Gerald Michael Anderson, Jr. v. The State of Texas--Appeal from County Court at Law No 3 of Collin County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

GERALD MICHAEL ANDERSON, JR.,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-02-00412-CR

Appeal from the

County Court at Law No. 3

of Collin County, Texas

(TC# 003-84585-00)

MEMORANDUM OPINION

Gerald Michael Anderson, Jr. appeals his conviction by a jury of driving while intoxicated. The jury, after hearing evidence that included a prior conviction for driving while intoxicated, assessed his punishment at 90 days in the Collin County jail and a fine of $1,250. Anderson contends in four points that the trial court erred: (1) by admitting evidence that: (a) he had previously been convicted of DWI; (b) his employer, the McKinney Fire Department, had investigated him on many occasions for misconduct concerning substance abuse and his previous DWI; and (c) the arresting officer had visited with Anderson s sister and discussed her concern for Anderson s drinking problem; (2) by overruling his objection to the jury charge definition of intoxicated as not having the normal use of mental or physical faculties by reason of the introduction of alcohol or a controlled substance into the body and by the court s overruling his objection to the application paragraph on the same ground; (3) by overruling his objections to the introduction of oral statements concerning the use of cocaine as statements made after he was in custody and the product of custodial interrogation, thereby being inadmissible under Article 38.22 of the Texas Code of Criminal Procedure; and (4) by overruling his objection to the prosecutor s closing argument that referred to him as an alcoholic. We affirm.

Officer Mark Moyle, a police officer for the City of McKinney, stopped Anderson for speeding while driving a motorcycle. Moyle testified that upon seeing Anderson, a personal friend, he realized that Anderson was extremely intoxicated. He indicated that because of his own personal friendship with Anderson, he asked officer Troy McKee to take over the arrest, when he arrived as backup.

Anderson argues in Point No. One that the trial court erred in admitting evidence that he had previously been convicted of DWI; that his employer, the McKinney Fire Department, had investigated him on many occasions for misconduct concerning substance abuse and his previous DWI; and that the arresting officer had visited his sister and discussed her concern for his drinking problem.

The standard for reviewing a trial court s ruling on the admission or exclusion of evidence is abuse of discretion. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). As long as the trial court s ruling is within the zone of reasonable disagreement, there is not an abuse of discretion. Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim. App. 1996). We will uphold the trial court s decision if it is correct on any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000).

Frank Roma, the assistant fire chief of the City of McKinney, testified that Anderson was an employee with the McKinney Fire Department prior to his resignation August 14, 2000. When Roma was asked whether prior to August 14, 2000, there was any investigation initiated by the fire department into Anderson s conduct, he replied, There have been several. Anderson objected to the response on the basis of lack of relevancy and on the basis of Rules 403 and 404(b) of the Texas Rules of Evidence. The trial court overruled the objection. Roma stated that the most recent investigation prior to Anderson s resignation was an internal affairs investigation to determine the facts concerning Anderson s arrest. Tex. R. Evid. 403, 404(b).

Anderson does not refer us to any testimony presented showing that he had previously been convicted of DWI. The State refers us to the admission of a prior conviction at the punishment phase of the trial, but Anderson s brief leads us to the conclusion he is not referring to that evidence, which was admitted without objection. If he is referring to Officer Roma s testimony relating to there having been several investigations of Anderson s conduct prior to his resignation, he does not refer us to any testimony indicating the nature of those investigations or whether they did or did not show any misconduct on the part of Anderson. We overrule Point No. One as it relates to error regarding the trial court admitting evidence of Anderson s conviction for a prior DWI or evidence that the fire department had investigated Anderson on many occasions for misconduct concerning substance abuse and his previous DWI.

Mark Moyle, the police officer who initially stopped Anderson, was asked what the nature of conversations was that he had with Anderson s sister. He replied that the things he talked about most with her was her concern for Anderson and his drinking problem. The trial court overruled Anderson s objection to this testimony, an objection that the testimony was irrelevant and in violation of Rules 404(b) and 403 of the Texas Rules of Evidence. Later, when the prosecuting attorney asked Moyle for his feeling regarding the nature of his relationship with Anderson, Moyle testified that he knew Anderson had a drinking problem. The trial court overruled Anderson s objections to the testimony, objections that the testimony was not relevant, that it was nonresponsive, and that it violated Rule 403 of the Texas Rules of Evidence.

Rule 403 of the Texas Rules of Evidence provides that even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403. A Rule 403 balancing test includes the following factors: (1) how compellingly the evidence offered serves to make a fact of consequence more or less probable--a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense; (2) the potential the evidence has to impress the jury in some irrational but nevertheless indelible way; (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; (4) the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute. Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000).

