Melanie Denise McFatridge v. State ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-08-00049-CR
MELANIE DENISE MCFATRIDGE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court
Navarro County, Texas
Trial Court No. 58988
MEMORANDUM OPINION
Melanie Denise McFatridge was found guilty by a jury of the offense of driving
while intoxicated. TEX. PENAL CODE ANN. § 49.04 (West 2003). The trial court sentenced
her to 180 days in jail with a fine of $1,250. The sentence was suspended and
McFatridge was placed on community supervision for 24 months. We affirm the trial
court’s judgment.
BACKGROUND
McFatridge was driving her van at night when she drove across the yard of one
residence, striking and damaging a brick light fixture in the yard. She then continued
across a part of another yard, coming to a stop when she crashed the van through the
exterior wall of the home of Wallace Watson. A gas meter was also sheared off at
Watson’s home during the incident. Watson came out of his house and saw McFatridge
in the driver’s seat of the van. He knocked on her window because the van’s engine
was still “roaring” and he thought his house would catch on fire. McFatridge opened
the door and got out of the van. When Watson told her the police were on their way
and asked if she had insurance, McFatridge got back in the van and “roared” the engine
again as if she was trying to leave.
When the police arrived, they found McFatridge in the driver’s seat of the van.
There were no passengers. Officers Tidwell and Carpenter started gathering
information from McFatridge. She stated that she was okay, but she appeared to the
officers to be disoriented. When she was asked for her driver’s license, she thumbed
past it twice, and Tidwell had to point it out to her. The officers had McFatridge get out
of the van because of the gas leak and move to the street where they continued their
investigation. There, the officers noticed a strong odor of an alcoholic beverage coming
from her breath. Tidwell noticed that her speech was slightly slurred. Carpenter
noticed that McFatridge was slow to respond to Carpenter’s questions, her speech was
slurred, and her eyes were “real glossy.” When asked if she had been drinking,
McFatridge replied at first that she had had a drink at a friend’s house. Later, she stated
to Tidwell that she had been removing stain from furniture and that the remover had
absorbed into her skin making her act intoxicated. Tidwell did not see any furniture
McFatridge v. State Page 2
stripping chemicals in the van, but other officers found an open vodka bottle in the van
which still contained some vodka.
McFatridge was asked to perform field sobriety tests. Carpenter attempted to
conduct the Horizontal Gaze Nystagmus test but did not score the test and did not
count it against McFatridge because of the conditions at the scene. While performing
the walk-and-turn test, McFatridge did not count as required, stepped off the line, could
not walk heel to toe, and used her arms for balance. While performing the one-leg-
stand test, McFatridge put her arms out and could not keep her balance. She also
dropped her foot. After performing those two tests, and based on the totality of the
circumstances, the officers determined McFatridge was intoxicated. She was arrested
and read her Miranda rights. McFatridge also refused to take a breathalyzer exam. At
the jail, McFatridge performed the two sobriety tests again and was better at completing
them, but she was also “giggly.”
CONFRONTATION CLAUSE
McFatridge first contends that the trial court erred by allowing Officer Tidwell to
testify about the vodka bottle located in McFatridge’s van when Tidwell was not the
officer who inventoried the van. Specifically, McFatridge contends that Tidwell’s
testimony violated the Confrontation Clauses to the United States and Texas
Constitutions. McFatridge’s issue, however, is not preserved. At trial, McFatridge
made a hearsay objection to a question by the State to Tidwell regarding when the
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vodka bottle had been found in McFatridge’s van.1 An objection on hearsay does not
preserve error on Confrontation Clause grounds.2 Reyna v. State, 168 S.W.3d 173, 179
(Tex. Crim. App. 2005); Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004).
McFatridge’s first issue is overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
By her second issue, McFatridge complains that her counsel was ineffective
because he did not object as hearsay to Officer Ronni Carpenter’s testimony about
seeing the vodka bottle in McFatridge’s van which denied McFatridge her right of
confrontation. To present an issue for review, a brief must contain appropriate citations
to authorities. TEX. R. APP. P. 38.1(i). McFatridge cites to no legal authorizes regarding
ineffective assistance of counsel. Accordingly, this issue is inadequately briefed and
presents nothing for review. Id. Further, as noted in our disposition of the previous
issue, a hearsay objection would not have preserved the Confrontation Clause
argument McFatridge sought to raise on appeal. See Reyna v. State, 168 S.W.3d 173, 179
(Tex. Crim. App. 2005); Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004).
Her second issue is overruled.
INSUFFICIENT EVIDENCE
McFatridge next contends the evidence is insufficient to prove beyond a
reasonable doubt that she was intoxicated. The Jackson v. Virginia standard is the only
1 Tidwell did not ultimately answer the question.
2Further, any complaint is not preserved because the hearsay objection was sustained and McFatridge
did not pursue the matter to an adverse ruling. Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App.
