Guy Lee Vanover v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-96-172-CR

GUY LEE VANOVER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 95-656-C

O P I N I O N

A jury found Guy Lee Vanover guilty of felony driving while intoxicated. Tex. Penal Code Ann. 49.04, 49.09 (Vernon 1994 & Supp. 1997). The jury found "true" to two prior felony convictions and assessed punishment at thirty years in prison. Id. 12.42 (Vernon 1994 & Supp. 1997). Vanover appeals on five points, asserting that the court erred in allowing the State to read an improperly amended indictment, in admitting two prejudicial exhibits, in denying his requested jury instruction, and in commenting on the weight of the evidence. We will affirm the judgment.

Vanover's first point asserts that the court erred in allowing the State to read an improperly amended indictment to the jury.

Vanover's original indictment contained four paragraphs. The first two paragraphs came under the heading "In the name and by authority of the State of Texas." The first paragraph alleged that Vanover had driven while intoxicated on August 8, 1995. The second paragraph alleged that, prior to August 8, Vanover had been convicted of driving while intoxicated on two prior occasions. The two prior DWIs alleged in the second paragraph made the August 8th offense a third-degree felony.

The third paragraph, entitled "Enhancement Allegation," alleged that Vanover had been convicted of felony burglary of a vehicle in Dallas County in November 1987. The fourth paragraph, entitled "Habitual Allegation," alleged that Vanover had been convicted of felony burglary of a vehicle in Dallas County in August 1990.

Prior to trial, the State filed a motion to amend the indictment. In essence, the State sought to switch the offenses in paragraphs three and four, making the August 1990 offense the enhancement allegation and the November 1987 offense the habitual allegation. The court signed an "Order Amending Indictment" which provided:

[I]t is ORDERED that the Indictment pending in this cause be AMENDED to read as follows:

IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS: THE GRAND JURY, for the County of McLennan, State of Texas, duly selected, empaneled, sworn, charged, and organized as such at the September Term, A.D., 1995, of the 54th Judicial District Court for said County, upon their oaths present in and to said Court at said term that GUY LEE VANOVER, hereinafter styled Defendant, heretofore on or about the 8th day of August, A.D. 1995, and before the presentment of this indictment, in the County and State aforesaid, did then and there drive and operate a motor vehicle in a public place while the said defendant was intoxicated by not having the normal use [of his] mental and physical faculties by reason of the introduction of alcohol into his body,

ENHANCEMENT PARAGRAPH

And it is further presented in and to said Court that prior to the commission of the primary offense, on the 6th day of August, 1990, in the 204th Judicial District of Dallas, Texas, in Cause Number F90-48764-LQ the said GUY LEE VANOVER was convicted of a felony, to-wit: Burglary of a Vehicle, and the said conviction became final prior to the commission of the primary offense;

HABITUAL PARAGRAPH

And it is further presented in and to said Court that prior to the commission of each of the offenses set out above, on the 19th day of November, 1987, in the Criminal District Court No. 1 of Dallas County, Texas, in Cause Number F 86 75920 VH the said GUY LEE VANOVER was convicted of a felony, to-wit: Burglary of a Vehicle, and the said conviction became final prior to the commission of each of the offenses set out above,

The Court further finds that said amendment does not charge the Defendant with an additional or different offense, nor does it prejudice the substantial rights of the Defendant.

(Emphasis added.) Vanover did not object to the motion to amend.

The order amending the indictment mentioned three of the original indictment s four paragraphs. The first paragraph remained unchanged; the second paragraph, concerning the prior DWIs, was not mentioned; the third and fourth paragraphs switched the enhancement and habitual provisions.

The indictment found in the record contains the first and second paragraphs of the original indictment. Paragraphs three and four have been interlineated to show the switch in the enhancement and habitual paragraphs. Vanover objected to the State's reading of the indictment on the grounds that the indictment had not been "completely amended" pursuant to the court's order. The court overruled the objection. //

The gist of Vanover's complaint is that the court's order amending the indictment did not mention the second paragraph of the original indictment, i.e. his two prior DWI convictions. Thus, he argues, the court erred in allowing the State to read paragraph two to the jury because the indictment had been improperly amended.

