Opinion
NO. 14-18-00833-CR
08-04-2020
JOSE MANDUJANO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 212th District Court Galveston County, Texas
Trial Court Cause No. 17-CR-0138
MEMORANDUM OPINION
Appellant Jose Mandujano was charged with driving while intoxicated—3rd or more, enhanced by a prior conviction of felony carrying a weapon. A jury found appellant guilty and sentenced him to four years confinement and a fine of Five Thousand Dollars ($5,000). In his sole issue on appeal, appellant complains that the trial court erred by denying his request for an article 38.23 instruction in the jury charge on the voluntariness of his consent to a blood draw. See Tex. Code. Crim. Proc. art. 38.23(a). We affirm.
I. BACKGROUND
On November 6, 2016, at approximately 3:30 p.m., appellant was involved in a one-vehicle accident while traveling northbound on I-45 from Galveston. A witness to the accident observed appellant's motorcycle hit a concrete barrier while attempting to exit the freeway. After his motorcycle hit the concrete barrier, appellant was thrown from his motorcycle over the wall and landed in a field, while the motorcycle continued to slide down the exit ramp. Appellant was wearing a helmet, which was still on his head after the crash. According to a witness, appellant "didn't look to be in good shape" given "the way his limbs were laying out" and appellant was "barely mumbling." Emergency Medical Services ("EMS") personnel arrived thereafter and were treating appellant when Galveston County Sheriff's Deputy Jeremy Creech arrived. Upon arrival, Deputy Creech observed appellant lying flat on his back on a spine board, secured by multiple straps across his body, with a cervical collar on his neck —all at the direction of EMS personnel. EMS noted in their narrative that the "[p]atient was alert and able to communicate with EMS but could not remember the accident."
Deputy Creech approached appellant and spoke with him. He observed that appellant was exhibiting signs of intoxication, such as slow, thick speech and the odor of alcohol. Although EMS had secured appellant to a backboard and placed a cervical collar on his neck, Deputy Creech was able to administer a standardized field sobriety test, the Horizontal Gaze Nystagmus ("HGN") test, on appellant. He testified that appellant being on his back did not invalidate the HGN test. Deputy Creech testified that appellant had all six clues of intoxication during the HGN test, which implied that appellant's impairment was caused by the introduction of alcohol or drugs. Deputy Creech observed no medical basis that would cause appellant's impairment. He further testified that even if appellant sustained a minor head injury, based on his training and research, the HGN could be reliable. Deputy Creech testified that the HGN test is 88% accurate at determining a blood alcohol concentration of .08 milliliters of blood or higher. Deputy Creech did not attempt to administer any other field sobriety tests. It was Deputy Creech's opinion that the appellant was intoxicated. Deputy Creech asked appellant if he would consent to a blood draw, and appellant orally agreed. At that time, appellant was not under arrest.
Appellant was transported "non-emergency" to the University of Texas Medical Branch hospital in Galveston by EMS; appellant remained stable and communicated with EMS without complications. Deputy Creech followed the ambulance to the hospital. A registered nurse at the hospital, Pamela Grigsby, drew appellant's blood approximately an hour after the accident.
Upon review of the medical records admitted into evidence, Nurse Grigsby testified that appellant admitted to alcohol use. She further testified, based on the medical records, that appellant was alert to his surroundings and oriented to time and place. Appellant's mental and neurological condition was good, as he scored highly on the Glasgow Coma Scale (15 out of 15). After medical testing, including a CT scan, it was determined that appellant suffered from multiple fractured ribs on his left side, a traumatic subdural hemorrhage (small bleeding) in his head with loss of consciousness for unspecified duration, and concussion. The appellant suffered no open injury to his head.
Nurse Grigsby testified that a subdural hematoma is a brain bleed.
A witness, formerly with the crime lab for the Department of Public Safety, testified that appellant's blood draw showed 0.195 grams of alcohol per 100 milliliters of blood. This result was almost double the minimum level of intoxication for the offense of DWI.
"The per se definition of intoxicated is 'having an alcohol concentration of 0.08 or more.'" Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012) (quoting Tex. Penal Code § 49.01(2)(B)).
Appellant moved to suppress the results of the warrantless search, i.e., the results of the blood draw, in which he—in part—challenged the voluntariness of his consent to the blood draw. At a hearing held outside the presence of the jury, Deputy Creech and appellant testified. The trial court denied the motion to suppress and proceeded with trial. At trial, Anthony Darrow (witness to accident), Deputy Creech, Nurse Grigsby, Katherine Brown (blood analyst for Department of Public Safety), and Deputy William Kilburn (officer identified prior convictions of appellant for enhancement) testified for the State. The defense called one witness, Amanda Culberson (independent analyst for defense). Appellant did not testify at trial.