1991); Darty v. State, 709 S.W.2d 652 (Tex. Crim. App. 1986).
McFatridge v. State Page 4
standard that a reviewing court should apply in determining whether the evidence is
sufficient to support each element of a criminal offense that the State is required to
prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.
2010); see Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Under
the Jackson standard, "the relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319
(emphasis in original). After reviewing the record under the appropriate standard, we
find the evidence sufficient to support the jury’s verdict.
McFatridge’s third issue is overruled.
EXPERT TESTIMONY
In her fourth issue, McFatridge argues that the trial court erred in allowing
Officer Tidwell to testify as an expert without the proper “20 day” notice prior to trial
when the trial court did not allow her own expert to testify due to a violation of the
same notice provision.3 McFatridge argued at trial and now argues on appeal that
article 39.14(b) of the Texas Code of Criminal Procedure requires the prosecution, as
well as the defense, to disclose any expert witnesses not later than the 20th day before
the date the trial begins and that by allowing Tidwell to testify, the trial court erred.
Article 39.14(b) provides:
(b) On motion of a party and on notice to the other parties, the court in which
an action is pending may order one or more of the other parties to disclose to
3 McFatridge appears to only complain about the trial court allowing the officer to testify in an expert
capacity for the State, not about the trial court failing to allow her expert to testify.
McFatridge v. State Page 5
the party making the motion the name and address of each person the
other party may use at trial to present evidence under Rules 702, 703, and
705, Texas Rules of Evidence. The court shall specify in the order the time
and manner in which the other party must make the disclosure to the
moving party, but in specifying the time in which the other party shall
make disclosure the court shall require the other party to make the
disclosure not later than the 20th day before the date the trial begins.
TEX. CODE CRIM. PROC. ANN. art. 39.14(b) (West Supp. 2010) (emphasis added). Article
39.14(b), however, is not "self-executing." Harris v. State, 287 S.W.3d 785, 792 (Tex.
App.—Houston [1st Dist.] 2009, no pet.). Rather, article 39.14(b) allows a trial court to
order the State to list its expert witnesses upon request. Id. Even with a request, there
must be an order before the State is required to timely disclose its expert witnesses. See
id.; Tamez v. State, 205 S.W.3d 32, 39-40 (Tex. App.—Tyler 2006, no pet.).
The State filed a motion requesting that McFatridge disclose her expert
witnesses, and the trial court granted that motion. Although McFatridge filed a motion
requesting that the State disclose its expert witnesses, no order was signed requiring the
disclosure. Therefore, because there was no order granting the motion requesting
disclosure by the State of its expert witnesses, the trial court did not err in allowing
Tidwell to testify.
McFatridge’s fourth issue is overruled.
WRITING USED TO REFRESH MEMORY
McFatridge asserts in her fifth issue that the trial court erred in failing to admit a
writing that McFatridge contends was used by Officer Tidwell to refresh his memory
while testifying. While on cross-examination, McFatridge asked Tidwell if he prepared
a report for this case. He replied that he did not. Tidwell was asked what he had in his
McFatridge v. State Page 6
hand. Tidwell replied that it was a report but not his report. He then handed the
document to McFatridge. McFatridge discovered a little later that Tidwell also handed
in a list of 48 questions, without answers, prepared by the State. When McFatridge
began questioning Tidwell about the list, the State objected that the list was its work
product. McFatridge countered that the work product privilege was waived and that
because Tidwell carried it to the stand, McFatridge was entitled to ask Tidwell anything
about it. McFatridge also contended she was entitled to have the list in front of the jury
so that the jury could determine Tidwell’s credibility. McFatridge claimed her intent
was strictly for impeachment purposes.
The trial court ultimately sustained the State’s objection and McFatridge
questioned Tidwell about the list for the purpose of a bill of review. Tidwell testified
that he did not go over the questions with the State prior to testifying. He also stated
that he probably glanced at the first seven or eight questions. Tidwell also testified that
he talked with the State’s prosecutors for about a minute the morning of the trial and
that the State never suggested any answers to the list of questions. The trial court then
ruled that the list could not either be admitted or go before the jury.
On appeal, McFatridge argues that, pursuant to former Rule 611 of the Texas
Rules of Criminal Evidence, the trial court should have allowed her to introduce the list
of questions into evidence. Rule 611 of the Texas Rules of Criminal Evidence was the
predecessor to the current Rule 612, Writing Used to Refresh Memory, of the Texas
Rules of Evidence. Rule 612 provides that if a witness uses a writing to refresh his
memory for the purpose of testifying either while testifying or, in a criminal case, before
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testifying, an adverse party is entitled to have the writing produced at the hearing, to
inspect it, to cross-examine the witness on it, and to introduce in evidence those
portions which relate to the testimony of the witness. TEX. R. EVID. 612.
