Joe Louis Roberts v. The State of Texas--Appeal from 3rd District Court of Anderson County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00062-CR
______________________________
JOE LOUIS ROBERTS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 3rd Judicial District Court
Anderson County, Texas
Trial Court No. 28459
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

Joe Louis Roberts appeals his conviction by a jury for felony driving while intoxicated (DWI). Roberts waived having the jury assess his punishment, which the trial court set at twenty-five years' imprisonment after Roberts pled "true" to having been previously and finally convicted of two other felony offenses. See Tex. Penal Code Ann. 12.42(d) (Vernon 2007) (elevating any felony to first-degree felony, punishable with a minimum of twenty-five years' incarceration, if two prior and subsequent felony convictions); Tex. Penal Code Ann. 49.04 (Vernon 2003) (DWI); Tex. Penal Code Ann. 49.09 (Vernon Supp. 2007) (enhanced penalties for subsequent DWI offenses). Roberts now challenges the evidentiary sufficiency and the propriety of his sentence. We affirm.

I. Evidentiary Sufficiency

In his first point of error, Roberts challenges both the factual and legal sufficiency of the evidence. We have repeatedly warned appellants that the practice of briefing two or more points of error under a single issue--especially when those points of error require different standards of review, as is the case here--risks that issue being overruled as multifarious. See, e.g., In re Guardianship of Moon, 216 S.W.3d 506, 508 (Tex. App.--Texarkana 2007, no pet.); Woodall v. State, 216 S.W.3d 530, 533 n.3 (Tex. App.--Texarkana 2007, pet. granted); Dickey v. State, 189 S.W.3d 339, 341 (Tex. App.--Texarkana 2006, no pet.); Newby v. State, 169 S.W.3d 413, 414 (Tex. App.--Texarkana 2005, no pet.). The Twelfth Court of Appeals, from which this appeal was transferred, has previously issued subtle yet similar criticisms of appellants who raise multifarious points of error. (1) See, e.g., Cochran v. State, 78 S.W.3d 20, 27 (Tex. App.--Tyler 2002, no pet.); Hill v. State, 78 S.W.3d 374, 377 (Tex. App.--Tyler 2001, pet. ref'd); Stewart v. State, 39 S.W.3d 230, 232 (Tex. App.--Tyler 1999, pet. denied); Murphy v. State, 864 S.W.2d 70, 72 (Tex. App.--Tyler 1992, pet. ref'd). We, however, will decline the opportunity to overrule Roberts' first point of error on this basis, in favor of resolving substantive issues. (2)

A. The Applicable Standards

In assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). The reviewing court must give deference to "the responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 318-19. In reviewing the sufficiency of the evidence, we should look at "events occurring before, during and after the commission of the offense, and may rely on actions of the defendant which show an understanding and common design to do the prohibited act." Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985). Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. See Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Guevara, 152 S.W.3d at 49. On appeal, the same standard of review is used for both circumstantial and direct evidence cases. Id.; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

In a factual sufficiency review, the evidence is reviewed in a neutral light rather than (as in a legal sufficiency review) in the light most favorable to the verdict. Roberts v. State, 220 S.W.3d 521 (Tex. Crim. App. 2007). Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). A reversal for factual insufficiency cannot occur when "the greater weight and preponderance of the evidence actually favors conviction!" Id. at 417. Although an appellate court reviewing factual sufficiency has the ability to second-guess the jury to a limited degree, the review should still be deferential, with a high level of skepticism about the jury's verdict required before a reversal can occur. Cain v. State, 958 S.W.2d 404, 407 & 410 (Tex. Crim. App. 1997).

B. Analysis

Sergeant Jeff Powell, a twelve-year veteran of the Palestine Police Department, testified first for the State. Powell was working from ten in the evening until six in the morning on May 15, 2004. During his shift, he responded to a call from fellow Palestine police officer Darren Goodman, who had stopped Roberts' vehicle for suspicion of DWI. Powell, after identifying appellant in court as being the same person whom police had stopped on the night in question, testified Roberts "had a strong odor of alcohol on him[,]" which the officer later explained as coming from Roberts' breath. Powell also noted that Roberts slurred his speech. Powell then asked Roberts to submit to several field sobriety tests.

During the horizontal gaze nystagmus test, Powell noticed Roberts' eyes showed a lack of smooth pursuit in each eye, demonstrated nystagmus at maximum deviation in each eye, and exhibited the onset of nystagmus in each eye before reaching the forty-five degree mark. Therefore, according to Powell, Roberts showed all six indicators (out of a maximum of six indicators) for intoxication during this test.

During the alphabet recitation test, Roberts reportedly stopped at the improper location and added an extra letter into the alphabet. Such performance suggested Roberts might have lost sufficient mental faculties to perform similar divided-attention tasks, such as operating a motor vehicle.

