CHRISTERPHER S. MATTHEWS v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed July 23, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01563-CR
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CHRISTERPHER S. MATTHEWS
V.
THE STATE OF TEXAS, Appellee
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On Appeal from County Court at Law No. 6
Collin County, Texas
Trial Court Cause No. 003-80565-05
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OPINION
Before Chief Justice Thomas and Justices FitzGerald and Maloney   See Footnote 1 
Opinion By Justice Maloney
        A jury convicted Christerpher S. Matthews of driving while intoxicated. The trial court sentenced appellant to sixty days' confinement in the Collin County Jail and a $700 fine, suspended the jail sentence, and placed appellant on community supervision for one year. In a sole issue, appellant contends the trial court erred in admitting extraneous bad acts. We affirm the trial court's judgment.
BACKGROUND
        Kenneth Miller, a tow truck driver, saw a Chevrolet truck run a red traffic light to enter the Toll Road and then hit the roadside curbs as he was driving on the Toll Road. While following the truck, Miller telephoned the police to report appellant's driving. The police eventually blocked appellant's vehicle and arrested appellant.
THE EVIDENCE
1. Kenneth Miller
 
        About 12:30 a.m. on the night in question, Miller approached an intersection in his tow truck where he saw appellant's Chevrolet truck stopped at a green traffic light. Miller pulled his wrecker in behind the truck as the traffic light turned red. The truck sped through the red light and U-turned. Miller made the same U-turn and followed the truck. The truck was going about thirty miles-per- hour on the Dallas Parkway.   See Footnote 2  While traveling in the left lane, the truck would “rub” the curb. Then the driver would gradually change to the right lane and bounce off that curb. About the third time this happened, Miller telephoned the police to report appellant's erratic driving. Next, the truck exited the Toll Road, drove through a residential neighborhood, ran stop signs, and came “pretty close” to hitting a couple of parked cars. Through a series of turns, appellant returned to the Toll Road. As the truck approached the stop sign at the Toll Road, the truck turned south onto the northbound side of the Toll Road.
2. Mike Hagan
 
        Hagan, a Frisco Police Officer, testified he received a dispatch that a party reported a possible intoxicated driver at the Toll Road and Stonebrook. Hagan caught up with Miller's wrecker that was still following the truck At the intersection he saw appellant turn north into the southbound lane of the Toll Road. Hagan continued until he could enter the northbound lane of the Toll Road. Because this portion of the Toll Road was under construction, this road was still a parkway with one lane northbound and one southbound. Hagan soon spotted appellant's truck and continued following it. As appellant traveled north, vehicles traveling south had to “get out of his way.” Eventually Hagan was able to cross over into the southbound lane and block appellant's and southbound traffic's progress with his police vehicle.
        Appellant gradually came to a stop. Hagan ordered appellant to lower his window “and/or” open his door. While appellant attempted to lower the window, he stared at Hagan with a “confused” look. Appellant “kept missing the switch” to lower the window. When appellant eventually got the window open, Hagan grabbed his hands and Richard Thompson, another Frisco Police Officer, reached inside the truck, put the truck's drive in park, and turned off the ignition. Both officers pulled appellant out of his truck, “placed him on the ground,” and handcuffed him. As they removed appellant from his truck, Hagan smelled “an intoxicating beverage.” Appellant “almost went limp” when the officers attempted to lift him off the ground. The officers had to help appellant to the patrol vehicle because of his inability to stand on his own. Through Hagan, the State offered the videotape taken during appellant's arrest.   See Footnote 3 
3. Richard Thompson
 
        Thompson testified that dispatch alerted him to try to locate the driver who had called in about following a suspected intoxicated driver. Because dispatch continued to update Thompson on Miller's and appellant's location, Thompson entered the far left lane of northbound Toll Road traffic. Once Thompson spotted the truck, he never lost sight of it until “we had it stopped.” While tracking appellant, Thompson saw two vehicles traveling south, one of the vehicles was in the right- hand lane and the other in the left-hand lane. One vehicle had to swerve to the left and the other to the right to avoid the truck. As he approached the stopped truck, the driver looked confused-like a “deer in the headlights.”
        Thompson confirmed Hagan's description of appellant's reactions after the stop. However, Thompson added that he smelled a strong odor of alcohol when he went through the window to put the truck in park and turn off the ignition. It made him think that either alcohol kept appellant from standing on his own or he “just wouldn't.” When Thompson's head was inside appellant's truck, Thompson could not tell if the odor came from the truck or appellant. But, once he placed appellant in his patrol car, the smell of alcohol obviously came from appellant.
        The State offered the videotape of appellant taken at the police station. As the jury watched the videotape, Thompson reviewed the videotape. Back on the witness stand, Thompson testified to appellant's condition as reflected on the videotape.
4. Dee Mattthews
 
