Jason Bruce Paris v. State ( 2005 )

IN THE

TENTH COURT OF APPEALS

No. 10-04-00019-CR

Jason Bruce Paris,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 2003-650-C

MEMORANDUM Opinion

Jason Bruce Paris was indicted for driving while intoxicated.  Because of Paris’s prior DWI convictions, the punishment was enhanced to a second degree felony.  Tex. Pen. Code Ann. §§ 12.42(a)(3), 49.09(b)(2) (Vernon Supp. 2004-05). A jury found Paris guilty of felony DWI and assessed punishment at ten years’ confinement.  Paris brings two issues on appeal: (1) the evidence is factually insufficient to support a finding that he was intoxicated when he drove a vehicle; and (2) the prosecutor made an improper and prejudicial statement during closing argument during the punishment phase that should have resulted in a mistrial.

          We will overrule the issues and affirm the judgment.

BACKGROUND

          Shortly after one o’clock in the morning, a Waco police officer was dispatched to a restaurant regarding a car accident.  He spoke with a waitress at the restaurant and determined that someone had backed a pickup truck into her car in the parking lot and damaged her car.  He spoke with the owner of the truck who informed him that Paris was driving the truck at the time of the accident.  The officer approached Paris, who was sitting at a table inside the restaurant.  The officer testified that Paris admitted being the driver. He also testified that he smelled a strong odor of alcohol on Paris’s breath, that Paris “kind of swayed” getting up from the booth, that he had to put his hand on the table to maintain his balance, and that he walked to the door of the restaurant in a “shuffle type” motion but in a straight line.  The officer asked Paris if he had had anything to drink.  Paris responded that he had not.  The officer then informed Paris that he was going to test him for intoxication and began to administer a horizontal gaze nystagmus test.  The officer testified that after he made one pass with his pen, Paris “threw his hands up and said ‘fuck you’ and turned around and started towards the interstate.”  The officer then arrested Paris.  On a video taken at the jail and shown to the jury, Paris refused to take an intoxilyzer test.

Factual Sufficiency

          Paris argues that the evidence is factually insufficient to support a finding that he was intoxicated when he drove the vehicle.  We review factual sufficiency by considering all of the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  The evidence may be factually insufficient either because the evidence that supports the verdict is too weak to support a beyond-a-reasonable-doubt guilt finding or because the evidence contrary to guilt is strong enough that the beyond-a-reasonable-doubt standard could not have been met.  Id.

          Paris argues that there is evidence against intoxication.  The officer testified that, except for his profanity and refusal to submit to any sobriety tests, Paris was compliant with his instructions and compliant during the handcuffing and arrest. The officer also said that Paris “stood straight and tall” during the jail video shown to the jury.  Paris’s wife testified that Paris had a bad back which affected his walking and standing, and that he was not intoxicated when she saw him earlier that evening.  The owner of the truck testified that he did not think that Paris was intoxicated.  However, he admitted that two months before the trial he had told a detective that Paris had been drunk at the time of the accident.  He explained that at the time he made the statement he was angry with Paris because he had to pay to have the waitress’ car repaired.  He testified that Paris had a beer with him when he picked Paris up, but that although they had spent the evening at a pool hall, neither of them drank alcohol at the pool hall.

          The jury determines the credibility of the witnesses and may “believe all, some, or none of the testimony.”  Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).  The jury could have found the testimony of Paris’s wife to be biased or otherwise not credible.  The truck owner’s testimony was inconsistent with his statement to the police.  We cannot say that there is strong evidence contrary to the verdict.  The arresting officer testified that he formed an opinion that Paris was intoxicated based upon the strong odor of alcohol on Paris’s breath, his denial that he had had anything to drink, his unsteadiness in getting up from the booth, his shuffling walk, his profanity towards a police officer, and his refusal to submit to any field sobriety tests or an intoxilyzer.  He also testified to smelling a strong odor of beer in his patrol car while transporting Paris to jail.  Considering all of the evidence in a neutral light, we cannot say that the jury was not rationally justified in finding beyond a reasonable doubt that Paris was intoxicated.  Zuniga, 144 S.W.3d at 484.  We overrule this issue.

Improper Argument

          Paris argues that the prosecutor made an improper and prejudicial statement during closing argument in the punishment phase which should have resulted in a mistrial.  During the guilt-innocence phase, the jury learned of Paris’s two prior misdemeanor DWI convictions.  During the punishment phase, the jury learned of an additional misdemeanor assault conviction and a felony DWI conviction. In its closing argument, the prosecution referenced the State’s decision not to give Paris probation for the felony DWI conviction.  Paris objected that the prosecutor’s comments were outside the record because there was no evidence about probation for that conviction.  The trial court sustained the objection and instructed the jury to disregard the statement.  The court then denied Paris’s motion for mistrial.

A court errs in denying a motion for a mistrial only if the instruction to disregard was inadequate to cure the prejudicial effect of the improper argument.  Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991).  Reversal results from improper prosecutorial argument only when the argument is extreme, manifestly improper, injects new and harmful facts into the case or violates a mandatory statutory provision and is thus so inflammatory that its prejudicial effect cannot reasonably be cured by judicial instruction to disregard argument. Id.  In evaluating the adequacy of the instruction to cure the prejudicial effect, we consider: the nature of the improper comment; the persistence of the prosecutor; the flagrancy of the violation; the particular instruction given; the weight of the incriminating evidence; and the harm to the accused as measured by the severity of the sentence.  Roberson v. State, 100 S.W.3d 36, 41 (Tex. App.—Waco 2002, pet. ref’d).  We find that the prosecution’s statement was not so prejudicial that it could not be cured by the instruction to disregard.  The trial court thus did not err in denying the motion for mistrial. We overrule the issue.

CONCLUSION

          Having overruled the issues, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed February 2, 2005

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