Steve Rogiers v. State of Texas--Appeal from County Court of Wilson County

No. 04-00-00443-CR
Steven ROGIERS,

Appellant

v.

STATE of Texas,

Appellee

From the County Court, Wilson County, Texas

Trial Court No. 22326

Honorable Marvin Quinney, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Phil Hardberger, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: September 26, 2001

AFFIRMED

Steven Rogiers appeals his conviction of driving while intoxicated. Rogiers appeals the trial court's denial of his pretrial and post-trial motions, along with the trial court's exclusion of impeachment evidence. We affirm the conviction.

Background

On March 5, 1999, Officer Randy Broom, an investigator with the Narcotics Task Force of the 81st Judicial District, was patrolling the streets of Wilson County when he observed Rogiers's vehicle swerving on the roadway. After stopping Rogiers and conducting field sobriety tests, Officer Broom arrested Rogiers. Rogiers filed a motion to suppress, claiming Officer Broom lacked reasonable suspicion to make the initial stop. After the trial court denied the motion to suppress, Rogiers filed a speedy trial motion, which also was denied. A jury convicted Rogiers of driving while intoxicated, and the trial court sentenced him to six months confinement in the county jail. Two months later, the State informed Rogiers's counsel the jury foreman reported potential jury misconduct. Rogiers filed a motion for new trial, which was denied by the trial court. He appeals to this Court, claiming the trial court erred in: (1) denying his motion to suppress; (2) denying his speedy trial motion; (3) excluding Officer Broom's pretrial testimony; and (4) denying his motion for new trial.

Suppression Ruling

In his first point of error, Rogiers argues the trial court improperly denied his motion to suppress. Officer Broom stopped Rogiers without a warrant, and as such, the State bore the burden at the suppression hearing of demonstrating the stop was reasonable within the "totality of the circumstances." Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998); Russell v. State, 717 S.W.2d 7, 10 (Tex. Crim. App. 1986). To briefly stop and detain an individual for investigative purposes, an officer need only possess "reasonable suspicion" supported by articulable facts that criminal activity may be afoot. Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997) (citing Terry v. Ohio, 392 U.S. 1, 29 (1968)). Because the historical facts in this case are uncontested, we review de novo whether the facts constitute reasonable suspicion of criminal activity. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Loesch v. State, 958 S.W.2d 830, 832 (Tex. Crim. App.1997).

At the suppression hearing, Officer Broom testified he was on patrol at 11:00 p.m. when he " noticed [Rogiers] swerve from the inside over to the outside lane and then he went back over and hit the grass in the median strip." Although Rogiers argues Officer Broom's observations are insufficient to demonstrate reasonable suspicion of a traffic infraction, (1) the State argues the observations gave rise to reasonable suspicion Rogiers was driving while intoxicated. We agree. See, e.g., Dowler v. State, 44 S.W.3d 666, 670-71 (Tex. App.- Austin 2001, no pet. h.) (officer's observation of defendant weaving inside lane and then out of lane into onramp lane and back into highway lane was sufficient to constitute reasonable suspicion of intoxication); Tex. Dep't of Pub. Safety v. Bell, 11 S.W.3d 282, 284 (Tex. App. -San Antonio 1999, no pet.) (officer observed defendant cross over center lane and then weave between lanes); Ortiz v. State, 930 S.W.2d 849, 856 (Tex. App. - Tyler 1996, no pet.) (officers saw defendant weave out of lane into grassy median, back into lane, and continue weaving within lane). In this case, Officer Broom's testimony that Rogiers swerved from the inside lane to the outside lane, then back into the inside lane, and then from the inside lane onto the grassy median constitutes articulable facts raising reasonable suspicion that Rogiers may have been driving while intoxicated. Holding the stop was justified, we overrule Rogiers's first point of error.

Speedy Trial Motion

In his second point of error, Rogiers claims his Sixth Amendment right to a speedy trial was violated. The linchpin of the Sixth Amendment's speedy trial guarantee is "orderly expedition and not mere speed." United States v. Marion, 404 U.S. 307, 313 (1971). To determine whether a trial court errs in denying a speedy trial motion, we analyze four factors: (1) the length of delay; (2) the reason for delay; (3) the defendant's assertion of his right to a speedy trial; and (4) any prejudice the defendant suffers as a result of the delay. State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999). We use a bifurcated standard of review in examining the trial court's ruling, applying an abuse of discretion standard to the factual components and a de novo standard to the legal components of the trial court's decision. Id.

Length & Reason for Delay

Because the length of delay is a "triggering mechanism" for this analysis, we must find Rogiers's delay presumptively prejudicial before examining the other three factors. Id. Although there is no length of delay constituting a per se violation of the right to a speedy trial, most delays of eight months or more are considered presumptively unreasonable and prejudicial. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). In this case, over a year expired between Rogiers's arrest and the trial, and as such, we presume prejudice and proceed to analyze the remaining three factors. See id. (measuring from time defendant is formally accused or arrested until the time of trial to determine "length of delay").

