Opinion
No. 11-16-00135-CR
01-31-2018
USVALDO FERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 39th District Court Haskell County, Texas
Trial Court Cause No. 6798
MEMORANDUM OPINION
The jury convicted Usvaldo Fernandez of felony driving while intoxicated (DWI). In addition to the felony DWI allegations, the indictment contained two enhancement paragraphs. The jury found both enhancement paragraphs to be true and assessed Appellant's punishment at confinement for life and a fine of $10,000. Appellant presents five points of error on appeal. We affirm.
In Appellant's first point, he argues that the trial court erred when it admitted retrograde extrapolation testimony from Herman Carrel, a Texas Department of Public Safety (DPS) chemist, because he was unqualified to testify as an expert witness and because he did not apply retrograde extrapolation in the scientifically accepted way. In his second point, Appellant argues that the trial court erred when it denied his motion to suppress evidence because there was no probable cause to arrest him. Appellant also argued in his second point that the trial court erred when it denied his motion to suppress because the State used Appellant's statements that he made—before he received his legally mandated warnings—against him at trial and also used statements that he made after he had requested an attorney and invoked his right to remain silent. In his third point, Appellant asserts that the trial court erred when it allowed the State to amend the indictment but did not provide notice to Appellant and did not submit the amended indictment to the grand jury. In Appellant's fourth point, he argues that the trial court erred when it denied his motion to suppress blood evidence because the medical technologist who took his blood did not take it in accordance with proper scientific protocols. In his fifth point, Appellant asserts that the trial court erred when it denied his motion for a mistrial because the State offered evidence of Appellant's past criminal history in violation of the trial court's order.
On the day of the offense, Chad Overton, a DPS trooper received a call at 2:52 p.m. to assist with an accident investigation. When Trooper Overton arrived at the scene, he saw a pickup and a plow in the ditch, as well as a damaged Ford F-150 on the road. He also saw debris on the road. Trooper Overton identified Appellant as the driver of the Ford F-150 and concluded that the Ford F-150 had hit the back of the plow, which caused it to "jackknife." Trooper Overton testified that Appellant's speech was slurred, but Trooper Overton did not initially believe that Appellant was intoxicated.
Trooper Overton then began to speak with Appellant in Trooper Overton's vehicle. At that point, Trooper Overton smelled alcohol. Trooper Overton also subsequently discovered an open container of beer in the cupholder of Appellant's vehicle. Appellant admitted to Trooper Overton that he had consumed "a few beers." Trooper Overton then started to conduct standardized field sobriety tests. When Trooper Overton started to conduct the first field sobriety test, the horizontal gaze nystagmus, Appellant would not follow Trooper Overton's instructions. Appellant became agitated and said, "Just take me to jail." Trooper Overton then arrested Appellant for driving while intoxicated.
At the jail, Trooper Overton explained to Appellant that he was going to ask Appellant to provide a sample of his blood, but Appellant said that that "wasn't going to happen." Trooper Overton told Appellant that, if he refused, he would obtain a court order to draw the blood, to which Appellant replied that "[they]'d have to hog-tie him to do it." Ultimately, Trooper Overton procured a warrant to draw Appellant's blood and drove Appellant to a nearby hospital for a blood draw. The blood alcohol content of the blood sample, taken at 5:38 p.m., was 0.17.
In his first point, Appellant argues that the trial court erred when it permitted Carrel to testify as an expert witness and give an opinion of Appellant's blood alcohol level at the time of the crash. In other words, Appellant contends that Carrel improperly testified regarding retrograde extrapolation, both because Carrel was unqualified to testify as an expert witness and because he did not apply the proper scientifically accepted method when he determined Appellant's blood alcohol level at the time of the crash.
The State argues that Appellant failed to preserve his first issue for review. We note that Appellant filed a motion to suppress the blood evidence in which he argued, in part, that his "blood specimen was not taken within a reasonable period of time," "[t]here is no way to determine if . . . his blood alcohol concentration level had peaked or whether it was rising or declining," and "[t]he blood was withdrawn so long after [Appellant] was stopped that there is no way to ascertain what [Appellant]'s blood alcohol concentration was at the time he was stopped." The State contends that, during the hearing on Appellant's motion to suppress, "Appellant objected that the State's expert was not qualified to testify regarding retrograde extrapolation" but that Appellant "did not ask for a ruling as to whether the expert's testimony properly applied the technique of retrograde extrapolation under the facts of the case."