During the charge conference, appellant requested that an article 38.23 instruction be included in the court's charge on the issue of whether appellant voluntarily consented to the blood draw. The State opposed the instruction, arguing the defense did not present any evidence that there was not a valid consent. The trial court denied appellant's request, stating "there was nothing contrary to the consent." The trial court further noted, "Creech testified that he obtained consent. The medical records indicated that the defendant was cognizant."
The jury found appellant guilty as charged and assessed appellant's punishment at four years confinement and a fine of $5,000. The appellant timely filed this appeal.
II. ANALYSIS
Appellant argues the trial court erred in failing to include his requested jury instruction in accordance with article 38.23 of the Texas Code of Criminal Procedure. The State counters there was no issue of fact and thus nothing to warrant the jury instruction.
A. Standard of Review
When reviewing a claim that the trial court failed to properly charge the jury, we first determine whether error occurred; if error did not occur, our analysis ends. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); see Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). The purpose of the jury charge is to instruct the jurors on "all of the law that is applicable to the case." Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). When there is a disputed fact issue that is material to the defendant's claim of a constitutional or statutory violation that would render evidence inadmissible, an exclusionary-rule instruction is required by article 38.23(a). Madden v. State, 242 S.W.3d 504, 509-10 (Tex. Crim. App. 2007). If we conclude there was error, there are separate standards of review for determining whether the defendant was harmed by the error. Rogers v. State, 550 S.W.3d 190, 191 (Tex. Crim. App. 2018).
B. Texas Code of Criminal Procedure Article 38.23(a)
Article 38.23(a) of the Texas Code of Criminal Procedure provides as follows:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then
and in such event, the jury shall disregard any such evidence so obtained.Tex. Code Crim. Proc. Ann. art. 38.23(a).
An instruction "under Article 38.23(a) is limited to disputed issues of fact that are material to [the defendant's] claim of a constitutional or statutory violation that would render evidence inadmissible." Madden, 242 S.W.3d at 509-10; see also Robinson v. State, 377 S.W.3d 712, 719 (Tex. 2012) ("Where the issue raised by the evidence at trial does not involve controverted historical facts, but only the proper application of the law to undisputed facts, that issue is properly left to the determination of the trial court."); Holmes v. State, 248 S.W.3d 194, 199 (Tex. Crim. App. 2008) ("There is, of course, nothing to instruct the jury about if the suppression question is one of law only, and there is nothing to instruct the jury about unless there is affirmative evidence that raises a contested fact issue.").
A defendant must satisfy three requirements before being entitled to the submission of a jury instruction under article 38.23(a):
(1) The evidence heard by the jury must raise an issue of fact;Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012); Madden, 242 S.W.3d at 510; see also Robinson, 377 S.W.3d at 719; Doremus v. State, 530 S.W.3d 277, 286 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd); Cadoree v. State, 331 S.W.3d 514, 521 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd). When these elements are not met, a trial court is not required to include an article 38.23(a) instruction. Madden, 242 S.W.3d at 510; see Doremus, 530 S.W.3d at 286 (finding appellant failed to affirmatively contest the officer's trial testimony that appellant drove the wrong way down a one-way street, thus appellant not entitled to 38.23 instruction as to the legality of the stop); Broussard v. State, 434 S.W.3d 828, 835 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) (holding trial court did not err in refusing article 38.23(a) instruction where there was no affirmative evidence before the jury that the officers did not smell marijuana).
(2) The evidence on that fact must be affirmatively contested; and
(3) That contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence.
"To raise a disputed fact issue warranting an article 38.23(a) jury instruction, there must be some affirmative evidence that puts the existence of that fact into question." Madden, 242 S.W.3d at 513. In other words, a cross examiner cannot create a factual dispute for purposes of an article 38.23(a) instruction merely by his questions or argument. Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008); Madden, 242 S.W.3d at 514; Cadoree, 331 S.W.3d at 521. It is only the answers that are evidence and may create a dispute. Madden, 242 S.W.3d at 514; Cadoree, 331 S.W.3d at 521. Further, the jury's right to disbelieve a witness's testimony in whole or part does not create a factual dispute as to article 38.23. See id.
If there is no disputed factual issue, the legality of the conduct is determined by the trial judge alone, as a question of law. Madden, 242 S.W.3d at 510, 518. And if other facts, not in dispute, are sufficient to support the lawfulness of the challenged conduct, then the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence. See id.
C. No Charge Error Occurred
The only evidence presented during the trial regarding the voluntariness of appellant's consent came from one source: Deputy Creech testified that he asked appellant for his consent to obtain a sample of his blood at the scene of the accident and that appellant consented. Appellant was alert and being treated by the EMS personnel. He was not under arrest at that time. There is no audio or video evidence of Deputy Creech's interaction with appellant.
