Theresa Bailey v. The State of Texas--Appeal from County Court at Law of Walker County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00297-CR

Theresa Bailey,

Appellant

v.

The State of Texas,

Appellee

From the County Court at Law

Walker County, Texas

Trial Court No. 05-1716

MEMORANDUM Opinion

  Theresa Marie Bailey appeals her conviction for driving while intoxicated, a second offense. See Tex. Pen. Code Ann. 49.04 (Vernon 2006). On appeal, Bailey argues that the evidence is legally and factually insufficient to support the judgment and that the trial court erred in admitting hearsay evidence. We will affirm.

Background

On the afternoon of December 14, 2006, Melissa Nichols saw Bailey sitting in her car in a ditch on the side of the road. As a trained EMT, Nichols approached Bailey to see if she needed help. Bailey was not injured but appeared to be in a daze and was non-responsive. Nichols checked her vital signs, and called 9-1-1 for assistance. Several responders later arrived, including paramedic Jack Terry and Corporal Steven Jeter.

After Terry arrived, he spoke with Bailey. Terry testified that Bailey was responding with slurred speech, was sluggish and lethargic, but denied being hurt or in need of medical assistance. He noticed several prescription pill bottles on the passenger seat and asked Bailey whether she had ingested any prescription pills. Bailey admitted that she had taken three Soma[1] earlier in the day.

Jeter, of the Texas Highway Patrol, asked Bailey to step out of her vehicle and immediately noticed, something wasn t right. After administering three field sobriety tests, Jeter concluded that Bailey was intoxicated and placed her under arrest. Jeter later collected several half-empty pill bottles, which included Soma, Alprazolam, Hydrocodone, Hyoscamine, Atlenolol, Zoloft, and Trazodone.

At the conclusion of evidence, the jury convicted Bailey of driving while intoxicated and assessed punishment at one year in jail and a $1,000 fine.

Sufficiency of the Evidence

In her first and second issues, Bailey contends the evidence was both legally and factually insufficient to sustain her conviction. Specifically, Bailey argues that the State failed to prove she was operating a vehicle at the time that she was intoxicated. We disagree.

Standard of Review

When reviewing a challenge to the legal sufficiency of the evidence to establish the elements of a penal offense, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Our duty is to determine if the finding of the trier of fact is rational by viewing all of the evidence admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992). In doing so, any inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

In a factual sufficiency review, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the factfinder s verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact. Johnson, 23 S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). The appellate court does not indulge in inferences or confine its view to evidence favoring one side of the case. Rather, it looks at all the evidence on both sides and then makes a predominantly intuitive judgment. . . . Id. (quoting William Powers and Jack Ratliff, Another Look at No Evidence and Insufficient Evidence, 69 Texas L. Rev. 515, 519 (1991)).

Analysis

To secure a conviction for DWI, the State must prove the defendant was intoxicated while operating a motor vehicle. Tex. Pen. Code Ann. 49.04(a). The term "operate" is not defined by the Penal Code. However, the Court of Criminal Appeals has recognized a "totality of the circumstances" approach in deciding whether a defendant operated his vehicle within in the meaning of the Penal Code. Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995) (unlawful use of vehicle; DWI cases relied on); Stoutner v. State, 36 S.W.3d 716, 721 (Tex. App. Houston [1st Dist.] 2001, pet. ref'd).

Specifically, the court explained in Denton that where "the defendant took action to affect the functioning of the vehicle in a manner that would enable the vehicle's use," he has sufficiently operated his vehicle. Denton, 911 S.W.2d at 389. In other words, "operation does not necessarily involve driving," and a DWI conviction may stand even where the evidence fails to prove the defendant was actively engaged in driving the vehicle. Id.; see also Freeman v. State, 69 S.W.3d 374, 375 (Tex. App. Dallas 2002, no pet.) (holding evidence of operation legally and factually sufficient where SUV's motor was running, gearshift was in the "drive position," lights were on, right front tire was resting against a public street curb, and the driver was asleep at the wheel); Pope v. State, 802 S.W.2d 418, 420 (Tex. App. Austin 1991, no pet.) (finding sufficient evidence to sustain DWI conviction where motorist was found sleeping behind the wheel of vehicle sitting in roadway with engine running and lights on).

Bailey argues that although she admitted to consuming three Soma earlier in the day no direct evidence establishes that she was intoxicated at the time she was allegedly operating a vehicle in a public place. However, we must use a totality of the circumstances approach to determine whether Bailey was operating her motor vehicle while intoxicated.

Nichols was the first person to encounter Bailey in the ditch. Nichols testified that she found Bailey behind the wheel of her vehicle with her seatbelt on and the car running. She found that Bailey was not alert, verbally non-responsive, and drooling. Being EMT trained, Nichols took Bailey s vital signs, including pulse and blood pressure, which she found to be stable, and called 9-1-1 for medical help. She also testified that while she waited with Bailey the car was running and that one of the first responders later turned it off.

Jack Terry, a firefighter EMT, arrived on the scene and witnessed the front end of Bailey s car in a ditch. He checked the vehicle for damage, and testified that when he arrived the vehicle was not running and he did not remember if Bailey was wearing her seatbelt. Bailey was responsive but her speech was slurred. Bailey also told him that she had taken three Soma earlier in the day.