McFatridge is only entitled to the list if it was actually used by Tidwell to refresh
his memory. See id.; Pondexter v. State, 942 S.W.2d 577, 582 (Tex. Crim. App. 1996)
(interpreting previous rule, Rule 611). No one asked Tidwell if he used the list of
questions in order to refresh his memory. Since there is no evidence from the record to
establish that Tidwell did in fact use the list to refresh his memory during or before his
testimony, the trial court did not err in refusing to admit the list. See Thomas v. State, ___
S.W.3d ___, 2010 Tex. App. LEXIS 9558, *17 (Tex. App.—Houston [1st Dist.] Nov. 30,
2010, no pet.); Love v. State, No. 01-08-00941-CR, 2009 Tex. App. LEXIS 8952, *19-20 (Tex.
App.—Houston [1st Dist.] Nov. 19, 2009, no pet.) (mem. op.) (not designated for
publication).
McFatridge’s fifth issue is overruled.
MISTRIAL
In her sixth issue, McFatridge argues that the trial court abused its discretion in
overruling her motion for mistrial. On direct examination, the State asked Officer
Carpenter how McFatridge was behaving at the jail. Carpenter answered that
McFatridge was “giggley [sic].” The following exchange then took place.
Q: What do you mean giggley [sic]?
A: Just laughing and started talking. Trying to make conversation.
Just talking while we did that.
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Q: What kinds of things was she saying?
A: Just talking mainly about, you know, she’s been through something
similar before. And at that time—
At that point, McFatridge objected and requested a conference. The trial court
excused the jury. McFatridge reminded the court that an order on a motion in limine
had been signed requiring prior discussion at the bench of any prior or extraneous
offenses. McFatridge moved for a mistrial, and after much debate, the trial court denied
the request for a mistrial. The trial court instructed the jury “to disregard the previous
sentence, or two that you heard just before you walked out that was given by the
witness. Disregard it. It’s not to be considered.”
When the trial court sustains a defendant’s objection, grants a requested
instruction to disregard, but denies a motion for mistrial, the issue is whether the
refusal to grant the mistrial was an abuse of discretion. Hawkins v. State, 135 S.W.3d 72,
76-77 (Tex. Crim. App. 2004). Only in extreme circumstances, where the prejudice is
incurable, will a mistrial be required. Id. at 77. Although this case does not present an
improper argument issue, we still use the Mosley factors in determining whether the
answer given in response to the prosecutor’s question warranted a mistrial. Mosley v.
State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Those factors are: (1) the severity of
the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks), (2)
the measures adopted to cure the misconduct (the efficacy of any cautionary instruction
by the judge), and (3) the certainty of conviction absent the misconduct (the strength of
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the evidence supporting the conviction). Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim.
App. 2004); Mosley, 983 S.W.2d at 259.
In this case, the trial court did not abuse its discretion in denying McFatridge’s
motion for mistrial. First, although the answer given to the State’s question may have
violated the order on the motion in limine, the violation was not severe; and regardless
of the ruling on the motion in limine, it is the admission of the evidence that we review,
not the violation of the order in limine. No specific offense was mentioned nor was it
mentioned that McFatridge, herself, had been previously arrested and taken to jail.
There were other inferences that could have been made from the statement of the
officer. Second, the instruction to disregard was effective. A lot of time had elapsed
between the statement and the instruction, and the trial court was careful not to refresh
or reinforce the jury’s memory of the content of the statement. Third, there was
overwhelming evidence supporting the conviction absent this violation.
McFatridge’s sixth issue is overruled.
HORIZONTAL GAZE NYSTAGMUS
In her last issue, McFatridge complains about the failure of Officer Carpenter to
score the Horizontal Gaze Nystagmus test. McFatridge assigns no error regarding this
“failure” and fails to cite to any authority regarding this issue. Accordingly, this issue is
inadequately briefed and presents nothing for review. See TEX. R. APP. P. 38.1(i). To the
extent that McFatridge is complaining that the failure to score the Horizontal Gaze
Nystagmus test affects the sufficiency of the evidence to support her conviction, we
have already reviewed the evidence under the appropriate standard and have found
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the evidence to be sufficient to support the jury’s verdict. See Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
McFatridge’s seventh issue is overruled.
CONCLUSION
Having overruled each issue properly presented, we affirm the judgment of the
trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed April 6, 2011
Do not publish
[CR25]
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