JOSHUA WAYNE SMITH, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed July 9, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00218-CR
............................
JOSHUA WAYNE SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law No. 1
Grayson County, Texas
Trial Court Cause No. 2002-1-537 CR
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OPINION
Before Justices Moseley, Bridges, and Lang-Miers
Opinion By Justice Lang-Miers
        This is an appeal from a conviction for driving while intoxicated. After the trial court denied Joshua Wayne Smith's motions to suppress, appellant pleaded guilty before a jury. The jury assessed punishment at 180 days in jail and recommended that the period of confinement be suspended and appellant placed on community supervision. The trial court rendered judgment in accordance with the jury's recommendation. Appellant appeals the trial court's ruling on his motion to suppress his statement and the exclusion of a prospective juror for cause. We affirm.
 
Background
 
        DPS Officer Clifford Bryant testified that he was dispatched to the scene of a major one- vehicle accident at 5:19 a.m. on June 3, 2001. He arrived at the scene about forty minutes later and observed an ambulance already there and treating the driver. The ambulance took the driver to the hospital as Bryant investigated the accident scene. During his investigation, Bryant observed a half- empty one-liter bottle of rum in the vehicle. After he completed his investigation of the scene, he went to the hospital to talk to the driver. When he arrived at the hospital, appellant was being treated in the emergency room. Bryant asked appellant what happened, and appellant said he fell asleep while driving. As they were talking, Bryant observed that appellant had a strong odor of alcohol about his person and red, glassy eyes and slurred speech. He asked appellant about the bottle of rum, and appellant said he had consumed fifteen shots of rum. Bryant read appellant the DIC-24 statutory warnings and requested a specimen of appellant's blood. Appellant consented. After the hospital treated appellant, Bryant called appellant's father to come pick him up, and appellant was released from the hospital. The officer advised appellant that he may be charged with a crime if the laboratory results showed he was intoxicated. The laboratory results showed appellant had a blood alcohol concentration of .12. He was charged with driving while intoxicated.
        Appellant filed two pretrial motions to suppress evidence: one sought to suppress his statement that he had consumed fifteen shots of rum, and the other sought to suppress the blood test results. The trial court denied the motions, after which appellant decided to plead guilty before a jury. Following voir dire, the trial court excused juror three for cause. Appellant appeals the denial of his motion to suppress his statement, but not the denial of his motion to suppress the blood test results, and the trial court's exclusion of the prospective juror.
Motion to Suppress
 
        We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We do not engage in our own factual review-the trial court is the sole trier of fact and judge of the witnesses' credibility and the weight to be given to their testimony. Id. We give the trial court almost complete deference in determining historical facts. Id. When the trial court makes explicit fact findings, as it did here, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those fact findings. See State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006). We then review the trial court's legal ruling de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling. Id. at 819.
        In this case, the trial court made the following findings of fact and conclusions of law following the denial of the motions to suppress:
        1.
 
The Court finds that the testimony of Trooper C.S. Bryant, who testified at the hearing, is credible.
 
        2.
 
The Court finds that during the early morning hours of June 3, 2001, the defendant drove his father's van through a stop sign and crashed.
 
        3.
 
Trooper Bryant was dispatched to the scene of the incident, a rural area in Grayson County, Texas, to investigate what had happened.
 
        4.
 
At the scene of the incident, Trooper Bryant observed in the vehicle the defendant had been driving a half empty bottle of rum.
 
        5.
 
Trooper Bryant first spoke to the defendant at the emergency room of Wilson N. Jones Hospital in Sherman, where EMS personnel had taken defendant.
 
        6.
 
At the time he spoke with the defendant at the emergency room, Trooper Bryant observed the defendant to have red, glassy eyes and slurred speech.
 
        7.
 
Trooper Bryant asked the defendant what had happened, and the defendant initially told Trooper Bryant that he had fallen asleep at the wheel.
 
        8.
 
After Trooper Bryant asked him about the bottle of rum in the vehicle, the defendant indicated that he had consumed fifteen (15) shots of rum.
 
 
        9.
 
Trooper Bryant thereafter read to the defendant the DIC 24 “Statutory Warning” form and thereby requested of the defendant a specimen of the defendant's blood. The defendant consented to providing a specimen of his blood.
 
        10.
 
The blood specimen was later analyzed by the DPS lab in Garland, which revealed a BAC of 0.12. The defendant was not arrested or charged with the offense of Driving While Intoxicated arising from the occurrence in question until after the lab results were completed and transmitted to the Grayson County Attorney's office.
 
        11.
 
Other than the statements in the DIC 24, Trooper Bryant did not otherwise advise the defendant that he was under arrest.
 
        12.
 
The defendant was not handcuffed on the night in question, and was not taken into custody until after charges were filed in this case.
 
        13.
 
At the time Trooper Bryant interviewed the defendant, the defendant was in the care of medical professionals at the Wilson N. Jones Hospital emergency room.
 
        14.
 
Trooper Bryant left the Wilson N. Jones Hospital emergency room following his interview of the defendant.
 
        15.
 
