Opinion
NO. 01-17-00172-CR
03-27-2018
JUSTO TREVINO-GARZA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court Harris County, Texas
Trial Court Case No. 1421286
MEMORANDUM OPINION
A jury found appellant, Justo Trevino-Garza, guilty of the third-degree felony offense of driving while intoxicated (DWI), enhanced by two prior DWI convictions, and assessed his punishment at three years' confinement and a $500 fine. In two points of error, appellant contends that (1) the evidence is insufficient to support his conviction and (2) the trial court erred in overruling his objections to the State's jury argument. We affirm.
Background
Ramiro Rodriguez testified that on the evening of March 16, 2014, he was driving with his son and daughter-in-law in a residential area near his home. While Rodriguez was stopped at a stop sign, a car rear-ended his vehicle. Rodriguez testified that the other driver put his car in reverse, turned around, and quickly drove away. Rodriguez turned around and followed the car. He testified that the other car then lost control and drove into a ditch. Rodriguez testified that appellant was the person driving the other car.
Rodriguez stopped his vehicle and watched as appellant emerged from the car. When Rodriguez approached appellant and asked him why he ran away after colliding with Rodriguez's vehicle, appellant responded, "I will fix it. I will take care of it." Rodriguez testified that appellant slurred his words and "appeared to have been drinking," and that he saw a case of beer and empty bottles in appellant's car. When Rodriguez told appellant that he was going to call the police, appellant abruptly began walking down the street.
Carina Trevino, Rodriguez's daughter-in-law, testified that on March 16, 2014, she, her husband, and Rodriguez were driving when another vehicle hit Rodriguez's car from behind. When the other driver turned around and drove away, they followed the car until it fell into a ditch. Trevino testified that appellant got out of the car and that no one else emerged. Trevino saw some people at a nearby gathering help pull appellant's car out of the ditch.
Officer Brian Ridings with the Pasadena Police Department testified that on March 16, 2014, he responded to a call of a man lying down in the street. When he arrived, he found appellant about one block from the accident site. Officer Ridings testified that appellant was "highly intoxicated . . . had a staggered stance[,] . . . a strong odor of alcohol coming from his breath and person [and] was bloody." Officer Ridings testified that because he does not speak Spanish, he asked another DWI task force officer to speak with appellant. Officer Ridings testified that he checked appellant's vehicle registration and verified that the car was registered to the same address listed on appellant's driver's license. Officer Ridings testified that he did not see a juvenile at the scene, and that if he had, he would have documented that information in his offense report.
DWI Task Force Officer Anthony Maldonado testified that he responded to the accident call. When Officer Maldonado approached, he observed that appellant had red, watery eyes and he smelled a strong odor of alcohol on appellant's breath. Appellant also exhibited thick, slurred speech that made it difficult to understand what he was saying. Appellant admitted to Officer Maldonado that he had consumed eight beers. Officer Maldonado administered three standardized field sobriety tests (SFST) to appellant: the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-leg stand test. Based on appellant's physical signs of intoxication and the clues he exhibited during the SFSTs, Officer Maldonado determined that appellant was impaired and had lost the use of his physical and mental faculties, and he arrested him for driving while intoxicated. Appellant subsequently provided breath test specimens which revealed a breath-alcohol concentration (BAC) of 0.220 and 0.219 g/210L, greater than the legal limit of 0.08.
Justo Trevino, Jr., appellant's son, testified at trial. He was fifteen years old at the time of the incident. Justo Jr. testified that during a party at his family's house, his mother told him to take his father to the store because he was the only one who had not been drinking. Justo, Jr. testified that while driving appellant's car, with appellant in the passenger seat, he slid off the road into a ditch. He testified that he did not hit another car while driving. Justo Jr. stated that he ran back home and left his father behind because he was scared. He testified that when he returned to the car to try and pull it out of the ditch, an officer told him to go back home. Justo Jr. did not tell the officer that he had been driving the car.
Sufficiency of the Evidence
In his first point of error, appellant contends that the evidence is insufficient to support his conviction for driving while intoxicated, third offender. Specifically, appellant argues that the State failed to prove that he was the person operating his vehicle at the time of the accident.