During the hearing on Appellant's motion to suppress, Appellant's counsel stated, "[W]e believe that the blood specimen was drawn too late after the fact to get a relevant result." Appellant then questioned Carrel about his qualifications as an expert and how he applied retrograde extrapolation in this case. Toward the end of the hearing on the motion to suppress, Appellant's counsel argued that Carrel was both unqualified and unable to properly apply retrograde extrapolation in this case. At the end of the hearing, the trial court made the following rulings: "The Court is going to overrule the objection to the blood alcohol results being excluded from evidence. The Court's going to also order that Mr. Carrel can testify on the blood extrapolation. The Motion to Suppress Blood Evidence is overruled." Therefore, we conclude that Appellant preserved this issue for our review. See TEX. R. APP. P. 33.1(a).
We review a trial court's admission of evidence under an abuse of discretion standard. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). Under an abuse of discretion standard, we will not disturb the trial court's ruling if it falls within the zone of reasonable disagreement. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011).
A trial judge has broad discretion to decide whether a witness qualifies as an expert under Rule 702 of the Texas Rules of Evidence. Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990). During the hearing on Appellant's motion to suppress the blood evidence, Carrel testified that he "attended the Borkenstein Course on Alcohol and Highway Safety." He also testified that he had attended relevant lectures and was part of a drinking lab. In all, Carrel said that he had two-to-three weeks of training on retrograde extrapolation and had testified about retrograde extrapolation about ten times. Therefore, we hold that the trial court did not abuse its discretion when it determined that Carrel qualified as an expert under Rule 702 of the Texas Rules of Evidence.
An expert may testify as to his opinion based on scientific knowledge if it will help the trier of fact understand the evidence or determine a fact in issue. TEX. R. EVID. 702. To show that the expert's opinion would be helpful, the party who offers the scientific proof must, among other things, demonstrate that the proof is reliable by clear and convincing evidence. Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000). A party may demonstrate reliability if the party shows by clear and convincing evidence that (1) the underlying theory is valid, (2) the technique applying the theory is valid, and (3) the technique was properly applied on the occasion in question. Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). Appellant does not argue that retrograde extrapolation is invalid as a theory; rather, Appellant contends that Carrel "did not apply the scientifically accepted method in the determination of Appellant's blood alcohol."
During the hearing on Appellant's motion to suppress the blood evidence, Carrel described "blood extrapolation" as follows: "[B]lood [is] drawn. . . . [T]he incident . . . happened prior to that. So . . . one . . . knows that . . . ethanol is absorbed, reaches a peak, and then is eliminated . . . and all of that takes a period of time. So when one extrapolates . . . they will give a number . . . backwards one hour, two hours" based on what that number was when the blood was drawn. Carrel acknowledged that, to provide an exact number, one would need to know an individual's personal characteristics, such as the time of their last drink, what type of drink it was, their weight, and whether they had a full stomach or an empty stomach. Carrel also said that he could not provide an exact number if the time of the blood draw and the time of the incident were more than two hours apart because he would not "know how much that person drank, whether they started in the morning, and then they stopped and they started again." Carrel stated that he would not provide an exact number when he did not know the time of the individual's last drink.
Carrel then explained what he believed Appellant's blood alcohol content was in this case. Carrel said that he assumed that Appellant did not drink from the time of the accident to the time his blood was drawn. He stated that, "[o]nce you stop drinking, it takes about 15 minutes on an empty stomach to absorb all the alcohol, to get to your peak, or 45 minutes on a full stomach to get to that peak." Carrel then said, "[T]he research shows that it could take as long as two hours for someone to absorb, so [he was] going to use two hours." He concluded that, "because [Appellant] stopped drinking, and . . . give[n] . . . two hours to absorb to reach the peak, . . . [Appellant] would be at a .17, plus or minus the uncertainty, or higher" at the time of the crash. Carrel admitted, though, that an exception to this conclusion would exist if Appellant drank eight beers right before the crash, at which point he would still be absorbing alcohol at the time his blood was drawn. In short, Carrel testified that, based on the facts he assumed, Appellant's blood alcohol content was the same or higher at the time of the crash than at the time of the blood test, unless Appellant drank eight beers right before the crash.
