Opinion
NO. 09-11-00245-CR
05-30-2012
KENNETH BRYAN WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 06-08-07432 CR
MEMORANDUM OPINION
After a bench trial, the trial court convicted appellant Kenneth Bryan Williams as an habitual felony offender of driving while intoxicated, and imposed a sentence of twenty-five years of confinement. In two appellate issues, Williams challenges the legal sufficiency of the evidence supporting his conviction and contends he did not knowingly and voluntarily waive his right to a jury trial. We affirm the trial court's judgment.
THE EVIDENCE
Lieutenant Thomas Anthony Wolff of the Montgomery County Sheriff's Office testified that on the afternoon of June 7, 2006, he was traveling northbound on I-45 on his way back to the jail. Wolff observed a vehicle driving erratically. Wolff was not driving a marked vehicle, but he could communicate with dispatch by radio in his car. Wolff was driving in the inside lane when a vehicle approached his vehicle at a faster rate of speed than he was traveling and came within ten feet of striking the rear of Wolff's car. Wolff saw the vehicle then slow considerably, drop back, and then speed up and again almost strike Wolff's vehicle. Wolff explained that he pulled onto the inside shoulder "in an attempt to avoid a collision[,]" and the vehicle then passed him, and Wolff pulled behind the vehicle to observe it. Wolff also obtained the vehicle's license plate number.
Wolff explained that as he continued to follow the vehicle, its speed "fluctuated from over 70 miles an hour down to about 40. And in my experience and knowledge, that's significant of an impaired driver." Eventually, Wolff saw the vehicle strike the concrete barrier in the middle of the highway, and the barrier thrust the vehicle back into the lane of traffic. Wolff contacted the sheriff's office on the radio for assistance. According to Wolff, the vehicle continued driving northbound, and as it approached the south loop, the vehicle failed to maintain a single lane and varied its speed up and down, and Wolff "became more and more convinced it was an impaired driver."
Wolff testified that the vehicle exited onto the south loop and the "driving continued to be erratic." Wolff explained that the eastbound vehicle crossed completely over into the westbound lanes on about five occasions. According to Wolff, the vehicle drove on the improved shoulder for "easily a quarter of a mile." Wolff continued speaking on the radio to the sheriff's office as well as the Conroe police to obtain assistance. Wolff stated that such erratic driving is "an indication of an impaired driver." Wolff testified that the vehicle eventually slowed, swerved, struck the rear of a pickup truck that was stopped at a traffic light, and went around the truck before ultimately coming to a stop. Wolff radioed that an accident had occurred, got out of his vehicle, and asked the driver to step out of his vehicle.
Wolff checked the driver's identification and glanced into the vehicle. Wolff described the driver as confused, "very slow to move[,]" and "not very communicative with me." Wolff did not detect any unusual odor on the driver's person. Wolff testified that he believed the driver was "intoxicated on some substance." Officers from the Conroe Police Department, as well as a deputy constable, eventually arrived at the scene. Wolff gave his statement to the Conroe police, who were investigating the accident scene, and returned to his normal duty assignment at the jail. At trial, Wolff identified Williams as the driver of the vehicle. Wolff explained that he was present when Williams was brought to the jail, and Wolff explained that the Intoxilyzer was unavailable due to mechanical problems, so Williams was brought into a room at the jail, where field sobriety tests were administered to Williams and recorded on video. Wolff observed the officers administering sobriety tests to Williams. Wolff testified that he observed the officers requesting a sample of Williams's blood, and that Williams refused to provide a blood sample.
Officer Mark Schwinn of the Conroe Police Department testified that he received a dispatch instructing him to attempt to locate a vehicle that was driving erratically. Officer Schwinn was notified that a crash had occurred, and he ultimately responded to the accident. Officer Schwinn and his trainee obtained a witness statement and transported Williams to the jail, where an officer who is certified in Intoxilyzer field sobriety tests administered sobriety tests to Williams.
