Opinion
No. 11-05-00261-CR
September 21, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(B).
On Appeal from the County Court at Law No. 2, Grayson County, Texas Trial Court Cause No. 2001-2-517.
OPINION
Cheri Louisa Manor appeals her conviction by a jury of the offense of driving while intoxicated. The jury assessed her punishment at thirty days in the Grayson County Jail and recommended that she be placed on community supervision. The trial court then placed her on community supervision for two years. She contends in six points of error that the evidence is legally and factually insufficient to support her conviction and that the trial court erred in: (1) admitting evidence of her alcoholism and previous attendance at "rehab" in violation of TEX. R. EVID. 404(b); (2) admitting evidence that her horizontal gaze nystagmus (HGN) test showed that she was over the legal limit of intoxication; (3) refusing her requested jury charge on spoliation of evidence in regard to the State's loss of the videotape of her arrest; and (4) admitting hearsay evidence of the arresting officer that the missing videotape would substantiate his testimony. We affirm. Manor contends in points one and two that the evidence is legally and factually insufficient to support her conviction. In reviewing the legal sufficiency of the evidence, we consider all of the evidence in the record in the light most favorable to the trial court's verdict and determine whether, based upon that evidence and all reasonable inferences therefrom, any rational trier of fact could have found that appellant was guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App. 2004). Kameron Wayne Pierce testified that he is a highway patrolman for the Texas Department of Public Safety who is trained and certified in field sobriety testing and in the use of the Intoxilyzer 5000. He related that on December 30, 2000, he observed Manor making a wide right turn by going outside the right lane to make the turn. He acknowledged that he had in the past stopped a lot of sober people who did basically what Manor did. He said that, after stopping Manor, he smelled the odor of an alcoholic beverage coming from her vehicle and later detected a moderate odor of an alcoholic beverage on her breath. She later said she had drank a beer. Trooper Pierce explained how he conducted a HGN test. He indicated that the maximum number of "clues" one could see on the HGN test were six. He related that, with respect to Manor, he observed six clues. He stated that a portable intoximeter test, which registers the amount of alcohol in one's system and which he administered to Manor, did not change his opinion that she was intoxicated. Trooper Pierce testified that, when he asked Manor if she could stand on one leg, she said she could not. He said she refused to do the walk-and-turn test or other field sobriety tests. He related that after three tries Manor failed to recite the alphabet correctly. He could not remember how she erred. When asked why Manor would not perform some of the field sobriety tests, Trooper Pierce responded that she just told him all she wanted to do was go home and go to bed. He said that at one time Manor threw up outside his car. Trooper Pierce testified that Manor told him she had recently taken Valium and Amoxicillin for depression and admitted that she had been drinking beer. He indicated she would not say when her last drink was. He related that in his opinion Manor was intoxicated and had lost the normal use of her mental and physical faculties. He stated that in his opinion she lost the use of her mental and physical faculties because of the introduction of alcohol into her system. On cross-examination, Trooper Pierce acknowledged that Manor was having mood swings during the stop but insisted that they did not start until he placed her under arrest. He related that he did not know where his car's videotape of the stop was. Trooper Pierce stated that his college courses dealt with panic and anxiety disorders, but he could not remember what they said about it. He acknowledged that psychology or psychiatry was not part of his training with the Texas Department of Public Safety and that he had not conducted any psychological test on Manor. Dr. Robert Bryan Beck, a licensed psychologist, testified that he is familiar with what are commonly referred to as panic attacks. He described the condition as one in which the patients may feel like they are being attacked. He mentioned that the attack sometimes results in nausea and vomiting. He indicated that mood swings are a symptom of panic attacks. When asked if someone with a panic attack would be able to perform normal physical functions, he answered that "[t]heir responses would be very primitive and very reduced." He also related that someone with a panic attack might have difficulty in answering questions. He insisted that the HGN test was first developed to check the neurological soundness of the brain, not as a tool for making DWI stops. Dr. Beck testified that he had examined Manor. He indicated that he had administered tests, one of which showed that Manor had major depression without psychotic features, followed by a generalized anxiety disorder, while the other test showed a major depressive disorder, followed by a panic disorder. He stated that having panic attacks would be consistent with someone who has those problems. He said that, while he was not at the traffic stop and did not know if Manor was having a panic attack on that occasion, it would not surprise