in Re Theron Belton ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00285-CV

In re Theron Belton

Original Proceeding

DISSENTING Opinion

          The trial court signed a judgment on July 28, 2005.[1] It appears from the mandamus record before us that the trial court’s intent was to render a final appealable judgment.  (“This is a final judgment and no other action will be taken on this case by this court.”) (Letter transmitting the trial court’s judgment.)

          Whatever the problems were, if any, in getting to this point, we can resolve them on direct appeal from the judgment. A direct appeal is an adequate remedy.  According to his supplemental brief, Belton filed a notice of appeal on August 9, 2005.  Belton’s notice of appeal was file-stamped by the trial court clerk on August 12, 2005, and has been forwarded to this Court.  Thus, procedurally, Belton fails to show how relief by direct appeal is inadequate; a necessary element to be able to proceed by mandamus.

          Additionally, although the mandamus is about ruling on objections to discovery sought by Belton, we have no way of determining if any of the discovery was actually relevant to the summary judgment issues.  Belton has made neither his discovery request nor the responses and objections part of the mandamus record.  See Tex. R. App. P. 52.7(a).  Belton, therefore, has failed to show himself entitled to any relief by mandamus.

          Belton has also failed to establish that the trial court abused its discretion.  After Belton’s case was dismissed, he appealed to this Court.  We held that the dismissal was error and remanded the case to the trial court on January 13, 2003.  See cause number 10-02-00071-CV.

          Belton then sought the appointment of an attorney to represent him in the district court in this civil case.  The trial court denied his request.  Belton appealed that ruling.  See cause number 10-03-00291-CV.  That appeal was dismissed by this Court on December 29, 2004 for want of jurisdiction to review the interlocutory order.  This was eight months after Belton requested a hearing on his discovery motion.  Belton’s motion for rehearing in this Court was denied on January 18, 2005.  He then filed a petition for review with the Texas Supreme Court.  The petition for review was not denied until August 29, 2005. 

          I find it hard to determine that the trial court abused its discretion by not ruling on a motion filed by a pro se litigant while the court’s order denying that litigant appointed counsel was on appeal.  But it seems supremely practical for that same trial court to render a final judgment on a dispositive motion so that this Court can obtain jurisdiction to review the earlier order denying appointed counsel, the ruling on the merits, if appropriate, and even the refusal to rule on the discovery motion filed by Belton, if it is appropriate, which refusal is the subject of this mandamus proceeding.

          There seems to be a lot of valid reasons for the trial court to have delayed ruling on Belton’s motion, and I am unwilling to say, as the majority concludes, that the trial court abused its discretion under these circumstances.

          I would deny the petition.  At the very least, we should delay ruling on the mandamus until we can resolve the direct appeal.

                                                          TOM GRAY

                                                          Chief Justice

Dissenting opinion delivered and filed September 21, 2005

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[1] The year on the judgment was typed “2004” prior to the trial court writing the month and the day, July 28, in the blank. It was file-stamped by the trial court clerk on August 1, 2005.  In the cover-letter to Belton by the district clerk, the clerk noted that the judgment was signed on July 28, 2005.  I presume the “2004” on the judgment was a typographical error and that the date the judgment was actually signed was July 28, 2005.

owing behind Duncan and “pacing him” using the speedometer in his patrol car.  After West observed Duncan twice fail to maintain a single lane of traffic by crossing over a highway line, West activated the overhead lights on his patrol car.  After the lights were activated, Duncan crossed over the highway line one more time but then pulled over in a safe manner.  

            Upon making contact with Duncan while he was still seated in the driver’s seat of the van, West smelled a strong alcoholic-beverage odor on or about Duncan’s person and from his breath. West also noticed that Duncan’s eyes were red and bloodshot and that he had somewhat slurred speech.  Having observed all these things, West asked Duncan to step to the rear of the vehicle so that he could administer field sobriety tests to him.

            Just after Duncan exited the van, Deputy Mike Reynolds of the Somervell County Sheriff’s Department, West’s partner that night, arrived to help.  Because the tape in West’s in-car camera had run out, Reynolds positioned his patrol car so that his in-car camera could record the traffic stop.  Reynolds also took Duncan’s driver’s license and “ran it through dispatch.”