Officer Stephanie Spiller of the Montgomery County sheriff's office testified that she is certified to perform HGN and other sobriety tests. Officer Spiller testified that Williams told her that "he had had one beer." Officer Spiller testified that in the sobriety testing room at the jail, she administered both standardized and non-standardized field sobriety tests to Williams, including finger dexterity, reading a paragraph, and reciting the alphabet. Officer Spiller indicated that she gave Williams several attempts to complete each of the tests. After administering the tests, Officer Spiller concluded that Williams did not have full control of his mental and physical faculties. Officer Spiller explained, "[Williams] said he had been drinking. I don't know if he was intoxicated from the alcohol or something else." According to Officer Spiller, Williams did not indicate that he suffered from a brain injury or other impairment that caused him to perform poorly on the sobriety tests, but Williams did tell Officer Spiller that he had been in a coma and injured his shoulder and his knee as a result of a car accident in 2002. Officer Spiller explained that Williams denied taking any pills. Officer Spiller testified, "from conducting the field sobriety tests, it was my opinion that he was impaired." Officer Spiller denied noticing a strong odor of alcohol on Williams, and she testified that she did not notice him slurring his words.
Officer Spiller testified that at the end of the testing, Officer Schwinn's trainee administered an HGN test, and from reviewing the video before trial, she believed he had correctly administered the test. Officer Spiller indicated that the video fairly and accurately depicted the sobriety testing of Williams, and the video was played for the trial court. According to Officer Spiller, Williams consented to breath testing, but refused to provide a blood sample. Officer Spiller explained that the Intoxilyzer breath machine was not functioning properly, so she was unable to perform that test. At the conclusion of Officer Spiller's testimony, the State rested its case.
Williams's wife, Deborah, testified that Williams was in a motorcycle accident in 2002. She indicated on cross-examination that Williams was intoxicated on beer when the 2002 accident occurred. According to Deborah, Williams suffered severe brain damage as a result of the accident, and he also injured his right knee in a different accident. Deborah indicated that Williams still has problems with his right knee. Deborah testified that the motorcycle accident affected Williams's memory, and he has difficulty with verbal instructions. Deborah explained Williams told her that "he offered to do a breathalyzer test, but they told him it was broken." Deborah testified that Williams refused to provide a blood sample because "he is deathly afraid of needles[.]" Deborah testified, "When I saw the videotape [of the field sobriety tests], I saw Kenny. That's just Kenny. And whenever it's him not following directions and stuff, . . . that's just Kenny. So I felt like we needed a professional opinion to explain . . . this is from the brain injury."
Clinical psychologist Dr. Walter Quijano testified that he has seen many patients who have abnormal behaviors caused by brain injuries. Quijano explained that Deborah retained him, and he visited Williams at the jail. Quijano also reviewed Williams's medical records after the visit, and he testified that the records indicated Williams had suffered a total brain injury with subarachnoid hemorrhage. During the visit, Quijano administered the Wechsler Memory Scale Revised and the Wechsler Adult Intelligence Scale Revised to Williams, and he performed a mental status examination. Quijano explained that the "Wechsler Memory Scale is a neuropsychological test that measures different types of memories. The Wechsler Adult Intelligence Scale is a[n] intelligence test that can be interpreted neuropsychologically." According to Quijano, the tests revealed that Williams's verbal memory, visual memory, and overload memory were deficient, and his "[a]ttention concentration" was borderline. Quijano explained that the testing also indicated that Williams was below average with respect to non-verbal immediate memory. Quijano concluded that Williams suffers from amnestic disorder secondary to closed head injury, perseveration, and derailment. Quijano explained that his forensic impression was that Williams suffers from overall memory deficits, and that various problems with his performance on the sobriety tests may be explained by brain damage rather than intoxication.
Quijano testified that he had reviewed the video of the sobriety testing of Williams. Quijano explained that when Williams recited the alphabet during Quijano's testing, he stopped at the same letter at which he stopped on the video. Quijano testified that Williams also omitted a letter, which Quijano explained he had not noticed until the prosecutor pointed it out during cross-examination, and he opined that omitting a letter is very likely caused by alcohol intoxication. In addition, Quijano testified that when Williams was asked to walk in a straight line and he staggered off the line, that problem was unrelated to his brain injury. During cross-examination, Quijano testified that Williams's history "is replete [with] alcohol abuse incidents." The defense rested at the conclusion of Quijano's testimony.