When courts determine the reliability of retrograde extrapolation evidence, courts are to consider and balance: "(a) the length of time between the offense and the test(s) administered; (b) the number of tests given and the length of time between each test; and (c) whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert in providing his extrapolation." Mata v. State, 46 S.W.3d 902, 916 (Tex. Crim. App. 2001). In general, an expert must be able to apply retrograde extrapolation consistently and clearly and must demonstrate a knowledge of the "difficulties," "subtleties," and "risks" inherent in the science. Id. at 916.
Carrel understood the application of retrograde extrapolation and was able to clearly and consistently testify about its application to Appellant. Carrel was aware of the blood alcohol content curve and explained its application to Appellant based on the time of the crash, the assumption that Appellant stopped drinking at the time of the crash and did not drink while in custody, and the time of the blood draw. Carrel understood that, in order to provide an exact number for Appellant's blood alcohol content at the time of the crash, he would need to know a number of Appellant's personal characteristics. Carrel also allowed for the possibility that Appellant was not in the elimination phase at the time of the crash if he had consumed eight beers right before the crash.
Additionally, although there is no evidence that establishes the time of Appellant's last drink with absolute precision, Carrel's assumed fact that Appellant stopped drinking at the time of the crash and did not drink thereafter does not contradict the evidence introduced at trial and fits with the State's theory of the case. See Hoover v. State, No. 02-16-00019-CR, 2017 WL 56163, at *4 (Tex. App.—Fort Worth Jan. 5, 2017, pet. ref'd) (mem. op., not designated for publication). Viewing Carrel's testimony as a whole, Carrel's technique and application of that technique were sufficiently reliable such that we cannot conclude that the trial court abused its discretion when it admitted his testimony. See, e.g., Bignon v. State, 252 S.W.3d 360, 367-68 (Tex. Crim. App. 2008); Hoover, 2017 WL 56163, at *2-4; Subirias v. State, 278 S.W.3d 406, 410-13 (Tex. App.—San Antonio 2008, pet. ref'd); Kennedy v. State, 264 S.W.3d 372, 377-79 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd). Appellant's first point of error is overruled.
In his second point, Appellant contends that the trial court erred when it denied his motion to suppress the search and certain statements because (1) Trooper Overton arrested Appellant without a warrant and without probable cause; (2) the State used Appellant's statements that he made against himself after his arrest but before he was given his warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), and TEX. CODE CRIM. PROC. ANN. art. 38.22 (West Supp. 2017); and (3) Trooper Overton continued to question Appellant after he invoked his right to remain silent and his right to counsel.
We review a trial court's ruling on a motion to suppress for an abuse of discretion and will overturn a trial court's ruling on a motion to suppress only if it is outside the zone of reasonable disagreement. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). When we review a ruling on a motion to suppress, we apply a bifurcated standard of review. Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016); Martinez, 348 S.W.3d at 922-23. We afford almost total deference to the trial court's determination of historical facts and of mixed questions of law and fact that turn on the weight or credibility of the evidence. Brodnex, 485 S.W.3d at 436; Martinez, 348 S.W.3d at 922-23. We review de novo any determination of pure questions of law and mixed questions of law and fact that do not turn on credibility. Brodnex, 485 S.W.3d at 436; Martinez, 348 S.W.3d at 923.
When the trial court makes explicit findings of fact, as it did in this case with regard to the motion to suppress the search and Appellant's statements, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the record is silent as to the reasons for the trial court's ruling, we infer the necessary fact findings that would support the trial court's ruling if the evidence, viewed in the light most favorable to the trial court's ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007).
In this case, after the suppression hearing, the trial court issued a letter order that granted in part and denied in part Appellant's motion to suppress. In response to Appellant's request, the trial court issued findings of fact and conclusions of law. The trial court made the following findings of fact, among others:
2. Upon arrival at the scene, Trooper Overton assessed the situation and determined that [Appellant] . . . was driving a pickup truck and ran into the rear of another vehicle pulling a farm implement.
. . . .
4. Trooper Overton observed that [Appellant] had slurred speech.
5. Trooper Overton observed an open can of beer in the cup holder of [Appellant]'s pickup in plain view.
6. Trooper Overton smelled the odor of [an] alcoholic beverage upon the person of [Appellant].
7. Trooper Overton observed that [Appellant] had been in a
motor vehicle accident that he had caused through the operation of his motor vehicle.The trial court issued the following conclusions of law:
8. Trooper Overton attempted to perform field sobriety tests upon [Appellant] and he refused to perform them.
. . . .
