Jeffrey Jacinto v. The State of Texas Appeal from County Criminal Court No. 10 of Tarrant County (memorandum opinion by visiting justice dauphinot)
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-19-00257-CR ___________________________ JEFFREY JACINTO, Appellant V. THE STATE OF TEXAS On Appeal from County Criminal Court No. 10 Tarrant County, Texas Trial Court No. 1566638 Before Gabriel and Kerr, JJ.; and Lee Ann Dauphinot (Senior Justice, Retired, Sitting by Assignment). Memorandum Opinion by Justice Dauphinot MEMORANDUM OPINION A jury convicted Appellant Jeffrey Jacinto of misdemeanor driving while intoxicated. The trial court assessed his punishment at 180 days’ confinement in county jail. Imposition of sentence was suspended, and Appellant was placed on community supervision for 24 months. Appellant brings two points on appeal, challenging the sufficiency of the evidence to support his conviction and arguing that the trial court failed to conduct a balancing test, allowing certain testimony into evidence in violation of Rule 403. Because we hold that the trial court committed no reversible error, we affirm the trial court’s judgment. Brief Facts Although Appellant provides a summary of the law regarding his two issues, he does not favor us with a statement of facts that narrates the evidence in this case or that discusses how it relates to the issues he has raised. Thomas Wolf, an off-duty Parker County Sheriff’s deputy, was driving on a residential street in Arlington, Texas, when he noticed a white pickup truck that had crashed into a tree on the wrong side of the street near the corner of Park Springs Boulevard and Shady Valley Drive. He approached a tall man, later identified as Appellant, who was walking and stumbling around the truck. Wolf noticed that the man had slurred speech and smelled of alcohol. Wolf saw the man get into the driver’s seat of the truck, start the truck, and begin to back the truck away from the tree and partially into the street. The truck stalled and would not restart. The man 2 then got out of the truck, leaving it blocking one lane of traffic, and began walking away. Wolf walked after the man, called 911, and waited for the police to arrive. Wolf testified that he saw no one else either in the truck or walking with Appellant. Albert Grantges testified that he was inside his house watching television when he heard “a loud crunching of metal” outside his house. He quickly got dressed and went outside to the east side of his house, where he saw Appellant in the driver’s seat of the truck. Grantges saw Appellant back the truck up approximately ten to fifteen feet. He saw no one other than Appellant in the truck and, other than Deputy Wolf, he saw no one else in the vicinity of Appellant’s truck or of the scene of the wreck in general before the Arlington police arrived. Grantges described Appellant as disoriented. Officer Wilson, an Arlington police officer working in DWI enforcement, was called to the scene of the crash. His body camera (body cam) was on. It appeared to Officer Wilson that the driver of the pickup had crossed the road, jumped the curb, and then smashed into the tree. Appellant had left the scene, but Wilson found him hiding in some brush in or near a field. Appellant had the keys to the truck in his pocket, and Officer Wilson testified that Appellant was the registered owner of the truck. The officers found a bottle of wine and nachos on the ground near the truck and a couple of broken bottles of beer inside the truck. Officer Wilson testified that he smelled the odor of alcohol inside the truck. 3 Officer Wilson transported Appellant to the hospital for a blood draw. Officer Wilson’s body cam remained on. Officer Wilson informed Appellant that he was asking Appellant to allow his blood to be drawn and informed him of the consequences of his denying the request by reading him the DIC-24, which is the statutory warning. Appellant refused to voluntarily allow his blood to be drawn. Although Officer Wilson sought and received a warrant to compel the blood draw, Appellant moved to suppress the video and the evidence regarding the warrant, the involuntary blood draw, and the result of the blood draw because Appellant repeatedly referred to trial counsel by name and because of Franks violations.1 The trial court granted Appellant’s motions and the jury did not see the portion of the video involving the involuntary blood draw and Appellant’s repeated invocation of trial counsel’s name during the Mirandizing of Appellant, nor did the jury learn of the warrant, the blood draw, or the results of the testing of Appellant’s blood. Officer Wilson transported Appellant from the hospital to the Arlington city jail. Sufficiency of the Evidence In his first point, Appellant challenges the sufficiency of the evidence to support his conviction, focusing on the intoxication and driving elements. In our due-process review of the sufficiency of the evidence to support a conviction, we view Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978). 1 4 all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.2 This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.3 The trier of fact is the sole judge of the weight and credibility of the evidence.4 Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder.5 Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict6. We must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution.7 Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). 2 Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. 3 Tex. Code Crim. Proc. Ann. art. 38.04; Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). 4 See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). 5 Murray, 457 S.W.3d at 448. 6 Id. at 448–49. 