Lorenzo Jackson v. The State of Texas--Appeal from 272nd District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-93-065-CR

LORENZO JACKSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court # 21,374-272

O P I N I O N

A jury found Jackson guilty of the offense of driving while intoxicated. See Tex. Rev. Civ. Stat. Ann. art. 6701l-1 (Vernon Supp. 1994). He elected to have the court assess punishment, and the court fixed his punishment, enhanced by two prior D.W.I. convictions, at two years in the county jail and a fine of $500. In two points of error, Jackson claims that the evidence is insufficient to support his conviction and that the court erred by allowing the State to directly and impliedly comment on the invocation of his constitutional rights by playing a videotape of the arresting officer attempting to have him preform sobriety tests. We affirm the conviction.

To obtain a conviction for D.W.I., the state must show that a defendant drove a motor vehicle while intoxicated on a public road. Ford v. State, 571 S.W.2d 924, 925 (Tex. Crim. App. [Panel Op.] 1978). In resolving the sufficiency-of-the-evidence issue, we view all 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 offense beyond a reasonable doubt. See Human v. State, 749 S.W.2d 832, 834 (Tex. Crim. App. 1988). This standard applies whether the evidence is direct or circumstantial. Geesa v. State, 820 S.W.2d 154, 156-57 (Tex. Crim. App. 1991). The jury is the exclusive judge of the credibility of the witnesses and is free to accept or reject any part of a witness' testimony. Lackey v. State, 819 S.W.2d 111, 116 (Tex. Crim. App. 1989).

The State presented the testimony of three Bryan police officers who were involved in Jackson's arrest. The arresting officer, David Johnson, testified that he saw Jackson driving a pickup truck on Martin Luther King Boulevard in Bryan and stopped him. Summarized, the three officers testified that, at the scene of the traffic stop, Jackson was argumentative and verbally combative, smelled strongly of alcohol, staggered and swayed when he walked, used his truck and the police car for balance when walking and when standing still, and that he refused to preform the standard field sobriety tests or a horizontal gaze nystagmus test. One officer testified that he found a half-full bottle of gin in the front seat of Jackson's truck. Johnson testified that he had observed Jackson before this incident and that he did not have trouble walking on those occasions. Two of the officers stated their opinion that Jackson was intoxicated at the time of his arrest. Officer Johnson also testified that Jackson refused to provide blood or breath samples for testing of the blood-alcohol content and that he refused to be videotaped at the sheriff's department.

The defense called one witness who testified that Jackson was already stopped along side the road when Johnson pulled in behind his truck. He testified that Jackson cooperated with the police, did not lean on the vehicles for support and preformed the field sobriety tests normally. He stated that Jackson did not smell of alcohol and did not appear to be intoxicated to him.

The testimony of a peace officer is sufficient to support a conviction for driving while intoxicated. Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.] 1979). The conflict between the State's evidence and Jackson's evidence created a fact question to be resolved by the jury. "[T]he evidence is not rendered insufficient simply because [Jackson] presented a different version of the events." See State v. Turro, No. 1428-92, slip op. at 6 (Tex. Crim. App. December 8, 1993). By believing the State's evidence over Jackson's evidence, a rational trier of fact could find that Jackson was intoxicated when he drove his truck on a public street. See Annis, 578 S.W.2d at 407. Point one is overruled.

In point two, Jackson complains that the court improperly allowed the jury to view a videotape of events that occurred at the Brazos County Sheriff's Department building. The record does not contain the videotape itself, but merely a photocopy of the tape-cassette. Jackson requested that the court reporter forward to this court all originals or copies of the exhibits admitted at his trial. When dealing with evidence of this kind, a photocopy of the exhibit does not substitute for the actual exhibit because we are interested in the contents of the tape. However, because the record contains a description of the contents of the tape and there is no controversy over its contents, we will not consider this omission to be fatal to Jackson's appeal.

Jackson moved to suppress the videotape prior to trial. He argued that the audio portion of the tape was inadmissible because he had invoked his right to counsel and that, absent the audio, the video portion of the tape was not relevant to the case, except to show that he had invoked his constitutional rights. The State agreed that the audio portion of the tape was inadmissible, but argued that the video could be played. The court ruled that the State would be allowed to play the videotape without the sound, and that Johnson would be allowed to describe both his and Jackson's actions, but could not mention Jackson's invocation of his constitutional rights.

In accordance with the court's instructions, the State played the videotape for the jury while Officer Johnson described his actions on the tape and Jackson's refusals of his request that he also preform the tests. Johnson testified that he attempted to have Jackson preform the field sobriety test before the video camera. Johnson stated that Jackson refused to enter the room where the camera was located. Johnson testified that the videotape showed him standing in the room, preforming his demonstrations of the tests and offering Jackson the opportunity to repeat each test after him. Off camera, Jackson refused each invitation to preform the test. The record clearly reflects that Jackson never appeared on the videotape. The audio portion of the tape was not played.

Jackson complains that playing the videotape was an implied comment on his assertion of his constitutional rights. He argues that the jury was left with only one conclusion that he invoked his right to an attorney and his right to remain silent. He contends that, because he did not appear on the tape and the officer testified that he was standing just outside the view of the camera refusing to participate in the taping or the tests, the jury was informed that he exercised these constitutional rights. Thus, he alleges harm because the jury was invited to punish him for invoking his rights.

Jackson did not have a constitutional right to refuse to preform the tests or to be videotaped. See Garcia v. State, 787 S.W.2d 957, 958 (Tex. Crim. App. 1990); Miffleton v. State, 777 S.W.2d 76, 80-81 (Tex. Crim. App. 1989). The police officer could testify regarding Jackson's refusals; thus, the videotape demonstrating his refusals is admissible. See Jones v. State, 795 S.W.2d 171, 176 (Tex. Crim. App. 1990); Miffleton, 777 S.W.2d at 79-80; Cf. Jamail v. State, 787 S.W.2d 380 (Tex. Crim. App. 1990), overruled on other grounds by Hardie v. State, 807 S.W.2d 319, 321-22 (Tex. Crim. App. 1991) (reason for defendant's refusal of a breath test does not affect the admissibility of the fact that the defendant refused to take the test).

The testimony regarding the videotape was limited to a description of the officer's actions and Jackson's refusal to take the tests. There was no indication to the jury of why the audio was not played. At no time did any witness allude to Jackson's invocation of his right to counsel during the videotape session. The prosecutor argued to the jury that Jackson did not appear on the videotape because he did not want them to see how intoxicated he was, which was proper argument as a reasonable deduction from the evidence showing "consciousness of guilt." See Hyde v. State, 846 S.W.2d 503, 505 (Tex. App. Corpus Christi 1993, pet. ref'd).

There was no evidence or implication before the jury that Jackson invoked his constitutional rights. The video merely showed the jury facts that Officer Johnson could testify to. Thus, we hold that admitting the videotape was not an improper comment on his invocation of a constitutional right. Point two is overruled.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed February 9, 1994

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