West administered the field sobriety tests.  He first administered the horizontal gaze nystagmus (HGN) test to Duncan.  West testified that Duncan exhibited all six clues of intoxication, but he admitted he was aware that nystagmus occurs in many people naturally and he had no idea whether it occurs naturally in Duncan’s case.  West then administered the walk-and-turn test.  Based on Duncan’s performance, West opined that Duncan was intoxicated.  Finally, West had Duncan perform the one-leg stand test, which he also failed.  During this time, Reynolds observed that Duncan did not follow directions correctly, he could not stand without swaying, he did not walk the straight line during the walk-and-turn test, and he could not stand on one foot during the one-leg stand test.  West then arrested Duncan for DWI and placed him in his patrol car.  West and Reynolds then inventoried the van and found no open containers.

Once at the jail, West took Duncan to the DWI Intoxylizer room.  Generally, when someone is brought into the Intoxylizer room, the deputy re-administers the standard field sobriety tests in that “controlled environment,” and the performance of the tests is videotaped. Duncan refused to perform the tests in the Intoxylizer room, and no video of Duncan in the Intoxylizer room was located.  West then read Duncan the statutory warning form, informing him of the consequences of refusing to allow the taking of a breath or blood specimen, and requested that he provide a blood specimen.  Duncan consented to giving a blood specimen.  West testified that he opted to ask for a blood specimen because, while on the side of the road, Duncan had already said that he was not going to be willing to give a breath sample.

West then took Duncan to the emergency room of the Glen Rose Medical Center so that Duncan’s blood could be drawn.  At that time, Duncan signed a consent form, stating that he was voluntarily giving a blood specimen to West.  The laboratory technologist then drew Duncan’s blood at 9:55 p.m., and West mailed the sealed vial to the DPS Crime Laboratory in Waco, Texas.  Duncan was then taken back to the jail and booked.

Approximately one month later, Charles Mott, a chemist with the DPS Crime Laboratory in Waco, tested Duncan’s blood. Mott testified that the blood specimen contained 0.17 grams of alcohol per 100 milliliters.  Mott also testified that based on his training and experience and the results of the blood test, Duncan was intoxicated at the time he was driving.  The State and Duncan also stipulated that Duncan had two previous DWI convictions.

A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place.  Tex. Pen. Code Ann. § 49.04 (Vernon 2003).  The offense is enhanced to a third-degree felony if the State can prove that the person has twice before been convicted of any other offense relating to the operating of a motor vehicle while intoxicated.  Id. § 49.09(b)(2) (Vernon 2003).  “Intoxicated” means:

(A)   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

(B)    having an alcohol concentration of 0.08 or more.

Id. § 49.01(2) (Vernon 2003).  “Alcohol concentration” means, as relevant here, the number of grams of alcohol per 100 milliliters of blood.  Id. § 49.01(1)(B).

            Duncan first argues that the initial traffic stop was unlawful and therefore the evidence of intoxication is factually insufficient, presumably because the fruits of the alleged unlawful stop should have been suppressed.  However, Duncan has failed to preserve this complaint about the legality of the stop.  In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling he desired from the court unless the specific grounds were apparent from the context.  Tex. R. App. P. 33.1(a)(1). In this case, Duncan never filed a motion to suppress, nor does it appear that he ever made any other objection to the trial court complaining of the legality of the stop.  Thus, Duncan failed to preserve this issue for appeal.

            Duncan next argues that the test results obtained from his blood specimen should not have been admitted into evidence because the request for the specimen was unauthorized.  Duncan also complains that no qualifications were given that would authorize Mott to testify as to his determination of what Duncan’s blood alcohol concentration was at the time of his driving based on the results of the blood test.  Duncan concludes that his blood alcohol concentration at the time of his driving is thus unsupported by any real evidence or admissible opinion.  However, Duncan once again failed to make a proper objection to the admission of this evidence; therefore, he has failed to preserve these complaints for appellate review.  See id.; Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).

            Finally, Duncan points out several things that were not admitted into evidence (e.g., open containers and a video of his conduct at the jail) and contends that the absence of this evidence “does not support the officers’ opinions of intoxication.”  But despite this alleged absence of some evidence of intoxication, our focus is on the factual sufficiency of the evidence of intoxication that was admitted.

Considering all of the evidence in a neutral light, we conclude that the evidence of intoxication is factually sufficient and the jury was justified in finding Duncan guilty of driving while intoxicated (third offense).  We overrule Duncan’s sole point and affirm the trial court’s judgment.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed July 8, 2009

Do not publish

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