Gary Olsaver v. The State of Texas--Appeal from County Court at Law No 9 of Bexar County

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MEMORANDUM OPINION
No. 04-06-00480-CR
Gary OLSAVER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law No. 9, Bexar County, Texas
Trial Court No. 921470
Honorable Oscar Kazen, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

 

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: June 13, 2007

 

AFFIRMED

 

A jury found defendant, Gary Olsaver, guilty of driving while intoxicated and the trial court assessed punishment at six months' confinement, probated for ten months. In a single issue on appeal, defendant contends the trial court erred in admitting evidence of the one-leg-stand and the walk-and-turn field sobriety test results. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 9, 2005, at approximately 12:20 a.m., defendant was stopped in Bexar County by Deputy Rey Ramirez of the Bexar County Sheriff's Office. Deputy Ramirez and his observing officer, Deputy Shannon, were patrolling Highway 16, which was full of traffic due to people leaving the Poteet Strawberry Festival. Deputy Ramirez initiated the stop after he witnessed defendant exit the highway by crossing over the grass median on to the access road. Upon making initial contact with defendant, Deputy Ramirez asked for defendant's driver's license and proof of insurance, which defendant promptly provided. Deputy Ramirez noticed defendant had blood shot eyes and smelled strongly of alcohol, and asked defendant if he had been drinking. Defendant responded he drank three beers while at the festival from approximately 7:00 p.m. to midnight. Deputy Ramirez then asked defendant to step out of his vehicle, at which time he noticed defendant was unsteady on his feet and his voice was "a little slurred, thick-tongued."

Deputy Ramirez proceeded to conduct three field sobriety tests: (1) horizontal gaze nystagmus (HGN), (2) one-leg-stand, and (3) walk-and-turn. Defendant initially hesitated to comply with the request to perform the field sobriety tests, explaining he suffered from a back injury. Defendant was then allowed to remove his boots before beginning the tests. Following the conclusion of the three field sobriety tests, Deputy Ramirez, believing defendant had lost the normal use of his mental and physical faculties, arrested defendant for driving while intoxicated. Deputy Shannon also concluded, based on his observations, that defendant had lost the use of his physical faculties. After being brought to the police station, defendant refused to submit to a breath test.

Defendant filed a pretrial motion to suppress the results of all three field sobriety tests, which was carried with the trial. Defendant complained in part that "[t]he field sobriety tests were not properly explained nor demonstrated to the defendant, the underlying technique was not applied properly, and said evidence should be excluded because it is unreliable and invalid." During the hearing, Deputy Ramirez admitted he did not properly provide some of the instructions to the defendant regarding the field sobriety tests. The trial court granted the motion to suppress the HGN test results, but denied the motion to suppress the results of the one-leg-stand and the walk-and-turn tests.

HARM ANALYSIS

On appeal, defendant asserts "the trial court erred in admitting the results of the two field sobriety tests as evidence of guilt, when the tests had been performed entirely correctly in light of the faulty instructions given, creat[ing] an overwhelming likelihood of jury confusion." However, even assuming the trial court erred in admitting evidence of the one-leg-stand and walk-and-turn field sobriety test results, defendant is not entitled to a reversal unless he was harmed. See Tex. R. App. P. 44.2(b). In conducting a harm analysis, we must determine whether defendant's substantial rights were affected. Tex. R. App. P. 44.2(b); see Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A substantial right is not affected 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. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In assessing the likelihood that the jury's decision is adversely affected by the error, we should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, and the character of the error and its relationship to other evidence. Motilla, 78 S.W.3d at 355. We may also consider whether the State emphasized the error and whether there is overwhelming evidence of defendant's guilt. Id. at 356-58.

Defendant was charged with driving while intoxicated under the theory that he had lost "the normal use of his . . . mental or physical faculties by reason of the introduction of alcohol." Tex. Pen. Code Ann. 49.01(2)(A) (Vernon 2003). Defendant challenged the State's assertion that he was intoxicated by pointing to the following evidence: (1) he was able to get out of his vehicle without holding on to anything, (2) he promptly produced his driver's license and registration, (3) he took off his boots with no problem, (4) he admitted he only had three beers during the time frame of approximately 7:00 p.m. to midnight, and (5) two witnesses testified that he did not appear intoxicated and consumed not more than three beers.

The State's evidence on the issue of intoxication, based on Deputy Ramirez's testimony, showed that defendant: (1) drove off the highway by crossing over the grass median on to the access road, (2) had blood shot eyes, (3) smelled of alcohol, (4) admitted he had three beers, (5) was unsteady on his feet, and (6) refused the breath test. Additionally, the State relied on Deputy Ramirez's conclusion that defendant had lost the use of his mental and physical faculties, and on Deputy Shannon's conclusion that defendant had lost the use of his physical faculties. An officer's opinion testimony that a defendant was intoxicated is sufficient to establish intoxication. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979); Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd). Each of Deputy Ramirez's observations is evidence of intoxication. Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985) (holding that signs of intoxication include: (1) slurred speech, (2) bloodshot eyes, (3) alcohol on breath, and (4) unsteady balance). Also, a defendant's refusal to submit to a breath test is further evidence of intoxication. Griffith v. State, 55 S.W.3d 598, 601 (Tex. Crim. App. 2001) (citing Tex. Transp. Code 724.015 (providing that "if the person refuses to submit to the taking of the specimen, that refusal may be admissible in a subsequent prosecution")); Burkett v. State, 179 S.W.3d 18, 26 (Tex. App.--San Antonio 2005, no pet.). Finally, the State did not emphasize the field sobriety tests. In closing arguments, the prosecutor said only that "[a] normal person who has not been drinking, who is not impaired can stand on one leg without raising their hands . . . [and a] normal person who has not been drinking can do the walk and turn."

We conclude that any error in the admission of evidence of the field sobriety test results was rendered harmless by other evidence that proved defendant's intoxication. Therefore, after a review of the entire record, we conclude the trial court's error, if any, in admitting the field sobriety test results did not affect defendant's substantial rights and did not have a substantial or injurious effect on the jury's verdict.

CONCLUSION

Accordingly, we overrule defendant's issue on appeal and affirm the trial court's judgment.

 

Sandee Bryan Marion, Justice

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