Opinion
NO. 01-17-00568-CR
07-10-2018
ERNESTO RAMIREZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from County Court at Law No. 2 Ellis County, Texas
Trial Court Case No. 1511338CR
MEMORANDUM OPINION
A jury found appellant, Ernesto Ramirez, guilty of the offense of driving while intoxicated (DWI), and the trial court assessed his punishment at ninety days in jail and a $1,000 fine. In two points of error, appellant contends that (1) the evidence is legally insufficient to support his conviction and (2) the trial court denied appellant his rights to due process and to confrontation when it sustained the State's objections to Defense Exhibit No. 1. We affirm.
Background
On August 14, 2015, appellant was charged by information with DWI. Appellant pleaded not guilty, and the case proceeded to trial on May 8, 2017.
Len Shultz, an Ellis County resident, testified that on May 15, 2015, at approximately 10:32 p.m., he heard a loud explosion, the power went out, and he then heard a crash. When Shultz went out to investigate, he saw a truck on the other side of his electric fence stuck on a mesquite tree stump.
When Shultz approached the truck, the driver was still seated in the truck. The driver told him that his cell phone had begun ringing, and that as he reached for it, it fell onto the passenger floorboard and he bent over to pick it up. Shultz testified that the first thing he noticed when the door opened was the smell of alcohol. The driver took off his seatbelt and immediately fell down into the mud next to the truck. Shultz, the driver, and an unidentified male at the scene began walking toward the highway.
As they approached the road, Shultz noticed that the large power lines were down for at least a quarter mile and strung out across the road, and that an electrical pole was broken in half. When Shultz asked the driver if he had been drinking, the driver told him that he had been drinking earlier that night. The driver told Shultz that he was hungry and had been heading into town to get a hamburger at Whataburger. Shultz testified that he could still smell the alcohol on the driver's breath while he spoke to him on the side of the road.
Shultz identified appellant as the driver of the truck. Appellant told Shultz that he wanted to walk home and "would take care of it in the morning" when he could get a tractor to pull the truck out. Shultz testified that appellant had slightly slurred speech, was very relaxed, and did not think that anything was wrong. Shultz testified that he believed appellant was intoxicated.
Deputy Charlie Littleton with the Ellis County Sheriff's Office responded to the accident. When Deputy Littleton arrived at the scene, he saw appellant and noticed a strong smell of alcohol coming from his body and that he was swaying and unsteady.
Chris Albrecht, a paramedic with CareFlite, responded to the crash and conducted a medical assessment of appellant. Albrecht told the trooper at the scene that he smelled alcohol on appellant and that appellant told him that he had consumed two shots.
When Trooper Huong Brackens with the Texas Department of Public Safety arrived at the crash scene, appellant told him that he was answering a call on his cell phone, dropped the phone, and was trying to retrieve it when he ran his vehicle off the road and struck the pole. Trooper Brackens smelled alcohol on appellant's breath and noticed that appellant's eyes were glassy and that he was swaying on his feet. When Trooper Brackens asked appellant if he had consumed any alcoholic beverages, appellant said he had consumed two shots.
Trooper Brackens testified that he received special training to conduct standardized field sobriety tests (SFST). He testified that he initially administered three tests to appellant: the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-leg stand test. Appellant exhibited six out of six clues of intoxication during the HGN test, six out of eight clues during the walk-and-turn test, and three out of four clues during the one-leg stand test. When appellant told Trooper Brackens that he had sustained prior injuries, the trooper conducted additional alternate tests: the finger count test and alphabet test. Based on appellant's performance on all five tests, the smell of alcohol emanating from appellant's breath, his unsteadiness, and his admission to consuming alcohol prior to driving, Trooper Brackens determined that appellant had lost the normal use of his mental or physical faculties due to intoxication.
During cross-examination, Trooper Brackens testified that not everyone who has an accident is intoxicated. He further stated that not everyone is going to demonstrate clues of intoxication and that everyone is different. During re-direct, the trooper testified that the driver's being under the influence of alcohol, the driver's failure to heed a warning sign, and distraction inside the vehicle were contributing factors to the crash.
Carlos Ramirez, III, appellant's nephew, testified that he had been appellant's employer for more than twenty years. He testified that appellant's reading and writing are not the best. He also testified that appellant had been in two vehicular accidents in Joplin, Missouri. Ramirez testified that appellant sways when he walks.
Brandi Dlabha testified that appellant worked for her trucking company on and off for eight to ten years. She testified that appellant is limited in his ability to speak English and characterized appellant's gait as bowlegged.
The trial court admitted the following exhibits at trial: (1) Google map printouts of the accident site; (2) photos of the accident site; and (3) Bracken's in-car video from the incident.
Sufficiency of the Evidence
In his first point of error, appellant contends that the evidence is legally insufficient to support his DWI conviction.
A. Standard of Review
We review appellant's challenge to the sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We examine all of the evidence in the light most favorable to the jury's verdict to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
The jury may reasonably infer facts from the evidence presented, credit the witnesses it chooses, disbelieve any or all of the evidence or testimony proffered, and weigh the evidence as it sees fit. See Canfield v. State, 429 S.W.3d 54, 65 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). An appellate court determines "whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). In viewing the record, direct and circumstantial evidence are treated equally. Id. at 13. An appellate court presumes that the factfinder resolved any conflicting inferences in favor of the verdict and defers to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.
