Raul Mata v. The State of Texas--Appeal from County Court at Law No 7 of Bexar County

No. 04-94-00099-CR
Raul MATA,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 7, Bexar County, Texas
Trial Court No. 523990
Honorable Tony Jimenez, Judge Presiding

PER CURIAM

Dissenting Opinion by: Carlos C. Cadena, Chief Justice (Retired)

Sitting: Phil Hardberger, Chief Justice

Catherine Stone, Justice

Carlos C. Cadena, Chief Justice (Retired)

Delivered and Filed: November 30, 1999

AFFIRMED

A jury found appellant, Raul Mata, guilty of driving while intoxicated. In six points of error, Mata challenges: (1) the trial court's failure to suppress the testimony of George McDougall regarding the range of Mata's intoxication because the testimony was not scientifically reliable; (2) the trial court's denial of Mata's challenges for cause during voir dire; and (3) the trial court's denial of Mata's requested jury instruction and the overruling of Mata's objection to the charge. We affirm the trial court's judgment.

McDougall's Testimony

Mata's first two points of error challenge the denial of his motion to suppress the testimony of George McDougall regarding the range of Mata's blood alcohol concentration (BAC) at the time he was driving. Specifically, Mata challenges the reliability of McDougall's testimony that related the result of Mata's breath test back to the time when he was driving.(1)

In Hartman v. State, this court, sitting en banc, rejected a similar challenge to the testimony of the same expert witness in another DWI case. No. 04-94-00180-CR, 1999 WL 591346 (Tex. App.--San Antonio, Aug. 4, 1999, pet. filed). We noted:

Given McDougall's impeccable qualifications, including extensive personal observations of the alcohol absorption and elimination process, and the limits which McDougall placed on his opinion, we find the trial court did not abuse its discretion in admitting his testimony. Once the trial court so found, any further doubts as to the veracity of McDougall's opinions were for the trier of fact to weigh in its deliberations.

Id. We adopt the reasoning in Hartman and overrule Mata's first two points of error.(2)

Challenges to Venire Members

By points 3 and 4, Mata argues that the trial court committed reversible error by overruling his challenges for cause to members of the venire, Hope Vega and Charles Kimbrough. We overrule both points.

Mata asserts, and the State does not deny, that he used all of his peremptory challenges and, because the court denied his request for two additional strikes, he was forced to accept as members of the jury Hope Vega and Charles Kimbrough. Mata contends Vega was objectionable because she had relatives who were police officers and she indicated that she would give the benefit of the doubt to the State. Mata says Kimbrough was objectionable because he indicated that if a person "blew" a BAC of .10 or higher one hour after being arrested, he would automatically find that person guilty of DWI without requiring that the breath test result be related back to the time of the offense or the time of the arrest. It is, therefore, necessary that we determine whether the trial court erroneously overruled Mata's challenges for cause to Vega and Kimbrough. A. Hope Vega

Mata argues that Vega's answers to questions indicated that if she had doubts concerning Mata's guilt or innocence she would resolve such doubt in favor of the State and find him guilty because several of her relatives were police officers. Vega's refusal to give Mata the benefit of any reasonable doubt would clearly be a refusal to follow the law and would be a ground for a challenge for cause. Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (Vernon 1989). Based on Vega's testimony, however, we cannot hold that the trial judge abused his discretion in overruling the challenge for cause. We believe that, considering her entire testimony on voir dire, the trial judge was justified in finding that such testimony did not reflect a set bias such as would disqualify her.

When questioned by Mata, Vega said she realized that the law presumes that a defendant is presumed to be innocent and that this means that he "gets the benefit of the doubt because the burden of proof is on the State." When asked if she still felt that she would give the State the benefit of the doubt, she answered, "Well, no . . . It depends on if he was innocent or not." She was then asked, "And if you had a doubt, . . . would you say . . . maybe I will side with the State or would you find him not guilty?" She answered, "No, I would still side with the State."

The prosecutor then asked if she would "keep" [the prosecutor] to proving that burden [sic] beyond a reasonable doubt and not making it any less for [the prosecutor] just because [the prosecutor] called a police officer to the stand?" Her answer was "Yes." She also answered "yes" when asked if she could "follow the law the judge gives" her.

The judge pointed out that when she was first asked about the State's burden of proof and being able to follow the law she said would be able "to follow the law," but had first said, "I think so." He then asked, "What do [sic] you mean when you said, 'I think so?' Her answer was, "Well, yes."