10. [Appellant] admitted to Trooper Overton that he had drank "two beers" while at work.
11. Trooper Overton placed [Appellant] under arrest for the criminal offense of driving while intoxicated.
12. Trooper Overton placed [Appellant] in his patrol vehicle, and [Appellant] made a number of oral statements that were not the result of any questioning or interrogation by Trooper Overton, but were in fact volunteered by [Appellant].
1. While [Appellant] was not detained because his vehicle would not operate, Trooper Overton could lawfully temporarily detain [Appellant], because he had reasonable suspicion to believe [Appellant] had or was violating the law.
2. Based upon the totality of the circumstances, Trooper Overton had probable cause to arrest [Appellant] for the criminal offense of driving while intoxicated.
3. Oral statements that do not stem from or are not the result of a custodial interrogation are admissible against [Appellant] on the issue of [Appellant]'s guilt.
"The initial burden of proof on a motion to suppress evidence on the basis of a Fourth Amendment violation rests with the defendant." Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005). The defendant meets this burden if he demonstrates that the seizure occurred without a warrant. See id. Thereafter, the burden shifts to the State to prove the reasonableness of the warrantless seizure. See id. The State may satisfy this burden if it shows that one of the statutory exceptions to the warrant requirement is met. Id. "A police officer may arrest an individual without a warrant only if (1) there is probable cause with respect to that individual and (2) the arrest falls within one of the exceptions specified in Articles 14.01 through 14.04" of the Texas Code of Criminal Procedure. Stull v. State, 772 S.W.2d 449, 451 (Tex. Crim. App. 1989) (citations omitted); see CRIM. PROC. arts. 14.01-14.04.
Probable cause for a warrantless arrest exists if, at the moment the arrest is made, the facts and circumstances within the arresting officer's knowledge, and of which he has reasonably trustworthy information, are sufficient to warrant a prudent man to believe that the person arrested has committed or was committing an offense. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). The test for probable cause is an objective one, unrelated to the arresting officer's subjective beliefs, and requires a consideration of the totality of the circumstances that face the arresting officer. Id. A finding of probable cause requires more than bare suspicion but less than would justify a conviction. Id. "An unarticulated 'hunch,' a suspicion, or the good faith of the arresting officer is insufficient to support probable cause to justify a warrantless arrest." Torres, 182 S.W.3d at 902.
Appellant argues that Trooper Overton arrested him without probable cause because "[t]he information available to [Trooper Overton] never even gave rise to an investigation for DWI until smelling a little bit of alcohol on Appellant's breath an hour after initial contact with Appellant." Appellant contends that, "[u]nder a totality of the circumstances analysis, the evidence was insufficient to establish probable cause for arrest."
A person commits the offense of DWI if he operates a motor vehicle in a public place while intoxicated. TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2017). Section 49.01(2) defines "intoxicated" 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." Id. § 49.01(2).
Trooper Overton testified that, prior to the arrest, Appellant told him that he had consumed "a couple of beers at work." Trooper Overton also detected the smell of alcohol coming from Appellant and noticed that Appellant slurred his speech. Additionally, Trooper Overton saw an open can of beer in the cupholder of Appellant's vehicle. Trooper Overton also knew that there had been a crash involving Appellant's vehicle, and he believed that Appellant had caused his vehicle to hit the back of another vehicle. Appellant also refused to perform the field sobriety tests. The trial court found all of these facts to be true.
Based on the evidence of Appellant's intoxication, along with Appellant's statements that he consumed alcohol at work and evidence that Appellant had caused the crash, the trial court could reasonably conclude that the facts and circumstances were sufficient to warrant a belief that Appellant committed the offense of DWI. See Amador, 275 S.W.3d at 878. Accordingly, the record reasonably supports the trial court's conclusion that the State carried its burden to prove that Trooper Overton's warrantless arrest of Appellant was properly supported by probable cause to arrest Appellant for DWI. See PENAL § 49.04(a); Torres, 182 S.W.3d at 902; Stull, 772 S.W.2d at 451.
