Jeffrey Chuber v. The State of Texas--Appeal from County Court at Law No 12 of Bexar County

MEMORANDUM OPINION
No. 04-07-00278-CR
Jeffrey August CHUBER,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 12, Bexar County, Texas
Trial Court No. 989244
Honorable Michael Mery, Judge Presiding

Opinion by: Catherine Stone, Justice

 

Sitting: Catherine Stone, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: November 28, 2007

 

AFFIRMED

 

Jeffrey August Chuber was convicted by a jury of driving while intoxicated. Chuber now appeals his conviction and contends: 1) the evidence against him was legally and factually insufficient to support his conviction; 2) the trial court committed error by refusing to give a jury instruction to disregard Chuber's parole status; and 3) the trial court made erroneous evidentiary rulings. We disagree with these contentions and affirm the trial court's judgment.

Background

On November 15, 2006, Chuber was traveling east on Highway 1604 as he approached San Antonio Police Officer David Luevano's patrol car. The posted speed limit on that stretch of highway is 65 miles per hour at night. According to Luevano's radar reading, Chuber was traveling 80 miles per hour. Luevano activated his emergency lights and observed that as Chuber pulled over, his vehicle was weaving dangerously before coming to a stop on the shoulder. Luevano pulled over behind him, and approached Chuber's vehicle on foot. When he asked Chuber for a driver's license, he smelled the odor of alcohol and believed Chuber's speech was slurred. He also noticed a beer can underneath the driver's seat. Luevano told Chuber to step out and wait behind the vehicle. When Chuber was behind the vehicle, Luevano touched the can of beer and he noted it was cold and had condensation on it.

Luevano then directed Chuber to perform three field sobriety tests. In each test Luevano observed clues of intoxication and thus concluded that Chuber had lost the normal use of his mental faculties. Consequently, Luevano placed Chuber under arrest, handcuffed him, and put him in the back of the patrol car. As they waited for a wrecker to tow Chuber's vehicle, Luevano read a statutory alcohol concentration specimen warning form (DIC-24). Chuber refused to give a breath sample, but never signed the form because he was cuffed in the back of the vehicle. The arrest was video and audio recorded.

Sufficiency of the Evidence

When considering a legal sufficiency challenge, the evidence is reviewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hernandez v. State, 198 S.W.3d 257, 260 (Tex. App.--San Antonio 2006, pet. ref'd).

When considering a factual sufficiency challenge, we view all the evidence in a neutral light and set aside the verdict only if: (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). However, the jury evaluates the credibility and demeanor of witnesses and determines the weight afforded contradicting testimony. Stogiera v. State, 191 S.W.3d 194, 196 (Tex. App.--San Antonio 2005, no pet.).

The offense of driving while intoxicated requires the State to prove beyond a reasonable doubt: (1) a person (2) drove or operated a vehicle (3) in a public place (4) while intoxicated. Tex. Penal Code Ann. 49.04 (Vernon 2003). Chuber argues there was insufficient evidence to prove that he was intoxicated. As relevant to this case, intoxication is defined as not having the normal use of mental or physical faculties due to consumption of alcohol. Tex. Penal Code Ann. 49.01(2)(A) (Vernon 2003).

The testimony of an officer regarding his opinion that the 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). Luevano testified that before pulling Chuber over he observed Chuber traveling 80 miles per hour and weaving out of his lane. Luevano also smelled the odor of alcohol from Chuber's car and saw a beer can which he later determined was half full, cold, and had condensation on it. Luevano testified that he observed clues indicative of intoxication in each of the sobriety tests: 1) in the horizontal gaze nystagmus (HGN) - six of six clues were observed; 2) in the walk and turn - five of eight clues were observed; and 3) in the one-leg stand - three of four clues were observed. In addition, all of Luevano's testimony was corroborated and supplemented by portions of the video viewed by the jury.

Chuber's refusal to provide the police a breath specimen to determine his blood alcohol content is also evidence against him. See Tex. Transp. Code Ann. 724.061 (Vernon 1999) ("A person's refusal of a request by an officer to submit to taking of a specimen of breath or blood ... may be introduced into evidence at the person's trial."); Gaddis v. State, 753 S.W.2d 396, 399-400 (Tex. Crim. App. 1988) (indicating a jury may infer guilt from a defendant's refusal to take a breath test). The sobriety tests, slurred speech, and unsteady driving support a finding that Chuber did not have normal use of his mental or physical faculties. The beer can, the odor of alcohol, and Chuber's refusal to give a breath specimen are evidence that he was intoxicated. Accordingly, we conclude the verdict is supported by legally sufficient evidence. See Watson, 204 S.W.3d at 414-15.