Under the facts of this case, proof that Anderson had a drinking problem does not serve to make it more probable that he was intoxicated on the occasion in question; the evidence had the potential to impress the jury in an irrational but indelible way; the State required little time to develop the evidence; the State had little need for the evidence to prove a fact of consequence. We hold that the trial court erred by admitting evidence concerning Anderson having a drinking problem.

Having found error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. Tex. R. App. P. 44.2. Inasmuch as the error is not constitutional, we apply Rule 44.2(b) and disregard the error if it does not affect the appellant s substantial rights. Id.; see Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh g). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). In making this determination, we review the record as a whole. Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S. Ct. 1239, 1248 (1946).

In addition to the testimony of which Anderson complains, other testimony concerning his drinking habits was admitted without objection. Officer Moyle testified that he had previously seen Anderson consume alcoholic beverages and become intoxicated. He later indicated that he had had drinks on one occasion with Anderson, but that he had been out with Anderson on different occasions when Anderson had been drinking. In response to a question from Anderson s counsel, Moyle testified that if it was Anderson s recollection that they had been out boozing it up a number of times, that would be a mistake in Anderson s memory. When asked if his saying there was no doubt in his mind that Anderson was intoxicated was as boiler plate as any other kind of testimony in a criminal trial, Moyle stated in part that he had seen Anderson before, had seen how he drinks on a regular basis, and that Anderson had indicated to him that he had a drinking problem. Although counsel presented an objection that the answer was nonresponsive, counsel never obtained a ruling from the trial court on the objection. Moyle also confirmed that he had seen Anderson drink quite a lot and display signs of high tolerance to alcohol.

The prosecuting attorney made no reference to Anderson having a drinking problem in her opening statement in final argument. Defense counsel did refer to the testimony about the drinking problem, questioning why Officer Moyle would have presented such testimony in a nonresponsive manner if he were really a friend of Anderson. The prosecutor in her closing statement referred indirectly to Anderson as an alcoholic, but after Anderson objected that there was no evidence that he was an alcoholic, she changed her reference to people with high tolerances.

Both Officer Moyle and Officer McKee expressed their opinion that Anderson was intoxicated on the occasion in question. Officer McKee testified that he administered the horizontal gaze nystagmus test to Anderson and that he failed the test. He said the other standard tests were not given at the scene for safety reasons, and that Anderson refused to take those tests at the jail. He subsequently acknowledged that the tests could have been given in a parking lot near the scene of the arrest. He also indicated that Anderson had refused both a breath test and a blood test.

We conclude that, in the context of the entire case against Anderson, the trial court s error in admitting the testimony about Anderson having a drinking problem did not have a substantial or injurious affect on the jury s verdict and did not affect his substantial rights. See King, 953 S.W.2d at 271. We therefore disregard the error. See Tex. R. App. P. 44.2(b). We overrule that portion of Point No. One relating to testimony that Anderson had a drinking problem.

Anderson insists in Point No. Two that the trial court erred in overruling his objection to the jury charge definition that intoxicated means not having the normal use of mental or physical faculties by reason of the introduction of alcohol or controlled substance into the body. Appellate review of error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we must determine whether error occurred. If so, we must then evaluate whether sufficient harm resulted from the error to require reversal. Id. at 731-32. Error in the charge, if timely objected to in the trial court, requires reversal if the error is calculated to injure the rights of the defendant, which means no more than that there must be some harm to the accused from the error. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); see Abdnor, 871 S.W.2d at 731-32; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh g). In other words, a properly preserved error will call for reversal as long as the error is not harmless. Almanza, 686 S.W.2d at 171.

In making this determination, the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Id. The burden lies with the defendant to persuade the reviewing court that he suffered some actual harm. Abdnor, 871 S.W.2d at 732; LaPoint v. State, 750 S.W.2d 180, 191 (Tex. Crim. App. 1988) (op. on reh g).

Anderson s point is based on the assumption that there was no evidence linking his admission of his use of cocaine to the allegation of intoxication. As Anderson acknowledges, when Officer Moyle first stopped him he admitted to the officer that he had been drinking and had done cocaine. There was testimony that Anderson s speech was slurred, he had red, bloodshot, watery eyes, and he was swaying. As previously noted, there is also testimony that he failed an HGN test. Anderson was operating his motorcycle at the speed of 67 miles per hour in a 40 miles per hour speed zone. Officer Moyle testified that he thought Anderson was trying to evade him when he tried to stop him. Officer Moyle testified based upon his twelve years of experience in law enforcement, there are not a lot of people as intoxicated as Anderson was on the occasion in question. He indicated that a lot of times narcotics are involved. Based upon all of this evidence, we conclude that there was sufficient evidence that Anderson was intoxicated as the result of ingestion of cocaine to justify the submission of the charge the court submitted. This was also true of the trial court s use of the definition of intoxicated in the application paragraph of the charge. We overrule Point No. Two.

