Opinion
No. 08-03-00497-CR
September 22, 2005. DO NOT PUBLISH.
Appeal from the County Court at Law No. 1 of El Paso County, Texas, (Tc# 20020C16043).
Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
OPINION
This is an appeal from a jury conviction for the offense of driving while intoxicated. The jury assessed punishment at 180 days' confinement and a fine of $2,000. We affirm the judgment of the trial court.
I. SUMMARY OF THE EVIDENCE
The evidence at trial revealed that on September 23, 2002 at 2:27 a.m., Deputy Julio Cesar Gonzalez of the El Paso County Sheriff's Department, and his partner, Deputy Jose Luis Hernandez, were patrolling near the 1800 block of Fabens Street in El Paso County, Texas. Appellant's vehicle passed them going the other direction with his hazard lights on. Deputy Gonzalez saw Appellant pull over to the side of the road, and he made a U-turn to aid Appellant because Deputy Gonzalez thought Appellant was flagging the officers down due to car problems. Appellant had stopped his vehicle half on and half off the road creating a dangerous situation. When Deputy Gonzalez approached Appellant, he stated that his wife was in labor and he was going to get her to take her to the hospital. He asked the officers for an escort. Deputy Hernandez responded that they did not usually provide such a service. The officer noticed that Appellant's eyes were red, his speech was slurred, and he smelled of alcohol. There was a beer bottle between his legs. Appellant was asked to get out of the car. As Deputy Gonzalez and Appellant were walking toward the patrol car, the deputy asked Appellant if he had been drinking. Appellant responded that he had consumed two beers and that the deputy had seen him earlier at Rodarte's Bar. Deputy Gonzalez told Appellant that he was going to administer a field-sobriety test. No Miranda warnings were administered prior to the testing. At that juncture, and not in response to any questioning, Appellant stated that he had consumed six beers. The first test given to Appellant was the Horizontal Gaze Nystagmus test. The results of that test indicated that Appellant was intoxicated. Next, Deputy Gonzalez administered the walk-and-turn test, and then the one-legged stand test. The results of both those tests indicated Appellant was intoxicated. As a result of the tests and from observing Appellant's demeanor, the deputies concluded that Appellant was intoxicated and his mental and physical faculties were impaired. Appellant was taken to the El Paso County Sheriff's Station where he was Mirandized and subsequent sobriety tests were performed. Both officers testified that Appellant exhibited signs of intoxication during those tests. Appellant did not consent to a breath test. Appellant's common-law wife, Angelica Sanchez, testified on Appellant's behalf. She stated that Appellant was at his grandmother's house for a family gathering on September 23. She did not attend the gathering as she was near delivery and she required bed rest. She testified that she spoke with Appellant by phone at about 1 a.m. Appellant did not seem to be intoxicated. Later she called Appellant to take her to the hospital because Appellant had the only car. However, Appellant was arrested and the car was towed to her residence. When the car arrived she and her mother drove to the hospital at approximately 7 a.m. She did not find any beer in the car; although she may not have noticed any beer due to her feeling labor pains. She noted that Appellant had previously dislocated his ankle and he had removed his cast before he was supposed to. Ana Chavez testified that she was at the party attended by Appellant. She stated that Appellant had several beers and he did not consume any beer thereafter. She stated that it was possible that Appellant consumed more beer during a period when she was gone from the party. Chavez related that when she returned to the party, Appellant told her he needed his car which she had borrowed because his wife was in labor. During the charge conference, Appellant argued that the statements he made to the officers were made during custodial interrogation and were inadmissible. He requested the following jury instruction:On instruction of evidence the law provides that no evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas or the Constitution or laws of the United States of America shall be admitted in evidence against the accused in a trial in any criminal case.
Before you consider the testimony of . . . Deputy Gonzalez and Hernandez regarding statements of the defendant, if any, you must first find and believe beyond a reasonable doubt that the statements were voluntarily made. Unless the jury so believes beyond a reasonable doubt the jury shall not consider such statements for any purpose or any evidence obtained as a result thereof.The court denied Appellant's request. Appellant also requested a jury instruction on the defense of necessity, which stated:
[Y]ou are instructed that conduct is justified if the actor reasonably believes the conduct is immediately necessary to avoid imminent harm and that the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct.
The term conduct means an act or omission and its accompanying mental state.
A reasonable belief means a belief that would be held by an ordinary and prudent person in the same circumstance as the actor.
By the term ordinary standards of reasonableness is meant the standards that an ordinary and prudent person would apply to the circumstances that the actor faced.
