Ramon Molina, Jr. v. The State of Texas--Appeal from County Court at Law No 2 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RAMON MOLINA, JR., )

) No. 08-02-00529-CR

Appellant, )

) Appeal from the

v. )

) County Court at Law #2

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20020C08952)

)

O P I N I O N

Appellant Ramon Molina, Jr. appeals his conviction for the offense of driving while intoxicated (ADWI@). A jury found Appellant guilty and the trial court assessed punishment at 180 days confinement in the El Paso County Detention Facility, probated for 15 months community supervision, and a fine of $750, probated to $350. He brings three issues which challenge the legal and factual sufficiency of the evidence to sustain his conviction and contends the trial court erred in granting the State=s motion to strike a venireperson for cause. We affirm.

On the evening of December 21, 2001, Michael Rubio, his girlfriend, and one of her friends, had just left Chico=s Tacos and were stopped at a stoplight at McRae and Wedgewood when they were struck from behind and knocked into the intersection. Mr. Rubio and the other driver, the Appellant, signaled each other to pull into the parking lot. Mr. Rubio=s girlfriend called 911. Mr. Rubio got out of his car to ask Appellant what happened, but Appellant was on his cell phone and stayed in his car. So, Mr. Rubio got back into his car and waited for the police.

A fire truck arrived about five minutes later. Both Mr. Rubio and his girlfriend recalled that Appellant tried to leave, but the fire truck blocked Appellant=s car. Firefighter Arturo Provencio testified that he was driving the fire truck. As Lieutenant Provencio was checking the cars for leaking fluids, Appellant got out of his car. Lieutenant Provencio noticed that Appellant stumbled and lost his balance while getting out of the vehicle. Firefighter and EMT Raymundo Munoz testified that he exited the fire truck and walked towards Appellant=s car and could hear its engine running. Mr. Munoz opened the passenger=s side door and asked Appellant if he was okay and Appellant replied, AI=m okay.@ Appellant was revving the engine and at his captain=s instruction, Mr. Munoz reached in, turned the engine off, and grabbed the keys. Mr. Munoz recalled seeing Appellant stumbling and unable to keep his balance while getting out of the vehicle.

The police arrived soon after the fire department. El Paso Officer Hector David Flores was one of the officers dispatched to the accident scene that evening. Officer Flores observed Appellant standing beside his car. Officer Flores approached him and asked for vehicle information, his driver=s license, and about what had caused the accident. Appellant provided the requested information and told Officer Flores that the car in front of him stopped on a yellow light, which caused the collision. Officer Flores was standing about an arm=s length distance from Appellant as he talked and noticed a strong odor of alcohol on Appellant=s breath. The officer also observed that Appellant=s speech was slurred, his eyes were glassy and bloodshot, and that he had poor balance. Officer Flores decided to perform field sobriety tests and asked Appellant if there was anything wrong with him. Appellant told the officer that there was nothing wrong with him. Officer Flores did not observe any visible signs of head injury.

Officer Flores first performed the horizontal gaze nystagmus test (AHGN@) on Appellant. Officer Flores asked Appellant if he was sick, ill, or injured, to which Appellant replied no, and the officer also asked Appellant to remove his glasses. Officer Flores recalled that Appellant had a jerking of the eyes on the test and failed that particular test. Officer Flores next performed the walk-and-turn test and then the one-leg stand test, other components of the field sobriety tests. In the walk-and-turn test, Officer Flores observed that Appellant had poor balance, was swaying badly, and that he had to use his arms to maintain his balance. For the one-leg stand test, Appellant used his hands to keep his balance, instead of keeping his hands to his side. Officer Flores determined that Appellant failed both additional tests. According to Officer Flores, these field sobriety tests were performed on a flat-level surface in a well-lit parking lot. Based on his training and experience, Officer Flores concluded that Appellant was under the influence of alcohol and placed Appellant under arrest for DWI.

El Paso Officer Fernando Morales was dispatched to the accident scene and assisted Officers Flores and Bonilla in the investigation. Based on his expertise as a member of the DWI task force, Officer Morales held the opinion that Appellant had been drinking and was intoxicated that evening. Officer Morales transported Appellant to the police station and gave him his Miranda warnings and statutory warnings regarding the breath test. Since Appellant refused to give a breath sample, Officer Morales videotaped Appellant being given the warnings and refusing to do the field sobriety tests again in the station. In Officer Morales= report, Appellant admitted to drinking six beers between 3:30 p.m. and 6:30 p.m. that day and stated that he had not been injured lately and had no physical handicaps.