Anderson insists in Point No. Three that the trial court erred by allowing into evidence his oral statement that he had used cocaine because the statement was made after he was in custody and was the product of custodial interrogation, thereby making it inadmissible under Article 38.22 of the Texas Code of Criminal Procedure.

Officer Moyle testified that when he first contacted Anderson he asked him if he had been drinking, and that Anderson said he had. Moyle indicated that he then asked him if he had done anything else, at which time Anderson indicated that he had done cocaine. Anderson made no objection at the time this evidence was admitted before the jury. Earlier, in a hearing outside the presence of the jury, Anderson had objected to a statement regarding cocaine made by him to Officer McKee and a later statement he had made to Officer Moyle after McKee had arrested him. At the conclusion of the hearing, the State indicated it would seek to introduce Anderson s statement about cocaine through Officer Moyle when he arrived later. It indicated that there would have to be another hearing when Officer Moyle arrived concerning the statements about cocaine and the conversation Anderson had with Officer Moyle. The trial court ruled that statements attributed to Anderson about the intoxicant cocaine were to be excluded, but that the issue might be revisited later, as the case may be.

Subsequently, at a second hearing outside the presence of the jury, Anderson objected to this evidence on the basis that it constituted custodial interrogation and was inadmissible based upon the provisions of Article 38.22 of the Texas Code of Criminal Procedure. At this second hearing on the admissibility of the evidence, Moyle testified that it would have been apparent to anyone at the time he elicited Anderson s statement that they were under his control and not free to leave until he released them. He acknowledged that Anderson made the statement in response to a question that he had asked, and that the question was asked for the purpose of gathering evidence of the commission of the DWI. The trial court overruled Anderson s objection and admitted the testimony. Moyle then repeated the testimony before the jury.

Article 38.22 of the Texas Code of Criminal Procedure establishes rules for the admissibility of oral and written statements that are the product of custodial interrogation. Tex. Code Crim. Proc. Ann. art. 38.22, 2 and 3. It does not include the admission of statements that do not stem from custodial interrogation. Id. 5. In a case involving circumstances similar to the case at bar, the United States Supreme Court held that the defendant s answer, following a routine traffic stop, to a police officer s question as to whether the defendant had used an intoxicant, made prior to the police officer informing the defendant that he or she could not leave or placing them formally under arrest, was admissible because it was not the product of custodial interrogation for Miranda purposes. Berkemer v. McCarty, 468 U.S. 420, 423-24, 104 S. Ct. 3138, 3141-42, 82 L. Ed. 2d 317, 324-25 (1984). We consequently hold that the trial court did not err in admitting the oral statements Anderson made to Officer Moyle prior to his being placed under arrest. We overrule Point No. Three.

Anderson suggests in Point No. Four that the trial court erred by overruling his objection to the prosecutor s closing argument referring to him as an alcoholic. In closing argument, Anderson s counsel suggested that because Anderson had a high tolerance to alcohol, he is not affected by alcohol as much and was therefore not intoxicated. The prosecutor responded to that argument by saying, . . . Ladies and gentlemen, I didn t realize that under our laws in Texas, therefore, alcoholics can drive down 75 right next to you. The trial court overruled Anderson s objection that there was no evidence that Anderson was an alcoholic. Nevertheless, the prosecutor subsequently used the term people with high tolerances rather than the term alcoholic in her argument. We hold that the evidence of Anderson s drinking that we have outlined in this opinion constitutes evidence that Anderson was an alcoholic and that in light of the entire record, including the evidence of Anderson s drinking and the prosecutor s immediate change from using the term alcoholic following Anderson s objection, we hold that if the trial court did err by overruling Anderson s objection to the prosecutor s use of the term alcoholic, the error was not constitutional and did not affect any substantial right. We overrule Point No. Four.

Having overruled each point of error, the judgment is affirmed.

JOHN HILL, Chief Justice (Ret.)

November 18, 2004

Before Panel No. 5

Hill, C.J. (Ret.), McClure, and Chew, JJ.

Hill, C.J. (Ret.) sitting by assignment

(Do Not Publish)