In considering the reason for delay, we recognize:

"different weights should be assigned to different reasons" for the delay. A "deliberate attempt to delay the trial" should be weighed heavily against the government. A "more neutral reason such as negligence or overcrowded courts should be weighed [against the government] less heavily." A valid reason for the delay should not be weighed against the government at all. And delay which is attributable in whole or in part to the defendant may even constitute a waiver of a speedy trial claim.

Munoz, 991 S.W.2d at 822 (citations omitted). In this case, the actions of both the State and Rogiers caused delay. When Rogiers was formally arraigned on April 13, 1999, he requested a trial resetting to hire an attorney. At the second setting, Rogiers could not appear because he was confined in Medina County on a motion to revoke his probation on an unrelated matter. Although the trial court issued a bench warrant to transfer Rogiers to the Wilson County Jail on June 12, 1999, the warrant was not executed until September 15, 1999. Shortly thereafter, Rogiers applied for court-appointed counsel and requested a pretrial hearing setting in October or November 1999. After Rogiers's counsel failed to file pretrial motions or appear on the reset date, the trial court appointed Rogiers replacement counsel on January 5, 2000. Rogiers's replacement counsel requested a resetting for January 20, 2000, and on that date, Rogiers's replacement counsel requested another resetting to file pretrial motions. On February 17, 2000, the court denied Rogiers's motion to suppress, and over a month later, Rogiers filed his speedy trial motion. This motion was heard and denied on the day of trial, April 12, 2000.

Assertion of Right

The absence of a defendant's timely demand for a speedy trial strongly indicates indifference to his right to a speedy trial, and we consider the totality of the defendant's conduct in examining his assertion of this right. Moreno v. State, 987 S.W.2d 195, 200 (Tex. App.-Corpus Christi 1999, pet. ref'd). Although Rogiers argues he attempted to assert his speedy trial right through his original counsel, the record reflects Rogiers filed his speedy trial motion nearly a year after he was formally arraigned. More importantly, Rogiers requested several trial resettings and filed a motion to suppress before filing his speedy trial motion. See Ramirez v. State, 897 S.W.2d 428, 433 (Tex. App.-El Paso 1995, no pet.). In fact, Rogiers did not file his speedy trial motion until one month after the trial court ruled unfavorably on his motion to suppress.

Prejudice from Delay

Last, we consider whether Rogiers was prejudiced from the delay, focusing on the interests the "speedy trial right" is designed to protect: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility the defense will be impaired. Munoz, 991 S.W.2d at 826. Of these interests, "the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Id. In this case, Rogiers remained incarcerated for over seven months because he was unable to post bail, and Rogiers argues he experienced great anxiety as a result. However, other than speculating he may have been able to locate a crutch that "was made mention of during trial on the merits," Rogiers demonstrates no prejudice to his case resulting from the delay.

Considering the four factors, we hold the trial court did not err in denying Rogiers's speedy trial motion. We overrule Rogiers's second point of error.

Evidentiary Ruling

In his third point of error, Rogiers claims the trial court improperly excluded extrinsic evidence of Officer Broom's pretrial testimony regarding the number of times Rogiers swerved on the night in question. We review rulings on the admission or exclusion of evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). We will not reverse a ruling within the "zone of reasonable disagreement." Green, 934 S.W.2d at 102.

Under the rules of evidence, a witness's prior inconsistent statement is admissible for purposes of impeachment. Tex. R. Evid. 613(a). To lay the proper predicate, the impeaching attorney must ask the witness if he made the contradictory statement, and, after providing the witness an opportunity to explain prior inconsistencies, extrinsic proof of the statement may be admitted if the witness denies making the statement. Huff v. State, 576 S.W.2d 645, 647 (Tex. Crim. App. 1979). Rogiers argues the transcript of Officer Broom's suppression hearing testimony was admissible as extrinsic evidence of a prior inconsistent statement.

At trial, Officer Broom testified he observed Rogiers swerving across the lanes and then after continuing to follow him, saw Rogiers swerving again; however, in the suppression hearing, Officer Broom testified he saw Rogiers swerve across the lanes only once before stopping Rogiers. Rogiers's counsel called Officer Broom's attention to this inconsistency at trial and gave Officer Broom an opportunity to explain:

Well, let me try to clarify it. It - it - prior didn't you testify that he really swerved one time. And after you saw that one swerve, then you decided to pull him over?

I don't remember saying that.

Okay. So you're not sure whether you - whether you made that statement or not?

I don't believe I made that statement.

