Alexander Lyssy v. State ( 2012 )

NO. 07-10-0474-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 23, 2012
______________________________
ALEXANDER LYSSY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE COUNTY COURT OF GARZA COUNTY;
NO. 10555; HONORABLE LEE NORMAN, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Alexander Lyssy, was convicted by a jury of boating while intoxicated,
a Class B misdemeanor.1 He was sentenced to 180 days confinement and fined $2000.
On appeal, he asserts the trial court erred by (1) failing to give an article 38.23 jury
instruction;2 (2) denying him the opportunity to testify why he refused a breath test; and
1
See Tex. Penal Code Ann. § 49.06 (West 2011).
2
See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005). Throughout the remainder of this opinion, we
will cite to provisions of the Texas Code of Criminal Procedure as “article ___” or “art. ___.”
(3) making an improper statement to the jury that prejudiced him. We affirm the
conviction and reverse and remand as to punishment.
BACKGROUND
Appellant was arrested at Lake Alan Henry, in Garza County, Texas, by Game
Wardens Brent Tucker and Matthew Cruse on suspicion of boating while intoxicated. At
trial, Warden Tucker testified that he stopped Appellant for operating a "jet ski"3 after
sunset.4 Appellant disputed that testimony contending that, at the time of his arrest, he
“could still see the sun." After his arrest, Appellant was read a statutory warning
concerning his rights and was then asked to give a sample of his breath for the purpose
of testing its blood alcohol content. Appellant denied that request. As a result of that
denial, proceedings were subsequently initiated by the Texas Department of Public
Safety to suspend Appellant's driver's license. In that proceeding, the Administrative
Law Judge ("ALJ") determined that Warden Tucker did not have probable cause to stop
Appellant. Resultantly, Appellant’s driver’s license was not suspended.
Prior to trial, Appellant's counsel requested an order prohibiting the State from
arguing that his refusal to take a breath test was evidence of intoxication unless the
defense was going to be equally able to argue that his refusal was based upon his
3
"Jet Ski" is a trademark registered with the United States Patent and Trademark Office. It is the brand
name of a personal watercraft manufactured by Kawasaki Heavy Industries, Ltd.
4
While the term "sunset" is not defined by statute, the United States Naval Observatory defines it as that
moment when the center of the sun is 50 minutes of arc below the horizon. Because the angular
diameter of the sun is approximately 32 arc minutes, at the moment of sunset the upper limb of the sun is
below the horizon. Due to atmospheric refraction, for an observer at sea level with a level, unobstructed
horizon, under average atmospheric conditions, the upper limb of the sun will then appear to be tangent
to the horizon. See http://www.usno.navy.mil/USNO (last visited August 21, 2012).
2
desire to litigate before the ALJ the issue of probable cause to stop. Appellant's request
was denied. Resultantly, the State was allowed to argue that Appellant's refusal to take
a breath test was evidence of intoxication and Appellant was denied the opportunity to
opine that his reason was otherwise.
Prior to the submission of the court's charge on guilt/innocence, Appellant
requested the submission of an article 38.23 instruction on the issue of Warden
Tucker's probable cause to initiate a stop. That request was denied and Appellant was
subsequently convicted.
During guilt/innocence and the first day of the punishment phase of trial,
Appellant was represented by Everett Seymore and Joel Cook. On day two of the
punishment phase, Appellant was represented solely by Joel Cook.5 In the presence of
the jury, proceedings commenced as follows:
THE COURT: We will call the court back into session. The first item Mr.
Seymore is not present, which the court doesn’t appreciate. We have a
trial going on and his dilatory and objectionable responses of the last day
or two have delayed this proceeding beyond what I think is reasonable
and appropriate.
So from this point on objections will be noted for the record. We will take
judicial notice of. (sic) We are going to proceed in the interest of justice
and in the interest of this court. And for the consideration of the jurors so
they may get to their deliberations.
MR. COOK: Judge, at this time, I would just like the record reflect, I'm
lodging an objection at this point.
Following that exchange, additional punishment witnesses, including Appellant,
were presented. Appellant testified as to his eligibility for community supervision, his
5
Although the record does not formally reflect why Mr. Seymore was not present, Mr. Cook's closing
argument does contain an apology to the jury for Mr. Seymore's absence due to his being "in Federal
Court."
3
past experiences with alcohol related offenses, his current circumstances, and his
desire for community supervision. After being duly charged by the Court, the jury
returned the maximum punishment allowed by law. Even though the jury found him to
be eligible for community supervision, the jury did not recommend that his sentence be
suspended. Following sentencing, Appellant timely filed a notice of appeal.
38.23 INSTRUCTION
By his first issue, Appellant contends the trial court erred in overruling his
objection to the charge of the court and his request for an instruction under article 38.23
because there was a factual dispute as to whether probable cause existed to support
his arrest and, therefore, the legality of the subsequent discovery and seizure of
evidence of intoxication. Specifically, he contends there was a factual dispute as to
whether his operation of the personal watercraft was after sunset.6 We find the trial
court did not err in denying the requested instruction.
