Charles David Lamar v. The State of Texas--Appeal from 238th District Court of Midland County

Opinion filed March 8, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00228-CR

__________

   CHARLES DAVID LAMAR, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 238th District Court

Midland County, Texas

Trial Court Cause No. CR30022

O P I N I O N

A jury convicted Charles David Lamar of the felony offense of driving while intoxicated. See Tex. Pen. Code Ann. ' 49.04(a) (Vernon 2003), ' 49.09(b)(2) (Vernon Supp. 2006). Alleged along with the primary offense were two previous DWI convictions that enhanced the potential punishment to that of a third-degree felony. See Tex. Pen. Code Ann. ' 49.09(b)(2), (c)(1)(A) (Vernon Supp. 2006). The jury assessed punishment at confinement for a term of two years. The jury also recommended that appellant=s driver=s license be suspended for 365 days beginning on July 8, 2005. We affirm.

Appellant challenges the legal sufficiency and the factual sufficiency of the evidence in the first two issues. In his third issue, appellant asserts that the trial court erred in not granting a mistrial. In his fourth issue, appellant asserts that the trial court erred in allowing the testimony by the arresting officer as to one of the intoxication tests.

To determine if the evidence is legally sufficient, we must review all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414-15, 417 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15, 417; Johnson, 23 S.W.3d at 10-11. The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979).

At 8:20 p.m. on June 23, 2004, appellant=s wife, Charity Ann Lamar, called 9-1-1. She told the dispatcher that her husband was Avery, very drunk@ and was threatening to Akick [her] ass.@ She informed the dispatcher that her husband had just driven off in a white company truck and that he was Adrunker than Cooter Brown.@ Charity told the dispatch operator that appellant was driving down one road and was just turning left onto another. Midland County Sheriff=s Deputy Edward Reyes received the radio call about the disturbance and went to appellant=s residence. Charity told Deputy Reyes that appellant was upset over their divorce and that he left the scene Adrunker than Cooter Brown.@ Deputy Reyes got a description of appellant=s vehicle and went to look for appellant.

After approximately ten minutes, Deputy Reyes saw the vehicle appellant was driving. When Deputy Reyes began to pursue him, appellant accelerated. Deputy Reyes temporarily lost sight of the vehicle and went down a few dirt roads that led to pump jacks. Deputy Reyes drove down another dirt road and spotted the vehicle. The vehicle he saw matched the description given to him earlier. The vehicle was stopped and appellant, who was the same driver Deputy Reyes spotted earlier, was in the driver=s seat. Deputy Reyes approached appellant at 9:10 p.m.

When Deputy Reyes went to the vehicle, he smelled a strong odor of alcohol and noticed that appellant had red, bloodshot eyes. Deputy Reyes asked appellant for his driver=s license, but appellant could not find it. Deputy Reyes asked appellant to step out of the vehicle. Appellant told Deputy Reyes that he drank five beers earlier that evening. Deputy Reyes administered the Horizontal Gaze Nystagmus test (HGN). Based on that information along with appellant=s stumbling, his admission to the consumption of alcohol, and the strong smell of alcohol on appellant, Deputy Reyes arrested him. Appellant refused to take a breath alcohol test. Appellant refused to do a walk-and-turn test. Deputy Reyes did not administer the one-legged stand test, another test for intoxication.

Appellant asserts that there is no evidence to show that appellant was intoxicated at the time Deputy Reyes observed appellant driving. The record shows that Charity=s 9-1-1 call was received at 8:20 p.m. Deputy Reyes went to appellant=s house. He stayed at the residence for a few minutes, and after being informed that appellant was driving while drunk, Deputy Reyes went to find him. According to the videotape (State=s Exhibit 4), Deputy Reyes pulled up to the pickup appellant was driving at 9:10 p.m. When Deputy Reyes found appellant parked on an oil and gas lease, appellant told him he drank five beers. Deputy Reyes did not observe any beer cans or other alcohol containers around the vehicle. He administered the HGN test and determined that appellant was intoxicated. Deputy Reyes based his conclusion on that test and on other indicators.

The record shows that appellant was the person about whom Charity called 9-1-1 radio dispatch. The record also shows that appellant drove the vehicle that was described by Charity, that was observed being driven on the road, and that Deputy Reyes pulled up to on the oil and gas lease. Charity did not provide a license plate number. She described vehicle as a white Chevrolet extended-cab pickup with a black grill guard and a black tool box in the back end of the pickup. The record shows that the vehicle did not belong to the Lamars, but to Patterson Drilling Company.

