Jason Chavez v. State ( 2015 )

ACCEPTED
13-14-00384-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
8/19/2015 3:44:58 PM
CECILE FOY GSANGER
CLERK
No. 13-14-384-CR
IN THE COURT OF APPEALS RECEIVED IN
13th COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI/EDINBURG, TEXAS
AT CORPUS CHRISTI 8/19/2015 3:44:58 PM
CECILE FOY GSANGER
Clerk
JASON CHAVEZ,
APPELLANT, FILED
IN THE 13TH COURT OF APPEALS
CORPUS CHRISTI - EDINBURG
v. 08/19/15
THE STATE OF TEXAS, CECILE FOY GSANGER, CLERK
BY CCoronado
APPELLEE.
ON APPEAL FROM THE COUNTY COURT AT LAW # 2
NUECES COUNTY, TEXAS
BRIEF FOR THE STATE
Douglas K. Norman
State Bar No. 15078900
Assistant District Attorney
105th Judicial District of Texas
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
(361) 888-0399 (fax)
douglas.norman@co.nueces.tx.us
Attorney for Appellee
ORAL ARGUMENT IS NOT REQUESTED
TABLE OF CONTENTS
INDEX OF AUTHORITIES .......................................................................... ii
SUMMARY OF THE ARGUMENT ..............................................................1
ARGUMENT ...................................................................................................2
Reply Point No. 1
The evidence was legally sufficient to show that Chavez was the driver. 2
I. Standard of Review. .........................................................................2
II. Statement of Facts. .........................................................................3
III. Physical Evidence of Operation...................................................4
IV. Implied or Adoptive Admissions. ................................................6
Reply Point No. 2
The trial court did not err in refusing to grant a mistrial based on the
prosecutor’s jury argument. .........................................................................8
I. Statement of Facts. ...........................................................................8
II. Comment on Failure to Testify. ....................................................9
III. The Present Comments. ............................................................ 11
IV. Harm Analysis. ........................................................................... 12
PRAYER ....................................................................................................... 15
RULE 9.4 (i) CERTIFICATION .................................................................. 15
CERTIFICATE OF SERVICE ..................................................................... 16
INDEX OF AUTHORITIES
Cases
Acosta v. State, 429 S.W.3d 621 (Tex. Crim. App. 2014). ........................ 3, 6
Archie v. State, 221 S.W.3d 695 (Tex. Crim. App. 2007). ........................... 13
Archie v. State, 340 S.W.3d 734 (Tex. Crim. App. 2011). ..............................9
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). .............................2
Busby v. State, 253 S.W.3d 661 (Tex. Crim. App. 2008)............................. 10
Bustamante v. State, 48 S.W.3d 761 (Tex. Crim. App. 2001). .................... 10
Crestfield v. State, 471 S.W.2d 50 (Tex. Crim. App. 1971)....................... 6, 7
Gamboa v. State, 296 S.W.3d 574 (Tex. Crim. App. 2009)......................... 14
Green v. State, 640 S.W.2d 645 (Tex. App.—Houston [14th Dist.] 1982, no
pet.). .................................................................................................................5
Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229 (1965). .............................9
Griffith v. State, 55 S.W.3d 598 (Tex. Crim. App. 2001). ........................... 12
Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004). ......................... 13
Holder v. State, 172 Tex. Crim. 153, 354 S.W.2d 153 (1962). .......................4
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007). ................................3
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). ......................... 2, 3
Johnson v. State, 871 S.W.2d 183 (Tex. Crim. App. 1993). ...........................3
Moore v. State, 999 S.W.2d 385 (Tex. Crim. App. 1999). ........................... 14
Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). .......................... 13
Mumphrey v. State, 774 S.W.2d 75 (Tex. App.—Beaumont 1989, no pet.). ..6
Padilla v. State, 326 S.W.3d 195 (Tex. Crim. App. 2010)..............................2
ii
Perez v. State, 432 S.W.2d 954 (Tex. Crim. App. 1968). ...............................4
Pope v. State, 802 S.W.2d 418 (Tex. App.—Austin 1991, no pet.). ...............5
Randolph v. State, 353 S.W.3d 887 (Tex. Crim. App. 2011). .................. 9, 10
Sandford v. State, 169 Tex. Crim. 388, 334 S.W.2d 184 (1960).....................4