him if she were having one. He related that there were seven or eight chances in ten that she would have a panic attack in that situation. He insisted that he would not expect someone who was experiencing a panic attack to volunteer that information to someone witnessing the attack. He said that the symptoms of a panic attack are not always visible. On cross-examination, Dr. Beck acknowledged that he did not begin treating Manor until more than two years after her arrest. He also acknowledged that being calm is not a characteristic of a panic attack. Dr. Beck testified that people who suffer from panic disorders are more prone to abuse of alcohol and other drugs. He indicated that Manor had been in rehabilitation for a problem with alcohol. He stated that Valium mixed with alcohol increases the influence or effects on people. Manor testified that, after her husband died in 1998, she was diagnosed with depression and anxiety. She indicated that she suffers from panic attacks. She said that she was very frightened of policemen. She related that on the occasion in question she was upset and had drank a beer before leaving for the house of a friend. She indicated that she was also taking the drug Celexa. She denied ever having taken Valium. Manor testified that, when Trooper Pierce stopped her, she was okay at first but then lost it when he asked her to step out of the car. She acknowledged that, when he asked her to stand on one leg, she had to hold on to him to keep from falling. She related that she was feeling dizzy and light-headed. She said she told him that she needed to go to the bathroom and that she thought she was going to be sick. She indicated that she could not recall the HGN test or trying to recite the alphabet. She insisted that she did not know what she was signing when she signed the paper that advised her that if she refused a breath test her license would be suspended. She was unable to give any reason as to why she might have refused to answer several of Trooper Pierce's questions. She denied that she had ever been told that it was unsafe to mix alcohol with Celexa. On cross-examination, she acknowledged that she had been to alcohol rehab on two or maybe three occasions because of drinking and depression. She admitted that she had a problem with alcohol since the early 1990s. She said that the information that she was taking Valium could have come from her because she could not remember what she told Trooper Pierce. On redirect, Trooper Pierce insisted that Manor told him that she had taken Valium and Amoxicillin. He denied that she grabbed his arm as she got out of the car or that she "lost it" before he had even asked her to perform the field sobriety tests. He repeated his earlier testimony that everything was fine when he first arrested Manor but that she started mood swings from anger to calm after he placed her under arrest. He again insisted that he had not observed any hyperventilating, shaking, or trembling before the arrest. He said that he was familiar with panic disorder because his father-in-law has it and that he did not see any symptoms of the disorder. He admitted that he could not say Manor cannot have panic attacks if she does not act like his father-in-law. He also acknowledged that his report did not say that Manor was calm during the first part of their encounter. We hold that the evidence is legally and factually sufficient to support the conviction. We overrule points one and two. Manor urges in point three that the trial court erred by admitting evidence in violation of TEX. R. EVID. 404(b) of her alcoholism and attendance at alcohol rehabilitation. Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. The rule also provides that such evidence might be admissible for other purposes. Id. Such testimony is relevant apart from showing character conformity if it rebuts a defensive theory. Montgomery v. State, 810 S.W.2d 372, 388 (Tex.Crim.App. 1991). Manor's defensive theory is that she suffered generally from depression and panic attacks and that her suffering from such an attack caused her to appear intoxicated on the occasion in question. The State was then allowed to show a more complete picture of Manor's health — the fact that she also suffered from alcoholism. We hold that this testimony was properly admissible in order to rebut Manor's defensive theory. Manor relies on three cases: Vestal v. State, 402 S.W.2d 195 (Tex.Crim.App. 1966); Amoco Chems. Corp. v. Stafford, 663 S.W.2d 147 (Tex.App.-Houston [1st Dist.] 1983, no writ); and Langdon v. Mississippi, 798 So.2d 550, 556 (Miss.Ct.App. 2001). We have examined these cases and find all to be distinguishable because none involved the introduction of evidence of alcoholism to rebut a defensive theory that the actions of the defendant were caused by another physical illness. Manor also complains that the State never provided notice to her of its intent to introduce evidence of her alcoholism. Rule 404(b) provides that, in those instances when evidence of crimes, wrongs, or acts is admissible for a purpose other than to prove the character of a person in order to show action in conformity therewith, the State, where timely requested by the defendant, must give notice of its intent to introduce such evidence in its case-in-chief. Because the evidence of alcoholism of which Manor complains was introduced in cross-examination and not in the State's case-in-chief, the State was not required to give advance notice to Manor of its intent to introduce such evidence. Jaubert