Ralph Willis Robinson v. The State of Texas--Appeal from County Court at Law No 8 of Bexar County

MEMORANDUM OPINION

No. 04-05-00626-CR

Ralph Willis ROBINSON,

Appellant

v.

The STATE of Texas ,

Appellee

From the County Court at Law No. 8, Bexar County, Texas

Trial Court No. 870553

Honorable Karen Crouch , Judge Presiding

Opinion by: Alma L. L pez , Chief Justice

Sitting: Alma L. L pez , Chief Justice

Catherine Stone , Justice

Sarah B. Duncan , Justice

Delivered and Filed: September 6, 2006

AFFIRMED

Ralph Willis Robinson was found guilty by a jury of the misdemeanor offense of driving while intoxicated. On appeal, Robinson complains the trial court erred in denying: (1) his pretrial motion to suppress the arrest; (2) his motion for mistrial based on the nonresponsive reply of a witness; and (3) his motion for mistrial based on improper jury argument by the prosecutor. We affirm the judgment of the trial court.

Background

On December 5, 2003, at 8:04 p.m., San Antonio police officer Brian Moen was dispatched to the residence of Vicki Robinson, appellant's ex-wife. Vicki called 911 to complain that Robinson had arrived to pick up their daughters for a visit but appeared intoxicated. Moen arrived at 8:24 p.m. and found Robinson sitting in the driver's seat of his minivan in front of Vicki's house. The engine was running and the headlights were on. Moen immediately smelled an extremely strong odor of intoxicants on Robinson, who seemed groggy and had bloodshot eyes. Moen asked Robinson to exit the vehicle, and he did not immediately respond. Upon searching the vehicle, Moen found a bottle of vodka in the rear seat, and a cup of juice in the front console. Moen administered field sobriety tests, and concluding that Robinson was legally intoxicated, arrested him for driving while intoxicated. At 10:00 p.m., Robinson was administered an intoxilyzer breath test, measuring a blood alcohol content of .275 and .282, both above the legal limit of .08. Robinson stipulated to the breath test results at trial.

At trial, Robinson testified that he had gone to work at 3:00 a.m. to put in eight hours before driving from north Dallas to San Antonio to pick up his children. He had not eaten anything all day. Upon arriving at his ex-wife's at 7:30 p.m., he was frustrated to learn that only three of his six children would be joining him for visitation. Robinson told Vicki that his lawyer had advised him that visitations could only occur if all six children were involved. Robinson testified that he had not drank any alcohol during his drive to San Antonio, but upon realizing that he would not be visiting with the children, he decided to pour some vodka in a cup and drink it. He planned to call a shuttle bus to take him to a hotel. Robinson testified that the keys were in his pocket, and not in the ignition.

Motion to Suppress

Prior to trial, Robinson moved to suppress the arrest and any evidence based on the arrest because the arrest was made without a warrant and without probable cause based upon the Texas and United States Constitutions and Article 38.23 of the Texas Code of Criminal Procedure. Specifically, Robinson argues Moen lacked probable cause for the arrest because Robinson was not driving his vehicle at the time of arrest. We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). In this review, we give almost total deference to the trial court's determination of historical facts andreview the court's application of the law de novo. Id.

Probable cause exists where the police have reasonably trustworthy information sufficient to warrant a reasonable person to believe a particular person has committed or is committing an offense. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). Probable cause requires more than mere suspicion but far less evidence than that needed to support a conviction or even that needed to support a finding by a preponderance of the evidence. Id.

A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. 49.04(a) (Vernon 2003). While the Penal Code does not define "operating," the Court of Criminal Appeals has adopted the definition used by the Dallas Court of Appeals: "To find operation, the totality of the circumstances must demonstrate that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle's use." Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995) (discussing Barton v. State, 882 S.W.2d 456, 459 (Tex. App.--Dallas 1994, no pet.). Barton further stresses that "operation" does not mean that the driver must cause the automobile to either move or not move. 882 S.W.2d at 459.

At the suppression hearing, Moen testified that the minivan was running, Robinson was alone in the vehicle and seated in the driver's seat behind the steering wheel, the headlights were on, and the vehicle was parked on the street. Moen testified that Vicki Robinson had called 911 to report that her ex-husband was intoxicated upon arriving at her house. Vicki also told Moen that she had called 911 immediately after Robinson arrived, and that 20 minutes had elapsed from the time she called 911 until Moen arrived. We conclude the evidence was sufficient to permit the trial court to find that Officer Moen had probable cause to arrest Robinson for driving while intoxicated. Robinson's first issue is overruled.

Denial of Mistrial

In his second and third issues, Robinson complains the trial court erred in denying his motion for mistrial in two instances. A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). A mistrial is only appropriate for "highly prejudicial and incurable errors." Id. Error in admitting improper testimony may be corrected by a withdrawal and an instruction to disregard, unless it appears the evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. Waldo v. State, 746 S.W.2d 750, 752 (Tex. Crim. App. 1988).

In the first instance, Robinson complains of the following testimony by his sixteen year-old daughter, who was under cross-examination by the defense:

Q: When [Robinson is] emotionally upset like that, does he sometimes not think very clearly?

A: Usually when my parents were getting into arguments, he was under the influence of something.

Counsel objected to the answer as nonresponsive, asked the court to instruct the jury to disregard the answer, and moved for a mistrial. The trial court sustained the objection and instructed the jury accordingly. The motion for mistrial was denied. Robinson argues the witness's answer was intended to inform the jury that Robinson was usually intoxicated, making it more likely than not that he was intoxicated while driving on the day he was arrested, and therefore, the instruction to disregard did not cure the harm. We must, however, presume the jury complied with this instruction. Wesbrook v. State, 29 S.W.3d 103, 116 (Tex. Crim. App. 2000). Thus, we conclude the trial court's prompt instruction to the jury cured any error from the nonresponsive answer, and therefore the trial court did not err in denying Robinson's motion for mistrial.

Robinson next moved for a mistrial after the prosecutor made the following comment during closing argument: "What the evidence shows why it was there is because this defendant drove down there with a pitcher of juice and a bottle of alcohol that he was drinking all the way there." Robinson objected that the comment was outside the record, asked for an instruction to disregard, and moved for a mistrial. The trial court sustained the objection, and instructed the jury to disregard. The motion for mistrial was denied. On appeal, Robinson argues the prosecutor injected a new fact into the case when he stated that Robinson was drinking on the drive from Dallas to San Antonio, given that there was no testimony to support such a proposition.

The four areas of permissible prosecutorial argument are summation of the evidence, reasonable deduction from the evidence, answer to opposing counsel's argument, and plea for law enforcement. Richardson v. State, 879 S.W.2d 874, 881 (Tex. Crim. App. 1993). Even when an argument exceeds the permissible bounds of these areas, the error is not reversible unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the defendant into the trial proceeding. Wesbrook, 29 S.W.3d at 115. Generally, an instruction to disregard will cure the error. Id.

Here, the prosecutor's comment was immediately followed by an instruction to disregard, which we presume was followed by the jury. See Wesbrook, 29 S.W.3d at 116. Only offensive or flagrant error warrants reversal when there has been an instruction to disregard, and, here, this comment was not so flagrant that the instruction to disregard was ineffective. Id. Accordingly, we cannot say the trial court abused its discretion in denying Robinson's motion for mistrial.

Conclusion

The judgment of the trial court is affirmed.

Alma L. L pez , Chief Justice

DO NOT PUBLISH