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).
Appellant frames his complaint as a challenge to both the legal and factual sufficiency of the evidence. In Brooks v. State, the Texas Court of Criminal Appeals determined that a legal sufficiency standard of review is "indistinguishable" from a factual sufficiency standard of review. 323 S.W.3d 893, 902 (Tex. Crim. App. 2010).
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. See id. at 13. Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and a conviction for the offense of driving while intoxicated may be supported solely by circumstantial evidence. See Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010); Hooper, 214 S.W.3d 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
Appellant was charged with the enhanced offense of operating a motor vehicle in a public place while intoxicated with two previous convictions for that offense. See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (West Supp. 2017). Thus, the State had to prove that appellant was intoxicated while operating a motor vehicle in a public place. See TEX. PENAL CODE ANN. § 49.04(a). Appellant disputes only whether the evidence was sufficient to identify him as the person operating his car. In this regard, he argues that neither Rodriguez nor Trevino was able to identify him as the individual who was driving the other car, and that his son, Justo Jr., testified that he was the driver.
At trial, Rodriguez identified appellant as the driver and sole occupant of the car that rear-ended Rodriguez's vehicle at the stop sign. He further testified that appellant was the only person who emerged from appellant's car after he lost control and drove the car into a ditch. Trevino testified that although she did not see appellant until he climbed out of his vehicle, no one else emerged from the car. Justo Jr. testified that he, not appellant, was driving appellant's car when it careened into the ditch, and that he did not tell police that he was the driver. Officer Ridings testified that he did not see a juvenile at the scene, and that he would have included that information in his offense report if he had.
As the sole judge of the credibility of witnesses and the weight to give their testimony, the jury was free to disbelieve Justo Jr.'s testimony in favor of Rodriguez's and Trevino's accounts that appellant was the person operating his car and the only person who emerged from the car after the accident. See Canfield, 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 establish appellant's identity as the operator of appellant's vehicle at the time of the collision. See Holder v. State, 354 S.W.2d 153, 154-55 (Tex. Crim. App. 1962) (concluding evidence was sufficient to show that defendant was driver of automobile where evidence showed that defendant was seated behind steering wheel of automobile shortly after it collided with bridge and no other occupants were shown to have been in automobile); Conelly v. State, 451 S.W.3d 471, 475-76 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (finding evidence sufficient to identify defendant as operator of vehicle that off-duty police officer saw; officer testified he saw single occupant in red sport utility vehicle driving erratically, he stayed behind car, called 911, and maintained visual contact with vehicle, and when deputy constable arrived, defendant was seated behind wheel and was only person in vehicle); see also MacNeil v. State, No. 08-10-00161-CR, 2011 WL 3849419, at *3 (Tex. App.—El Paso Aug. 31, 2011, no pet.) (not designated for publication) (finding evidence sufficient that defendant was driver where, among other things, witness testified that she saw defendant sitting in driver's seat and that defendant was only person in or around vehicle, and she did not see anyone leaving scene of accident). Accordingly, we overrule appellant's first point of error.
Jury Argument
In his second point of error, appellant complains that the trial court erred in overruling his objections to the State's closing arguments.
A. Standard of Review and Applicable Law
A trial court's ruling on an objection to improper jury argument is reviewed for abuse of discretion. Nzewi v. State, 359 S.W.3d 829, 841 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd). "Permissible jury argument falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement." Gallo v. State, 239 S.W.3d 757, 767 (Tex. Crim. App. 2007); see also Dukes v. State, 486 S.W.3d 170, 183 (Tex. App.—Houston [1st Dist.] 2016, no pet.).
A reviewing court must consider a challenge to the State's closing argument in the context of the entire record, including the complete arguments of both parties, to determine whether the contested statements fall within the scope of these four categories. Klock v. State, 177 S.W.3d 53, 64 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd). Wide latitude is allowed in drawing inferences from the evidence, so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). An argument exceeding the permissible bounds of the four approved areas of argument constitutes reversible error only if an analysis of the record as a whole shows the argument is extreme or manifestly improper, violates a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).
B. Analysis
Appellant contends that portions of the State's closing argument improperly sought to introduce speculation and matters outside of the record and, in doing so, deprived appellant of his right to a fair trial.