Here, the evidence established that on the date of the offense Bailey was found disoriented inside her vehicle. The vehicle was sitting partly in a ditch with the engine running. Several witnesses testified that Bailey spoke with slurred speech and that they saw several prescription pill bottles in the passenger seat of the vehicle. Corporal Jeter administered three sobriety tests all indicating that Bailey was intoxicated. Lastly, Bailey admitted to Terry that she had consumed prescription medications that day.

Viewing the evidence in the light most favorable to the prosecution, a rational jury could have found beyond a reasonable doubt that Bailey operated her vehicle. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Herrin v. State, 125 S.W.3d 436, 439 (Tex. Crim. App. 2002). Viewing the evidence in a neutral light, the jury was rationally justified in finding beyond a reasonable doubt that Bailey operated her vehicle. See Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). Furthermore, Texas courts have upheld driving under the influence convictions when the driver is found in a vehicle in a ditch with the operator alone behind the steering wheel. See Reynolds v. State, 744 S.W.2d 156, 158-59 (Tex. App. Amarillo 1987, writ ref d). Accordingly, the evidence that she did so is legally and factually sufficient. Therefore, we overrule Bailey's first and second issues.

Hearsay Evidence

In her final issue, Bailey argues that the trial court abused its discretion by allowing witnesses to recall the names on the prescription pill bottles found in her car. Specifically she argues that the labels on the pill bottles could serves as proof of the contents of the pill bottles thereby making them hearsay evidence. The State replies that the testimony regarding the labels does not constitute hearsay because the statements were not being offered for their truth. We agree.

We review a trial court's admission or exclusion of evidence for abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Id.

At trial, Jeter testified over objection to the names of all the pills found in Bailey s car. When Jeter attempted to explain common names for the various prescriptions, the trial court properly limited his testimony to the labels he observed on the pill bottles. The testimony was as follows:

 [Q]: So you weren t trying to prevent her from going to the hospital.

 [A]: No. She had ample time to go to the hospital. I just believe it was to the point in time where the reality set in that she was going to go with the handcuffs and she was going to go to jail. She wanted a way out.

 [Q]: And after you went back and talked to EMS, signed the form, what did you do next?

 [A]: I got the prescription medications. I believe there was, like, five or six of them, seven of them. I got the seven medications that were there, the bottles, the prescription bottles that they had gathered up for me. Then went back to my car. Began to read through them and see what she had been taking.

 [Q]: And what were they?

 [A]: Was taking the Alprazolam, which is Xanax. Hydrocodone, which is Vicodin.

 [Bailey s counsel]: Your Honor, I renew my objection.

 [The State]: Your Honor, he can testify as to what he saw.

 [The Court]: I can t tell. What he s saying? Which is what?

 [The State]: Which medications were found.

 [Bailey s counsel]: He s listing the medications. I renew my objection as to hearsay.

 [The Court]: The objection is overruled as long as just lists what s on the bottles without any explanation.

Terry later testified that as a paramedic he is trained to evaluate any potential prescriptions that a person may have ingested and how much. He testified that when he noticed the pill bottles on the passenger seat, he read the labels to determine what Bailey could have ingested.

The trial court did not abuse its discretion in allowing the eyewitnesses to recall the names of the pill bottles found in Bailey s car because the statements identifying the pills do not constitute hearsay. Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d); see Schaffer v. State, 777 S.W.2d 111, 115 (Tex. Crim. App. 1989). Bailey was not charged with possession or consumption of any of the prescription pills found in her car. The statements were not being offered for their truth, but provided context as to why medical personnel reacted the way they did. Bailey argued at trial that she was improperly denied medical assistance. It was therefore necessary for Terry and Jeter to explain why she was not taken to the hospital and the procedures they used to ensure that Bailey s health was not in danger.

Bailey also argues that the trial court erred in admitting the statements naming the prescription pills because the pill bottles should have been excluded because they were never admitted and they violate the Best Evidence Rule. However, Bailey failed to raise these objections at trial and thus waived her complaint.

To complain of error on appeal, a defendant must make a specific, timely objection during trial. Tex. R. App. P. 33.1(a)(1)(A); Havard v. State, 800 S.W.2d 195, 211 (Tex. Crim. App. 1989). If a party fails to timely and specifically object, error is not preserved, and the complaint is waived. See Mendez v. State, 138 S.W.3d 334, 339 (Tex. Crim. App. 2004). A timely objection is one that is raised at the earliest possible opportunity; a specific objection is one that adequately describes the nature of the complaint. See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). A defendant may not, on appeal, argue a reason for error that was not urged at trial. Havard, 800 S.W.2d at 211.

Because the trial court did not abuse its discretion in admitting the references made to the prescription pills, we overrule Bailey s third issue.

CONCLUSION

Having overruled all of Bailey s issues, we affirm the judgment of the trial court.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs in the judgment confirming Bailey s conviction. A separate opinion will not issue.)

Affirmed

Opinion delivered and filed July 9, 2008

Do not publish

[CR25]

[1] A muscle relaxing drug.