Now, if you find from the evidence beyond a reasonable doubt on the occasion in question the defendant did operate a motor vehicle while intoxicated, but you further find from the evidence or you have a reasonable doubt thereof that at the time of such conduct by defendant, if any, the defendant reasonably believed that such conduct on his or her part was immediately necessary to avoid imminent harm to wit: To prevent . . . harm to the wife and unborn child.The court denied the requested instruction. During closing argument at the guilt-innocence stage of trial, the following exchange occurred:
STATE: Now, as jurors you're entitled to consider all the evidence in this case. Well, obviously, your job is to consider all the evidence in this case, but one piece of evidence that you are entitled to consider is the fact that the defendant refused to give a sample of his breath, okay? The refusal to take a breath test can be considered by you as evidence of his guilt. And why is that so? A sample of his breath or a sample of his blood could exonereate him, right? If he had not been drinking —
DEFENSE: Judge, this is a comment on his rights not to submit to the breath test.
COURT: The objection is going to be sustained.
DEFENSE: We ask for a mistrial at this point, Your Honor.
COURT: Pardon me?
DEFENSE: We ask for a mistrial.
COURT: Overruled. Ladies and gentlemen of the jury, I'm going to instruct you at this point to disregard attorney's last remark as far as the matter being evidence of guilt. The law permits you to draw whatever inference you might want to draw from his refusal to take that breath test, you can make whatever inferences you like, but the fact that he did not take the breath specimen test is not evidence of guilt whatsoever.
STATE: Thank you, Your Honor. I apologize for misstating the law. You're able to deduce from that evidence that he — I mean you're able to consider it. And I would submit to you that the defendant's refusal to give a sample of his breath to be scientificly [sic] tested would have proven that he was intoxicated.
DEFENSE: Same objection, Your Honor, still a comment and ask for a mistrial.
COURT: I'm going to sustain the objection. And, again, ladies and gentlemen of the jury, you will disregard the prosecutor's last comment as to what that would have shown. And again I will instruct you that you can make whatever inferences you like, you can do whatever you want with that detail of refusing to take the breath test, draw your own inferences but once again that's not evidence of guilt. Motion for mistrial is overruled.
II. DISCUSSION
In Issue No. One, Appellant asserts that the court erred by allowing incriminating statements made by Appellant before he was Mirandized to come before the jury through the testimony of the deputy sheriff. Specifically, Appellant contends that the deputies had concluded Appellant was intoxicated prior to the administration of any sobriety tests; therefore, the questioning concerning what, if anything, Appellant had to drink was a custodial interrogation, and the statements should not have been admitted due to the failure to provide the requisite Miranda warnings. Appellant also maintains that his failure to object to the statements does not bar this Court's consideration of the issue on appeal as the error deprived Appellant of a fair and impartial trial. Regarding the last contention, as a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion, and the trial court ruled on the request, objection, or motion. Tex.R.App.P. 33.1(a)(1) and (2); Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App. 1999). Further, a party must continue to object every time inadmissible evidence is offered. Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991); Gillum v. State, 888 S.W.2d 281, 285 (Tex.App.-El Paso 1994, pet. ref'd); Tex.R.App.P. 33.1. Error in the admission of evidence is cured when the same evidence is admitted elsewhere without objection. Ethington, 819 S.W.2d at 858; Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App. 1984). In the present case, Appellant did not object when Deputy Gonzalez testified that Appellant first stated that he had had two beers, and then six beers, and that the deputy had seen him at Rodarte's Bar. While Appellant did object later when Deputy Hernandez testified that Appellant had stated that he had come from Rodarte's Bar, Deputy Gonzalez had already testified to that matter without objection thereby curing error, if any, that occurred in admitting the testimony. Ethington, 819 S.W.2d at 858. However, Appellant asserts that this Court should determine that this was a fundamental error effecting substantial rights thereby obviating the necessity of bringing the matter to the court's attention at trial. See Blue v. State, 41 S.W.3d 129, 131 (Tex.Crim.App. 2000). In Blue v. State, upon which Appellant relies in claiming fundamental error, the trial court's comments were an egregious violation of defendant's rights. There, the court inexplicably told the venire panel that the defendant had received a plea offer and was contemplating whether to accept it and plead