Keith Washington v. State ( 2011 )

Affirmed and Memorandum Opinion filed August 2, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-00221-CR

KEITH WASHINGTON, Appellant

v.

The State of Texas, Appellee

On Appeal from the County Criminal Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1544570

MEMORANDUM OPINION

Appellant Keith Washington appeals his conviction for misdemeanor driving while intoxicated (DWI).  After the jury found him guilty, the trial court assessed punishment at 180 days in the Harris County Jail and a $500 fine, suspended his sentence, and placed him on community supervision for one year.  In four issues, appellant contends the evidence is legally insufficient to support his conviction and jury charge error deprived him of due process, due course of law, and a fair and impartial trial.  We affirm.

Background

On August 16, 2008, a Houston police officer responded to a police radio broadcast concerning a vehicle with broken wheels being driven in a reckless manner on Gessner, a public street in Harris County, Texas.  Within two minutes of receiving the radio dispatch, the officer found a vehicle matching the description in the broadcast, a Ford truck, in a front yard on the east side of Gessner facing the street.  He observed that three of the wheels on the truck were bare metal that was cracked and broken in several places.  A license plate check revealed the truck was registered to appellant.

The officer witnessed the driver’s side door of the truck open, and appellant, the only occupant, slid down from the driver’s seat to the ground.  The officer also observed that the truck “[a]ppeared to have struck the curb on the east side of Gessner and spun up to the front yard,” its wheels had “[d]ug fairly large ruts in the front yard,” and “[t]he engine was still warm, [and had] obviously recently been running.”  He did not see any skid marks on the street. 

Appellant was unresponsive to the officer’s questions and unable to speak intelligibly or stand without assistance.  The officer supported appellant, walked him to a nearby bus stop bench, and helped him sit.  Appellant attempted to hand the officer a credit card when asked to produce his driver’s license and could not correctly identify his driver’s license among the other cards in his wallet.  Appellant also smelled strongly of alcohol, slurred his speech, squinted his eyes so that they were almost closed, and could not answer questions coherently.  The officer opined that, based on his training and experience, the source of appellant’s impairment was alcohol, likely in combination with some other chemical.  He further opined that appellant was intoxicated.

Because of appellant’s apparent intoxication, the officer requested assistance of a designated DWI unit, but none was available. He then called for and received assistance from another officer, who was trained in administration of field sobriety tests.  That officer observed that appellant had passed out in the back seat of the patrol vehicle and smelled strongly of alcohol.  The second officer tried to ask a few questions, but appellant was “extremely incoherent,” unable to answer any questions, and could not perform any field sobriety tests.  It then took the strength of both officers to transfer appellant to the second officer’s car, as appellant could not walk.  The second officer opined that appellant was intoxicated as a result of consuming alcohol and had lost his mental faculties.

The second officer transported appellant to a police facility, where a third officer, who was trained in administration of field sobriety tests and was a drug recognition expert, examined appellant.  The third officer noted that appellant was staggering and had very slow responses. The officer asked appellant if he had been drinking and driving, and appellant answered, “I think so,” to both questions.  The officer then administered several field sobriety tests to appellant, including the Romberg balance test,[1] the walk-and-turn test, and the one-legged stand test.  Appellant showed signs of impairment when performing all three tests and exhibited four of four clues of intoxication on the one-legged stand test.  The third officer then read appellant his rights, gave him a “D.I.C. 24” form, which appellant did not sign,[2] and requested he submit to a breath test, which he apparently refused to take. These interactions between the third officer and appellant were recorded on video and shown to the jury.

Based on his training, the third officer concluded that appellant had lost the normal use of his physical and mental faculties.  The officer was unable to evaluate appellant for drug use because appellant refused to take a breath test that could have eliminated alcohol as a source of appellant’s intoxication: alcohol causes similar behavior to that induced by some drugs.  The officer thus concluded appellant was intoxicated by some sort of depressant.

Sufficiency of the Evidence

In his first three issues, appellant challenges the legal sufficiency of the evidence to support his DWI conviction, alleging that the State did not establish that he was operating a motor vehicle while intoxicated in a public place.

We review the sufficiency of the evidence in this case under a rigorous and proper application of the legal sufficiency standard of Jackson v. Virginia, 443 U.S. 307 (1979).  Brooks v. State, 323 S.W.3d 893, 906 (Tex. Crim. App. 2010) (plurality op.); Pomier v. State, 326 S.W.3d 373, 378 (Tex. App.—Houston [14th Dist.] 2010, no pet.).  When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether the fact-finder was rationally justified in finding guilt beyond a reasonable doubt.  Brooks, 323 S.W.3d at 899.  This court does not sit as a thirteenth juror and may not substitute its judgment for that of the fact-finder by reevaluating the weight and credibility of the evidence.  Id. at 901–02, 905; see also Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).  We defer to the fact-finder’s resolution of conflicting evidence unless the resolution is not rational.  Brooks, 323 S.W.3d at 902 n.19, 907; Pomier, 326 S.W.3d at 378.