Appellant next argues in his second point of error that the trial court erred when it denied his motion to suppress with respect to statements made by Appellant before Trooper Overton gave Appellant his Miranda warnings. Specifically, Appellant argues that "[t]he facts here indicated no Miranda warnings were given until after the officer got Appellant to the jail." He cites Trooper Overton's testimony during the motion to suppress hearing that he read Appellant the Miranda warnings at the jail.
"There are three distinct categories of interactions between police officers and citizens: (1) encounters, (2) investigative detentions, and (3) arrests." Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010). The need for Miranda warnings arises at a point before a person has been subjected to a custodial interrogation. Miranda, 384 U.S. at 444. A person held for an investigative detention is not in custody for purposes of Miranda. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). Article 38.22 of the Texas Code of Criminal Procedure generally precludes the admission of statements that result from custodial interrogation absent compliance with that article's procedural safeguards. CRIM. PROC. art. 38.22, § 2. However, if a statement is not the result of a custodial interrogation, neither Miranda nor Article 38.22 requires that it be suppressed. See Miranda, 384 U.S. at 444; Arthur v. State, 216 S.W.3d 50, 56 (Tex. App.—Fort Worth 2007, no pet.).
"In determining which category an interaction falls into, courts look at the totality of the circumstances." Crain, 315 S.W.3d at 49. "Generally, a routine traffic stop does not place a person in custody for Miranda purposes." State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). "But a traffic stop may escalate from a non-custodial detention into a custodial detention when formal arrest ensues or a detainee's freedom of movement is restrained 'to the degree associated with a formal arrest.'" Id. (citing Berkemer v. McCarty, 468 U.S. 420, 440 (1984)). "We evaluate whether a person has been detained to the degree associated with arrest on an ad hoc, or case-by-case basis." Id. (citing Dowthitt, 931 S.W.2d at 255). "In making the custody determination, the primary question is whether a reasonable person would perceive the detention to be a restraint on his movement 'comparable to . . . formal arrest,' given all the objective circumstances." Id. (alteration in original) (quoting Berkemer, 468 U.S. at 441).
The trial court did not indicate in its findings of fact and conclusions of law whether Trooper Overton read Appellant the Miranda and Article 38.22 warnings and, if he did, at what point in time he did so. We have reviewed the video recordings as presented to the trial court. Trooper Overton first attempted to administer a field sobriety test to determine whether Appellant was intoxicated. We note that "a police officer is not required to inform a person who is being investigated for driving while intoxicated of [the] Miranda rights before administering field sobriety tests." Moreno v. State, No. 03-14-00596-CR, 2016 WL 3679175, at *5 (Tex. App.—Austin June 30, 2016, no pet.) (mem. op., not designated for publication). After Appellant refused to comply with Trooper Overton's instructions during the horizontal gaze nystagmus test, Trooper Overton determined that he had sufficient probable cause to arrest Appellant for driving while intoxicated and arrested him.
Trooper Overton then read Appellant the statutory warnings pursuant to Article 38.22. "The warnings provided in [Article 38.22] are virtually identical to the Miranda warnings, with one exception—the warning that an accused 'has the right to terminate the interview at any time' as set out in Section 2(a)(5) [of Article 38.22] is not required by Miranda." Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007) (footnotes omitted). Thus, despite Trooper Overton's mistaken belief to the contrary, he actually provided Appellant the warnings under both Article 38.22 and Miranda soon after he arrested Appellant and before he took him to the jail—because the statutory warnings encompass the Miranda warnings.
We hold that the trial court's conclusion that "Trooper Overton could lawfully temporarily detain [Appellant], because he had reasonable suspicion to believe [Appellant] had or was violating the law" was correct. Viewing the evidence in the light most favorable to the trial court's ruling, the trial court could have concluded that Trooper Overton was conducting a lawful temporary investigatory detention up until the point he arrested Appellant. See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005) (stating that an officer conducts a lawful temporary detention when he has reasonable suspicion to believe that an individual is violating the law and that "[r]easonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity" (citing Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002), and Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001))); see also Moreno, 2016 WL 3679175, at *4-5 (holding that trial court could have properly determined that officer's transportation of individual, whom he suspected of DWI based on articulable facts, to another location to perform field sobriety tests was a lawful investigative detention). Therefore, because any statements that Appellant made prior to his arrest were the result of an investigative detention, not a custodial arrest, the statements were admissible even in the absence of Miranda warnings and the warnings articulated in Article 38.22. See State v. Stevenson, 958 S.W.2d 824, 829 (Tex. Crim. App. 1997). Accordingly, we hold that the trial court did not err when it denied Appellant's motion to suppress the statements made to Trooper Overton before he gave Appellant the Miranda warnings.