B. Analysis
To support a conviction for driving while intoxicated, the State had to prove beyond a reasonable doubt that appellant was intoxicated while operating a motor vehicle in a public place. See TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2017). Intoxication is defined as "(A) not having the normal use of mental or physical faculties by reason of 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; or (B) having an alcohol concentration of 0.08 or more." See id. § 49.01(2) (West 2011).
Appellant argues that the evidence is insufficient because the State failed to prove what appellant's normal use of his mental and physical faculties were, and therefore, it did not prove that he had lost the normal use of his faculties. Appellant has not cited any authority in support of this proposition, nor are we aware of any. To the contrary, several courts of appeals, including this court, have addressed this issue and held that the State does not have to present evidence of a defendant's normal abilities. See Railsback v. State, 95 S.W.3d 473, 484 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd); Fogle v. State, 988 S.W.2d 891, 894 (Tex. App.—Fort Worth 1999, pet. ref'd); Reagan v. State, 968 S.W.2d 571, 572 (Tex. App.—Texarkana 1998, pet ref'd); Massie v. State, 744 S.W.2d 314, 316 (Tex. App.—Dallas 1988, writ ref'd). In Massie, the court stated:
We do not construe an allegation that appellant did not have normal use of his mental and physical faculties the same as an allegation that appellant did not have his normal use of his faculties. The former allegation does not require proof of the defendant's normal abilities. Rather, it means that the faculties which must be tested belong to appellant. If there was evidence that appellant could not use his faculties on the occasion in question, in the manner in which the normal non-intoxicated person would be able to use his faculties, the evidence is sufficient to convict him unless the jury finds that his inability to perform on that occasion is not due to intoxicants (e.g. diabetes; epilepsy).744 S.W.2d at 316 (emphasis in original).
Here, Shultz testified that he believed appellant was intoxicated based on the smell of alcohol emanating from him, his behavior, i.e., acting relaxed and as if nothing was wrong, and his slurred speech. Deputy Littleton testified that appellant was unsteady on his feet and smelled of alcohol. Albrecht testified that appellant smelled of alcohol and admitted that he had consumed two shots. Trooper Brackens testified that, based on appellant's performance on his sobriety tests and the alternate tests, the odor of alcohol emanating from appellant, his unsteadiness, and his admission to consuming alcoholic beverages prior to driving, he believed that appellant was intoxicated. The jury also saw the videotape of the interaction between the trooper and appellant as well as documentary evidence reflecting the extent of the damage caused by the accident.
The jury heard Carlos's and Brandi's testimony that appellant had difficulty understanding English and that he had previous injuries that may have contributed to the manner in which he walks. As the sole judge of the credibility of witnesses and the weight to give testimony, the jury was free to disbelieve their testimony in favor of the State's witnesses' testimony and could have found that appellant lacked normal use of his mental and physical faculties at the time of the accident due to intoxication. SeeCanfield, 429 S.W.3d at 65. Viewing the evidence in the light most favorable to the jury's verdict, and deferring to the jury's evaluation of the credibility and weight of the evidence, we find the evidence sufficient to support appellant's conviction. We overrule appellant's first point of error.
Evidentiary Ruling
In his second point of error, appellant contends that the trial court violated his due process rights and his right to confrontation when it granted the State's objection to Defendant's Exhibit No. 1.
During cross-examination, Trooper Brackens testified that he administered SFSTs to appellant on the night in question. He further testified that he did not use a SFST scoring sheet, known as THP 1A, while administering the tests to appellant. He stated that the SFPTs are not governed by the THP 1A but, rather, come from the National Highway Transportation and Safety (NHTSA) manual. Trooper Brackens was unable to confirm whether Defendant's Exhibit No. 1 was the same THP 1A in effect on May 15, 2015, because it did not have a date on it. When trial counsel attempted to offer the THP 1A into evidence, the State objected and challenged the documents on authenticity and relevance grounds. The trial court sustained the State's objections but allowed trial counsel to ask the trooper questions about the document.
To preserve error in the exclusion of evidence, the proponent must make an offer of proof and obtain a ruling, unless the substance was apparent from the context. See TEX. R. EVID. 103(a)(2). To preserve error for appellate review, the record must show that the objection "stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." TEX. R. APP. P. 33.1(a)(1)(A). The party complaining on appeal about a trial court's admission, exclusion, or suppression of evidence must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence or rule or statute in question and its precise and proper application to the evidence in question. Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005). It is not enough to tell the judge that the evidence is admissible, the proponent must have told the judge why the evidence was admissible. See id. (noting issue is not whether trial court's ruling is legally correct, but "whether the complaining party on appeal brought to the trial court's attention the very complaint that party is now making on appeal").
Here, appellant never complained to the trial court that the exclusion of Defendant's Exhibit No. 1 violated his due process rights or his right to confrontation. The record reflects that the trial court sustained the State's objections on authenticity and relevance grounds, and trial counsel did not object to the ruling on constitutional grounds. Thus, the trial court never had an opportunity to rule on appellant's rationale for seeking admission of the evidence that he now raises on appeal. See Clark v. State, 365 S.W.3d 333, 340 (Tex. Crim. App. 2012) (concluding that trial court should know when it is being asked to make constitutional rulings because constitutional error is subject to much stricter harm analysis on appeal). Further, appellant did not make an offer of proof setting forth the substance of any excluded testimony to permit us to review for harm. See TEX. R. EVID. 103(a)(2). Because appellant failed to preserve error with regard to his constitutional claims, he has waived these complaints for appellate review. We overrule appellant's second point of error.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Justices Bland, Lloyd, and Caughey. Do not publish. TEX. R. APP. P. 47.2(b).