Thomas, Robert A. v. State ( 2000 )

NUMBER 13-99-567-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

ROBERT ANNAMMA THOMAS

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the County Court at Law No. 1 of Cameron County, Texas.

____________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Rodriguez

Opinion by Chief Justice Seerden

This is an appeal from a judgment convicting Robert Annamma Thomas, appellant, proceeding pro se, of driving while intoxicated on June 2, 1999. Appellant was sentenced to six months in the county jail, but the trial court placed appellant on community supervision for one year and assessed a fine. On appeal, appellant contends generally that the evidence adduced to support his conviction is legally insufficient, primarily because the State's witnesses were not credible. Appellant also argues that the trial court made several constitutional errors during trial. Finally, appellant argues that the trial court erred in denying his motion for new trial. We affirm.

Appellant was arrested for driving while intoxicated after being stopped by Officer Jose Villarreal of the Harlingen Police Department. Villarreal testified that on August 22, 1998, at approximately 2:12 a.m., he observed appellant's car traveling at a high rate of speed on Expressway 83 in Harlingen. The officer undertook to pursue appellant, eventually catching him after a brief chase. Villarreal testified that at the time his vehicle overtook appellant's car, he examined his speedometer and noted that he was traveling at 80 miles per hour. At the time, the vehicles were traveling in a 60 mile per hour speed zone. Villarreal effectuated a traffic stop.

Villarreal testified that upon their first encounter, appellant's speech seemed slurred and his eyes appeared bloodshot. Villarreal also recalled that the scent of alcohol emanated from appellant's vehicle. Villarreal asked appellant to step out of the vehicle. When appellant exited the car, Villarreal observed that appellant had unsteady balance. Villarreal testified that he performed three field sobriety tests on appellant. In administering the horizontal gaze nystagmous test (HGN), Villarreal observed a lack of smooth pursuit and that appellant had "nystagmous at maximum deviation." According to Villarreal, both factors indicate intoxication. Villarreal testified that he then asked appellant to perform the "walk-and-turn" test. During this test, appellant did not touch heel to toe on several steps and repeatedly struggled with his balance. Villarreal stated that appellant's difficulties were consistent with intoxication. Finally, according to Villarreal, he asked appellant to perform the "one leg stand" test. Villarreal related that appellant repeatedly put his foot down and had difficulty counting. Villarreal again stated that appellant's inability to successfully perform the test indicated intoxication. Based on his observations and appellant's unsuccessful performances of the tests, Villarreal arrested appellant.

The record reflects that appellant was booked at 2:48 a.m. Villarreal testified that he read the statutory DWI warnings to appellant. According to Villarreal, included in these warnings was the admonition that if appellant refused to submit to a breath test, that refusal could be admissible in a subsequent prosecution. Villarreal also testified that he informed appellant that his refusal to submit to a breath test would result in the suspension of appellant's driver's license for a period of ninety days. Villarreal then permitted appellant to read the warnings himself, after which appellant signed a written copy of the statutory warning. Appellant did not refuse the test. Subsequent tests resulted in breath specimens indicating blood alcohol concentration of 0.124 and 0.132, both in excess of the legal limit.

At trial, appellant, citing a distrust of attorneys, chose to represent himself. After a trial, the jury convicted appellant of driving while intoxicated. The court sentenced appellant to serve six months in the county jail, but suspended the sentence and placed appellant on community supervision for one year. Appellant was also ordered to pay a fine and court costs.

Appellant's subsequent motion for new trial was overruled.

By his first issue, appellant contends that the trial court judge abused her discretion in refusing to permit him sufficient time to prepare for trial. In general, at a minimum, a defendant who chooses to proceed without counsel is entitled to ten days' notice of a dispositive setting if that defendant has already appeared at a proceeding without counsel. Tex. Code Crim. Proc. Ann. art. 1.051(e) (Vernon 1998). The record reflects that on March 22, 1999, the trial court granted a motion to withdraw from the representation filed by appellant's then-appointed counsel. At the same time, the court granted appellant's motion to proceed pro se. Subsequently, on April 15, 1999, the trial court granted appellant's motion for continuance, resetting the trial date to June 1, 1999. Appellant does not contend that he did not have notice of the resetting. Thus, the record shows that at the very least, appellant was provided forty-six days to prepare for trial. On the morning of trial, appellant asked for, but was not given, a continuance. The granting of a continuance is a matter vested in the sound discretion of the trial court. Duhamel v. State, 717 S.W.2d 80, 83 (Tex. Crim. App. 1986). We find no authority for the proposition that appellant was entitled to any more time than he was afforded here. Moreover, we find no support for the contention that forty-six days is a presumptively inadequate time for preparation. See Hernandez v. State, 643 S.W.2d 397, 399-400 (Tex. Crim. App. 1983) (twenty-four days preparation time for a capital murder case held adequate). We conclude that the trial court did not abuse its discretion in overruling appellant's second motion for continuance. Appellant was afforded adequate time to prepare for this trial and all of its incidents, including voir dire and the submission of the court's charge.