guilty. Blue, 41 S.W.3d at 130. The trial court stated that he would "prefer" that the defendant plead, implying that the plea should be one of guilty. Id. Then the trial judge attempted to explain why a defendant, though innocent, might decide to not testify. Id. In his explanation, he included an illustrative example of an attorney, putting a guilty "Sister Teresa" on the stand because she looks so innocent and "nobody thinks she would tell a lie." Id. Defendant Blue did not object to any of these statements. Id. The Court of Criminal Appeals, by a plurality, found that the trial judge's comments tainted the presumption of innocence of the defendant, and that such comment was fundamental error of constitutional dimension not requiring objection at trial. Blue, 41 S.W.3d at 129, 132. Two judges concurred, finding that the judge's comments violated the right to an impartial judge or an impartial tribunal. Id. at 135. Clearly, comments that taint the defendant's presumption of innocence are fundamental and require no objection. United States v. Lanham, 416 F.2d 1140, 1143-44 (5th Cir. 1969). Likewise, the right to an impartial judge or tribunal has always been recognized. U.S Const. amend. V, VI; Tex. Const. art. I, §§ 10, 19. It is because these rights were implicated that the comments were held to be fundamental and subject to assertion for the first time on appeal. Oulare v. State, 76 S.W.3d 231, 233 (Tex.App.-Amarillo 2002, no pet.). Nevertheless, in Blue, one writer warned that the judge's comments were "so egregious" as to deem him biased and that the case was "highly unique and litigants should not view this holding as an invitation to appeal without making proper, timely objections." Blue, 41 S.W.3d at 139. Declaring an error to be so fundamental as to require no objection during trial is something we must approach with great caution. This caution is reflected in several opinions distinguishing Blue. See Saldano v. State, 70 S.W.3d 873, 889 (Tex.Crim.App. 2002) (equal protection and due process violations in admission of expert testimony that race and ethnicity were a factor in determining future dangerousness was not fundamental error); Oulare, 76 S.W.3d at 233-34 (comments of trial judge purportedly implying that police officers were telling the truth and that identified the jurors as "a vital part of our government" was not fundamental error). We note that in Saldano, the Court of Criminal Appeals stated that they had consistently held that the failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence. Saldano, 70 S.W.3d at 889 (citing Gauldin v. State, 683 S.W.2d 411, 413 (Tex.Crim.App. 1984) (statements obtained in violation of Miranda must be objected to), overruled on other grounds, State v. Guzman, 959 S.W.2d 631, 634 (Tex.Crim.App. 1998)). Accordingly, Appellant has waived his contention on appeal and Issue No. One is overruled. In Issue No. Two, Appellant argues that the court erred by refusing to grant Appellant's requested instructions in the court's charge. As stated, Appellant requested instructions on the voluntariness of the statements made to the deputies and on the defense of necessity. Generally, when evidence from any source raises a defensive issue and the defendant properly requests a jury charge on that issue, the trial court must submit the issue to the jury. Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App. 1993) (citing Moore v. State, 574 S.W.2d 122, 124 (Tex.Crim.App. 1978)). The trial court must instruct the jury to disregard illegally obtained evidence if the defendant raises a fact issue concerning the manner in which the evidence was obtained and requests the instruction. Thomas v. State, 723 S.W.2d 696, 707 (Tex.Crim.App. 1986). The evidence which raises the issue may be strong, weak, contradicted, unimpeached, or unbelievable. Muniz, 851 S.W.2d at 254 (citing Sanders v. State, 707 S.W.2d 78, 80 (Tex.Crim.App. 1986)). Further, article 38.23(a) provides that in any case where a party raises an issue regarding whether evidence was obtained in violation of the laws of Texas or the United States, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained because of such a violation, then the jury shall disregard any such evidence. Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Id. Article 38.22 of the Texas Code of Criminal Procedure codifies Miranda's procedural safeguards. Article 38.22 prohibits the admission of a written or oral statement made as a result of custodial interrogation by an accused in a criminal proceeding without the warnings required by Miranda. Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2, 3 (Vernon 2005). However, article 38.22, section 5 of the Code of Criminal Procedure states that nothing in article 38.22 precludes the admission of a statement that is either: (1) res gestae of the arrest or offense; (2) a statement that does not stem from custodial interrogation; or (3) a voluntary statement, whether or not the result of custodial interrogation. Tex. Code Crim. Proc. Ann. art. 38.22, § 5 (Vernon 2005). The State maintains that Appellant's two statements to the deputies did not stem from a custodial interrogation. We agree. Facts similar to those in the instant case are found in Berkemer v. McCarty, 468 U.S. 420, 422-23, 104 S.Ct. 3138, 3141-42, 82 L.Ed.2d 317 (1984), and in Pennsylvania v. Bruder, 488 U.S. 9, 109 S.Ct. 205, 102 L.Ed.2d 172 (1988). In Berkemer, the United States Supreme Court considered the admissibility of statements elicited from a motorist during a routine traffic stop. There, the trooper observed a car weaving in and out of a lane on IH 270. The trooper followed the driver for two miles, stopped him, and asked him to get out of the car. Noticing the suspect was having difficulty standing, the trooper concluded he was going to charge the suspect with a traffic offense, although he did not communicate that fact to the suspect at that point in time. The trooper then asked the driver to perform a field-sobriety test, which the driver could not do without falling down. The trooper asked the suspect if he had been using intoxicants, and the suspect replied he had consumed two beers and smoked marijuana a short time before. The suspect's speech was slurred. The trooper then placed him under arrest. Berkemer, 468 U.S. at 423, 104 S.Ct. at 3141-42. The Supreme Court held that the traffic stop under those facts did not constitute custody for Miranda purposes. Id. at 440, 104 S.Ct. at 3150. Features of an ordinary traffic stop that mitigate the dangers associated with questioning in such a circumstance are the presumptively brief and temporary nature of the stop, the presence of usually one or at most two policemen, and the public nature of the stop (at least to some degree). Id. at 437-39, 104 S.Ct. at 3148-50 (citing Miranda, 384 U.S. at 467, 86 S.Ct. at 1624). As pointed out by Berkemer, the ordinary traffic stop is substantially less "police dominated" than other kinds of interrogation. Id. The Texas Court of Criminal Appeals adopted the Berkemer analysis in State v. Stevenson, 958 S.W.2d 824, 828 (Tex.Crim.App. 1997). In Stevenson, the driver of a motor vehicle and his wife were involved in a one-car accident with a road sign. Id. at 825. An officer arrived on the scene to conduct an accident investigation. Id. The officer asked the driver who was driving the car. Id. The driver responded that his wife was driving. Id. The officer then asked the driver's wife the same question, and she gave him the same response. Id. During the subsequent investigation, the officer noticed that the driver's wife was injured in a way consistent with her being the passenger. Id. The officer then asked again who had been driving. Id. The driver admitted that he had been driving. Id. The officer noticed that the driver smelled of alcohol and when he administered field-sobriety tests on the driver, the driver failed. Id. The driver was then arrested but he was not given Miranda warnings before his arrest. Id. at 825-26. After recognizing the Supreme Court's holding that a routine traffic stop does not constitute "custody" for purposes of Miranda, the Stevenson court also addressed the issue of when subsequent events may cause a non-custodial encounter to escalate into custodial interrogation. Police conduct during an encounter may cause a consensual inquiry to escalate into custodial interrogation. Ussery v. State, 651 S.W.2d 767, 770 (Tex.Crim.App. 1983). The court acknowledged that "[i]f a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him `in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda." Berkemer, 468 U.S. at 440, 104 S.Ct. at 3150. In determining whether a non-custodial encounter has escalated into custodial interrogation, the Stevenson court made reference to four factors discussed in Dowthitt v. State, 931 S.W.2d 244 (Tex.Crim.App. 1996): (1) when the suspect is physically deprived of his freedom of action in any significant way; (2) when law enforcement officers tell a suspect that he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Id. at 255. In the first, second, and third situations, the restrictions upon freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention. Id. With regard to the fourth scenario, the officers' knowledge of probable cause must be manifested to the suspect. The court in Stevenson concluded that the mere fact that a suspect becomes the focus of a criminal investigation does not convert a roadside stop into an arrest, and that the investigation in Stevenson was no more intrusive than the fact situation in Berkemer. Stevenson, 958 S.W.2d at 829. The determination of whether one is in custody is based entirely upon objective circumstances, not subjective belief. Id. (citing Dowthitt, 931 S.W.2d at 254-55). The determination is made on an ad hoc basis, after considering all of the objective circumstances. Shiflet v. State, 732 S.W.2d 622, 629 (Tex.Crim.App. 1985). In the present case, the deputies were in the process of investigating a DWI case when Deputy Gonzalez asked Appellant if he had been drinking. Appellant responded that he had consumed two beers. When Appellant was told that the deputies were going to administer field-sobriety tests, Appellant volunteered that he had consumed six beers and had been at Rodarte's Bar earlier. Appellant was not arrested until after he failed the field-sobriety tests. Under these circumstances, those conversations were not in response to a custodial interrogation. As such, the deputies were not required to give Miranda warnings at that juncture. The court did not err in failing to give an instruction on the voluntariness of Appellant's statements. Appellant's next assertion is that the court erred in failing to give the requested instruction on necessity. Tex. Penal Code Ann. § 9.22 (Vernon 2003) provides:Conduct is justified if:
