No. 05-04-01681-CR
Opinion issued January 18, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F03-53706-TI. Affirmed.
Before Justices MORRIS, WRIGHT, and FRANCIS.
Opinion By Justice MORRIS.
In this case, Michael Dyne Williams challenges his conviction for intoxication manslaughter. He contends in three issues that the admission of a videotape into evidence violated state law and his constitutional rights, that the prosecutor engaged in improper jury argument, and that he was illegally sentenced. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Factual Background
Appellant's car ran a red light and struck a pedestrian, causing the pedestrian's nearly immediate death. Two police officers witnessed the offense. A friend of the pedestrian, who was crossing the street with him at the time, also witnessed appellant committing the offense. Appellant failed three of the four field sobriety tests he was given after hitting the pedestrian. He smelled like alcohol, and he showed no emotional reaction to the news that the pedestrian he had struck was dead. Approximately two and a half hours after the offense, appellant's blood alcohol level was .19, over twice the legal limit. An accident investigator for the police determined appellant was traveling more than fifteen miles per hour over the speed limit at the time he hit the pedestrian. The investigator testified that appellant had not applied his brakes until he was in the intersection. The investigator stated that it appeared appellant, due to some form of impairment, either did not perceive the danger until it was too late or was too slow to react to the danger once he perceived it. Appellant did not have a valid driver's license at the time of the accident. Discussion
In his first issue, appellant complains the trial court erred in admitting into evidence a videotape that shows appellant taking sobriety tests in the jail and answering a police officer's questions after waiving his Miranda rights. Appellant contends his Miranda waiver was not voluntary due to his extreme intoxication, and therefore the admission of the videotape into evidence violated his Fifth Amendment right to remain silent. He further contends the trial court erred by failing to include in the record findings about the voluntariness of the waiver. We note the videotape first shows appellant performing the field sobriety tests before he waives his Miranda rights and answers the officer's questions. As the State points out in its brief, police questioning a person incident to a videotaped sobriety test is activity normally attendant to arrest and custody, not interrogation. See Smith v. State, 105 S.W.3d 203, 208 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). Accordingly, because appellant was not being interrogated when he performed the sobriety tests, his arguments are inapplicable to that portion of the videotape. We will therefore address appellant's arguments only as they pertain to the questioning that followed the sobriety tests and his Miranda waiver. Appellant makes two separate arguments relating to the issue of voluntariness. He first contends the trial court erred in admitting the videotape into evidence because his Miranda waiver was involuntary. He specifically contends his waiver of the right to remain silent was involuntary because of his severe intoxication. Following his waiver of the right to remain silent, appellant admitted to the officer that he had just been in an accident. He further admitted he was not insured and did not have a valid driver's license in any state. He told the officer he had drunk only two beers. He stated that he had been at a peer support group for Alcoholics Anonymous earlier in the day and had been in AA since 1996. He admitted to the officer he had "hit a guy" during the accident. Even assuming the trial court erred in admitting the videotape, we conclude appellant was not harmed based on the evidence admitted at trial. Under Texas Rule of Appellate Procedure 44.2(a) in the case of constitutional error, we must reverse the conviction unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. See McCarthy v. State, 65 S.W.3d 47, 52 (Tex.Crim.App. 2001). Here, we must determine whether the admission of the videotape containing appellant's statements to the officer contributed to the jury's verdict "regardless of whether there is evidence independent of [appellant's statements on the videotape] that is otherwise sufficient to sustain the jury's verdict of guilt." Id. at 55. We do not focus on the propriety of the outcome of the trial. Instead, if there is a reasonable likelihood the alleged error materially affected the jury's deliberations, then the error is not harmless beyond a reasonable doubt. See id. We calculate, as nearly as possible, the probable impact of the alleged error on the jury in light of the other evidence. See id. In this case, two police officers and an innocent bystander witnessed appellant speed through the red light and strike the pedestrian. He failed several field sobriety tests just after the accident, and his blood alcohol level was .19 more than two hours later. He smelled of alcohol and had a negligible reaction to the news that he had killed