APPLICABLE LAW
Article 38.23 provides, in relevant part as follows:
(a) No evidence obtained by an officer or other person in violation of any
provisions of the Constitution or laws of the State of Texas, or of the
Constitution or laws of the United States of America, shall be admitted in
evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury
shall be instructed that if it believes, or has a reasonable doubt, that the
evidence was obtained in violation of the provisions of this Article, then
and in such event, the jury shall disregard any such evidence obtained.
6
See Tex. Parks & Wild. Code Ann. § 31.106(a)(3) (West Supp. 2012) (providing that no person shall
operate a personal watercraft "during the period between sunset and sunrise . . . .")
4
A jury instruction under article 38.23(a) is required only when there is a factual
dispute concerning the legality of the seizure of evidence. Garza v. State, 126 S.W.3d
79, 85 (Tex.Crim.App. 2004), citing, Thomas v. State, 723 S.W.2d 696, 708
(Tex.Crim.App. 1986); Pierce v. State, 32 S.W.3d 247, 251 (Tex.Crim.App. 2000)
(finding a factual issue exists when there is evidence that controverts testimony of the
officer that established probable cause leading up to the arrest). A fact issue may be
raised from any source and it does not matter whether the evidence is strong, weak,
contradicted, unimpeached, or unbelievable. Garza, 126 S.W.3d at 85.
To be entitled to the submission of a jury instruction under article 38.23(a), the
contested fact issue must be material to the lawfulness of the challenged conduct in
obtaining the evidence. See Madden v. State, 242 S.W.3d 504, 517 (Tex.Crim.App.
2007) (holding that "if [the disputed fact] is not a fact that is crucial to a legal finding of
reasonable suspicion, then that disputed fact issue need not be submitted to the jury").
See also Reynosa v. State, 996 S.W.2d 238, 240 (Tex.App.--Houston [1st Dist.] 1999,
no pet.) (no instruction required when defendant disputed only one of several stated
bases for stop); Crunk v. State, 934 S.W.2d 788, 794-95 (Tex.App.--Houston [14th dist.]
1996, pet. ref'd) (article 38.23(a) instruction not required when jury's resolution of
disputed fact issue would not render evidence inadmissible).
ANALYSIS
While a factual dispute did exist as to whether Appellant was operating the
personal watercraft after sunset, that fact is of no consequence to the ultimate
admissibility of evidence of his intoxication because he does not dispute Warden
5
Tucker's other stated reasons for stopping him. Specifically, Warden Tucker testified
that Appellant was on a personal watercraft and doing donuts and jumping the wake of
another moving boat in a dangerous manner.7 Because those undisputed facts are
sufficient to establish reasonable suspicion to stop, resolution of whether Appellant’s
operation of the personal watercraft was before or after sunset would be immaterial.
Issue one is overruled.
BREATH TEST
Appellant next asserts the trial court erred by not permitting Appellant to testify
that he refused a breath test because he wanted to have an administrative hearing on
his license suspension.8 Assuming, without deciding, that the trial court erred, we find
that any error was harmless.
APPLICABLE LAW
Because trial courts are in the best position to decide substantive admissibility
questions, we review a trial court’s decision to admit or exclude evidence for abuse of
discretion; Davis v. State, 329 S.W.3d 798, 807 (Tex.Crim.App. 2010), and will uphold a
trial court’s ruling on admissibility of evidence as long as the trial court’s ruling was at
least within the zone of reasonable disagreement. Weathered v. State, 15 S.W.3d 540,
542 (Tex.Crim.App. 2000). See Hernandez v. State, 205 S.W.3d 555, 558 (Tex.App.--
7
See Tex. Parks & Wild. Code Ann. § 31.106(a)(8) (West Supp. 2012) (providing that no person shall
operate a personal watercraft "by jumping the wake of another vessel recklessly or unnecessarily close to
that vessel . . . .")
8
On appeal, Appellant concedes, and we agree, that there is a clear difference between the decision of
the ALJ to not suspend his license and his desire to not give a breath sample because he believed he
was entitled to a hearing concerning Warden Tucker’s probable cause to stop him. The trial court’s
decision to disallow this testimony may, in part, be attributable to the fact that Appellant failed to make
this distinction clear in the record concerning his proffered testimony.
6
Amarillo 2006, pet. ref’d). If a trial court errs in admitting evidence, we must next
determine whether the error had a substantial and injurious effect or influence in
determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.
1997) (citing Kotteakos v. State, 328 U.S. 750, 776, 66 S. Ct. 1239, 90 L. Ed. 2d 1557
(1946)). An error that has no influence or only a slight influence on the verdict is
harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998).
ANALYSIS
Warden Tucker testified that, after he activated his red and blue lights, Appellant
continued to operate his personal watercraft doing donuts in the water close to the boat
that was accompanying him when he was stopped. Warden Cruse testified that he had
to holler for approximately thirty-five to forty seconds to get Appellant’s attention.
Warden Tucker also testified that, when he first came into contact with Appellant, he
smelled a strong odor of alcohol on Appellant’s breath and his eyes were glassy.