A person commits the offense of driving while intoxicated if that “person is intoxicated while operating a motor vehicle in a public place.”  Tex. Penal Code § 49.04(a). One is considered intoxicated if he does not have the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of those substances or any other substance into the body or by having an alcohol concentration of 0.08 or more in his breath, blood, or urine.  See id. § 49.01(2)(A)-(B). A conviction for driving while intoxicated may be supported solely by circumstantial evidence, which is as probative as direct evidence.  Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). 

1. Operating motor vehicle while intoxicated

In his first and third issues, appellant contends that the State failed to establish that he was operating a motor vehicle while intoxicated because law enforcement officers did not observe appellant operating a motor vehicle and the State did not present evidence of “how recently the vehicle was driven” or “how much time elapsed between the accident and arrival of law enforcement authorities.”  Appellant further contends that the State did not prove he was intoxicated because he did not take a breath test, no open container of alcohol was found in the vehicle, no injuries were sustained by appellant or others, and the accident did not involve another vehicle or result in a collision.  We address these two issues together.

The State was required to present sufficient evidence to show appellant was the operator of the vehicle and, although the State was not required to establish the precise time of an accident or of the appellant’s driving, it was required to show a temporal link between appellant’s intoxication and his driving.  See Kuciemba, 310 S.W.3d at 462; Scillitani v. State, — S.W.3d —, 2011 WL 2448371, at *3 (Tex. App.—Houston [14th Dist.] June 21, 2011, no pet. h.).  The State presented the following evidence that appellant operated the motor vehicle shortly before the first officer found him, while he was intoxicated: (1) within two minutes of receiving the radio dispatch, the officer found a vehicle matching the broadcast’s description that was registered to appellant; (2) when the officer arrived at the scene, appellant, the only occupant of the vehicle, opened the truck’s door and slid from the driver’s seat to the ground; (3) no one else was standing near the truck at that time; (4) the truck appeared to have struck the curb and spun into the yard, leaving deep ruts; (5) there were no skid marks on the street; (6) the truck’s engine was still warm when appellant slid out of the driver’s seat; (7) appellant was unresponsive to the officer’s questions and unable to stand without assistance or speak intelligibly; (8) appellant could not locate his driver’s license in his wallet; (9) appellant smelled strongly of alcohol, slurred his speech, and squinted his eyes so that they were almost closed; (10) appellant passed out in the back of the squad car and was incapable of taking onsite field sobriety tests; (11) when taken to the station, appellant then failed three field sobriety tests; and (12) when appellant was asked whether he had been drinking and driving, he replied, “I think so.”

The following facts demonstrate that appellant was the driver of the vehicle: the officer found a truck that matched the description of a vehicle being driven recklessly on Gessner within two minutes of receiving the radio dispatch; the vehicle was registered to appellant; appellant was the only occupant of the vehicle and slid from the driver’s seat onto the ground; no one else was near the vehicle; the vehicle’s engine was still warm when the officer discovered it; and appellant later admitted that he thought he had been drinking and driving.  The jury reasonably could have inferred from these facts that appellant was driving the truck and, therefore, operating a motor vehicle when it spun onto the lawn.  See Scillitani, 2011 WL 2448371, at *5 (holding jury could have inferred from facts surrounding single-vehicle accident that appellant was intoxicated when he drove vehicle); Weems v. State, 328 S.W.3d 172, 177 (Tex. App.—Eastland 2010, no pet.) (concluding that evidence was legally sufficient to show appellant was driving vehicle when it was a vehicle he typically drove and he had it on night of accident, he was found four-tenths of a mile from accident in rural area, and police officers and EMS personnel did not see anyone else at accident scene or in surrounding area); Turner v. State, 877 S.W.2d 513, 515–16 (Tex. App.—Fort Worth 1994, no writ) (finding sufficient evidence that appellant drove vehicle when he was found standing next to vehicle within minutes of city power outage caused by damage to transformer in path of vehicle; steam was spewing from under hood of vehicle, indicating accident had just happened; and accident happened late at night so that there were no other possible drivers seen in the area). 

