Richard Frnka v. State ( 2009 )


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    MEMORANDUM OPINION
    No. 04-08-00650-CR
    Edward Richard FRNKA,
    Appellant
    v.
    The STATE of Texas,
    Appellee
    From the County Court at Law No. 4, Bexar County, Texas
    Trial Court No. 973062
    Honorable Sarah Garrahan-Moulder, Judge Presiding1
    Opinion by:       Marialyn Barnard, Justice
    Sitting:          Sandee Bryan Marion, Justice
    Rebecca Simmons, Justice
    Marialyn Barnard, Justice
    Delivered and Filed: September 9, 2009
    AFFIRMED
    Edward Richard Frnka was convicted by a jury of driving while intoxicated. On appeal,
    Frnka contends the trial court erred by: (1) admitting a DIC-24 form into evidence; (2) denying
    … The Honorable Fred Shannon presided over the trial and verbally pronounced the sentence. The Honorable
    1
    Sarah Garrahan-Moulder signed the judgment.
    04-08-00650-CR
    Frnka’s request for a mistrial after a witness shook the jurors’ hands; and (3) failing to compel the
    attendance of a witness who was recalled. We affirm the trial court’s judgment.
    DIC-24 FORM
    In his first point of error, Frnka contends the trial court erred in admitting a DIC-24 form into
    evidence because the form was not relevant to the issues before the jury, was duplicitous, bolstered
    testimony, and its probative value was outweighed by its prejudicial effect. The only objection
    defense counsel made at trial, however, was relevance; therefore, relevance is the only issue
    preserved for our review. See TEX . R. APP . P. 33.1.
    The admissibility of evidence is within the discretion of the trial court and will not be
    overturned absent an abuse of discretion. Sorto v. State, 
    173 S.W.3d 469
    , 491 (Tex. Crim. App.
    2005). Generally, all relevant evidence is admissible. Layton v. State, 
    280 S.W.3d 235
    , 240 (Tex.
    Crim. App. 2009); TEX . R. EVID . 402. Relevant evidence is evidence having any tendency to make
    the existence of any consequential fact more or less probable than it would be without the evidence.
    