        Appellant's wife was his first witness. Matthews testified that she and appellant had been in McKinney at her mother's house from 7:00 p.m. until after 11:00 p.m. on the night in question. They had dinner and visited with her mother, but they had no alcohol during that time. Letterman's show was running when she woke appellant up so he could go home. He was meeting clients at the airport around seven the next morning. Appellant left to go home and feed the dogs. She spent the night with her mother and did not find out the police had arrested appellant until he telephoned her the following morning between 7:00 a.m. and 8:00 a.m. At first, he did not tell her he had been arrested. She did not find out until later that appellant's grandmother bailed him out of jail.         She recalled a night in September 2004 when she and appellant had dinner with appellant's friend and his wife. The friend and appellant got into a fight in the friend's garage. Appellant went over a car's hood and hit his head on the pavement. Appellant ended up in the hospital. As a result of this injury, appellant slurs his speech and sometimes gets dizzy when he is tired. Appellant still sees a doctor about this head injury.
        On cross, Matthews admitted that possibly appellant could have left her anytime between 10:30 p.m. and 11:30 p.m. because of the timing of the Letterman show. She testified that it would have been unusual for appellant to weave from lane to lane or hit a curb while driving. She admitted appellant knew the area around the Toll Road and it would surprise her if he drove the wrong way on the Toll Road.
5. Appellant
 
        Appellant testified that he works in real estate with his father and his grandmother. He finds properties for investors that purchase multiple rental properties in the Metroplex. He and his wife left their home on the night in question about the same time-she went to her mother's and he went to put out rental signs. After putting out the signs, he joined his wife at her mother's house. He fell asleep on the couch. His wife awakened him about 11:30 p.m. and he left to go home about 11:45 p.m.
        As he was driving home, someone behind him had very bright lights. Because the driver behind him flashed his bright lights, appellant thought the driver wanted to pass. But instead, the driver continued to tailgate appellant. Appellant turned off the Toll Road, and the driver continued to follow him. Appellant worked his way back to the Toll Road, trying to lose the driver following him. When he got to the intersection of Main and the southbound service road of the Toll Road, it was confusing. There were new lights and orange barrels, but no street lights. Appellant hesitated before turning left onto the southbound service road. He testified he turned left onto what he thought was a two way street. He thought he had lost the car following him.
        When he realized that he was in the wrong lane, he began to look for a place to turn around. About that time he saw the police vehicle and drove up to them. He stopped his car. The officer approaching him had drawn his gun and told appellant to freeze and appellant did. Appellant insisted that he had not consumed any alcohol or drugs. He was trying to get away from the driver behind him.
        Appellant testified to three instances of head trauma. During his service in the marines, his Humvee hit a land mine and turned over, and he suffered a concussion. Next, he was returning from Austin to Dallas in December 1993 when a car pulled up behind him and “bright lighted” him. He pulled over and two men ran up, demanded his keys, and beat him up with a flashlight. They fractured his skull in “eight different places.” The police arrested everyone connected with the assault. After further investigation, the police dropped the assault charge against appellant. He confirmed the December 2004 fight to which his wife testified. These head injuries left him with headaches, anxiety attacks with tunnel vision, and dizzy spells. The doctor still monitors his condition. On the night in question, he had a flashback to the Austin incident. Appellant did not think the concussions were affecting his ability to drive, rather, he thought “it was more anxiety over a similar circumstance.”
        On cross, appellant denied ingesting anything that would have intoxicated him. He did not believe that he ran into the curb or came close to hitting any parked vehicles in the residential area. He emphasized that the bright lights blinded him and he never saw the police car behind him or a one-way sign. The State questioned appellant about the Austin incident wherein appellant was injured and arrested and requested a hearing outside the presence of the jury.         In that hearing, the State questioned appellant about an additional charge arising from the Austin assault-possession of marijuana-and appellant's plea of guilty to that charge. Appellant objected to the trial court's admitting the extraneous act because it was not relevant to the DWI and its prejudicial impact outweighed its probative value. The trial court overruled appellant's objection and admitted the evidence before the jury.
EXTRANEOUS OFFENSES
 
        In a single point of error, appellant argues the trial court erred in admitting appellant's previous conviction for possession of marijuana and arrest for assault because they had no relevance to whether appellant was driving while intoxicated. He maintains that even if this Court holds these extraneous bad acts were relevant, Texas Rules of Evidence 404(a) and (b) and 403 would render them inadmissible. He contends that their admission invited the jury to convict appellant for being a criminal generally.
        The State responds that because appellant relied on a previous injury to “justify his erratic driving,” the complained-of “bad acts” became relevant and admissible to rebut appellant's defensive theory. This evidence corrected a “false impression” and was relevant to the jury's weighing appellant's credibility in explaining his acts.
1. Standard of Review
        We review the trial court's decision to admit evidence under an abuse of discretion standard. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g). As required by rule 404, the trial court determines whether the evidence has relevance apart from character conformity. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). We defer to the trial court's finding that the evidence's probative value was not outweighed by the danger of unfair prejudice and do not reverse a trial court's ruling if it was within the zone of reasonable disagreement. See id. (citing Montgomery, 810 S.W.2d at 391). Rather, we reverse the trial court's judgment “rarely and only after a clear abuse of discretion” and not on our independent judgment whether unfair prejudice resulted from the trial court's admitting evidence of other wrongs. Id. (quoting Montgomery, 810 S.W.2d at 392).
2. Applicable Law
 