The foregoing and the following facts likewise support a temporal link between appellant’s driving and his intoxication that the jury reasonably could have inferred: the officer found the truck on the lawn within two minutes after the truck matching the description in the radio dispatch was reportedly seen driving recklessly on the street adjacent to the lawn; appellant still occupied the truck; it had obviously struck the curb and spun into the yard, leaving deep ruts; there were no skid marks on the street, which indicated appellant did not apply his brakes; when the officer found appellant, he was unresponsive to the officer’s questions, unable to stand without assistance, and incoherent, could not locate his driver’s license in his wallet, smelled strongly of alcohol, slurred his speech, and squinted his eyes so that they were almost closed; appellant passed out in the back of the squad car and was incapable of taking onsite field sobriety tests; and appellant failed three field sobriety tests that were administered later at the station. See, e.g., Kuciemba, 310 S.W.3d at 462–63 (noting that person’s presence in driver’s seat supports inference that accident had occurred short time previously and “[b]eing intoxicated at the scene of a traffic accident in which the actor was a driver is some circumstantial evidence that the actor’s intoxication caused the accident, and the inference of causation is even stronger when the accident is a one-car collision with an inanimate object”); Scillitani, 2011 WL 2448371, at *1, 3–5 (holding that evidence was sufficient to support inference of temporal link between appellant’s driving and intoxication when officer found vehicle resting in ditch which appellant admitted driving and explained that he did not know how he lost control of vehicle; there were no skid marks on road, which indicated appellant’s failure to apply brakes; and appellant smelled of alcohol, showed signs of intoxication in two of three field sobriety tests, and failed preliminary breath test).

Given the ample evidence of appellant’s intoxication under these facts, we further find without merit appellant’s argument that the State failed to prove that appellant was intoxicated because he did not take a breath test, no open container of alcohol was found in the vehicle, no injuries were sustained by appellant or others, and the accident did not involve another vehicle or result in a collision.  See Cotton v. State, 686 S.W.2d 140, 142–43 & n.3 (Tex. Crim. App. 1985) (noting evidence of intoxication may include, among other things, slurred speech, bloodshot eyes, the odor of alcohol on the person, and unsteady balance or a staggered gait).  In addition to the above referenced factors that support a finding of intoxication, all three officers testified that appellant had lost the normal use of his mental and physical faculties due to alcohol or some sort of depressant and was thus intoxicated, which is evidence of intoxication.  See Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (“The testimony of a police officer that an individual is intoxicated is probative evidence of intoxication.”).  Appellant’s refusal to take a breath test, moreover, may be used as evidence of guilt.  See Tex. Transp. Code § 724.061; Finley v. State, 809 S.W.2d 909, 913 (Tex. App.—Houston [14th Dist.] 1991, writ ref’d).  Finally, the jury viewed the video showing appellant’s actions during his interview at the police station and therefore may have reasonably concluded from it that appellant was intoxicated.  See Russell v. State, 290 S.W.3d 387, 396–97 (Tex. App.—Beaumont 2009, no pet.) (“[T]he videotape at the scene of the stop allowed the jury to observe Russell and whether he had the normal use of his faculties . . . .”).  We hold that there was ample evidence supporting both that appellant was the operator of the vehicle and that he operated it shortly before the first officer found him while he was intoxicated. 

2.      In a public place

In his second issue, appellant contends that the State did not establish he operated a motor vehicle in a public place while intoxicated because (1) no evidence showed when the accident occurred or how recently the vehicle was driven, (2) no witnesses saw appellant operate his motor vehicle when the accident occurred, and (3) the vehicle was not on a public street when the officer arrived.  We disagree.

A public place is “any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.”  Tex. Penal Code § 1.07(a)(40).

We have already held that there was legally sufficient evidence to show that the accident occurred shortly before the officer arrived based, in part, on these facts: (1) appellant’s truck matched the radio dispatch’s description of a vehicle being driven recklessly on Gessner; (2) the officer discovered appellant in his truck in a lawn off Gessner within two minutes after the radio dispatch; (3) the yard had deep tire ruts indicating that the vehicle had spun into the yard; and (4) the truck’s engine was still warm.  The officer also observed that the truck “[a]ppeared to have struck the curb on the east side of Gessner and spun up to the front yard” and it was facing the street.  We hold that this is sufficient evidence from which the jury reasonably could infer that appellant was operating his vehicle on Gessner, a public street, and then struck the curb and spun into the yard.  See Banda v. State, 890 S.W.2d 42, 52–53 (Tex. Crim. App. 1994) (holding trial court could infer that appellant appeared in public place and there was probable cause to arrest appellant for public intoxication when appellant was caught in side yard of private residence after he had climbed over fence and tried to escape through adjoining neighbors’ yards); Loera v. State, 14 S.W.3d 464, 468 (Tex. App.—Dallas 2000, no pet.) (holding when appellant showed up in sister’s driveway with his bike, evidence was sufficient to prove the element of “public place,” in part, because trial court could reasonably infer appellant used public road or street to reach his destination).