At trial, Appellant testified on his own behalf. At the time, Appellant was employed as a contractor for the Army, doing maintenance manuals for helicopters. On the day before the accident, Appellant went to bed between 10:30 and 11 p.m. and woke up at 5:30 a.m. as usual. Appellant worked from 6:30 a.m. to 3:30 p.m. After work, Appellant had a 12-pack with a friend from work on a bypass in Northeast El Paso. They were there until 6:30 p.m. and then they went to the friend=s house off of Wedgewood to finish laying tile at the house. Appellant stayed at his friend=s house until 9:30 or 10 p.m. at which point they went to Chico=s Tacos. After eating, Appellant took his friend home. As Appellant was driving on McRae on his way back home, he was using the phone and the CD changer when he hit the car in front of him. Appellant pressed on the brakes, but could not avoid the collision. He was shocked when the accident occurred and remembered hitting his head in between the steering wheel and the dashboard, but did not tell anybody. Appellant recalled that the accident occurred around 11 p.m.

According to Appellant, after the accident the people in the other car got out and Appellant was going to get out too, but the other driver came over. Appellant asked him if they were okay and the driver replied yes. Appellant also asked if he wanted to move the vehicles out of the way and the driver replied yes and they both drove into the parking lot. Appellant denied trying to leave the scene. With respect to the field sobriety tests, Appellant testified that it was cold that night and he was only wearing a T-shirt. The area in which he was told to perform the tests did not feel flat. Appellant explained that he refused the breathalyzer test because his lawyer friends always say Adon=t do it.@ He refused to do the field sobriety tests because he had already done them. At trial, Appellant stated that he believed the accident was a result of him not paying attention and he denied having been intoxicated.

Sufficiency of the Evidence

In Issue One, Appellant contends the trial court erred in denying his motion for a directed verdict because the State failed to prove that his mental or physical faculties were impaired by consumption of alcohol. Appellant=s argument is in reality a legal sufficiency challenge, therefore we will review his complaint with Issue Two, in which Appellant challenges the legal and factual sufficiency of the evidence to sustain his conviction for DWI. See Madden v. State, 799 S.W.2d 683, 686 (Tex.Crim.App. 1990).

Standards of Review

In reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is to determine whether if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman, 828 S.W.2d at 421-22. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843.

In conducting a review of the factual sufficiency of the evidence, we view all the evidence in a neutral light, both for and against the verdict, to determine whether it demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). We review the evidence supporting a fact in dispute and compare it to evidence tending to disprove that fact. Johnson, 23 S.W.3d at 6-7; Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997). Although we are authorized to set aside the jury=s determination, we must give appropriate deference to its determination and should not intrude upon the jury=s role as the sole judge of the weight and credibility given to evidence presented at trial. See Johnson, 23 S.W.3d at 8-9. We will set aside a verdict only where the evidence supporting guilt is so obviously weak or the contrary evidence so overwhelmingly outweighs the supporting evidence as to render the conviction clearly wrong and manifestly unjust. Ortiz v. State, 93 S.W.3d 79, 87 (Tex.Crim.App. 2002), cert. denied, 123 S. Ct. 1901, 155 L. Ed. 2d 824 (2003). A jury=s verdict is not manifestly unjust merely because the fact finder resolved conflicting views of the evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997).

Driving While Intoxicated

A person commits the offense of driving while intoxicated if that person is intoxicated while operating a motor vehicle in a public place. See Tex.Pen.Code Ann. ' 49.04(a)(Vernon 2003). Under the Penal Code, Aintoxication@ means Anot having the normal use of mental or physical faculties by reason of the introduction of alcohol . . . into the body.@ See Tex.Pen.Code Ann. ' 49.01(2)(A).

Appellant contends that no rational jury could have concluded that he was intoxicated, that is, that he did not have normal use of mental or physical faculties by reason of the introduction of alcohol into his system. The evidence at trial showed that Appellant was operating a motor vehicle which struck Mr. Rubio=s car from behind while Mr. Rubio was stopped at a stop light at the intersection of McRae and Wedgewood in El Paso, Texas. Witnesses at the scene observed Appellant stumble and lose his balance while exiting his vehicle. Officer Flores testified that while standing an arm=s length away, he smelled a strong odor of alcohol on Appellant=s breath and observed Appellant=s slurred speech, glassy bloodshot eyes, and poor balance. Officer Flores administered the standard field sobriety tests on a flat area of the parking lot and testified that Appellant failed all of the tests. Before Officer Flores performed the tests, he asked Appellant if he was sick, ill, or injured and Appellant said no--evidence which is contrary to Appellant=s testimony at trial regarding his head injury during the accident. Officer Flores testified that being cold or nervous would not affect the HGN test, though shivering and fatigue could effect someone=s performance on the one-leg stand test. It was both Officer Flores= and Officer Morales= opinion that Appellant was under the influence of alcohol that evening. Viewing the evidence in a light most favorable to the verdict, we conclude that it is legally sufficient to sustain Appellant=s conviction for DWI.

