions regarding the admission of evidence are rendered moot if the same evidence is elsewhere introduced without objection; any error in admitting evidence over a proper objection is harmless if the same evidence is subsequently admitted without objection."); Brown v. State, 692 S.W.2d 146, 151 (Tex. App.—Houston [1st Dist.] 1985), aff'd, 757 S.W.2d 739 (Tex. Crim. App. 1988) ("We are further of the view that any error in the admission of such testimony was waived and/or cured by defense counsel's failure to object to similar testimony later elicited.").
Specifically, Officer Theobold testified without objection to the following: that being in park with the engine running and the keys in the ignition would be operating "because he does have physical control of the vehicle"; that it was Theobold's understanding that Lopez's grabbing of the gear shift upon awakening and the brake light lighting up (suggesting engagement of the brake), amounted to operating; that being in the car with the engine running is "operating a vehicle"; that braking, whether intentional or accidental, is operating a vehicle; that "whether he's about to take the car from park and put it into drive, he is, indeed, operating that vehicle. He has control of that vehicle and what it's doing"; and Lopez being in the roadway, in the driver's seat, touching the brake, and attempting to put it into drive amounted to operating.
Finally, we note that during its deliberation, the jury asked the trial court for the legal definition of "operating a vehicle," and the court responded "[t]here is no legal definition." There is no basis in this record to conclude that the jury interpreted Officer Theobold's testimony as establishing a legal definition of "operating."
The trial court did not abuse its discretion in admitting Officer Theobold's testimony. Accordingly, we overrule Lopez's third issue.
C. Jury Charge Error
In his final issue, Lopez contends that an alleged error in the jury charge—a statement that the jury may consider Lopez's extraneous offenses "in determining the intent of the Defendant, if any, in connection with the offense"—resulted in egregious harm. We find no reversible error.
1. Standard of Review
In analyzing a jury-charge issue, we decide if error exists. See Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh'g); Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd). If we find error in the jury charge, we then consider whether an objection to the charge was made and analyze for harm. Tottenham, 285 S.W.3d at 30.
"The degree of harm necessary for reversal depends upon whether the error was preserved." Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Jury charge error preserved by a timely objection requires reversal "as long as the error is not harmless." Almanza, 686 S.W.2d at 171. When the charging error is not preserved, however, the accused will obtain a reversal only if the error constitutes egregious harm. Id.; see Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013) (egregious harm "is a difficult standard to meet and requires a showing that the defendants were deprived of a fair and impartial trial"). Errors that result in egregious harm are those that affect "the very basis of the case," deprive the defendant of a "valuable right," or "vitally affect his defensive theory." Almanza, 686 S.W.2d at 172 (citations and quotations omitted).
When addressing harm, we consider: (1) the entire jury charge; (2) the state of the evidence, including the contested issues and weight of probative evidence; (3) the argument of counsel; and (4) any other relevant information revealed by the record of the trial as a whole. Id. at 171. We examine the record to "illuminate the actual, not just theoretical, harm to the accused." Id. at 174.
2. Analysis
Lopez argues that the trial court erroneously instructed the jury that his intent was at issue and that the jury was free to consider evidence of extraneous offenses (his previous DWI convictions) in deciding whether he intended to commit the indicted offense of driving while intoxicated.
An extraneous offense is "any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers." Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App. 1996) (emphasis omitted). In general, extraneous offense evidence may not be admitted "to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." See TEX. R. EVID. 404(b)(1).
The jury charge stated in relevant part:
[A] person commits an offense if the person is intoxicated while operating a motor vehicle in a public place, and if it is shown on the trial of the offense that the person has previously been convicted two times of any other offense relating to the operating of a motor vehicle while
intoxicated, then that person shall be guilty of the felony offense of driving while intoxicated.
* * *
With respect to the evidence admitted in this case concerning the Defendant's having been two times previously convicted of being intoxicated while operating a motor vehicle in a public place, if he was, you are instructed that such evidence cannot be considered by you as in any manner proving or tending to prove that the Defendant was intoxicated while driving or operating a motor vehicle in a public place on or about the 17th day of July, A.D., 2016.
* * *
You are instructed that if there is any testimony before you in this case regarding the Defendant's having committed offenses other than the offense alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the Defendant committed such other offenses, if any were committed, and even then you may only consider the same in determining the intent of the Defendant, if any, in connection with the offense, if any, alleged against him in the indictment in this case, and for no other purpose.
Lopez did not object to the jury charge. Thus, to obtain reversal, he must establish egregious harm—that the alleged error affects the very basis of the case, depriving him of a valuable right or vitally affecting his defensive theory. See, e.g., Almanza, 686 S.W.2d at 172. Even assuming without deciding that the trial court erred in instructing the jury that it could consider extraneous offenses "in determining the intent of the Defendant, if any, in connection with the offense, if any, alleged against him in the indictment in this case," we cannot conclude that Lopez was egregiously harmed by the inclusion of such an instruction.
The challenged portion of the instruction itself informed the jury that it could consider Lopez's extraneous offenses for no purpose other than to determine his intent, "if any, alleged against him in the indictment in this case." (emphasis added). The indictment in this case did not allege intent. Thus, even if the jury applied the challenged jury instruction, because there was no intent element to consider with regard to the charged crime, its application would not have resulted in egregious harm. See Limas v. State, No. 14-11-00991-CR, 2013 WL 328988, at *2 (Tex. App.—Houston [14th Dist.], no pet.) (mem. op., not designated for publication) (no egregious harm where jury charge instructed jury it could consider extraneous offenses in determining defendant's intent, but extraneous offenses were irrelevant to intent element of charged crime: "Appellant's assertion that driving offenses are irrelevant to an intent to deliver cocaine demonstrates the very reason that the instruction was harmless. The instruction neither suggested nor required that the jury draw any particular inference about appellant's intent based upon the other offenses he committed.").
Additionally, a separate provision in the charge explicitly instructed the jury that it could not consider Lopez's extraneous instructions "in any manner proving or tending to prove that [he] was intoxicated while driving or operating a motor vehicle in a public place on or about the 17th day of July, A.D., 2016." Absent contrary evidence, we presume that the jury followed the instructions given. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). Accordingly, we presume the jury followed the instructions not to consider Lopez's extraneous offenses to prove or tend to prove that he committed the instant offense. The State did not argue that Lopez's offenses should be considered for any improper purpose or that there was an intent element of the charged crime. And we have already decided that the evidence was sufficient to support the jury's verdict. This record presents no egregious harm. See Limas, 2013 WL 328988, at *2; Tolbert v. State, No. 03-16-00505-CR, 2017 WL 6759145, at *8-9 (Tex. App.—Austin Dec. 22, 2017, no pet.) (mem. op., not designated for publication) (jury instruction that extraneous offenses could be considered in determining appellant's intent, knowledge, motive, preparation, or plan was not egregiously harmful where limiting instruction further instructed jury it could only consider extraneous offenses for appropriate purposes).
We overrule Lopez's fourth issue.
Conclusion
We affirm the trial court's judgment.
Jennifer Caughey
Justice Panel consists of Justices Higley, Brown, and Caughey. Do not publish. TEX. R. APP. P. 47.2(b).