The State urges us to overrule a portion of our previous decision, Commander v. State, 748 S.W.2d 270 (Tex. App.—Houston [14th Dist.] 1988, no writ), in which we stated, “A private residence is not a public place, nor has the yard or driveway of private a [sic] residence ever been construed as such,” id. at 271, and hold that the front yard in which the officer found appellant was a public place under the circumstances.  The overruling of this court’s precedent would require the en banc court.  But we need not consider that possibility in this instance, as we have held that the jury could have reasonably inferred from the circumstantial evidence that appellant was driving on Gessner, a public street, within minutes before the officer discovered him in the yard.  Considering that the court in Commander limited its holding to “the limited circumstances presented to this court,” id. at 272, and the Court of Criminal Appeals has recognized that a private residence, under the right circumstances, may be a public place, see Banda, 890 S.W.2d at 52, we note that the Commander case does not stand for the broad proposition that a private yard can never be considered a public place for purposes of the public intoxication or DWI statute.[3] 

In the Commander case, an officer saw the defendant leaning against a van in a private driveway.  748 S.W.2d at 272.  The defendant’s eyes were glassy, he smelled of alcohol, and he seemed unsteady.  Id. This court held that “under the limited circumstances presented” the officer did not have sufficient probable cause to arrest the defendant for public intoxication.  Id.  The court acknowledged, however, that there may be sufficient probable cause to arrest a person on private property for public intoxication under the right circumstances.  See id. at 271–72.  By way of example, the court cited United States v. Fossler, 597 F.2d 478 (5th Cir. 1979), in which the Fifth Circuit upheld the validity of an arrest for public intoxication after the defendant had been seen driving erratically down the street and was found moments later leaning against his car in the middle of someone’s yard, obviously intoxicated.  Id. at 271.  The court recognized, “[u]nlike the facts in Fossler, the record before this court does not support a finding that [the officer] had probable cause to arrest appellant.”  Id. at 272.  We note that the facts of this case are more akin to the facts in Fossler than the facts in Commander.

The Court of Criminal Appeals, moreover, has acknowledged “[a] place may be a public one or not according to the circumstances.”[4]  Banda, 890 S.W.2d at 52.  Based on this pronouncement by the Court of Criminal Appeals and express language in Commander, we believe that the holding in Commander—that the private driveway where the defendant was discovered was not a public place under the statute—was limited to the specific facts of that case and would not preclude a future finding by this court that certain portions of a private residence may be considered a public place under the right circumstances. 

For the preceding reasons, we overrule appellant’s first through third issues.

Alleged Jury Charge Error

In his fourth issue, appellant contends that the jury charge improperly expanded upon the allegations in the information by including one of the statutory definitions of intoxication in the charge but not in the information.  Even though appellant’s trial attorney did not preserve error on this issue by objecting, appellant contends that we should reverse because the error resulted in egregious harm that deprived appellant of due process, due course of law, and a fair and impartial trial.  The State asserts that there was no error in the jury charge and thus we need not reach the issue of whether error caused egregious harm.  We agree with the State.

We review jury charge error on appeal as follows.  We first determine whether error exists in the charge.  Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996).  Only then do we determine whether sufficient harm was caused by the error to require reversal.  Id. at 170–71.  When charge error is not preserved, the degree of harm required to merit reversal is egregious harm.  Id. at 171.  The type of intoxicant, as defined by statute, is not an element of the DWI offense and thus need not be alleged in the information.  See State v. Barbernell, 257 S.W.3d 248, 256 (Tex. Crim. App. 2008) (holding information provided appellant with adequate notice even though it did not contain either statutory definition of “intoxicated” and stating “the definitions of ‘intoxicated’ . . . are evidentiary and therefore do not need to be alleged in a charging instrument” to provide a defendant with sufficient notice); Gray v. State, 152 S.W.3d 125, 132 (Tex. Crim. App. 2004) (“[T]he substance that causes intoxication is not an element of the offense.  It is not the forbidden conduct, the required culpability, any required result, or the negation of any exception to the offense.  Instead, it is an evidentiary matter.”). 

Here, the information alleged only that appellant “[d]id then and there unlawfully operate a motor vehicle in a public place while intoxicated”; it did not identify the alleged intoxicant or indicate on which of two statutory definitions of intoxication the State would rely—either intoxication by loss of the normal use of mental and physical faculties or by blood alcohol content.  See Tex. Penal Code § 49.01(2)(A)–(B) (defining “Intoxicated” either as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body” or “having an alcohol concentration of 0.08 or more”).  Appellant filed a pretrial motion to quash the information based in part on its failure to specify the intoxicant, which the trial court denied.  The trial court included the statutory definition of intoxication by loss of the normal use of mental or physical faculties in the jury charge. 