During the walk-and-turn test, Powell testified that Roberts was unable to maintain his balance during the instructional phase of the test, that Roberts took the incorrect number of steps, and that Roberts made an improper turn while performing the test. Similarly, during the one-legged-stand test, Roberts was unable to maintain his balance for longer than fifteen seconds.

Powell ultimately concluded that the totality of Roberts' performance of these field sobriety tests provided probable cause to believe Roberts was intoxicated. Roberts was therefore arrested for DWI and taken to jail. At the jail, Roberts refused to provide a specimen of his breath for purposes of analyzing its alcohol concentration, a factor that jurors are permitted to consider in determining whether a person may have been intoxicated at the time of the alleged offense. See Tex. Transp. Code Ann. 724.061 (Vernon 1999). Roberts also reportedly became belligerent toward the officers, a personality change or manifestation that Powell testified was consistent with someone who might be intoxicated. Under subsequent examination, Powell conceded that each field sobriety test is, in isolation, not a fool-proof method for determining or predicting whether an individual is intoxicated. However, Powell testified that his ultimate decision to arrest Roberts for DWI was based on the totality of the latter's performance during the field sobriety tests.

Goodman, a sixteen-year law enforcement veteran and currently a reserve deputy with the Anderson County Sheriff's Department, testified next. Goodman had known Roberts since the two were in school together. Goodman testified that he performed the initial traffic stop of Roberts' vehicle after Roberts made a turn without signaling. See Tex. Transp. Code Ann. 545.104, 545.106 (Vernon 1999). When Goodman made contact with Roberts, the former noticed a strong odor of alcohol coming from the latter. Roberts admitted to having had "a few" drinks and appeared to be staggering around. (3) Goodman also described Roberts as "getting a little angry" with the officer, which Goodman attributed to the fact that Roberts was likely intoxicated. Goodman testified that he then decided to call another officer to assist in having Roberts perform field sobriety tests.

Viewing the State's evidence in the light most favorable to the jury's verdict, the jury had before it evidence that suggested Roberts (1) had operated a motor vehicle, (2) in a public place, (3) at a time period when he had lost the normal use of his mental and/or physical faculties, (4) because he had consumed one or more alcoholic beverages. See Tex. Penal Code Ann. 49.04. Such evidence is sufficient to support the jury's verdict in this case. Additionally, we cannot say that the jury's assessment of the evidence in this case, and its determination that Roberts was guilty of the charged offense, is either against the great weight and preponderance of all the evidence admitted at trial or resulted in a verdict that is "manifestly unjust." Accordingly, the evidence is both legally and factually sufficient to support the jury's verdict. We overrule Roberts' multifarious contention to the contrary.

II. Disproportionate Sentence

In his second point of error, Roberts contends his twenty-five-year sentence is disproportionate to his crime. The Eighth Amendment to the United States Constitution prohibits the infliction of cruel and unusual punishment to persons convicted of a crime. See U.S. Const. amend. VIII.

In the lower court, Roberts did not object to his sentence on the ground that it was disproportionate to his crime (or on any other ground) either at the time it was imposed or by filing a motion for new trial. To preserve a complaint for appellate review, an appellant must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a)(1)(A): Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996). An objection must be made in a timely manner, and a motion for new trial is an appropriate way to preserve for review a claim for disproportionate sentencing. Delacruz v. State, 167 S.W.3d 904, 905 (Tex. App.--Texarkana 2005, no pet.). Roberts did not raise this issue at his sentencing hearing, in his motion for new trial, or even in his notice of appeal. Therefore, this issue has not been preserved for appellate review.

Yet even if the contention had been preserved for review, there is no evidence in the record comparing the sentences imposed on persons in Texas with sentences imposed against defendants in other jurisdictions who committed a similar offense. See Alberto v. State, 100 S.W.3d 528, 530 (Tex. App.--Texarkana 2003, no pet.); Fluellen v. State, 71 S.W.3d 870, 873 (Tex. App.--Texarkana 2002, pet. ref'd).

III. Conclusion

For the reasons stated, we overrule Roberts' points of error and affirm the trial court's judgment.

 

Jack Carter

Justice

 

Date Submitted: October 11, 2007

Date Decided: November 21, 2007

 

Do Not Publish

1. Pursuant to its docket equalization authority, the Texas Supreme Court transferred this case from the Tyler Court of Appeals. See Tex. Gov't Code Ann. 73.001 (Vernon 2005); Miles v. Ford Motor Co., 914 S.W.2d 135, 137 (Tex. 1995).

2. To its credit, the State's brief offered a substantive and thorough analysis of the evidentiary sufficiency in this case.

3. Powell had earlier testified that Roberts had admitted to having consumed two beers on the evening in question.