Smith v. State, 635 S.W.2d 591 (Tex App.—Dallas 1982, no pet.). ..............6
Snowden v. State, 353 S.W.3d 815 (Tex. Crim. App. 2011). ....................... 13
South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916 (1983). .................... 12
Thomas v. State, 488 S.W.2d 777 (Tex. Crim. App. 1972). ....................... 6, 7
Thomas v. State, 756 S.W.2d 59 (Tex. App.—Texarkana 1988, pet. ref'd). ...5
Tucker v. State, 771 S.W.2d 523 (Tex. Crim. App. 1988). .............................7
Vasquez v. State, 415 S.W.2d 188 (Tex. Crim. App. 1967). ...........................4
Webb v. State, 232 S.W.3d 109 (Tex. Crim. App. 2007). ............................ 13
Young v. State, 544 S.W.2d 421 (Tex. Crim. App. 1976). ..............................5
Constitutions, Statutes & Rules
Tex. Const. art. I, § 10. ....................................................................................9
Tex. Code Crim. Proc. art. 38.08. ....................................................................9
Tex. Transp. Code Ann. § 724.061. .............................................................. 12
Tex. R. App. P. 44.2. .................................................................................... 13
Tex. R. Evid. 801. ............................................................................................7
iii
NO. 13-14-384-CR
JASON CHAVEZ, § COURT OF APPEALS
Appellant, §
§
V. § FOR THE THIRTEENTH
§
THE STATE OF TEXAS, §
Appellee. § DISTRICT OF TEXAS
BRIEF FOR THE STATE
TO THE HONORABLE COURT OF APPEALS:
SUMMARY OF THE ARGUMENT
First Issue – The fact that Chavez was found trapped in the driver’s
seat after the accident, as well as his own statements to police at the scene
provide sufficient evidence to show that he was the driver, and to support his
conviction for driving while intoxicated.
Second Issue – The prosecutor’s comment suggesting that Chavez did
not “take responsibility” was vague and did not clearly refer to his failure to
testify, such that the trial court did not abuse its discretion in refusing
Chavez’s request for a mistrial.
ARGUMENT
Reply Point No. 1
The evidence was legally sufficient to show that Chavez was the driver.
In his challenge to the legal sufficiency of the evidence to support his
conviction for driving while intoxicated, Chavez argues specifically only
that the evidence was insufficient to show that he was the driver of the
vehicle in question.
I. Standard of Review.
In order to determine if the evidence is legally sufficient, the appellate
court reviews all of the evidence in the light most favorable to the verdict
and determines whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781 (1979). In Brooks v. State, 323
S.W.3d 893 (Tex. Crim. App. 2010), the Court of Criminal Appeals
abandoned factual sufficiency review and determined that the Jackson v.
Virginia legal-sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient. This
“familiar standard gives full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.” Padilla v.
2
State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010) (quoting Jackson, 443
U.S. at 319).
Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be
sufficient to establish guilt. Acosta v. State, 429 S.W.3d 621, 625 (Tex.
Crim. App. 2014); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007). In such cases, it is not necessary that every fact and circumstance
point directly and independently to the defendant's guilt; it is enough if the
conclusion is warranted by the combined and cumulative force of all the
incriminating circumstances. Acosta, 429 S.W.3d at 625; Johnson v. State,
871 S.W.2d 183, 186 (Tex. Crim. App. 1993).
II. Statement of Facts.
Based on testimony by the police and those involved, a major accident
occurred “close to” 5:30 a.m. (RR vol. 2, p. 180), medics and the police
were on scene almost immediately and encountered Chavez in one of the
vehicles at 5:21 a.m. (RR vol. 2, p. 108), and he was later arrested and read
the statutory warnings in DIC-24 at 6:05 a.m. (SX # 1)
Specifically, Police Officer Braden Tackett testified that he responded
to a report of a major accident and found medics trying to pry open the door
to a car in which Chavez was stuck in the driver’s seat. (RR vol. 2, pp. 82-
3
84) When Officer Tackett asked Chavez at the scene about the accident,
Chavez said that the other vehicle ran a red light. (RR vol. 2, pp. 90-91)
When Officer Tackett then asked Chavez if he had anything to drink that
night or felt drunk, Chavez said that “he felt buzzed and he had a couple of
mixed drinks.” (RR vol. 2, p. 91) When Officer Tackett then asked where
Chavez was coming from, Chavez said “he was coming from an after party
and he was just trying to get home. He just wanted to get his friends home.”