Appellant argues that, under Rodriguez v. State, 18 S.W.3d 228 (Tex. Crim. App. 2000), the jury charge improperly expanded on the allegations set forth in the information by authorizing conviction on a theory not alleged in the information, specifically that appellant was intoxicated either by alcohol alone or by a combination of unknown drugs and alcohol.  The Rodriguez case, however, is distinguishable from the facts of this case.  In that case, the information alleged intoxication by alcohol.  Id. at 229.  At trial, defense evidence showed that the appellant had been taking a cold medication that made him drowsy.  Id.  The jury charge permitted the jury to convict if it found either that the defendant was intoxicated by alcohol alone or by a combination of unknown drugs and alcohol.  Id. at 230.  The court of criminal appeals held that the charge improperly expanded on the allegations set forth in the information and authorized a conviction on a theory not alleged in the charging instrument.[5] See id. at 232; see also Gray, 152 S.W.3d at 130.  Here, the information does not limit itself by alleging the intoxicant: it merely alleges that appellant was intoxicated. 

This case is more akin to the Barbernell case in which the information did not include the definition of intoxication that it intended to prove at trial.  See Barbernell, 257 S.W.3d at 250, 256 (“[T]he information, though it did not allege either definition of ‘intoxicated,’ provided Barbernell with adequate notice, and the court of appeals erred to conclude otherwise.”)  We hold that the information in this case provided appellant with adequate notice of the charges against him.  Because we find no error in the jury charge, we do not reach the issue of whether error resulted in egregious harm. 

We overrule appellant’s fourth issue.

Conclusion

Having determined that the trial court did not commit error, we overrule appellant’s issues on appeal.  The judgment of the trial court is affirmed.

                                                                        /s/        Martha Hill Jamison

                                                                                    Justice

Panel consists of Justices Frost, Jamison, and McCally.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] The officer testified that the Romberg balance test helps determine whether a person’s “internal clock” is slow or fast and how much a person sways when standing, as certain drugs such as alcohol affect a person’s internal timing and balance.

[2] A D.I.C. 24 form indicates that a suspect has been given the statutory warning regarding the consequences of refusing a breath test, which include the possible suspension of one’s driver’s license.  The officer testified that he gave appellant the statutory warning, both verbally and in writing, but appellant refused to sign the form.

[3] See, e.g., Loera v. State, 14 S.W.3d 464, 469 (Tex. App.—Dallas 2000, no pet.) (“While the incident in Commander occurred in the driveway of a private residence, the decision itself did not turn on the fact that the location was a residence.  The decision, instead, was based on the lack of evidence to show the defendant had ever driven or intended to drive the [van] parked in the driveway or to show he was a danger to himself or the public.”).

[4] In the Banda case, the defendant argued that there was no probable cause to arrest him for public intoxication because he was found in the side yard of his cousin’s private residence.  Banda v. State, 890 S.W.2d 42, 52 (Tex. Crim. App. 1994).  Before arresting the defendant, the officer had seen him climb over a fence and disappear through neighbors’ backyards.  Id.  The officer’s subsequent search led him to believe that the defendant had attempted to flee out of the neighborhood.  Id.  The officer eventually discovered that the defendant had returned to his cousin’s residence and arrested him there.  Id.  The court held “[t]o hold that there was no probable cause to arrest [the defendant] for public intoxication . . . would be unreasonable.”  Id. 

[5] The Rodriguez court recognized a subtle distinction between the facts of Rodriguez and cases in which an information alleged intoxication by alcohol and the charge allowed conviction only if the jury found that the defendant had been intoxicated by alcohol either alone or in combination with a drug that made him more susceptible to the alcohol.  Rodriguez v. State, 18 S.W.3d 228, 231–32 (Tex. Crim. App. 2000).  The cases falling into the latter category did not involve a charge that improperly expanded on the allegations in the information.  See Gray v. State, 152 S.W.3d 125, 130 (Tex. Crim. App. 2004) (citing Rodriguez, 18 S.W.3d 228; Sutton v. State, 899 S.W.2d 682 (Tex. Crim. App. 1995); Heard v. State, 665 S.W.2d 488 (Tex. Crim. App. 1984) (analyzing differences between cases)).  The court also recognized in Gray that the law on this issue was in an “uneasy state” when it decided Rodriguez.  Id.