In his factual sufficiency challenge, Appellant asserts the jury=s verdict is against the weight of the evidence because there is an enormous amount of evidence to disprove he was intoxicated. In his brief, Appellant points to evidence that: (1) he consumed alcohol between 3:30 and 6:30 p.m., while the accident occurred around 11 p.m.; (2) there was no evidence of alcoholic beverages in his vehicle; (3) although not injured, hitting his head could have affected his performance on the HGN test; and (4) it was a cold night and Appellant was wearing only a

T-shirt, he may have been fatigued, and the surface area of the testing location did not feel flat to Appellant, all of which were factors that could have affected his performance on the field sobriety tests. After viewing all the evidence, we find that the contrary evidence does not so overwhelmingly outweigh the evidence supporting guilt as to render the conviction clearly wrong and manifestly unjust. Accordingly, we conclude that the evidence is both legally and factually sufficient to support the jury=s verdict. Issues One and Two are overruled.

 State=s Challenge for Cause

In Issue Three, Appellant contends the trial court erred in granting the State=s motion to strike prospective juror Duane Baker for cause under Article 35.16(b) of the Texas Code of Criminal Procedure. See Tex.Code Crim.Proc.Ann. art. 35.16(b)(3)(Vernon Supp. 2004).

Standard of Review

To show error in the trial court=s grant of the State=s challenge of Mr. Baker for cause, Appellant must show that either: (1) the trial court applied the wrong legal standard in sustaining the challenge; or (2) the trial court abused its discretion in applying the correct legal standard. See Jones v. State, 982 S.W.2d 386, 388-89 (Tex.Crim.App. 1998), citing, Vuong v. State, 830 S.W.2d 929, 943 (Tex.Crim.App.), cert. denied, 506 U.S. 997, 113 S. Ct. 595, 121 L. Ed. 2d 533 (1992). A defendant does not have a right to have a particular individual serve on the jury. Id. at 393. A defendant=s constitutional right to trial by an impartial jury is not violated by every error in the selection of a jury. Id. at 391 (only in every limited circumstances when a juror is erroneously excused because of general opposition to the death penalty does the exclusion of a juror by an unintentional mistake amount to a constitutional violation). If the trial court erred by granting the State=s motion, we must disregard the error unless it affected Appellant=s substantial rights. Jones, 982 S.W.2d at 391-92. The defendant=s only substantial right is that the jurors who do serve be qualified. Id. at 393. The erroneous excusing of a veniremember will call for reversal only if the record shows that the error deprived the defendant of a lawfully constituted jury. Id. at 394.

Voir Dire Examination of Mr. Baker

During the individual voir dire examination of Mr. Baker, the following exchange occurred:

The State: Mr. Baker, are you a defense attorney?

Mr. Baker: From >71 to >76 I was an assistant district attorney. From >73 to >76 I was the first assistant district attorney. Since >82 I represented police officers in civil right=s [sic] cases. Starting four years ago, I started doing criminal defense work.

Now, do I believe in the field sobriety test? No. As Judge Gonzalez can tell you.

The State: Well, given all that, do you think you would be able to sit on a jury and hear the evidence and sit as an impartial juror?

Mr. Baker: Well, of course, you know, I mean I understand what the rules and the law and how all that works is. I need to be in front of Judge Phil Martinez at 8:00, I have a guilty plea tomorrow at 8:30, but if I need to be here, I=ll be here. And I=m leaving town on an airplane about 1:15 tomorrow. I have a court ordered--what do they call it over there now-- provisional discovery plan. And five of us are going to Austin to depose a serology criminalist at the DPS lab.

. . .

The Court: All right.

The State: Your honor, I move to strike Mr. Baker. He said, I could of, but he did not believe in the validity of the field sobriety test. He, obviously, has a biased opinion about such tests even before testimony is proffered as to their validity and I move to strike him.

The Court: I will grant your motion.

Defense: Your Honor, note my objection for the record. I believe he said that being a defense attorney he=s had an opportunity to review the studies and learn what the basis of the field sobriety test is, and just because he has that extra knowledge doesn=t mean-- he indicated that he would be able to listen to the evidence and make a decision based on the evidence that he heard. But, because of his special knowledge in the standardized field sobriety test, I mean, that would just go to the -- using his common sense and reasoning in evaluating that evidence and I don=t believe that would disqualify him.

The Court: So noted.

Even assuming the trial court erred in its application of Article 35.16(b)(3) in this case, Appellant fails to explain on appeal how he was denied a lawfully constituted jury nor does he argue that his jury was unfair or impartial. Without such a showing, Appellant has not shown the harm required for reversal. Issue Three is overruled.

Accordingly, we affirm the trial court=s judgment.

February 26, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)