Viewing the evidence in a neutral light, we likewise conclude the verdict is supported by factually sufficient evidence. Chuber's factual sufficiency challenge is predicated on the following evidence: 1) the HGN test result could have been caused by factors other than intoxication; 2) he walked in a straight line without tripping or falling in the walk and turn test; and 3) he was able to keep his foot off the ground for 25 seconds in the one-leg stand test. Chuber also contends that because it was a cool night, the temperature of the beer does not show that it was recently consumed; nevertheless, this was an issue for the jury to determine in its overall analysis of the evidence. Although Chuber's arguments may undermine the weight of the evidence against him, there was sufficient evidence presented by the prosecution through Officer Luevano to support the jury's verdict. We overrule Chuber's appellate challenge to the legal and factual sufficiency of the evidence against him.

Jury Charge Instruction on Parole Status

Chuber argues that the court should have included a limiting instruction to disregard his parole status in the jury charge. Chuber's witness, Kathryn Canfield, mentioned his parole status during cross examination by the State. Specifically, the State asked Canfield why she and Chuber had gone to Austin on the day he was arrested, and she responded that it was to visit his parole officer. Although this evidence of extraneous wrongdoing would likely have merited a limiting instruction, Chuber did not object at the time the comment was made, but instead requested an instruction in the jury charge during the charge conference. To obtain a limiting instruction, Chuber needed to object at the first opportunity. See Hammock v. State, 46 S.W.3d 889, 894-95 (Tex. Crim. App. 2001). "[A]ppellant failed to request a limiting instruction when he first had the opportunity to do so, [the witness's] testimony concerning appellant's prior jail experiences was admitted for all purposes.... [Hence] a limiting instruction on the evidence in the charge was not warranted." Id. at 895. (citations omitted). Chuber's requested jury charge instruction was not warranted because he failed to object and request a limiting instruction when he first had the opportunity to do so: when Canfield testified. Accordingly, we overrule Chuber's challenge to the jury charge.

Evidentiary Rulings

In his third point of error, Chuber argues that the trial court should have excluded: 1) three portions of Officer Luevano's testimony recounting Chuber's responses to questions at the time of arrest; 2) Luevano's summary and repetition of those answers and the arrest; and 3) the DIC-24 statutory warning form on which Luevano marked that Chuber refused to give a breath sample.

Chuber argues that Luevano's testimony reporting Chuber's responses to questions at the time of arrest was hearsay. The responses at issue are that Chuber thought the speed limit was 70 miles per hour, he had not consumed alcohol, and he had not consumed alcohol at the Spurs game. However, by definition hearsay is a statement offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). The challenged statements are not hearsay because they were not presented to prove the truth of the matter asserted. The testimony was not used to prove that Chuber's answers were true - that the speed limit on Highway 1604 is 70 miles per hour or that Chuber had not consumed alcohol. Rather, the testimony was elicited to prove Chuber's answers to the questions, which Luevano observed first hand.

Chuber also argues that when Luevano repeated the details of the arrest and Chuber's responses to the questions, this was hearsay and cumulative evidence. We have already addressed the hearsay issue. We will not address the cumulative evidence argument because Chuber did not raise that objection at trial and thus has not preserved this issue for appellate review. See Tex. R. App. P. 33.1(a)(1)(A).

Chuber challenges the admission of the DIC-24 statutory warning form because he did not sign it. The State contends there is no requirement that Chuber sign the form. The Transportation Code provides, however, that when an individual refuses to submit to a request for a specimen, "the peace officer shall request the person to sign a statement..." indicating the request was made and the consequences of the refusal were provided. Tex. Trans. Code Ann. 724.031 (Vernon 1999). Regardless of whether it was error to not obtain a signature, Chuber must establish a causal connection between that error and his decision not to give a breath specimen. See Anderson v. State, No. 2-05-169-CR, 2006 WL 744272, 1 (Tex. App.--Fort Worth 2006, pet. dism'd) (mem. op.) (holding that defendant failed to show causal connection between failure to give warnings prior to refusal); Jessup v. State, 935 S.W.2d 508, 511 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd) (holding there was no causal connection between refusal and failure to give written warnings, because record showed oral warnings were given). Because there was evidence in the video that Chuber was given the warnings orally, and Chuber has not shown that the failure to sign the warnings affected his refusal to give a breath sample, admission of the form into evidence was not harmful. We overrule Chuber's third point of error.

Conclusion

Based on the foregoing, the judgment of the trial court is affirmed.

 

Catherine Stone, Justice

 

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