Dale Robert Sanchez v. State of Texas--Appeal from 244th District Court of Ector County

Opinion filed August 23, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-06-00159-CR

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DALE ROBERT SANCHEZ, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 244th District Court

Ector County, Texas

Trial Court Cause No. C-32,482

  O P I N I O N

Dale Robert Sanchez appeals his conviction by a jury of the offense of driving while intoxicated, subsequent offense. The jury assessed his punishment at eight years imprisonment in the Texas Department of Corrections, Institutional Division. In three issues, Sanchez contends that the evidence is insufficient to support his conviction, that the trial court erred by overruling his objection to an argument by the prosecutor, and that the trial court erred by overruling his motion for mistrial after sustaining his objection to another argument by the prosecutor. We affirm.

Sanchez urges in issue one that the evidence is insufficient to support his conviction. In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines 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, 319 (1979). 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 (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; Johnson, 23 S.W.3d at 10-11.

In his discussion of the issue, Sanchez only questions the sufficiency of the evidence to show that he had been previously convicted of driving while intoxicated as alleged in the indictment. The indictment alleged that he had previously been convicted of the offense of being intoxicated while he was operating a motor vehicle in a public place in Cause Number D-27,194 in the 358th District Court of Ector County on February 1, 1999, and in Cause Number 3080 in the 109th District Court of Andrews County on January 30, 1996.

Vicki Drennan, a deputy in the Ector County Sheriff=s Office, testified that fingerprints she had taken of Sanchez a few hours before trial matched fingerprints in State=s Exhibits 2 and 3, which represent the judgments in the two prior convictions alleged. She testified that she had recently received forty hours of training through the D.P.S. Academy in Austin for basic fingerprint comparison. She said during that week of training she compared over 50,000 fingerprints.

Sanchez suggests that the State failed to show that she was qualified to make the fingerprint comparison because she testified that she did not consider herself to be an expert and because she did not have any field experience. He also noted her testimony that she liked to have fourteen points of comparison when, with respect to one of the prior convictions, she had only eight.

Deputy Drennan testified that, with respect to both prior convictions, she found only seven points of comparison and that she could locate more. When counsel asked, ABut you didn=t,@ she replied, ANo, that=s why I asked how many he would like me to find.@ Counsel replied, AYou asked him, you are the expert, right?@ Deputy Drennan responded, AExcuse me, you qualify me as an expert, correct?@ After the trial court admonished Deputy Drennan to just answer the question, counsel asked, AYou=re the expert, right?@ Deputy Drennan answered, AI don=t consider myself an expert.@ A close reading shows that the issue was not Deputy Drennan=s status as an expert in comparing fingerprints but her status as an expert in determining how many points of comparison the district attorney needed for court. Even if she were saying that she was in her own opinion not an expert in fingerprint comparison, the court was free to find that she was an expert based upon her complete testimony as to her qualifications.

In support of his contention that Deputy Drennan=s credentials were insufficient to qualify her as an expert, Sanchez relies upon the case of Holloway v. State, 613 S.W.2d 497 (Tex. Crim. App. 1981). We find Holloway to be distinguishable. In Holloway, the court reversed the judgment because of the trial court=s decision allowing the testimony of a psychiatrist when the sole basis for the psychiatrist=s opinion was unreliable. Id. at 503. In its opinion, the court noted that the psychiatrist=s testimony was not admissible merely because he had professional credentials or occupational status in a calling that relates to the matter in question. Id. at 501. Instead, the court noted that it must be shown that the expert possesses special knowledge upon the specific matter about which his or her expertise is sought. Id. In Holloway, the psychiatrist was seeking to testify about the probability of the defendant=s future conduct based upon information that was not shown to be reliable without having examined the defendant. In the case at bar, the witness had examined the fingerprints in issue, and while she would have liked to have more points of comparison between the prints located in the records of the prior convictions and the prints she had taken from Sanchez, she was comfortable in her opinion based upon the points of comparison that she did have. We hold that the evidence is sufficient to show that Sanchez was previously convicted as alleged in the indictment. We overrule issue one.

Sanchez urges in issue two that the trial court erred in overruling his objection to the prosecutor=s argument at the guilt/innocence phase that included the question, AWould you feel comfortable having your children get in the vehicle with him?@ In order to be proper, an argument must fall within one of the following four categories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Holberg v. State, 38 S.W.3d 137, 141 (Tex. Crim. App. 2000); Alejandro v. State, 493 S.W.2d 230, 231-32 (Tex. Crim. App. 1973).

In his final argument to the jury at the guilt/innocence phase of the trial, Sanchez=s counsel argued that Athe manual@ indicates that there is a one in five chance of somebody failing all three sobriety tests miserably who is sober. He then argued, AWould you feel comfortable getting in your car going home tonight if somebody told you the brakes are going to fail one out of five times? You should feel no more comfortable sending my client to prison if there=s one in five chances of you being wrong.@ In his response, the prosecutor argued,

[T]hen he asks, would you feel comfortable sending the Defendant to prison. Let me ask the question another way, based on all the evidence you=ve heard in this case, in particular, the Defendant=s performance on that video tape, on the Walk and Turn Test, would you feel comfortable getting in the vehicle with him that night, with him driving? Would you feel comfortable having your children get in the vehicle with him?

Inasmuch as counsel for Sanchez raised the issue as to whether the jury would be comfortable in its verdict, we hold that the State=s argument was an answer to argument of opposing counsel. Therefore, the trial court did not err in overruling the objection to the State=s argument. We overrule issue two.

Sanchez insists in issue three that the trial court erred by failing to grant his motion for mistrial after sustaining his objection to the State=s argument: A[I]f something is not done now, strongly, somebody could be killed. We=ve seen it happen.@ We agree with the State that the prosecutor was merely arguing that people are sometimes killed by those who drive while intoxicated. That being common knowledge, the argument was not improper. Vasquez v. State, 830 S.W.2d 829, 830 (Tex. App.CCorpus Christi 1992, pet. ref=d). We note that even Sanchez testified that he realized that every time he gets behind the wheel after drinking that someone could be killed, including himself. We reject Sanchez=s argument that the prosecutor was suggesting that the prosecutor had facts showing that Sanchez had already killed someone in the past due to his drunk driving. We overrule issue three.

The judgment is affirmed.

PER CURIAM

August 23, 2007

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

Panel consists of: McCall, J.,

Strange, J., and Hill, J.[1]

[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.