Warden Tucker performed the Horizontal Gaze Nystagmus test twice on Appellant after
stopping him, once on his boat and once ashore at a fire station, and twice Appellant
showed six out of six clues for intoxication. Appellant testified he had five to six or more
beers during the seven hours he was at the lake and drank his last beer at 8:00 or 8:30
p.m. Appellant’s blood test, taken later in the evening, indicated his blood sample
contained 0.22 grams of alcohol per 100 milliliters of blood or almost three times the
legal limit of .08. Given the weight of the evidence as a whole, we cannot say that an
error, if any, in failing to permit Appellant to testify that he refused the breath test
because he wanted to have an administrative hearing had a substantial and injurious
7
effect or influence in determining the jury’s verdict. Appellant’s second issue is
overruled.
TRIAL COURT’S STATEMENT TO THE JURY
By his third and final issue, Appellant asserts the trial court’s comments made
during the punishment phase of trial made it impossible for him to receive a fair verdict
from the jury because they were unfairly biased by the trial court’s assertion that his
defense counsel had wasted the time of the trial court and, therefore, presumably the
jury. He asserts the injurious effect or influence of the trial court’s comments was
manifested by the jury’s imposition of the maximum punishment possible and by their
rejection of his application for community supervision, despite his eligibility.
APPLICABLE LAW
In Texas, a trial judge must refrain from making any remark calculated to convey
to the jury his opinion of the case. Brown v. State, 122 S.W.3d 794, 798 (Tex.Crim.App.
2003). Article 38.05 of the Texas Code of Criminal Procedure provides:
In ruling on the admissibility of evidence, the judge shall not discuss or
comment upon the weight of the same or its bearing in the case, but shall
simply decide whether or not it is admissible; nor shall he, at any stage of
the proceeding previous to the return of the verdict, make any remark
calculated to convey to the jury his opinion of the case.
This is so because jurors are prone to readily seize upon the conduct or
language of the trial judge and interpret the same as shedding some light upon his view
of the merits of the issues involved. Id.; Papalia v. United States, 243 F.2d 437, 442
(5th Cir. 1975) (holding that trial judges “must not only refrain from actions which are
8
prejudicial but as well those which do or might give such impression to a jury of laymen
whose awesome respect for the institution of the judge leads them to accord great and
perhaps, decisive significance to his every word or intimation . . . .”)
To constitute reversible error in violation of article 38.05, the comment in
question must be such that it is reasonably calculated to benefit the State or prejudice
the rights of the defendant. Becknell v. State, 720 S.W.2d 526, 531 (Tex.Crim.App.
1986). An inappropriate comment is to be considered from the jury’s point of view.
Kincade v. State, 552 S.W.2d 832, 835 (Tex.Crim.App. 1977). To determine whether a
comment is either reasonably calculated to benefit the State or prejudice the defendant,
an appellate court must first determine whether the trial judge’s statement was material
to the case. Burge v. State, 443 S.W.2d 720, 724 (Tex.Crim.App. 1969); Jones v.
State, 2003 Tex. App. LEXIS 10329, at *17 (Tex.App.—Austin Dec. 11, 2003, pet. ref’d).
A statement is material if it: (1) implies approval of the State’s argument, (2) indicates
any disbelief in the defense’s position, or (3) diminishes the credibility of the defense’s
approach to the case. Id.
ANALYSIS
At the beginning of day two of the punishment phase of this trial, in the presence
of the jury and with defense counsel present and ready to proceed, the trial court noted
that Appellant’s lead counsel was absent “which the court [didn’t] appreciate” and that
“his dilatory and objectionable responses of the last day or two” had delayed the trial
“beyond what [he thought was] reasonable and appropriate.” In response to counsel’s
9
objections to those comments, the trial judge denied his request to address the issue
outside the presence of the jury.
Because a trial judge has broad discretion in maintaining control and expediting a
trial, irritation directed towards dilatory tactics of a defense attorney normally does not
constitute reversible error. Jasper v. State, 61 S.W.3d 413, 421 (Tex.Crim.App. 2001).
Here, however, because counsel was present and ready to proceed, there were no
dilatory tactics being employed at that time. The trial judge’s comments were purely
gratuitous and they were made at a time when the jury was about to hear from
Appellant and decide that issue where the greatest latitude in discretion is allowed --
punishment. There was no indication that lead counsel’s absence had delayed the trial
in any way and it is difficult, if not impossible, to determine how such comments could
have had anything but a negative impact on the jury’s punishment decision. As viewed
from the jury’s perspective, we find the trial judge’s comments were reasonably
calculated to prejudice the jury against Appellant, thereby denying him a fair trial.
Appellant’s third issue is sustained.
CONCLUSION
Because the basis of the error occurred solely during the punishment phase of
trial, the judgment of conviction is affirmed and the trial court’s judgment is reversed as
to punishment only and the cause is remanded to the trial court for further proceedings
consistent with this opinion. Tex. Code Crim. Proc. Ann. article 44.29(b) (West Supp.
2012).
Patrick A. Pirtle
Justice
Do not publish.
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