v. State, 74 S.W.3d 1, 4 (Tex.Crim.App. 2002). Manor's reliance on the cases of Buchanan v. State, 911 S.W.2d 11, 15 (Tex.Crim.App. 1995), and Webb v. State, 36 S.W.3d 164, 179 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd), is misplaced. In Buchanan, the evidence complained of was introduced during the State's case-in-chief. In Webb, the opinion gives no indication that the evidence complained of was not introduced during the State's case-in-chief. We overrule point three. Manor asserts in her fourth point that the trial court erred by admitting evidence that her HGN test showed that she was "over the legal limit." Trooper Pierce testified that, in connection with the HGN test, he generally moves the stimulus out to a 45-degree angle from in front of the nose and that, if there is a nystagmus prior to the 45-degree angle, the subject has an alcohol concentration over the legal limit. The trial court overruled Manor's objection that the HGN test was not admissible for the purpose of stating that someone is over or under the legal limit. Manor's objection was directed to testimony of Trooper Pierce that, if there is a nystagmus prior to the 45-degree angle, then the subject has an alcohol concentration over the legal limit. At that time, Trooper Pierce had not stated that Manor had a nystagmus prior to the 45-degree angle. Consequently, his testimony did not express, at that time, an opinion as to whether Manor had a nystagmus prior to the 45-degree angle or that her alcohol concentration was over the legal limit. Therefore, the trial court did not err in overruling Manor's objection that the HGN test was not admissible for the purpose of stating that someone was over the legal limit. Manor relies upon the case of Emerson v. State, 880 S.W.2d 759, 769 (Tex.Crim.App. 1994). In that case, the court held that a police officer should not be allowed to testify as to a defendant's exact blood alcohol concentration based on HGN results alone. Id. at 769. As we have noted, at the time of Manor's objection, Trooper Pierce had not testified that Manor's exact blood alcohol concentration had exceeded the legal limit or, in any other way, testified as to her exact blood alcohol concentration based on the HGN test results alone. It could be argued that Trooper Pierce did testify as to exact blood alcohol concentration based on the HGN test results alone when he subsequently presented testimony which could be interpreted as showing that Manor had nystagmus onset prior to a 45-degree angle. However, that testimony was presented without any objection. Manor relies upon Burkett v. State, 179 S.W.3d 18, 34 (Tex.App.-San Antonio 2005, no pet.); Webster v. State, 26 S.W.3d 717, 723 (Tex.App.-Waco 2000, pet. ref'd); and Youens v. State, 988 S.W.2d 404, 405-06 (Tex.App.-Houston [1st Dist.] 1999, no pet.). In all of these cases, at the time the testimony was given, it would have amounted to testimony that, as a result of the HGN test, the defendant's blood alcohol concentration exceeded the legal limit. Burkett, 179 S.W.3d at 34; Webster, 26 S.W.3d at 723; Youens, 988 S.W.2d at 406. In Webster, we assume that there had been testimony that the four clues had been observed during the defendant's HGN test because otherwise the court would not have held that the prosecutor's question correlated the defendant's performance on the HGN test to a conclusion that his blood alcohol concentration exceeded the legal limit. As previously noted, Manor objected to the State's question in the case at bar on the basis that the HGN test was not admissible for the purpose of stating that someone was over or under the legal limit. However, at the time Manor made this objection, there had been no testimony that Manor had nystagmus prior to the stimulus reaching a 45-degree angle; consequently, Trooper Pierce had not, at that time, indicated that Manor's blood alcohol concentration exceeded the legal limit because the officer had observed six clues during her HGN test. Later, when such testimony was offered, there was no objection. We overrule point four. Manor insists in point five that the trial court erred by not submitting an instruction to the jury with respect to spoliation of evidence. The State at trial failed to produce a videotape of the traffic stop in question. Trooper Pierce stated that he did not know where it was. A defendant in a criminal prosecution is not entitled to a spoliation instruction where there is no showing that the evidence was exculpatory or that there was bad faith on the part of the State in connection with its loss. White v. State, 125 S.W.3d 41, 43-44 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). Manor presents no authority to the contrary, and we are not aware of any. We overrule point five. Manor suggests in point six that the trial court erred by admitting Trooper Pierce's hearsay testimony that the missing videotape would substantiate his testimony. When asked whether in his opinion the missing videotape would substantiate the claims he was making in court, Trooper Pierce replied, "Sure." Manor's counsel then objected on the basis of hearsay. In order to be timely, an objection to an objectionable question must be made before the witness responds. Dinkins v. State, 894 S.W.2d 330, 355 (Tex.Crim.App. 1995). Where, as here, the objection is not made until after the witness responds to the objectionable question and the record does not reflect a legitimate reason to justify the delay, error is waived. Id. We overrule point six. The judgment is affirmed.