Appellant furthermore contends that he was not permitted discovery of certain "evidence" prior to the date of trial. In particular, appellant contends he was denied access to the videotape of his field sobriety tests, the inventory of belongings found in his car after his arrest, and the maintenance records for the State's breath test instrument. However, the State informed the trial court that neither the maintenance records nor the inventory was in its possession, and appellant has not demonstrated how either is material to presenting a defense here. Tex. Code Crim. Proc. Ann. art. 39.14(a) (Vernon 1998) (trial court may order discovery of "evidence material to any matter involved in the action and which are in the possession, custody or control of the State.").

With regard to the videotape of his field sobriety tests, the State informed the court that it routinely destroys videotapes of arrests which do not involve serious injuries or deaths. We find no authority which suggests that once made, a videotape like that sought here must be maintained by the State. The State cannot be compelled to provide material which does not exist and which was destroyed in good faith as a matter of course by the police. See California v. Trombetta, 467 U.S. 479, 488, 104 S. Ct. 2528, 2533, 81 L. Ed. 2d 413 (1984); Barre v. State, 826 S.W.2d 722, 724 (Tex. App.--Houston [14th Dist.] 1992, pet. ref'd). Here, as in Barre, there was evidence that the videotape in question was re-used in conformity with the normal practice of the Harlingen Police Department and that there was no intent on the part of the police to destroy evidence. Barre, 826 S.W.2d at 724. The trial court did not abuse its discretion in concluding that the Harlingen Police Department acted in good faith in adhering to its tape destruction policy here.

Appellant's first issue is overruled.

By his second issue, appellant contends that the trial court "acted unconstitutionally on several occasions, especially [sic] in the jury's charge, jury selection, presenting evidence and when appellant demanded to represent self." The record reflects that the trial court admonished appellant on numerous occasions with regard to the difficulties of self-representation. See generally Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon 1998). Appellant stated in open court that he was aware of the dangers of representing himself, but averred that he chose to do so nonetheless. Appellant alleges that his inexperience led to the omission of several items from the court's charge. However, a defendant who chooses to proceed pro se does so at his own peril and is held to the same standards expected of a licensed attorney. See Kindley v. State, 879 S.W.2d 261, 264 (Tex. App.--Houston [1st Dist.] 1994, no pet.); Ford v. State, 870 S.W.2d 155, 158 (Tex. App.--San Antonio 1993, pet. ref'd). As such, by his failure to make proper objections and requests, appellant has waived any argument regarding the court's charge. Penry v. State, 903 S.W.2d 715, 747 (Tex. Crim. App. 1995).

Appellant argues that the trial court did not permit him to elicit answers from prospective jurors about "experience on reports made by officials." The record reflects, contrary to appellant's assertion, that the trial court permitted appellant to ask the question but interrupted the veniremember's answer after the prospective juror began to discuss a specific incident. In limiting the answer, the court did not limit appellant's ability to re-ask the same question; rather, the court limited the specificity with which the question could be answered. The trial court did not abuse its discretion in imposing such a limitation. Accordingly, we find no infringement upon appellant's ability to conduct a full voir dire examination.

Finally, with regard to his contention that the trial court acted improperly during the presentation of evidence, appellant does not point this Court to any specific acts he believes to be unconstitutional. In the absence of any specific contentions, we have nothing to review. See Tex. R. App. P. 38.1(h).

Appellant's second issue is overruled.