After the exchange, the trial court denied Rogiers's request to introduce the transcript of Officer Broom's suppression hearing testimony. Because the testimony was inconsistent and Rogiers laid the proper predicate, the trial court's ruling was erroneous.

When the trial court improperly denies an accused's opportunity to cross-examine a State witness, we apply the Van Arsdall standard to determine whether the error is reversible. (2) Assuming "the damaging potential of the cross-examination was fully realized," we review the error in light of: (1) the importance of the witness's testimony in the State's case; (2) the cumulative nature of the testimony; (3) the presence or absence of evidence corroborating or contradicting the witness's testimony on material points; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the State's case. Shelby, 819 S.W.2d at 547.

In this case, the State's case-in-chief consisted of Officer Broom's testimony. Looking to Officer Broom's testimony, while evidence regarding the number of times Rogiers swerved may have been essential to prove the stop was constitutional, it was merely cumulative of other evidence demonstrating Rogiers's intoxication, such as Rogiers's behavior after the stop and the results of the field sobriety tests. See Rankin, 41 S.W.3d at 346. Granted, an inconsistency in Officer Broom's testimony on any matter, whether essential or cumulative, is relevant to attack his credibility; however, Rogiers's counsel had previously attacked Officer Broom's credibility twice through thorough cross-examination regarding his inability to accurately recall the offense date or the type of vehicle Rogiers was driving. See id.; Roberts v. State, 963 S.W.2d 894, 902 (Tex. App.-Texarkana 1998, no pet.).

As opposed to cases where the excluded evidence was essential to demonstrate the witness's motive or bias, in this case, the excluded evidence constituted Rogiers's third attack on Officer Broom's credibility. Compare Rankin, 41 S.W.3d at 346 (holding harmless exclusion of impeachment evidence because, inter alia, witness's credibility was attacked through other impeachment or cross-examination evidence), with Alexander v. State, 949 S.W.2d 772, 777 (Tex. App.-Dallas 1997, pet. ref'd) (holding harmful exclusion of impeachment evidence essential to demonstrate arresting officer had motive to arrest defendant arising from a DWI directive). Holding the error is not reversible, we overrule Rogiers's third point of error.

Juror Misconduct

In his fourth point of error, Rogiers argues he is entitled to a new trial because during deliberations, the jury considered a document not admitted into evidence that revealed Rogiers had been previously convicted of DWI. (3) A criminal defendant "must be granted a new trial" if he shows the jury "received other evidence" after retiring to deliberate. Tex. R. App. P. 21.3(f). To determine whether the defendant is entitled to a new trial on this ground, the trial court applies a two-prong test, requiring the defendant establish the "other evidence" was: (1) actually received by the jury; and (2) adverse to his case. Stephenson v. State, 571 S.W.2d 174, 176 (Tex. Crim. App. [Panel Op.] 1978); Guevara v. State, 4 S.W.3d 771, 779 (Tex. App.-San Antonio 1999, no pet.). We will not disturb the trial court's ruling absent an abuse of discretion. Bratcher v. State, 771 S.W.2d 175, 188 (Tex. App.-San Antonio 1989, no pet.).

Verification Requirement

Initially, the State raises a procedural argument, claiming the trial court erred in considering the motion for new trial because Rogiers failed to attach a supporting affidavit from the juror alleging misconduct. (4) A motion for new trial alleging jury misconduct must be supported by the affidavit of a juror or some other person who was in a position to know the facts, or must state some reason or excuse for the failure to produce the affidavits. Dugard v. State, 688 S.W.2d 524, 528 (Tex. Crim. App. 1985), overruled on other grounds,Williams v. State, 780 S.W.2d 802, 803 (Tex. Crim. App. 1989). The affidavit requirement serves to discourage "fishing expeditions" attempting to impeach a jury verdict. Id. at 529; Reed v. State, 841 S.W.2d 55, 57 (Tex. App.-El Paso 1992, pet. ref'd).

In this case, allegations of jury misconduct arose two months after Rogiers was sentenced when the jury foreman, Carlos Espinosa, reported to the prosecutor that the jury had viewed a document not admitted into evidence revealing Rogiers had a previous DWI conviction. The State, in turn, informed Rogiers of the allegation, and Rogiers immediately amended his original motion for new trial to add the allegation of jury misconduct. However, Rogiers attached no affidavit supporting the allegation to his amended motion. The hearing was held a day later, and the State objected, arguing the unverified motion should not be considered by the trial court. Rogiers's counsel requested leave of court to amend his motion and file the requisite affidavit, but the court, "in the interest of justice," overruled the State's objection and agreed to hear the motion. Because both sides were privy to the allegations and Rogiers was presented with the allegations of jury misconduct by the State, rather than requesting a hearing to "fish" for them, we hold the trial court did not err in considering Rogiers's unverified motion. See Reed, 841 S.W.2d at 58 (holding affidavit not required because, inter alia, both sides were aware of possible jury misconduct).