When directly asked if she would require the State to meet its burden of proof and follow the law, Vega answered, "yes." The trial judge heard the answers and was able to observe the manner in which Vega answered and to note her demeanor and body actions, and he obviously concluded that some of her answers were due to a lack of a clear understanding of the questions. We cannot say that in so finding he abused his discretion.

B. Charles Kimbrough

The challenge to Kimbrough is based on Mata's contention that Kimbrough would not require the State to prove that Mata was intoxicated while driving, but felt that proof of intoxication an hour or more after the defendant was arrested was sufficient to prove that defendant was intoxicated when driving.

Mata is not completely unjustified in asserting that Kimbrough's answers to questions by Mata's counsel indicate an unwillingness to follow the requirement of the statute that the State must prove that the defendant was operating a motor vehicle on a public highway at a time when he was intoxicated. But questioning of Kimbrough by the trial judge produced sufficient evidence to support a contrary conclusion.

The judge first told Kimbrough that it was important that he understand that the State had the burden of proving its case, and that

. . . [S]imply the fact that they get a particular [breath test] result doesn't indicate, necessarily, that the defendant was guilty of driving while intoxicated at the time and place in question unless the State has been able to prove that to you. Do you understand that?

Kimbrough answered, "Yes, sir. I do."

He then said he "would be able to follow the court's instructions, the legal instructions of the court in determining the guilt or innocence of the defendant."

We believe that Kimbrough's answer to the court's questions concerning the court's instructions are sufficient to justify the judge's conclusion concerning the absence of bias, or prejudice, and Kimbrough's willingness to follow the trial court's instructions. We cannot hold that the judge abused his discretion in so holding.

Objections to the Charge

In his last two points, Mata complains of the trial court's refusal to give his requested jury instruction and overruling his objection that the charge, as given, erroneously reduced the State's burden of proof.

Paragraph III of the charge instructed the jury that if they found from the evidence beyond a reasonable doubt, that on or about the date in question in Bexar County, the defendant,

Raul Mata, was intoxicated, and while so intoxicated, did drive or operate a motor vehicle, in a public place, then you will find the defendant guilty as charged.

In Paragraph IV of the charge, the jury was instructed that defendant would not be guilty if he was not intoxicated, even if they believed beyond a reasonable doubt that he operated a motor vehicle at the time and place in question. The charge added:

Therefore, if you find that the defendant was not intoxicated at the time and place in question, or if you have a reasonable doubt thereof, you will find the defendant not guilty.

Mata complains that the charge does not "pin down" the "relevant point in time which the statute requires of the State's proof, that is, while defendant was in actual, physical control of a motor vehicle. Mata says the charge is defective because it does not require that the State relate back the breath test scores with metabolism facts proving beyond a reasonable doubt that defendant was intoxicated as alleged in the complaint. Therefore, Mata says, the charge erroneously reduces the State's burden of proof.

Mata's requested special instruction would instruct the jury that they must be convinced, beyond a reasonable doubt "that an inference . . . can be made from the results of the chemical test that the defendant had a 0.10% or higher alcohol concentration in his body [sic] at the time he was in actual physical control of a motor vehicle." The requested charge would instruct the jury that if they did not find "such an inference beyond a reasonable doubt, or if they did not find that the State had shown the alcohol concentration in defendant's body at the time he was driving, 'beyond a reasonable doubt,'" they must find the defendant not guilty of driving while intoxicated while having an alcohol concentration of 0.10 or higher in his body.

The court's charge defined "intoxication," as does the statute, in terms of (1) a person not having the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body, or (2) having an alcohol concentration of 0.10 or more. The charge's instruction that the jury was required to find beyond a reasonable doubt that Mata was "intoxicated" when driving in no way reduced the State's burden of proof. The jury was plainly told that, in order to convict Mata, they must find beyond a reasonable doubt that he was operating a motor vehicle on a public highway while the normal use of his mental or physical faculties was alcohol-impaired, or while having an alcohol concentration of 0.10 or more. Neither the statute nor case law requires that the court instruct the jury concerning the type of evidence which the State must produce. The only requirement is that the State produce evidence which convinces the jury of defendant's guilt beyond a reasonable doubt. Mata presents no point arguing that the evidence does not support the verdict.

Conclusion

The judgment of the trial court is affirmed.

PER CURIAM

PUBLISH

1. The dissenting opinion extensively details this testimony, so we do not repeat it here. We agree with the dissent's analysis that this issue was properly preserved for appellate review.

2. Although the dissenting opinion is well-researched and reasoned, we do not find it necessary to revisit the Hartman debate.