    Layton, 280 S.W.3d at 240
    ; TEX . R. EVID . 401. In order to be relevant, there must be a direct or
    logical connection between the actual evidence and the proposition sought to be proved. 
    Layton, 280 S.W.3d at 240
    .
    A person’s refusal of a request by an officer to submit to the taking of a specimen of breath
    may be introduced into evidence at the person’s trial. TEX . TRANSP . CODE ANN . § 724.061 (Vernon
    1999). Before requesting a person to submit to the taking of a specimen, however, the officer must
    provide the person with certain information orally and in writing, including that the refusal may be
    admissible in a subsequent prosecution. TEX . TRANSP . CODE ANN . § 724.015 (Vernon Supp. 2008).
    The DIC-24 form contains the information the statute requires to be given in writing and was
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    04-08-00650-CR
    relevant to prove that Frnka refused to submit to the taking of a specimen of breath and was
    provided with the required information before his breath specimen was requested. See Block v.
    State, No. 14-95-00227-CR, 
    1997 WL 530767
    , at *1 (Tex. App.—Houston [14th Dist.] 1997, pet.
    ref’d) (holding trial court did not err in overruling relevancy objection to admissibility of DIC-24
    form) (not designated for publication). Accordingly, the trial court did not abuse its discretion in
    admitting the DIC-24 form, and Frnka’s first point of error is overruled.
    MISTRIAL
    In his second point of error, Frnka complains that the trial court erred in denying his request
    for a mistrial after the State’s only witness, Deputy Mark A. Ramirez, who was the arresting officer,
    shook the hands of all of the jurors, the attorneys, and Frnka before exiting the courtroom.
    “A mistrial is an appropriate remedy in ‘extreme circumstances’ for a narrow class of highly
    prejudicial and incurable errors.” Ocon v. State, 
    284 S.W.3d 880
    , 884 (Tex. Crim. App. 2009). “A
    trial court’s denial of a mistrial is reviewed for an abuse of discretion.” 
    Id. Article 36.22
    of the Texas Code of Criminal Procedure states, “No person shall be permitted
    to converse with a juror about the case on trial except in the presence and by the permission of the
    court.” TEX . CODE CRIM . PROC. ANN . art. 36.22 (Vernon 2006). “The primary goal of Article 36.22
    is to insulate jurors from outside influences.” 
    Ocon, 284 S.W.3d at 884
    .
    In this case, Deputy Ramirez did not converse with a juror about the case, and his shaking
    of the jurors’ hands occurred in the presence of the trial court. Although Deputy Ramirez did not
    request the trial court’s permission before shaking the jurors’ hands, his actions still did not
    technically violate article 38.22. In addition, the statute’s goal was not violated since no outside
    influence was involved. Given that Deputy Ramirez even shook the attorneys’ and Frnka’s hand in
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    04-08-00650-CR
    addition to the jurors’ hands, we conclude the trial court did not abuse its discretion in denying the
    mistrial. Although the occurrence was unusual and inappropriate, the trial court was within its
    discretion in determining that the handshaking was not so highly prejudicial that Frnka was deprived
    of a fair and impartial trial. See 
    id. at 887
    (noting paramount issue is whether appellant received a
    fair and impartial trial). Frnka’s second point of error is overruled.
    RECALL OF WITNESS
    In his final point of error, Frnka contends the trial court erred in denying his request to recall
    Deputy Ramirez after Frnka testified. Frnka wanted to further question Deputy Ramirez regarding
    Frnka’s driving to support Frnka’s testimony. Frnka also wanted to question Deputy Ramirez about
    the elimination of alcohol from the human body. Although the trial court denied Frnka’s request to
    recall Deputy Ramirez, the trial court did instruct the jury regarding the elimination of alcohol from
    the human body at Frnka’s request.
    A trial court’s decision to limit cross-examination is not subject to reversal absent a clear
    abuse of discretion. Love v. State, 
    861 S.W.2d 899
    , 903 (Tex. Crim. App. 1993); Knox v. State, 
    31 S.W.3d 700
    , 702 (Tex. App.—Houston [1st Dist.] 2000, no pet.). Whether the trial court abused its
    discretion will depend on the facts of the case. 
    Love, 861 S.W.2d at 903
    ; 
    Knox, 31 S.W.3d at 702
    .
    At the conclusion of Deputy Ramirez’s testimony on the first day of trial, the trial court
    excused him. Frnka only sought to recall Deputy Ramirez after the conclusion of Frnka’s
    testimony on the second day of trial which was a Friday. The record reflects that Deputy Ramirez
    could not be reached. The prosecutor stated, “It’s not like I can get this guy in ten minutes. I
    mean, it might be Monday.” The prosecutor subsequently reported that he had left a voice message
    on Deputy Ramirez’s cell phone but speculated that Deputy Ramirez might be asleep after working
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    04-08-00650-CR
    a late shift. Because Deputy Ramirez was not available and the record does not show how long
    the trial would have to be delayed, the trial court did not abuse its discretion in denying the
    request to recall Deputy Ramirez. See Wilkinson v. State, 
    423 S.W.2d 311
    , 313 (Tex.
    Crim. App. 1968); Bills v. State, 
    117 S.W. 835
    , 836 (Tex. Crim. App. 1909); De Leon v. State, Nos.
    04-03-00365-CR; 04-03-00366-CR; 04-03-00367-CR & 04-03-00368-CR, 
    2004 WL 2870891
    ,
    at *4-5 (Tex. App.—San Antonio Dec. 15, 2004, pet. ref’d) (not designated for publication); Bahena
    v. State, Nos. 14-01-01155-CR & 14-01-01156-CR, 
    2003 WL 193072
    , at *4-5 (Tex. App.—Houston
    [14th Dist.] Jan. 30, 2003, no pet.) (not designated for publication); 
    Knox, 31 S.W.3d at 702
    -04.
    Frnka’s third point of error is overruled.
    CONCLUSION
    The trial court’s judgment is affirmed.
    Marialyn Barnard, Justice
    DO NOT PUBLISH
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Document Info

Docket Number: 04-08-00650-CR

Filed Date: 9/9/2009

Precedential Status: Precedential

Modified Date: 9/7/2015