(RR vol. 2, p. 91)
James Lawrence, a passenger in the vehicle that had been hit by
Chavez’s car, testified, without immediate objection, that he was told there
were two men and a woman in Chavez’s car and that the passenger door was
open after the accident. (RR vol. 2, pp. 196-97)
III. Physical Evidence of Operation.
Numerous cases have considered the fact that the defendant is found
alone sitting in the driver’s seat or behind the steering wheel after an
accident or after the car is stopped as evidence that he was the driver or
operator of the car for purposes of the DWI statute. See Perez v. State, 432
S.W.2d 954 (Tex. Crim. App. 1968); Vasquez v. State, 415 S.W.2d 188, 190
(Tex. Crim. App. 1967); Holder v. State, 172 Tex. Crim. 153, 155, 354
S.W.2d 153, 154-55 (1962); Sandford v. State, 169 Tex. Crim. 388, 390, 334
4
S.W.2d 184, 185-86 (1960); Pope v. State, 802 S.W.2d 418, 420 (Tex.
App.—Austin 1991, no pet.); Thomas v. State, 756 S.W.2d 59, 61-62 (Tex.
App.—Texarkana 1988, pet. ref'd); Green v. State, 640 S.W.2d 645, 648
(Tex. App.—Houston [14th Dist.] 1982, no pet.).
In Young v. State, 544 S.W.2d 421 (Tex. Crim. App. 1976), however,
where the defendant and another person were found lying on the ceiling of
an overturned car, with the defendant in the front and in the vicinity of the
wheel, the Court of Criminal Appeals held that the defendant’s position in
the upside down car was insufficient to infer that he was the driver. Id. at
423-24.
In the present case, as in Young, the evidence suggests that Chavez
was not alone in the car at the time of the accident. However, unlike Young,
the car had not been turned upside down such that it would be impossible to
make any assumptions about who was in the driver’s seat at the time of the
accident. It was still a reasonable assumption that Chavez, having been
found in the driver’s seat after the accident, was there before the accident
when the vehicle was being driven.
Moreover, the fact that he had been pinned into that seat by the force
of the accident strengthens the presumption that he was in that seat at, and
immediately before, the collision. The jury may use common sense and
5
apply common knowledge, observation, and experience gained in ordinary
affairs when drawing inferences from the evidence. Acosta, 429 S.W.3d at
625. It stands to reason that the appellate court may likewise draw on
common sense in judging the reasonableness of inferences and determining
the sufficiency of the evidence. While it may be possible for an occupant to
be thrown around in the car before being pinned, and no accident
reconstruction expert was called to examine this possibility, common sense
and common experience suggest that it is much more likely the defendant
was pinned where he sat in the car at the time of the collision.
IV. Implied or Adoptive Admissions.
In addition, in the present case Chavez’s own statements suggest that
he was the driver.
Where a statement or remark is made in the defendant's presence, that
he heard and understood and which statement called for a reply or a denial,
then his silence or acquiescence may be shown as an admissible fact having
probative value; and his silence or acquiescence may even be shown as in
the nature of a confession on his part where that same defendant is not under
arrest. Crestfield v. State, 471 S.W.2d 50, 53 (Tex. Crim. App. 1971);
Thomas v. State, 488 S.W.2d 777, 778 (Tex. Crim. App. 1972); Mumphrey
v. State, 774 S.W.2d 75, 78-79 (Tex. App.—Beaumont 1989, no pet.); Smith
6
v. State, 635 S.W.2d 591 (Tex App.—Dallas 1982, no pet.); see also Tucker
v. State, 771 S.W.2d 523, 535 n.5 (Tex. Crim. App. 1988) (citing Crestfield
and Tex. R. Evid. 801(e)(2)(B), and referring to tacit acceptance of this
nature as an “adoptive admission”).
In Thomas, for example, a third party at a murder scene accused the
defendant in the presence of both the defendant and a police officer before
the officer had arrested the defendant, and the defendant made no reply to
the accusation, which the Court of Criminal Appeals considered to be an
admission or confession. 488 S.W.2d at 778 (citing Crestfield).
Likewise, under the present circumstances, having been found as the
only person in the car, and in the driver’s seat at that, and with a police
officer on scene asking questions about the accident and about whether
Chavez had been drinking, a normal person in Chavez’s position who had
been merely a passenger would be expected in his reply to make that fact
known to the officer at the time, rather than answering his questions as if he
had been the driver and impliedly or adoptively admitting to that fact.
Specifically, the officer’s questions about the accident, whether Chavez had
anything to drink or felt drunk, and where Chavez was coming from,
together would imply to a normal driver that this officer suspected Chavez
of DWI and was asking questions to either confirm or dispel that suspicion.
