Rafael Jose Guerra v. The State of Texas--Appeal from 124th District Court of Gregg County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00213-CR
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RAFAEL JOSE GUERRA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 33153-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION

Rafael Jose Guerra was convicted by a Gregg County jury of a subsequent-offense driving while intoxicated (DWI) charge and was assessed a sentence of twenty years' confinement and a fine of $3,000.00. See Tex. Penal Code Ann. 49.04, 49.09 (Vernon 2003 & Supp. 2006).

Guerra files this appeal, raising as his sole point of error the refusal of the trial court to allow an in-court demonstration of Guerra's manner of walking. We affirm the judgment.

FACTS

Early on the morning of May 12, 2005, Texas Department of Public Safety Trooper Brandon Smith was proceeding south in the inside lane of Highway 259 in the southeast part of the City of Longview in his marked patrol car when a pickup truck driven by Guerra (which was likewise traveling south on the same street, but in the outside lane) abruptly swerved into the inside lane, forcing Trooper Smith to take evasive maneuvers to avoid a collision. Smith activated his overhead lights and pulled Guerra over.

After he was stopped, Guerra provided the false name of "Carlos Guerra" and a false date of birth. Smith detected the odor of alcohol emanating from Guerra's breath and testified that Guerra's speech was slurred. Guerra admitted to having drunk one beer. Based on those observations, Smith employed three sobriety tests: the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-legged stand test.

In conducting the HGN test, Smith explained that there were six clues of intoxication to observe; Guerra had demonstrated evidence of all six of the clues.

Going further, Smith had Guerra perform the walk-and-turn test and the one-legged-stand test and, observing Guerra's conduct during all of these tests, Smith concluded that probable cause existed to arrest Guerra for DWI. Guerra refused to provide a specimen of his breath for testing.

Smith arrested Guerra and took him into custody. Fingerprint evidence revealed Guerra's true identity and it was determined that Guerra had no valid driver's license.

Guerra testified that he had provided an erroneous name and birth date because of a prior DWI conviction and believed that he was less likely to encounter problems by giving false information to Smith than by being truthful. He also testified that he had sustained injuries to his ankles by putting them into a vat of hot milk when he was a child and because both ankles had been "loosened" when they were run over by a tractor. Guerra maintains that these combined injuries afflict him, to the result that he "sometimes walk[s] a little different than normal" with an unusual gait wherein his feet splay out to the side when he walks and makes him unsteady on his feet. As a result of the injuries to his feet and ankles, friends and family sometimes call him "[d]uck foot."

At trial, Guerra wanted to demonstrate his unusual walk for the jury so it could compare his walk at the time of trial with the walk the jury observed in the videotape taken the night of his arrest. The State's objection to this in-court demonstration (1) was sustained, and it is this ruling which is the subject of Guerra's appeal.

STANDARD OF REVIEW

Our review of the trial court's exclusion of demonstrations is limited to whether the court abused its discretion in denying the demonstration. Ginther v. State, 706 S.W.2d 115, 119 (Tex. App.--Houston [1st Dist.] 1986, pet. ref'd). Review of trial court rulings on demonstrations depends on the facts of the case. Wright v. State, 178 S.W.3d 905, 919 (Tex. App.--Houston [14th Dist.] 2005, pet. ref'd). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action; rather, it is a question of whether the trial court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse. State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007).

Other reported appellate decisions generally focus on whether the proffered demonstration would be substantially similar to the event. Cantu v. State, 738 S.W.2d 249, 255 (Tex. Crim. App. 1987) (en banc); Key v. State, 149 Tex. Crim. 200, 192 S.W.2d 563, 566 (1946); Wright, 178 S.W.3d at 919. The proponent of the demonstration must show that the conditions under which the demonstration is conducted are sufficiently similar to the event in question. Cantu, 738 S.W.2d at 255.

ABUSE OF DISCRETION

Although Guerra did establish the past medical conditions which sometimes made him walk in an unusual fashion, he made no attempt to establish and did not establish that the courtroom demonstration he offered to perform would provide results comparable to those which existed at the time he performed the field sobriety tests (i.e., in the dark, on the side of a major highway, during the wee hours of the morning, admittedly after having consumed an alcoholic beverage). Even though the circumstances existing between a demonstration and an actual occurrence need not be precisely identical, the trial court has discretion to determine whether dissimilarities warrant exclusion of evidence. Horn v. Hefner, 115 S.W.3d 255, 257 (Tex. App.--Texarkana 2003, no pet.).

Even despite the ruling which disallowed Guerra's attempt to provide a special in-court demonstration of his manner of walking, Guerra was not deprived of placing evidence before the jury of his infirmity and its impact on him. Guerra stepped from the witness stand to display the scars on his legs and ankles, the result of being scalded by milk. In addition to the physical act of walking, Guerra was questioned at some length about this issue and the jury was able to hear of it.

Further, as set out above, there were other strong indicators of intoxication observed by the officer (e.g., the results of the HGN test, the erratic driving, the smell of alcohol on the breath, the slurred speech) upon which the decision to charge Guerra rested.

Absent a showing by Guerra of the similarities between the requested demonstration and the actual occurrence as a predicate, we are not prepared to say that the trial court abused its discretion in disallowing the in-court demonstration.

We affirm the judgment.

 

Bailey C. Moseley

Justice

 

Date Submitted: August 13, 2007

Date Decided: August 14, 2007

 

Do Not Publish

1. At trial, the State cited Baker v. State, 879 S.W.2d 218 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd), claiming then that it held "there are no in-court demonstrations allowed before a jury because they have no reliability," which is an incorrect statement of the holding in that case. The trial court in Baker ordered the evidence of the defendant's unsworn in-court demonstration of his voice and his attempt at the one-legged-stand test stricken because no proper predicate had been laid for it--not because such demonstrations are inherently unreliable.