Appellant also argues that his statements should have been suppressed because, after Appellant invoked his right to remain silent and requested an attorney, Trooper Overton continued to interrogate him. The trial court did not indicate in its findings of fact and conclusions of law whether Appellant requested an attorney and whether he invoked his right to remain silent and, if he did, at what point in time he invoked those rights. After Trooper Overton arrested Appellant and placed him in handcuffs, but before Trooper Overton read Appellant the statutory warnings, Appellant said, "I want to talk to my lawyer." After receiving the statutory warnings, Appellant said, "I don't care to talk to you at all." However, he proceeded to make voluntary statements that were not in response to any questions from law enforcement.
An individual's right to counsel is "recognized in the Fifth Amendment, which protects a person from governmental compulsion to be a witness against himself." Griffith v. State, 55 S.W.3d 598, 602 (Tex. Crim. App. 2001); see Miranda, 384 U.S. at 470. Similarly, the right to terminate questioning is among the procedural safeguards that Miranda establishes. 384 U.S. at 474. "[T]he special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation." Rhode Island v. Innis, 446 U.S. 291, 300 (1980). Custodial interrogation "must reflect a measure of compulsion above and beyond that inherent in custody itself" and generally encompasses express questioning by police or words or actions that the police should know are likely to elicit an incriminating response. Id. at 300-01. Therefore, the Fifth Amendment right to counsel does not extend when there is no interrogation. Griffith, 55 S.W.3d at 603. "Volunteered statements of any kind are not barred by the Fifth Amendment" and are admissible as evidence at trial. Miranda, 384 U.S. at 478. "Questions normally accompanying the processing of a D.W.I. arrestee do not constitute interrogation." Griffith, 55 S.W.3d at 603; see McCambridge v. State, 712 S.W.2d 499, 504 (Tex. Crim. App. 1986).
Section 38.22 of the Texas Code of Criminal Procedure expressly delineates the requirements of Miranda because it requires officers to inform people of their rights prior to custodial interrogation in order for resulting statements to be admissible. CRIM. PROC. art. 38.22, § 3. Further, Article 38.22 does not preclude admission of res gestae statements or statements an individual makes outside of custodial interrogation. Id. § 5.
We defer to the trial court's finding that, after Trooper Overton arrested Appellant and "placed [Appellant] in his patrol vehicle, . . . [Appellant] made a number of oral statements that were not the result of any questioning or interrogation by Trooper Overton, but were in fact volunteered by [Appellant]." See Griffith, 55 S.W.3d at 602-03 (holding that defendant's statements that he refused to submit to blood-alcohol test and wanted his attorney were admissible because, although defendant was in custody, his statements did not result from custodial interrogation). Therefore, even if Appellant triggered his Fifth Amendment right to counsel when he asked for an attorney and even if Appellant subsequently triggered his right to remain silent, the trial court concluded that all of Appellant's statements that he made after his arrest were voluntary. Accordingly, Appellant's statements would have remained admissible given their voluntary nature. See CRIM. PROC. art. 38.22, §§ 3, 5. Appellant's second point is overruled.
In his third point, Appellant argues that the trial court erred when it allowed the State to amend the indictment but did not provide notice of the amendment to Appellant and did not submit the amended indictment to the grand jury. In its original indictment, the State charged Appellant with the third-degree felony offense of DWI. In order to elevate the DWI offense to a felony, the State alleged in the indictment that Appellant had previously been convicted of "an offense relating to the operating of a motor vehicle while intoxicated" two times: on September 19, 1999, in Knox County in cause number 3630, and on September 14, 2005, in Haskell County in cause number 6085. On March 3, 2016, the State filed a motion to amend the indictment to replace the Knox County conviction with a conviction for an offense the State alleged occurred on August 2, 1990, in Haskell County in cause number 5397. The trial court granted the State's motion that same day. On March 21, 2016, Appellant filed a motion to set aside the indictment; he objected to the form and substance of the indictment based upon the amendment. The trial court subsequently denied that motion.