By his third issue, appellant argues that the State failed to prove each element of the offense beyond a reasonable doubt. This is a challenge to the legal sufficiency of the evidence. When conducting a legal sufficiency analysis, we view the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 S.W.2d 307, 99 S. Ct. 2781, 61 L. Ed. 560 (1979); Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). The jury, as fact finder, is entitled to weigh all of the evidence and make reasonable inferences therefrom. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1998). When the jury is presented with conflicting evidence, it must judge the credibility of the witnesses and in so doing, is free to believe or disbelieve any witness or any portion of any witness' testimony. Kemple v. State, 725 S.W.2d 483, 485 (Tex. App.--Corpus Christi 1987, no pet.). This Court may not assess the credibility of any witnesses and may not re-weigh the evidence.

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 1998). A person is "intoxicated" when that person does not have the "normal use of mental or physical faculties by reason of the introduction of alcohol . . . or any other substance into the body" or if the person has an alcohol concentration of 0.10 or more. Tex. Pen. Code Ann. § 49.01(2) (Vernon 1998) (subsequently amended; amendment effective January 1, 2000).

The record shows that Officer Villarreal observed appellant operating a vehicle on a public roadway in Harlingen. Appellant was driving at an excessive rate of speed and was stopped. During the stop, Officer Villarreal observed numerous signs of intoxication in appellant's appearance and demeanor. Villarreal conducted several field sobriety tests, concluded that appellant was intoxicated, and arrested him. A subsequent breath test, conducted approximately forty-five minutes after the arrest, showed that appellant had an alcohol concentration greater than 0.10. This evidence is legally sufficient to support the jury's verdict. Appellant's third issue is overruled.⁽¹⁾

Similarly, by his fifth issue, appellant asserts that "there is police corruption involved in this case. The police entrap (sic) the appellant and this police corruption is connected with the child custody case and discrimination case against the previous employer of the appellant." The record shows that appellant testified that the foregoing assertions were true. He presented this evidence in the nature of a defense. The jury was free to assess the credibility of appellant's assertions and could choose to believe or disbelieve any part or all of that testimony. Here, the jury chose to disbelieve appellant's assertions. We may not disturb that conclusion. Appellant's fifth issue is overruled.

Finally, by his fourth issue, appellant argues that the trial court erred in denying his motion for new trial in the face of new evidence and witnesses. Particularly, appellant argues that the trial court did not consider a phone bill and records of his transactions with a wrecker service associated with recovering his vehicle after this arrest.

A defendant may be entitled to a new trial upon a showing that he has, since trial, discovered favorable, material evidence. Tex. Code Crim. Proc. Ann. art. 40.001 (Vernon 1998). A ruling denying a motion for new trial based on newly-discovered evidence should not be disturbed unless the record clearly demonstrates:

(1) the newly-discovered evidence was unknown or unavailable to the movant at the time of his trial; (2) the movant's failure to discover or obtain the evidence was not due to a lack of diligence; (3) the evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result on another trial.

Ayers v. State, 606 S.W.2d 936, 941 (Tex. Crim. App. 1980).

The evidence appellant claims to be new is a phone bill and records of transactions with a wrecker company following appellant's arrest. The record reflects that appellant attempted to introduce both into evidence during trial, but that the court sustained the State's objections to each. Similarly, with regard to the new witness, appellant admitted that he was aware of the identity of the witness, an attorney who represents him in several immigration matters, at the time of trial. Accordingly, it is clear that both the evidence and the witness were known to appellant at the time of trial. The court did not abuse its discretion in denying appellant's motion for new trial. Appellant's fourth issue is overruled.

The judgment of the trial court is AFFIRMED.

____________________________________

ROBERT J. SEERDEN, Chief Justice

Do not publish

.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

9th day of November, 2000.

1. Appellant raises an ancillary issue regarding whether Officer Villarreal violated the implied consent law by failing to instruct him that refusal to provide a breath specimen could be admissible in a subsequent prosecution. We note that Officer Villarreal testified that he informed appellant of the consequences of a refusal to submit to a breath test. Villarreal stated that he administered these warnings verbally and that he also read verbatim the contents of a page containing written warnings. Villarreal testified that he provided appellant with an opportunity to read the page, and that appellant took some time to actually read the page. This page includes the admissibility admonishment. The State introduced appellant's signed copy of these warnings. Appellant contends that he was not provided with this information. However, as with the evidence regarding appellant's guilt, the jury was free to believe or disbelieve either witness, in whole or in part. The jury apparently chose to believe Officer Villarreal on this matter. We will not second-guess that assessment.