Evidence of Jury Misconduct

Rogiers argues he presented sufficient evidence of jury misconduct to entitle him to a new trial. At the hearing, Espinosa testified the jury viewed a document revealing Rogiers had previously been convicted of DWI. In discussing the document he remembered viewing, Rogiers described a typed, two-page document, pertaining to the medical treatment Rogiers had received for a prior accident . On cross-examination, the State attempted to discern what document Espinosa had viewed and presented him with a number of documents not introduced into evidence, including State's Exhibit No. 1, the DWI offense report for the night in question. State's Exhibit No. 1 is a typed, three-page document, containing the language, "D.W.I. #2," both in the top left and bottom right corners, along with a stamp of the word, "SENSITIVE," at the bottom of the document. Espinosa affirmatively denied viewing this document.

The State also presented Espinosa with documents admitted at trial, including Defense Exhibit No. 1, a medical record from Rogiers's previous automobile accident. Defense Exhibit No. 1 is a seven-page, partly typed and partly handwritten document, which discusses the medical treatment Rogiers received after the previous accident, but contains no language regarding whether Rogiers was driving while intoxicated. Although Espinosa recognized Defense Exhibit No. 1 as the document he remembered viewing that revealed Rogiers had a previous DWI conviction, he could not reconcile the fact that Defense Exhibit No. 1 made no mention of Rogiers's driving while intoxicated. Throughout questioning by both the State and defense counsel, Espinosa continued to vacillate, testifying Defense Exhibit No. 1 was, and then later, was not the document he remembered viewing.

After considering Espinosa's testimony, along with the testimony of the prosecuting attorney, the trial court denied Rogiers's motion for new trial, finding:

Mr. Espinosa's testimony was taken after the trial, several months, very inconsistent testimony, but the one thing that was consistent is that it was not the [DWI offense] report that he saw. One thing that was clear was that he was making reference to the item that was presented by the defense. And in his own mind, he thought that it had to have been struck out because he thought the prosecutor was presenting it. There's no evidence to show that anything other than was admitted to the jury was used in their decision.

Considering the conflicting nature of Espinosa's testimony, we decline to hold the trial court abused its discretion in finding Rogiers failed to establish the jury actually received extraneous information not admitted into evidence. Eckert v. State, 623 S.W.2d 359, 364 (Tex. Crim. App. 1981) (holding if evidence concerning what occurred during jury deliberations is conflicting, an issue of fact is raised and there is no abuse of discretion), overruled on other grounds, Reed v. State, 744 S.W.2d 112, 125 n.10 (Tex. Crim. App. 1988). Compare Reed, 841 S.W.2d at 60 (affirming denial of new trial because evidence of juror misconduct was conflicting), with Carroll v. State, 990 S.W.2d 761, 762 (Tex. App.- Austin 1999, no pet.) (reversing denial of new trial because juror identified with certainty two exhibits inadvertently taken to deliberation room). We overrule Rogiers's fourth point of error.

Conclusion

Overruling Rogiers's points of error, we affirm the conviction.

PAUL W. GREEN

JUSTICE

DO NOT PUBLISH

1. Section 545.060 of the Texas Transportation Code requires an operator on a roadway divided into two or more lanes to drive "as nearly as practical entirely within a single lane" and to "not move from the lane unless that movement can be made safely." Tex. Transp. Code Ann. 545.060(a) (Vernon 1997); Hernandez v. State, 983 S.W.2d 867, 871-72 (Tex. App.-Austin 1998, pet. ref'd).

2. Love v. State, 861 S.W.2d 899, 904 (Tex. Crim. App. 1993) (citing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)); Shelby v. State, 819 S.W.2d 544, 547 (Tex. Crim. App. 1991). Because the Confrontation Clause encompasses the right of cross-examination, which extends to matters affecting a State witness's credibility, the error is constitutional in nature. Rankin v. State, 41 S.W.3d 335, 344-45 (Tex. App.-Fort Worth 2001, pet. ref'd) (citing U.S. Const. amend. VI and Virts v. State, 739 S.W.2d 25, 28-29 (Tex. Crim. App. 1987)).

3. Rogiers had elected the judge, rather than the jury, assess punishment, and as such, the jury was presented with no information regarding Rogiers's previous DWI conviction.

4. The State also argued the motion was untimely because Rogiers failed to request a hearing within ten days of filing the original motion. We find this argument unpersuasive because a defendant must present the motion to the court within ten days of filing or, with the trial court's discretion, within seventy-five days of the date of sentencing. Tex. R. App. P. 21.6. In this case, Rogiers amended his original motion for new trial and the trial court conducted the hearing within seventy-five days of Rogiers's sentencing, falling within the permissible scope of Rule 21.6.