the pedestrian. He did not apply his car's brakes until he entered the intersection. In light of this evidence, the probable impact of appellant's admission of drinking two beers and hitting someone in an accident would have been no more than negligible on the jury's deliberations. Accordingly, we conclude beyond a reasonable doubt that the complained-of evidence did not materially affect the jury's deliberations. We further similarly conclude beyond a reasonable doubt that appellant's admitting he did not have a license or insurance and was a member of AA did not contribute to his conviction. Even if the trial court erred in admitting the videotape of appellant's statements into evidence, appellant was not harmed. Appellant's next argument in his first issue is that the trial court erred in admitting the videotape into evidence because it failed to comply with article 38.22, section 6 of the Texas Code of Criminal Procedure. Article 38.22, section 6 states, in relevant part, that in cases where a question is raised about the voluntariness of a defendant's statement, "the court must enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific finding of facts upon which the conclusion was based, which order shall be filed among the papers of the cause." Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 2005). It is mandatory that the trial court enter its findings, regardless of whether the defendant objects. See Green v. State, 906 S.W.2d 937, 939 (Tex.Crim.App. 1995). In this case, the trial court orally concluded appellant's statement was voluntary but made no specific findings. Regardless, however, we once again conclude appellant was not harmed. Even if the trial court's conclusion that appellant voluntarily waived his right to remain silent was based on unsupported findings, the admission of the videotape into evidence did not harm appellant. Because article 38.22 is a procedural evidentiary rule, we apply appellate rule 44.2(b) and disregard the error if it did not affect appellant's substantial rights. See Gutierrez v. State, 71 S.W.3d 372, 380 (Tex.App.-Amarillo 2001, pet. ref'd). A substantial right is affected when an error has a substantial and injurious effect or influence on the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). We have already concluded beyond a reasonable doubt that any error in admitting the videotape of appellant's statements into evidence did not materially affect the jury's decision to convict him. For the same reasons we concluded the jury's deliberations were not materially affected, we also conclude the trial court's admission of the videotape into evidence without making specific findings did not have a substantial and injurious effect or influence on the jury's verdict. Appellant was not harmed under the rule 44.2(b) standard. For all the reasons discussed above, we resolve appellant's first issue against him. In his second issue, appellant complains that during jury argument the prosecutor commented on his failure to testify. Although appellant did not object to the argument at trial, he now contends the error was "fundamental." The court of criminal appeals has held that "before a defendant will be permitted to complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling." Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). Because appellant did not object to the complained-of jury argument at trial, his complaint is waived on appeal. We resolve his second issue against him. Appellant complains in this third issue that he was illegally sentenced in the first-degree-felony punishment range. He contends that one of the two enhancement offenses included in his indictment was a non-aggravated state jail felony that could not be used to enhance the punishment range for his intoxication manslaughter conviction from a second-degree-felony range to that of a first degree felony. Intoxication manslaughter is a second degree felony. Tex. Pen. Code Ann. § 49.08(b) (Vernon 2003). But if it is shown at a trial for a second degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a first degree felony. Id. § 12.42(b) (Vernon Supp. 2005). Here, appellant pleaded true to both the state-jail-felony enhancement offense of endangering a child and to a second felony enhancement offense of burglary of a building. See id. §§ 22.041, 30.02 (Vernon 2003 Supp. 2005). Appellant did not object to the burglary enhancement offense. Based on appellant's pleas of true, the trial court instructed the jury to set appellant's punishment at confinement "for a term of not less than twenty-five (25) nor more than ninety-nine (99) years or life," the punishment range for a first degree felony. The jury sentenced appellant to life imprisonment. This punishment was within the range allowed by law for a second degree felony conviction enhanced by one other previous felony conviction. See id. § 12.42(b). Thus, regardless of whether the endangering a child offense was available for enhancing appellant's conviction to a first degree felony, the jury was authorized to sentence him for a first degree felony once he pleaded true to the burglary offense. We resolve appellant's third issue against him. We affirm the trial court's judgment.