7
If Chavez had been a passenger, the expected reply would have been
something like “I wasn’t driving,” or “I was only a passenger.” The absence
of any such reply as a part of Chavez’s otherwise responsive answers to the
officer’s questions operates as a common sense admission that the officer
was correct in his assumption that Chavez was the driver.
In addition, Chavez’s statement that he “just wanted to get his friends
home,” implied that he had some amount of control over “getting” them
home, which is more consistent with a driver of the car than a mere
passenger.
For all of these reasons combined, the evidence was legally sufficient
to prove that Chavez was the driver.
Chavez’s first issue on appeal should be overruled.
Reply Point No. 2
The trial court did not err in refusing to grant a mistrial
based on the prosecutor’s jury argument.
I. Statement of Facts.
During the State’s closing argument at the guilt-innocence phase of
trial, the prosecutor attempted to make the following argument, before he
was cut-off by an objection:
Defense counsel had a lot of arguments during trial about why
his client is not responsible, and I think that's one of the focuses in this
case. He didn't want to take responsibility at the time. He refused –
8
(RR vol. 3, p. 11) Chavez’s attorney then objected that this argument
amounted to an improper comment on Chavez’s Fifth Amendment right not
to testify. (RR vol. 3, pp. 11-12) After the trial court sustained the objection
and instructed the jury that “what the lawyers say are [sic] not evidence,” the
defense moved for, but was denied, a mistrial. (RR vol. 3, p. 12)
The prosecutor then continued his argument, “Okay, so he refused to
give blood in a [sic] case.” (RR vol. 3, pp. 12-13)
Paragraph 5 of the jury charge instructed the jury not to “refer or
allude to [the fact that Chavez elected not to testify] throughout your
deliberations or take it into consideration for any purpose whatsoever as a
circumstance against the defendant.” (CR p. 34)
II. Comment on Failure to Testify.
A comment on the defendant's failure to testify violates the Fifth
Amendment, Tex. Const. art. I, § 10, and Tex. Code Crim. Proc. art. 38.08.
See Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229 (1965); Randolph
v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011); Archie v. State, 340
S.W.3d 734, 738 (Tex. Crim. App. 2011).
In assessing whether the prosecutor has improperly commented on the
defendant's failure to testify, courts must view the State's argument from the
jury's standpoint and resolve any ambiguities in the language in favor of it
9
being a permissible argument, such that the implication that the State
referred to the defendant's failure to testify must be a clear and necessary
one. Randolph, 353 S.W.3d at 891; Bustamante v. State, 48 S.W.3d 761,
767 (Tex. Crim. App. 2001). If the language might reasonably be construed
as merely an implied or indirect allusion, there is no violation. Randolph,
353 S.W.3d at 891; Busby v. State, 253 S.W.3d 661, 666 (Tex. Crim. App.
2008). The test is whether the language used was manifestly intended or
was of such a character that the jury would necessarily and naturally take it
as a comment on the defendant's failure to testify, as applied within the
context in which the comment was made. Randolph, 353 S.W.3d at 891;
Bustamante, 48 S.W.3d at 765.
Specifically, with regard to the prosecutor’s comments of the present
nature -- that the defendant did not take responsibility for his crime -- there
may be numerous proper arguments concerning lack of responsibility, as
when the defendant raises a defense or claims accident; yet, it would be an
improper comment when the only basis for the prosecutor’s claim was the
defendant’s guilty plea, which would amount to a comment on his failure to
testify. See Randolph, 353 S.W.3d at 892.
10
III. The Present Comments.
The prosecutor’s supposedly improper comment, “He didn't want to
take responsibility at the time,” begs the questions (1) what time is he
referring to?, and (2) how exactly is he claiming that Chavez failed to take
responsibility? The context suggests possible answers that do not amount to
an improper reference to Chavez’s failure to testify.
In view of the prosecutor’s immediately preceding comment that
“Defense counsel had a lot of arguments during trial about why his client is
not responsible,” the prosecutor’s comment could have been directed at the
defense counsel for attempting to shift responsibility away from his client at
trial. Alternatively, the prosecutor could have been referring to Chavez at
the time he was first approached after the accident and admitted only to
being “buzzed” and having had a “couple of mixed drinks” (RR vol. 2, p.