Appellant's medical records include numerous reports of appellant's cognition and alertness.
Appellant was transported to the hospital by the EMS personnel, and Deputy Creech followed. Upon arrival at the hospital, appellant's mental and neurological condition was good, as demonstrated by a high score on the Glasgow Coma Scale. Nurse Grigsby drew the appellant's blood. Relying on her review of the medical records in evidence, Nurse Grigsby testified appellant was alert and oriented to time and place while he was undergoing treatment. Neurological abnormalities were reviewed and "no abnormalities" were located. While interacting with Nurse Grigsby, appellant admitted to using alcohol.
On cross-examination, Nurse Grigsby acknowledged that she did not remember any specific details of appellant or the case.
After medical testing, including a CT scan, it was determined that appellant suffered from multiple fractured ribs on his left side, a traumatic subdural hemorrhage with loss of consciousness for unspecified duration, a small brain bleed in the head, and concussion. Nurse Grigsby testified that a closed head injury can cause confusion. She also testified that one cannot detect a concussion "just by talking" to that person, but that doesn't mean that the affected person does not have a concussion. Moreover, when asked if it was fair to say the medical neurological issues appellant was having weren't showing up in his eyes, Nurse Grigsby opined, "[y]es, it's fair to say that it showed up in the final diagnosis and not in the initial diagnosis with no open injury to the head."
Appellant argues that medical records and Nurse Grigsby's testimony provide evidence that suggests "Appellant may have lacked capacity to voluntarily consent and evidence that Appellant had capacity to consent." Appellant concedes "the fact at issue—whether Appellant's consent was voluntary—depends on his condition at the scene not at the hospital because that is where Creech requested that Appellant consent to the blood draw." In that regard, Deputy Creech's testimony was unequivocal that appellant gave his consent to the blood draw at the scene. To the extent appellant argues that the medical records reflect that appellant claimed that he had briefly lost consciousness immediately after the crash, the records also indicate appellant's memory and consciousness had returned by the time that EMS personnel had arrived at the scene. There was no evidence that appellant was experiencing "confusion" at the time Deputy Creech asked him for consent. In sum, there was no testimony by any witness controverting Deputy Creech's testimony regarding appellant's consent to the blood draw and Deputy Creech's cross-examination did not raise a fact issue.
In the context of cross-examination, only the witness's answers can create conflicts in the evidence, no matter how vigorous the questions. Madden, 242 S.W.3d at 513-14. If cross-examination raises no factual dispute, then the judge may apply the law to the facts and no article 38.23(a) instruction is necessary. See id. at 511, 514 ("The jury decides facts; the judge decides the application of the law to those facts.").
Although defense counsel attempted to cast doubt on the voluntariness issue through Deputy Creech's and Nurse Grigsby cross-examination, their testimony did not raise a fact issue that was affirmatively contested. See Madden, 242 S.W.3d at 510. Deputy Creech never contradicted himself, but instead clearly testified that appellant consented to the blood draw at the scene and that appellant was fully alert and oriented when he did consent. The EMS medical records corroborate Deputy Creech's testimony as to appellant being cognizant when he gave the consent. There is no testimony to support appellant's contention that he was coerced, as he was not under arrest when he gave consent to Deputy Creech. Moreover, Nurse Grigsby was not present at the scene when appellant orally gave his consent to Deputy Creech; her testimony does not create a fact issue as to the consent given to Deputy Creech. See Madden, 242 S.W.3d at 513.
There was no evidence at trial that appellant refused to consent or that his consent was not made freely and voluntarily. The only evidence regarding this issue was raised at the suppression hearing, outside the presence of the jury. See Graham v. State, 201 S.W.3d 323, 332 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd). Appellant has not challenged this ruling on appeal. At trial, appellant chose a defensive strategy to not testify at trial. He did not have a medical expert testify that given his medical injuries he could not have had the mental capacity to voluntarily consent to the blood draw. Because appellant did not raise any affirmative evidence of a factual conflict, appellant was not entitled to an article 38.23(a) jury instruction. See Madden, 242 S.W.3d at 510. We cannot conclude the trial court erred by denying appellant's request for an article 38.23(a) instruction to be included in the jury charge. See Vasquez, 389 S.W.3d at 366. Because we hold that the trial court did not err by refusing to include appellant's requested instruction, our analysis ends. Kirsch, 357 S.W.3d at 649.
Appellant's single issue is overruled.
III. CONCLUSION
The trial court's judgment is affirmed.
/s/ Margaret "Meg" Poissant
Justice Panel consists of Justices Wise, Jewell, and Poissant. Do Not Publish - Tex. R. App. P. 47.2(b)