7 5 Texas Penal Code section 49.04(a) provides, “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”8 The legislature has not defined the term “operate” in the context of the DWI statute. The law is, however, well-established. As we have previously explained, to decide whether the evidence is sufficient to support the element of operating the motor vehicle, courts must examine all the evidence to determine whether it supports a finding that an appellant “exerted personal effort to cause the vehicle to function.”9 Although Appellant sets out a thorough statement of the law, he does not apply the law to the facts of this case. His argument consists of a single sentence, “The State did not show that Appellant was under the influence of any drug or alcohol or that he was the driver of the vehicle.” At trial, Appellant concentrated on whether anyone saw him drive his truck into the tree. But there was little challenge to the testimony of Deputy Wolf and Mr. Grantges that Appellant operated the truck when he backed it off the tree and partially into the street, blocking a lane of traffic. This testimony is ample and sufficient evidence that Appellant operated the truck in a public place. Tex. Penal Code Ann. § 49.04(a). 8 Crawford v. State, 496 S.W.3d 334, 340 (Tex. App.—Fort Worth 2016, pet. ref’d) (citing Mitchell v. State, 419 S.W.3d 655, 663 (Tex. App.—San Antonio 2013, pet. ref’d)). 9 6 Appellant also challenges the sufficiency of the evidence that he was intoxicated while he operated the vehicle. The jury heard the testimony of officers on the scene who testified that Appellant exhibited signs of intoxication, in that he was unsteady on his feet, his speech was slurred, his breath smelled of alcohol, the inside of his truck smelled of alcohol, and there were broken bottles of beer in the truck and a bottle of wine on the ground near the truck. Additionally, because Officer Wilson conscientiously activated his body cam, the jury was able to see for themselves Appellant’s movements and to hear for themselves Appellant’s speech. The evidence is sufficient to satisfy the intoxication element. Although the jury did not learn of the blood test results, there is ample evidence in the record to support the jury’s determination that Appellant committed the offense of driving while intoxicated as alleged in the misdemeanor information. Applying the appropriate standard of review, we hold that the evidence is sufficient to support the jury’s determination that Appellant operated a motor vehicle while intoxicated, and we overrule Appellant’s first point. Balancing Test In his second point, Appellant contends that the trial court abused its discretion by overruling his Rule 403 objection to State’s Exhibit 3, which was a video from Officer Wilson’s bodycam. The trial court excluded part of the video but admitted the part of the video showing Wilson reading Appellant the DIC-24. He posits in a single sentence that the trial court failed to perform the balancing test 7 required by Rule 403 of the Texas Rules of Evidence. explanation, to a page in the record. He directs us, without We have carefully read that page and surrounding pages in the record. Appellant’s objection appears to be that Appellant speaks trial counsel’s name twice on the recording. His trial objection to the exhibit was, “[I]t’s prejudicial. It’s a 403 objection.” Appellant has not explained, except in a general statement of the law, the nature of the prejudice or why the degree of the prejudice he claims amounts to an abuse of discretion. We nevertheless, in the interest of justice, address Appellant’s complaint as we understand it. The Texas Court of Criminal Appeals has explained that in conducting the Rule 403 balancing test, the trial court must consider several factors, including, (1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Of course, these factors may well blend together in practice.10 Furthermore, the trial court is not required to perform the balancing test on the record, and when the record is silent, appellate courts must presume that the trial court performed the appropriate balancing test.11 We have closely examined the Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006) (citations omitted). 10 Williams v. State, 958 S.W.2d 186, 195–96 (Tex. Crim. App. 1997). 11 8 record and the several pages of discussion regarding the contents of State’s Exhibit 3. We hold that the record clearly demonstrates that the conscientious trial judge thoroughly investigated the contents of the exhibit, considered the prejudicial effect and probative value of the evidence, discussed and considered arguments of both Appellant and the State, admitted only a portion of the exhibit and excluded a portion, and acted carefully and deliberately in determining the admissibility of the portions of the recording under discussion. Appellant further contends—in a single sentence unsupported by argument or citation to authority—that the State did not lay the proper predicate for the introduction of State’s Exhibit 3. Officer Wilson testified that the exhibit was a video from his body cam, that he had reviewed the video, and that it was a fair and accurate depiction of his body cam from the night in question. The State moved to admit the video, and at that point, the trial court excused the jury for a hearing on admissibility. By the time the hearing outside the presence of the jury was completed, there was more than adequate predicate laid.12 We overrule Appellant’s second point. See Tex. R. Evid. 901; Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App. 2018) (stating that Rule 901 merely requires some evidence sufficient to support a finding that evidence in question is what the proponent claims). 12 9 Conclusion Having overruled Appellant’s two points on appeal, we affirm the trial court’s judgment. /s/ Lee Ann Dauphinot Lee Ann Dauphinot Justice Do Not Publish Tex. R. App. P. 47.2(b) Delivered: November 5, 2020 10
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