91), thus minimizing his condition and attempting to avoid responsibility for
a DWI. Finally, based on the prosecutor’s comment concerning refusal of
the blood test immediately after his comments about responsibility, arguably
the most likely reference was to Chavez’s refusal to consent to the taking of
a blood specimen (See SX # 1) as a broader refusal to take responsibility for
the DWI.
11
The Texas Transportation Code provides that “[a] person's refusal of a
request by an officer to submit to the taking of a specimen of breath or
blood, whether the refusal was express or the result of an intentional failure
to give the specimen, may be introduced into evidence at the person's trial.”
Tex. Transp. Code Ann. § 724.061. Nor does the admission into evidence of
a defendant's refusal to submit to a blood-alcohol test offend the Fifth
Amendment right against self-incrimination. See Griffith v. State, 55
S.W.3d 598, 603 (Tex. Crim. App. 2001) (citing South Dakota v. Neville,
459 U.S. 553, 554, 103 S. Ct. 916 (1983)). Likewise, in the context of an
arrest for driving while intoxicated, a police inquiry of whether the suspect
will take a blood-alcohol test is not an interrogation within the meaning of
Miranda. Griffith, 55 S.W.3d at 603.
Accordingly, to the extent that the prosecutor was arguing that Chavez
failed to take responsibility by his refusal to take a blood test after the
accident, this was a permissible inference that did not offend the right
against self-incrimination.
IV. Harm Analysis.
However, even if the comment was improper, it was not sufficiently
harmful to require a mistrial.
12
An appellate court reviews a trial court's denial of a motion for
mistrial for an abuse of discretion. Webb v. State, 232 S.W.3d 109, 112
(Tex. Crim. App. 2007); Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim.
App. 2007).
Because of the constitutional nature of the error, for comments on the
defendant’s failure to testify an appellate court must reverse the judgment
unless it can conclude “beyond a reasonable doubt that the error did not
contribute to the conviction or punishment.” Snowden v. State, 353 S.W.3d
815, 818 (Tex. Crim. App. 2011); Tex. R. App. P. 44.2(a). This analysis
considers
[h]ow emphatically the prosecutor invited the jury to consider the
failure to testify, whether he repeated the invitation, and how much
heft the jury would likely have placed upon that invitation in light of
the weight and character of the State's evidence.
Snowden, 353 S.W.3d at 822.
Moroever, in determining whether improper jury argument warrants a
mistrial, the reviewing court should balance the severity of the misconduct,
the measures adopted to cure any misconduct, and the certainty of
conviction absent the misconduct. Hawkins v. State, 135 S.W.3d 72, 75
(Tex. Crim. App. 2004); Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App.
1998). Only in extreme circumstances where the prejudice is incurable will
a mistrial be required. Hawkins, 135 S.W.3d at 77.
13
Instructions to the jury will generally cure most improprieties that
occur during trial, and the reviewing court should presume that a jury
followed the judge's instructions. Gamboa v. State, 296 S.W.3d 574, 580
(Tex. Crim. App. 2009). Specifically, an instruction to disregard a comment
on the defendant's failure to testify will generally cure any harm except in
the most extreme cases. Moore v. State, 999 S.W.2d 385, 405 (Tex. Crim.
App. 1999).
In the present case, the comment concerning failure to take
responsibility, if it was a comment on Chavez’s failure to testify, was vague,
brief and not elsewhere repeated in the argument. Moreover, although the
trial court’s oral instruction to disregard did not directly instruct the jury to
disregard the comment in question, the jury charge did contain a written
instruction not to consider Chavez’s failure to testify, which the jury
presumably obeyed. Accordingly, any error was harmless and did not
require a mistrial.
Chavez’s second issue on appeal should be overruled.
14
PRAYER
For the foregoing reasons, the State respectfully requests that the
judgment of the trial court be affirmed.
Respectfully submitted,
/s/Douglas K. Norman
___________________
Douglas K. Norman
State Bar No. 15078900
Assistant District Attorney
105th Judicial District of Texas
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
(361) 888-0399 (fax)
douglas.norman@co.nueces.tx.us
RULE 9.4 (i) CERTIFICATION
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I
certify that the number of words in this brief, excluding those matters listed
in Rule 9.4(i)(1), is 2,943.
/s/Douglas K. Norman
___________________
Douglas K. Norman
15
CERTIFICATE OF SERVICE
This is to certify that a copy of this brief was e-mailed on August 19,
2015, to Appellant’s attorney, Mr. Ira Z. Miller, at imillerlaw@yahoo.com.
/s/Douglas K. Norman
___________________
Douglas K. Norman
16