Defendant's statement to Trooper Bryant in the emergency room that he had consumed fifteen (15) shots of rum was not the product of a custodial investigation, but was merely the result of an investigative detention. Therefore, the statements are admissible even in the absence of a Miranda warning and the warnings articulated in the Texas Code of Criminal Procedure.
 
        16.
 
Defendant consented to providing a specimen of his blood.
 
        Appellant argues that the trial court erred when it did not suppress his statement that he consumed fifteen shots of rum. However, we do not decide whether the trial court erred because there is sufficient other evidence to support appellant's conviction.
        One of the definitions of “intoxication” is “having an alcohol concentration of 0.08 or more.” See Tex. Penal Code Ann. § 49.01(2)(B) (Vernon 2003). Appellant does not challenge the trial court's finding that appellant had a blood alcohol content of .12, nor does he challenge the trial court's conclusion that he consented to providing a specimen of his blood. The record evidence supports the trial court's finding and conclusion. Therefore, even if the trial court erred by denying appellant's motion to suppress his statement, appellant cannot show harm because there is other evidence of appellant's intoxication that supports the conviction. See Tex. R. App. P. 44.2; Ramos v. State, 245 S.W.3d 410, 419 (Tex. Crim. App. 2008); Newbrough v. State, 225 S.W.3d 863, 867 (Tex. App.-El Paso 2007, no pet.)
        We resolve appellant's first issue against him.
 
Exclusion of Juror For Cause
 
        In his second issue, appellant argues that the trial court erred by excusing juror three for cause. Appellant contends that the State did not carry its burden of establishing that the challenge was proper under article 35.16.
        Article 35.16 provides the bases upon which a juror may be challenged for cause. See Tex. Code Crim. Proc. Ann. art. 35.16 (Vernon 2006). One of these bases is when it is shown that the juror will be unable to follow the law. See Brown v. State, 913 S.W.2d 577, 580 (Tex. Crim. App. 1996). If a prospective juror states unequivocally that he can follow the law, a trial court abuses its discretion if it excuses the juror on that basis. Id. Conversely, if the prospective juror genuinely equivocates on his ability to follow the law, the trial court must determine whether or not to excuse that juror based on the court's evaluation of the juror's “demeanor, intonation, or expression.” Clark v. State, 929 S.W.2d 5, 9 (Tex. Crim. App. 1996). Either way the trial court chooses to exercise its discretion-by excusing the juror or not-we must defer to the trial court's judgment. Id.; Brown, 913 S.W.2d at 580.
        During the State's voir dire, the prosecutor explained the definition of intoxication and asked the venire about their ability to convict a person of driving while intoxicated if the only evidence was that the person had lost the normal use of his mental or physical faculties. The prosecutor also explained the methods of obtaining scientific evidence of intoxication, such as from a blood, breath, or urine test, and that scientific evidence is not always available in a case. The prosecutor then specifically asked juror three whether he could follow the law under those circumstances:
 
PROSECUTOR: What about you, [juror three], . . . could you follow the law?
JUROR THREE: I guess but it would be hard. It would be hard to say whether he was really intoxicated just by mental or physical because you can get other symptoms without getting alcohol to be mental or physical. So I'd probably have to have a breatholyzer [sic].
 
        PROSECUTOR: You have to have the scientific evidence?
 
        JUROR THREE: Yes, ma'am.
 
        During appellant's portion of the voir dire, counsel asked the venire what qualities they possessed to make them good jurors for this case. This exchange with juror three occurred:
 
JUROR THREE: I'm open minded and I'm not going in, you know, thinking, well, this is what he's accused of. That's what I'm going to hold him to. I'm going to listen to both besides [sic] and let them tell their side.
 
 
 
DEFENSE COUNSEL: With regard to what [the prosecutor] asked you - I think she got to the point where you said you had to have some kind of scientific evidence.
 
        JUROR THREE: Yes, sir.
 
 
DEFENSE COUNSEL: So there's no circumstances - any circumstances that you could accept the law in this state? I mean, if the judge told you this is the law and you've got to follow it, are you going to follow the law?
 
 
 
JUROR THREE: Like I said, I would but just because you all can prove he was - lost his mental or his physical does not mean he was intoxicated. He could have been.
 
 
 
DEFENSE COUNSEL: But you would like to see some scientific proof, is that right, but you would follow the law?
 
        JUROR THREE: Yes, sir.
 
        The State challenged juror three for cause without stating its basis. Defense counsel stated, “I think I rehabilitated three.” The trial court excused juror three for cause without stating its basis, and defense counsel noted his objection.
        We conclude that juror three vacillated on whether he would be able to convict a person only upon evidence that the person had lost the normal use of his mental or physical faculties or whether he would also require scientific evidence before he could convict. As a result, we must defer to the trial court's decision. See Brown, 913 S.W.2d at 580. We conclude, therefore, that the trial court did not err by excusing juror three for cause.
        Even if the exclusion of juror three for cause was erroneous, we cannot reverse the case unless the record shows that the error deprived appellant of a lawfully-constituted jury. See Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998). Appellant has not made this showing.
        We resolve appellant's second issue against him.
Conclusion
 
        We affirm the trial court's judgment.
 
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070218F.U05