(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and
(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.If evidence from any source, be it strong, weak, unimpeached, or contradicted, raises a defensive theory, it must be included in the court's charge. Hayes v. State, 728 S.W.2d 804, 809 (Tex.Crim.App. 1987). Imminent means something that is impending, or that is on the point of happening, not about to happen. See Darty v. State, 994 S.W.2d 215, 218-19 (Tex.App.-San Antonio 1999, pet. ref'd); Garcia v. State, 972 S.W.2d 848, 849 (Tex.App.-Beaumont 1998, no pet.). Moreover, in order to raise the defense of necessity, a defendant must admit he committed the offense charged and then offer necessity as a justification. See Young v. State, 991 S.W.2d 835, 839 (Tex.Crim.App. 1999). In this instance, there must be evidence that Appellant reasonably believed that driving his car while intoxicated was necessary to avoid imminent harm. Harm is imminent when there is an emergency situation and it is "immediately necessary" to avoid that harm. In other words, a split-second decision is required without time to consider the law. Jackson v. State, 50 S.W.3d 579, 595 (Tex.App.-Fort Worth 2001, pet. ref'd). Further, there must be evidence that Appellant was faced with an urgent need to avoid harm that outweighed the harm sought to be prevented by driving while intoxicated. Garcia, 972 S.W.2d at 850. Initially, we note that Appellant did not admit to the offense. He pleaded not guilty and put a witness on the stand who testified that Appellant had not been drinking prior to leaving the party in his car. On that basis, Appellant was not entitled to an instruction on necessity. See Maldonado v. State, 902 S.W.2d 708, 712 (Tex.App.-El Paso 1995, no pet.). Furthermore, even if we assume that the harm was impending, a reasonable person in the same circumstances would have called someone else or an ambulance to transport a woman in labor to the hospital if such harm was imminent rather than drive her to the hospital while intoxicated. Accordingly, Appellant has failed to present any evidence that he reasonable believed that his criminal conduct was immediately necessary to avoid any alleged harm. The court did not err in denying Appellant's requested instruction on necessity. Issue No. Two is overruled. In Issue No. Three, Appellant maintains that the prosecutor utilized improper jury argument. Particularly, Appellant asserts that in making the above-referenced comments, the prosecutor made impermissible arguments to the jury about their being able to consider Appellant's refusal to take the breath test as being evidence of guilt. Appellant seems to primarily couch his argument in terms of prosecutorial misconduct. Claims of prosecutorial misconduct are determined on a case-by-case basis. Stahl v. State, 749 S.W.2d 826, 830 (Tex.Crim.App. 1988); Perkins v. State, 902 S.W.2d 88, 96 (Tex.App.-El Paso 1995, no pet.). Prosecutorial misconduct has been found where the prosecutor's actions deliberately violated an express court order and where the prosecutor's misconduct was so blatant as to border on being contumacious. Stahl, 749 S.W.2d at 831 (citing Landry v. State, 706 S.W.2d 105, 111 (Tex.Crim.App. 1985), cert. denied, 479 U.S. 871, 107 S.Ct. 242, 93 L.Ed.2d 167 (1986)). However, where a defendant does not object on the basis of prosecutorial misconduct, any error is waived. Accordingly, as Appellant did not object on that ground, he has waived this contention on appeal. Even if Appellant had preserved this issue on appeal, we note that by statute, a defendant's refusal to take a breath test is admissible in evidence. Tex. Transp. Code Ann. § 724.061 (Vernon 1999). The United States Supreme Court has determined that the refusal to take a breath test is admissible and does not violate the privilege against self-incrimination. South Dakota v. Neville, 459 U.S. 553, 564, 103 S.Ct. 916, 923, 74 L.Ed.2d 748 (1983). In addition, it is not fundamentally unfair for the refusal to be considered as evidence of guilt. Id. at 565-66, 103 S.Ct. at 923-24. Texas courts have further held that it is proper for a trial court to instruct the jury that breath test refusal is evidence of guilt. See Bright v. State, 865 S.W.2d 135, 137 (Tex.App.-Corpus Christi 1993, pet. ref'd); Finley v. State, 809 S.W.2d 909, 913 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd). As such, we overrule Issue No. Three. Having overruled each of Appellant's issues on review, we affirm the judgment of the trial court.