ISSUE ONE
In his first issue, Williams argues that the evidence was legally insufficient to support his conviction. When conducting a legal sufficiency review, we consider the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Young v. State, 283 S.W.3d 854, 861 (Tex. Crim. App. 2009) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The factfinder resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts. Id. "[I]n analyzing the legal sufficiency, we will determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence, both direct and circumstantial, when viewed in the light most favorable to the verdict." Id. at 861-62 (footnote omitted). We are not permitted to re-evaluate the credibility and weight of the evidence and substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Tex. Penal Code Ann. § 49.04(a) (West Supp. 2011). The Texas Penal Code defines "intoxicated" as follows:
Because the amendments to section 49.04 are not material to this appeal, we cite to the current version of the statute.
(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; orId. § 49.01(2)(A),(B) (West 2011). The trial court heard the testimony of the witnesses and viewed the video of the sobriety testing of Williams. The trial court was free to weigh the evidence, resolve any conflicts in the evidence, and draw reasonable inferences from the evidence. See Young, 283 S.W.3d at 861-62. Viewing the evidence in the light most favorable to the verdict, the factfinder could have found the essential elements of the offense beyond a reasonable doubt. See id. We overrule issue one.
(B) having an alcohol concentration of 0.08 or more.
ISSUE TWO
In his second issue, Williams contends that the record does not demonstrate that he knowingly and voluntarily waived his right to trial by jury. The judgment recites that Williams "waived his right to a trial by Jury and chose to have a Bench Trial." Article 1.13(a) of the Texas Code of Criminal Procedure provides as follows, in pertinent part:
(a) The defendant in a criminal prosecution for any offense other than a capital felony case . . . shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, . . . the waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the state.Tex. Code Crim. Proc. Ann. art. 1.13(a) (West Supp. 2011). Williams argues in his brief that "[t]here was no written waiver by [a]ppellant in the record." However, the clerk's record contains a criminal trial scheduling order, which was filed on July 27, 2007. The order indicated the date on which the trial would take place, and the word "Bench" was handwritten beside that notation. The order was signed by both Williams and his counsel. After the first witness testified at trial, the following colloquy occurred:
[Prosecutor]: . . . Did [Williams] not waive his jury trial on the record? . . .
THE COURT: No, you did not waive it on the record. That's for sure.
[Defense counsel]: I forgot about that, Judge.
. . . .
THE COURT: Mr. Williams, you know you have a right to a jury trial; and, in fact, we had a jury in here on Monday ready to try your case, if you wanted it. But it was my understanding from [defense counsel] that you preferred to have a trial in front of me which we term a bench trial; is that correct?
[WILLIAMS]: Yes, ma'am.
THE COURT: And so you are waiving your right to a jury trial.
[WILLIAMS]: Yes.
THE COURT: Okay. That was your understanding, [defense counsel], as well?
[Defense counsel]: It is, Your Honor.
THE COURT: All right. Thank you.
Because the amendments to article 1.13(a) are not material to this appeal, we cite the current version of the statute.
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Article 1.13 clearly requires that a written waiver, signed by the defendant, must appear in the record. See id. However, article 1.13 does not specify a particular type of document in which the defendant's waiver must appear. See id.; Henderson v. State, 619 S.W.2d 175, 176 (Tex. Crim. App. 1981) (An "Agreement to Stipulate [] Application for Probation" constituted a sufficient written waiver of the right to jury trial.). As previously discussed, the criminal trial scheduling order, which indicated that trial was to be to the bench, was signed by both Williams and his attorney. In addition, we presume the regularity of judgments absent proof that the recitations in the judgment are incorrect. See Johnson v. State, 72 S.W.3d 346, 349 (Tex. Crim. App. 2002). We conclude that the criminal trial scheduling order constituted a sufficient written waiver by Williams of his right to jury trial, and we presume the regularity of the trial court's judgment. See Tex. Code Crim. Proc. Ann. art. 1.13(a); Johnson, 72 S.W.3d at 349; Henderson, 619 S.W.2d at 176. Accordingly, we overrule issue two and affirm the trial court's judgment.
AFFIRMED.
STEVE McKEITHEN
Chief Justice
Do Not Publish Before McKeithen, C.J., Kreger and Horton, JJ.