Barbernell, Stephen Gregory v. The State of Texas--Appeal from Co Crim Ct at Law No 12 of Harris County

Affirmedand Opinion filed October 3, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-00-01423-CR

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STEPHEN GREGORY BARBERNELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 12

Harris County, Texas

Trial Court Cause No. 0988772

O P I N I O N

Appellant, Stephen Gregory Barbernell, was convicted by a jury of the offense of driving while intoxicated and sentenced by the court to 180 days incarceration and a fine of $800. The imposition of sentence as to the term of confinement was suspended for a period of one year. In one point of error, appellant contends the trial court erred in admitting testimony from a witness that was more prejudicial than probative. We affirm.

While driving his automobile in the early morning hours of March 3, 2000, appellant collided with a flashing sign that indicated a need to merge lanes. Thereafter, appellant stepped from behind the wheel in a seemingly disordered state, looked around, reentered his truck, pulled into a nearby parking lot, and began using his cellular telephone. In due course, a worker who had heard the collision, Martin Valis, approached appellant s vehicle. Mr. Valis later testified that he heard appellant question the person with whom he was conversing as to what he was supposed to say, and what he should . . . tell them. Appellant=s objection to the admission of this testimony (on the basis that its prejudicial effect outweighed any probative value) was overruled.

Texas Rule of Evidence 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. Questions of admissibility of evidence under Rule 403 are assigned to the trial court and are reviewable only for abuse of discretion. See Brimage v. State, 918 S.W.2d 466, 506 (Tex. Crim. App. 1994). The trial court does not abuse its discretion if its decision falls within the zone of reasonable disagreement and is reasonable in view of all relevant facts. See Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997); Rachal v. State, 917 S.W.2d 799, 808 (Tex. Crim. App. 1996).

We need not decide whether Valis s testimony concerning appellant s post-accident phone call was unfairly prejudicial because, even if it was, we should not reverse a conviction for the erroneous admission of evidence if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Cobb v. State, ___ S.W.3d ___, 2002 WL 1059741, *8 (Tex. Crim. App. 2002) (quoting Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)). In this case, we are confident that the admission of this evidence did not influence the jury. Here, as appellant acknowledges, there was sufficient circumstantial evidence to establish he was intoxicated when he collided with the flashing sign: three witnesses, including a police officer, smelled alcohol on appellant=s breath; one witness said appellant s eyes were bloodshot and he was swaying on his feet; and, appellant refused to consent to either field sobriety or Intoxilyzer tests. Moreover, the disputed phrases did not raise the issue of appellant s sobriety, were consistent with common post-accident inquiries, and were mentioned only briefly. Accordingly, we are unable to discern any harm under Texas Rule of Appellate Procedure 44.2. Appellant s point of error is overruled.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed October 3, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish C Tex. R. App. P. 47.3(b).