Appellant argues that the trial court erred when it allowed the State to amend the indictment because the State did not first provide notice of its intent to amend the indictment to Appellant. Appellant cites Article 28.10(a) of the Texas Code of Criminal Procedure for the proposition that "an indictment or information may be amended at any time before the date the trial on the merits commences" only "[a]fter notice to the defendant." CRIM. PROC. art. 28.10(a) (West 2006). After the State provides notice to the defendant, the State may amend an indictment as to form or substance at any time before trial. Id.
We agree with Appellant that the State must provide notice to a defendant before it may amend the indictment. Here, however, the State included a certificate of service with its motion to amend the indictment. The certificate provides that the State served Appellant's counsel with the motion on March 3, 2016. The trial court granted the State's motion that same day. Appellant argues that, because the State's motion and the trial court's order were both filemarked at the same time, "[e]ssentially, the motion was presented to the judge ex parte, the order was signed, and both were filed simultaneously," which "clearly violated the provision of Art. 28.10."
However, "[a] certificate of service creates a presumption that a document properly sent is received by the addressee." Webb v. State, 36 S.W.3d 164, 177 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd) (citing Thomas v. Ray, 889 S.W.2d 237, 238 (Tex. 1994) (finding presumption of receipt where counsel swore in affidavit that designation of experts was mailed and other party failed to bring forward verified proof of nonreceipt); Meek v. Bishop Peterson & Sharp, P.C., 919 S.W.2d 805, 809 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (finding presumption of receipt where motion with certificate of service recited service by mail and no offer of proof suggesting nonreceipt was made)). While "[t]his presumption may be rebutted by an offer of proof of non-receipt, . . . absent any such proof, the presumption has the force of a rule of law." Id. Therefore, because Appellant merely "noted that he did not receive notice both in his motion to set aside the indictment and in his oral argument regarding same" but did not provide any evidence to support his assertion of nonreceipt, we must presume that Appellant received notice prior to the trial court's ruling.
Appellant also contends that the State had to submit the amended indictment to the grand jury because the prior convictions are elements of the offense and that the trial court therefore erred when it denied Appellant's objection to the amendment. We review a trial court's decision to permit amendment of an indictment de novo. Smith v. State, 309 S.W.3d 10, 13-14 (Tex. Crim. App. 2010). As we discussed above, after the State provides notice to the defendant, the State may amend an indictment as to form or substance at any time before trial. CRIM. PROC. art. 28.10(a). Additionally, the State may not amend the indictment as to form or substance over the defendant's objection if the amendment would charge the defendant with an additional or different offense or if it would prejudice his substantial rights. See id. art. 28.10(c).
The State, through an amended indictment, charges a defendant with a different offense if the amendment changes the statutory offense. Flowers v. State, 815 S.W.2d 724, 728 (Tex. Crim. App. 1991) (per curiam); Rogers v. State, No. 05-06-00567-CR, 2007 WL 2447125, at *8 (Tex. App.—Dallas 2007, pet. ref'd) (not designated for publication). "Changing an element of the offense, the proof, or the complainant does not change the statutory offense." Rogers, 2007 WL 2447125, at *8 (citing Flowers, 815 S.W.2d at 728; Nichols v. State, 52 S.W.3d 501, 502 (Tex. App.—Dallas 2001, no pet.)).
In this case, the State alleged in the original indictment that Appellant committed felony DWI on a certain date in Haskell County. The State did not change the statutory offense that it alleged Appellant committed when the State amended the indictment. Therefore, the State did not charge Appellant with a different or additional offense in the amended indictment. See Flowers, 815 S.W.2d at 728; see also Rogers, 2007 WL 2447125, at *8 (holding that the State did not charge the defendant with different or additional statutory offense when it changed one prior DWI conviction to a different DWI conviction with a different cause number from a different county and, therefore, did not run afoul of Article 28.10(c) when it amended the indictment).
Further, Appellant argues that the amendment to the indictment violated his substantial rights. Appellant argues, but does not cite to any authority, that, because the amendment changed one of the prior convictions from a Knox County conviction to a Haskell County conviction, the amendment "created a hometown advantage for the prosecution, causing the jurors to be more concerned about Appellant's criminal history because he had two prior DWIs in their home county." We disagree and conclude that Appellant did not demonstrate that his substantial rights were affected. See TEX. R. APP. P. 44.2(b). Appellant's third point is overruled.