An amendment to an indictment requires the actual alteration of the charging instrument. Eastep v. State, 941 S.W.2d 130, 132 (Tex. Crim. App. 1997). If the court grants a motion to amend an indictment but the indictment itself is not altered accordingly, the indictment has not been amended. Ward v. State, 829 S.W.2d 787, 794-95 (Tex. Crim. App. 1992).

Vanover was originally indicted for felony DWI. Tex. Penal Code Ann. 49.04, 49.09. Felony DWI requires the State to prove two prior intoxication offenses. Id. 49.09(b). Paragraph two of the indictment alleged the two prior DWIs which allowed the State to prosecute Vanover for third-degree felony DWI. Paragraphs three and four alleged prior non-DWI convictions which enhanced Vanover to a habitual criminal and allowed the State to seek punishment for a first-degree felony. Id. 12.42(d)(1).

The court's order amending the indictment specifically stated that the amendment did not charge Vanover "with an additional or different offense." Rather, he remained charged with the same driving-while-intoxicated felony. The indictment itself was physically amended to reflect the court s order. The court did not err in allowing the State to read the amended indictment. We overrule point one.

Vanover s second point asserts that the court erred in admitting State s Exhibit No. 11 a mug shot because its prejudicial nature far outweighed its probative value.

Vanover was involved in a one-vehicle rollover accident the night of August 8, 1995. Dale Breedermeyer, a volunteer fireman with emergency medical training, was dispatched to the scene and began providing aid. Breedermeyer testified that Vanover s eyes were bloodshot and his speech was slurred. He stated that Vanover had injuries and abrasions on his scalp and cheek.

The State sought to introduce an enlarged mug shot of Vanover taken the night of his arrest. The photograph depicted a frontal view of Vanover with a McLennan County Sheriff s Department identification sign around his neck. The court overruled Vanover s objection that the probative value of the photograph was substantially outweighed by it prejudicial nature.

Vanover cites Richardson v. State, 536 S.W.2d 221, 223 (Tex. Crim. App. 1976), for the proposition that the admission of a mug shot tends to infringe on a defendant s fundamental right to the presumption of innocence. Richardson involved the admission of a mug shot from an unrelated offense committed five months before the offense charged. Id. The mug shot raised the question of an extraneous offense. Id.

Here, the mug shot was taken in connection with the charged offense driving while intoxicated on the night of the offense. A photograph is admissible if it is relevant to a material issue and is an accurate representation of its subject. DeLuna v. State, 711 S.W.2d 44, 46 (Tex. Crim. App. 1986). Generally, photographs are admissible when verbal testimony as to the matters they depict is admissible. Ramirez v. State, 815 S.W.2d 636, 647 (Tex. Crim. App. 1991). Rules 401 and 403 require that a photograph have some probative value and that its probative value not be substantially outweighed by its inflammatory nature. See Tex. R. Crim. Evid. 401, 403; Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991).

Vanover does not complain that the photograph is not relevant. He argues that the photograph s probative value is substantially outweighed by its prejudicial nature. The photograph confirms Breedermeyer s testimony as to Vanover s appearance on the night of the offense. We find that the court did not abuse its discretion in determining that the prejudicial nature of the photograph did not substantially outweigh its probative value. We overrule point two.

Vanover s third point asserts that the court erred in admitting State s Exhibit No. 13A a certified copy of his record with the Department of Public Safety because the prejudicial nature of the exhibit far outweighed any probative value.

The State offered a certified copy of Vanover s DPS record. Vanover objected, and the State offered a redacted version of the exhibit. The redacted document contained only the two prior DWI convictions used to charge Vanover with felony DWI. Vanover objected that the spacing of the remaining entries indicated to the jury that there were other offenses.

We do not believe the spacing in the redacted exhibit raises a question of substantial prejudice. The court did not err in admitting the exhibit. We overrule point three.