        If evidence makes the existence of a fact that is of consequence to the determination of the action more probable than it would be without the evidence, then that evidence is relevant. See Tex. R. Evid. 401; Moses, 105 S.W.3d at 626. All relevant evidence is admissible except as otherwise provided by the Constitution, statutes, and rules. See Tex. R. Evid. 402. But, evidence of other crimes, wrongs, or acts must have relevance apart from character conformity. See Tex. R. Evid. 404(b). Such evidence may become admissible when offered to show identity, intent, motive, opportunity, or preparation. See id; Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1998) (op. on reh'g) (citing Montgomery, 810 S.W.2d at 387-88). Relevant evidence is also admissible to refute the defensive theory of mistake or accident. See Tex. R. Evid. 404(b). If the defendant claims he committed the charged act by accident or mistake, evidence that shows the alleged act was not accidental or done by mistake becomes admissible. See Deleon v. State, 77 S.W.3d 300, 313 (Tex. App.-Austin 2001, pet. ref'd).
        We review the trial court's improperly admitting evidence under the standard for nonconstitutional error. Tex. R. App. P. 44.2(b); see Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002). Erroneous admission of evidence will not effect substantial rights if, after examining the record as a whole, we have “fair assurance” that the error did not influence the jury or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). If we have “grave doubts” on whether the error effected the outcome of trial, we treat the error as if it did. Delapaz v. State, No. 05-05-00660-CR, 2007 WL 914752, at *14 (Tex. App.-Dallas Mar. 28, 2007, no pet. hist.) We consider overwhelming evidence supporting a conviction, testimonial and physical evidence, and the character of the complained-of error in evaluating whether erroneously admitted evidence was harmless. See Motilla,78 S.W.3d at 355-58.
3. Application of Law to Facts
        Assuming, without deciding, that the trial court erred in admitting evidence of appellant's conviction for possession of marijuana and arrest for assault, we examine all of the evidence to determine if the complained-of evidence had a substantial and injurious effect on the jury's verdict.
        First, Miller testified to appellant's stopping at a green light and speeding through the intersection when the light turned red. He also saw appellant exit the Toll Road and drive through a residential area, narrowly missing parked vehicles, only to return to and enter the Toll Road traveling north on the southbound lane.
        Officer Hagan had located Miller and appellant before appellant turned north on the Toll Road's southbound lane. When Hagan saw appellant enter the southbound lane going north, he proceeded to the northbound lane to enter the Toll Road. Both Hagan and Thompson saw southbound drivers having to avoid appellant's truck. Hagan and Thompson smelled alcohol as they removed appellant from his truck. But, Thompson testified it was not until he placed appellant in his squad car that he realized it was appellant and not the truck that smelled of alcohol. The jury viewed the videotape taken at the police station. And Thompson described appellant's ability to function as reflected in the videotape.
        Both appellant and his wife testified to appellant's head injuries and his symptoms resulting from those injuries. Both testified that appellant ingested no alcohol the evening of his arrest. However, his wife testified that she had never seen him driving in the manner as described by other witnesses. And neither appellant nor his wife explained where appellant was from the time he left his mother-in-law's until the police stopped him at 12:30 a.m.
        After reviewing all of the evidence in the record admitted for the jury's consideration, the nature of the evidence supporting the verdict, and the complained-of evidence, we cannot conclude that the trial court's admitting evidence of appellant's conviction for possession of marijuana and arrest for assault had a substantial and injurious effect on the jury's verdict. We resolve appellant's issue against him.
        We affirm the trial court's judgment.
 
 
 
 
                                                          
                                                          FRANCES MALONEY
                                                          JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
 
Footnote 1 The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 The Dallas Parkway is the access road for the Toll Road. Hereinafter, we refer to the Tollway itself, Dallas Parkway, and all feeder roads as the Toll Road.
Footnote 3 Although this videotape is included in the record, the reporter's record is unclear on whether the jury viewed this videotape.    See Footnote 4    See Footnote 5 
Footnote 4 Although the trial admitted the videotape taken during appellant's arrest, it is unclear whether the jury watched the video itself.
Footnote 5 Although the trial admitted the videotape taken during appellant's arrest, it is unclear whether the jury watched the video itself.