That time between when Deputy Reyes saw appellant driving and when he determined that appellant was intoxicated does not in and of itself amount to insufficiency of the evidence, which can be direct or circumstantial. See Johnson v. State, 517 S.W.2d 536, 537-38 (Tex. Crim. App. 1975); Weaver v. State, 721 S.W.2d 495, 498-99 (Tex. App.-Houston [1st Dist.] 1986, pet. ref=d). There was no dispute in the record as to whether appellant had been driving the vehicle on city roads before Deputy Reyes arrived. Once Deputy Reyes arrived, he determined, as described above, that appellant was intoxicated. The jury had an informed basis upon which to determine the relationship, if any, between appellant=s driving and his intoxication. Kennedy v. State, 797 S.W.2d 695, 696-97 (Tex. App.-Houston [1st Dist.] 1990, no pet).

Appellant argues that the evidence raises an alternative and reasonable hypothesis that appellant was sober until he arrived at the oil and gas lease. Appellant further asserts that it was reasonable that he was parked there for 30 to 40 minutes before Deputy Reyes arrived, that appellant drank possibly two beers and threw the empty cans into the weeds, and that he lost the normal use of his mental and physical faculties after he drove in a public place.

There was an approximate 40-minute gap between the time Deputy Reyes first saw appellant driving the vehicle described by Charity and the time when he found the vehicle on the lease. Deputy Reyes testified that he followed the vehicle at some length before he temporarily lost sight of the vehicle for 8-10 minutes. The record indicates that Deputy Reyes followed the vehicle for about 30 minutes. There is testimony in the record that, when Deputy Reyes first saw the vehicle, it was either 8:30 p.m. or 8:50 p.m. The testimony reflects that appellant was not at the oil lease drinking beer during the 40-minute gap. We find these facts to be legally and factually sufficient. Appellant=s first two issues are overruled.

Appellant asserts in his third issue on appeal that the trial court erred in not granting a mistrial when the prosecutor elicited testimony from Deputy Reyes that, after he read appellant the Miranda warnings,[1] appellant invoked his right to remain silent. During questioning by the prosecutor of Deputy Reyes, the following exchange took place:

Q: Did you -- okay. And you did advise him of his Miranda warnings against self-incrimination?

A: Correct.

Q: And he properly chose to exercise those rights?

A: Correct.

After the exchange, the court sustained defense counsel=s objection that the question was improper. The prosecutor went on to add: AI guess the only question is you did give the warnings, maybe that=s the point I wanted to make.@ The question was withdrawn and the trial judge instructed the jury to Adisregard any reference to the Defendant invoking his rights. Do not consider that for any purpose.@ Appellant requested a mistrial, which was denied.

In its brief, the State conceded that it improperly referred to appellant=s post-Miranda silence. The State argues that any harm was cured by the court=s instruction to the jury to disregard any reference to defendant=s invoking his rights. We agree. A jury is presumed to follow an instruction to disregard as given. Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996); Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988). Error in admitting evidence may be cured by an instruction to disregard except in extreme cases where the evidence is Aclearly@ calculated to inflame the jurors and is of such a nature that it suggests impossibility in withdrawing the impression produced on their minds. Waldo, 746 S.W.2d at 752. Here, after the instruction to disregard, the prosecutor further explained that Athe defense [attorney has] been sitting over there for two hours talking to the witness about following the rules, and I=m just simply asking did he follow the rule[s].@ The court asked the prosecutor to move on to another subject, which he did. No harm has been shown. Appellant=s third issue is overruled.

In the last issue, appellant asserts the trial court erred in allowing the arresting officer=s testimony as to the vertical portion of the HGN test. Deputy Reyes testified that he was qualified to administer the HGN test. While demonstrating the test in front of the jury, defense counsel made the following objection:

[DEFENSE COUNSEL]: Your Honor, there=s no testimony that this man=s qualified to give a vertical nystagmus test. The only thing that he=s qualified him to give testimony about is a horizontal nystagmus test. We object to that testimony.

[PROSECUTOR]: I asked him if he was certified to do Horizontal Gaze Nystagmus, and the answer was yes. That=s part of the training, too.

THE COURT: Would you clarify whether or not the test that he=s describing is a part of Horizontal Gaze Nystagmus.

[PROSECUTOR]: Yes. The last part you did, the up and down, that=s Vertical Gaze Nystagmus, the one you went up and down, is that part of what your=re trained on the horizontal?

[DEPUTY REYES]: Yes, it is part of the rest of the test.

THE COURT: Objection=s overruled. You may continue.

On appeal, appellant urges that the trial court erred in allowing Deputy Reyes=s testimony as to the vertical portion of the HGN test on the basis that the testimony was not shown to be reliable. Appellant=s counsel neither specified the deficiency in qualifications nor objected on the basis of reliability. Further, he did not seek voir dire of the witness. Appellant has not preserved that complaint for our review. Tex. R. App. P. 33.1. Appellant=s fourth issue is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

March 8, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Miranda v. Arizona, 384 U.S. 436 (1966).