Vanover s fourth point asserts that the court erred in denying his requested jury instruction. Vanover asked the court to give the following instruction:

If the defendant, Guy Lee Vanover, was suffering from the effects of Zolof[t] at the time and place in question, rather than being under the influence of alcohol, he would not be guilty of the offense charged even if he was driving a motor vehicle. Therefore, if you find from the evidence that on the occasion in question and at the time of defendant s arrest he was suffering from the effects of Zolof[t], or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict, not guilty.

A defendant is entitled to a charge on another causation factor only when he denies use of alcohol and can explain his suspect actions. Grissett v. State, 571 S.W.2d 922, 923 (Tex. Crim. App. [Panel Op.] 1978) (citing Loftin v. State, 366 S.W.2d 940 (Tex. Crim. App. 1963)). Vanover did not testify. His mother, Kay Edwards, testified that Vanover had been taking the anti-depressant Zoloft from June or July of 1995 until mid-August. Edwards testified that the Zoloft caused Vanover to appear drunk and slowed him down. Edwards testified that, on the night of the accident, Vanover was at her house from around 5:30 p.m. until 9:30 or 10 p.m. She said that Vanover did not drink any alcoholic beverages during that time period. The accident occurred at 11:30 p.m. on August 8. Vanover s brother, Russell, testified that he and Vanover had been on a fishing trip around July 21 and had placed some beer bottles in the trunk of the car. Vanover argued that the smell of alcohol could have come from broken beer bottles in the car trunk. //

Vanover did not deny the use of alcohol on the night of the offense. His mother s testimony does not establish that Vanover did not use alcohol between the time he left his mother s home until the accident. Testimony from Breedermeyer and the emergency room nurse indicate that the smell of alcohol was present on Vanover s breath.

Thus, the court did not err in failing to instruct the jury on causation. Id. Point four is overruled.

In his final point, Vanover complains that the court impermissibly commented on the weight of the evidence when, in the presence of the jury, it revoked his bond and ordered him placed in custody.

The jury returned a guilty verdict. The State read the enhancement and habitual allegations, to which Vanover pled not true. The Court then stated:

All right. Upon finding of guilt, I will place the Defendant in custody. I will revoke the Defendant s bond at this time and place him in custody.

Although the record is silent on the point, Vanover states that the bailiff proceeded to carry out the court s order.

The court then allowed the jury to break for lunch. Out of the jury s presence, Vanover objected that the court s revoking the bond and ordering him into custody in the jury s presence was prejudicial and that the harm could not be cured by a jury instruction. The court overruled the objection.

Vanover cites the provision of the Code of Criminal Procedure that a judge should not at any stage of the proceeding previous to the return of the verdict make any remark calculated to convey to the jury his opinion of the case. Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979). He argues that the trial judge should studiously avoid making any remark calculated to convey to the jury his opinion of the case or of any fact issue raised by the evidence. Bachus v. State, 803 S.W.2d 402, 405 (Tex. App. Dallas 1991, pet. ref d). He says that the court s actions indicated to the jury that he was a dangerous person.

The State argues that there is no evidence in the record that Vanover was placed in handcuffs or leg chains or that he was ever placed in custody by the bailiff [and] in fact he wasn t. The State did not request the court s actions and could not explain why the court proceeded as it did.

For a judge s remarks to require reversal for a violation of Article 38.05, we must find a benefit to the State or an injury to the appellant. Selman v. State, 807 S.W.2d 310, 312 (Tex. Crim. App. 1991) (when judge instructs jury before guilt-innocence deliberations that the defendant is an accomplice as a matter of law, the defendant is injured).

Here, the alleged error occurred after the jury had found Vanover guilty. The record does not conclusively show that Vanover was taken into custody. The evidence from the guilt-innocence phase and the punishment phase shows that Vanover had two prior DWI convictions and two prior non-DWI felony convictions. Having found true to the enhancement and habitual allegations, the jury had a range of punishment from twenty-five years to ninety-nine years. It assessed punishment at thirty years.

Although we believe that the court s comments were erroneous, we cannot say that Vanover was injured by them. Id. We find beyond a reasonable doubt that the error did not contribute to the assessment of punishment.

We overrule point four and affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed July 9, 1997

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