The parties argued, in relevant part, as follows:
[Defense Counsel]: Now, ladies and gentlemen, looking at the facts that we have. The theory we have right there is the only one that truly makes sense.
Ladies and gentlemen, you have a very good seasoned prosecutor, Christine, who was cross-examining a 17-year-old boy. He was never rattled. His story stayed consistent. He answered every question she could think of logically because he was telling the truth. That is how you know because he could explain why were you driving and not your father. He answered every question clearly and consistently because it was the truth.
. . . .
[Prosecutor]: You know, what doesn't make sense is, what, 16 minutes that we have for the car to be gone and Justo to be gone according to Justo, Jr., his timeline doesn't make sense.
[Defense counsel] tries to pretend that this poor boy had answers for all of my questions. None of his answers made sense. None of his answers was supported by reason.
If you are doing something wrong for your dad to get more beer, he would not be mad at you if you drove into a ditch. If you lived in a neighborhood for seven years; and you regularly traversed these streets, you would not drive into a ditch to begin with.
Why did these things not have any reason to them because they are lies. They are things that are made up so that his son can protect him. Furthermore, he is saying that instead of checking on his father after he drove into the ditch for the very first time after his first accident, he didn't even really check with his father to help him out of the car or to make sure that he was okay.
All he did was run back to the house; and by the time he comes back, miraculously dad is gone. He doesn't know what happened to the car, and the police follows him back to his house.
Do you remember the testimony from the police officers?
None of them said anything about going to a house. They only said they checked the address for the defendant and that is how they were able to get that address.
Members of the Jury, I submit to you that didn't happen. If they had spoken with [appellant's wife] and she had told them that Justo, Jr., was driving, we would not be here today.
[Defense Counsel]: We object to things that are not in evidence.
[The Court]: You are the fact finders, ladies and gentlemen. Arguments of either lawyer are [sic] evidence.
. . . .
[Prosecutor]: And it took this man the entire length of that time and the time before to start thinking up an excuse. So that is why Justo, Jr., never came up and told the police anything because he didn't know that he was supposed to have been driving. He didn't know that he was supposed to go and tell the officers, "Oh, I was driving," because he wasn't driving.
That is an actual thing that you would do if you saw that your dad was gone, and you had just wrecked your car, and there are officers there. You would tell them, "It was me," you know; and it is not like dad hasn't gotten in trouble for driving while intoxicated before.
[Defense Counsel]: Your Honor, we will object to speculation.
[The Court]: Overruled.
The prosecutor's statements fell within the scope of permissible jury argument for several reasons. First, the State's argument was in direct response to counsel's statement that the defense's theory was "the only one that truly makes sense," and was offered to rebut the defense's theory and illustrate why Justo Jr.'s explanations were illogical. See Gallo, 239 S.W.3d at 76. The prosecutor's comments were also a summation of the evidence presented at trial. See id. The State reminded the jury of Officer Riding's testimony that he did not see a juvenile at the accident scene, and that he would have documented that fact in his offense report if he had. Finally, the State's arguments were reasonable deductions drawn from the evidence. The prosecutor reasoned that if Justo Jr.—who was fifteen years old and without a driver's license at the time—had actually been doing something he should not have by driving his dad to the store to get more beer, appellant would not have been mad at him for driving into a ditch; if Justo Jr. had been living in the neighborhood for years and regularly crossing the streets, he would not have driven into the ditch; and if Justo Jr. was telling the truth, he would have informed the officers on the scene that he had been driving appellant's car. Moreover, a prosecutor may argue her opinion concerning the issues in the case as long as her opinion is based on the evidence in the record and does not constitute sworn testimony. McKay v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985); Temple v. State, 342 S.W.3d 572, 602 (Tex. App.—Houston [14th Dist.] 2010), aff'd, 390 S.W.3d 341 (Tex. Crim. App. 2013); see also Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984).
In light of the entire record, we conclude that the trial court did not abuse its discretion in overruling appellant's objections to the State's argument. Klock, 177 S.W.3d at 64. We therefore overrule appellant's second point of error.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Justices Higley, Massengale, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).