In Appellant's fourth point, he argues that the trial court abused its discretion when it did not suppress the blood sample drawn on the day of his arrest because the medical technologist who drew Appellant's blood did not do so "in accordance with the accepted . . . scientific protocols." He argues that the person who collected the sample "testified that she could not remember that she inverted the tube of blood in accordance with the developed protocols for withdrawing blood" and that Trooper Overton "did not check the box [on the blood-withdrawal-procedure form] indicating that the blood was inverted."
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). The trial court's ruling will be upheld if the record reasonably supports it and it is correct under any theory of law applicable to the case. Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008). "Without evidence of tampering, most questions concerning care and custody of a substance go to the weight attached, not the admissibility, of the evidence." Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997).
The medical technologist who withdrew Appellant's blood testified that she remembered that she took a blood sample from Appellant in November 2014. Although she said that she did not remember the step-by-step process by which she drew Appellant's blood specifically, she testified that she would normally rotate the blood sample "five to ten times" and invert it. Although she could not remember if she rotated it in this case specifically, she testified that "we always rotate" it. She also said that she follows the same procedure every time she draws blood for a DWI, which includes rotating the vial. She said that she is sure she rotated the vial after she drew Appellant's blood.
Additionally, Trooper Overton testified that he did not check the box on the blood-withdrawal-procedure form next to the sentence: "Rotated vial as directions indicated five times so as to mix blood with preservative anticoagulant." He said that he simply "overlooked it." He also said, "I can testify that [the rotation] was done, yes" and that it was done in front of him. We conclude that the record does not support Appellant's argument that the blood sample evidence was inadmissible because the medical technologist did not rotate the vial. Therefore, we cannot hold that the trial court abused its discretion. Appellant's fourth point is overruled.
In his fifth point, Appellant argues that the trial court abused its discretion when it denied his motion for a mistrial because the prosecutor played the video recordings from Trooper Overton's vehicle but did not redact a portion in which Appellant references his criminal history, in violation of the trial court's order. Appellant asserts that the instruction the trial court gave to the jury did not cure the harm that was created. We disagree.
During the guilt/innocence phase, the State planned to play two disks of video recordings from Trooper Overton's vehicle. These recordings began shortly after Trooper Overton arrived at the crash scene and continued through Appellant's arrest and transportation to both the jail and the hospital. In order to comply with the trial court's ruling that the portions of the video recordings in which Appellant's criminal history was discussed were inadmissible, the prosecutor explained to the trial court that he would mute the video at various points before the jury could hear any discussion of Appellant's criminal history.
After the prosecutor played the second disk for the jury, defense counsel approached the bench to say that he wanted to object. The trial court then held a hearing outside the presence of the jury, at which defense counsel objected that "there was a portion of the criminal history still included in the DVD" where Appellant stated that he "just got out of the penitentiary a few years ago."
After the prosecutor played the relevant portion of the recording for the trial court, the prosecutor said, "The State acknowledges it appears he says that he just got out of the penitentiary." Appellant then moved for a mistrial. The trial court denied Appellant's motion for a mistrial and allowed "an instruction concerning instructing the jury to disregard or not to consider any evidence of previous criminal history, if any, presented or heard at the trial." The trial court also ordered the State not to reference the statement in closing argument. The trial court included the following sentence in the jury charge: "You are instructed not to consider any evidence of previous criminal history of the defendant, if any presented or heard at trial."
We review a trial court's denial of a motion for mistrial for an abuse of discretion. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). "A mistrial is the trial court's remedy for improper conduct that is 'so prejudicial that expenditure of further time and expense would be wasteful and futile.'" Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). "Instructions to the jury are generally considered sufficient to cure improprieties that occur during trial," and there is a general presumption that a jury will follow the judge's instructions. Gamboa, 296 S.W.3d at 580. "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Hawkins, 135 S.W.3d at 77.
Here, there is no indication in the record that the jury disobeyed or refused to follow the trial court's instruction to disregard. Accordingly, we cannot conclude that the trial court abused its discretion when it denied Appellant's motion for a mistrial. Appellant's fifth point is overruled.
We affirm the judgment of the trial court.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE January 31, 2018 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Willson, J., Bailey, J.,
and Wright, S.C.J.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.