FELIX PENA v. THE STATE OF TEXAS--Appeal from 105th District Court of Nueces County

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Laws-info.com » Cases » Texas » 13th District Court of Appeals » 2005 » FELIX PENA v. THE STATE OF TEXAS--Appeal from 105th District Court of Nueces County

State: Texas

Court: Texas Northern District Court

Docket No: 13-05-00592-CR

Case Date: 10/20/2005

Plaintiff: FELIX PENA

Defendant: THE STATE OF TEXAS--Appeal from 105th District Court of Nueces County

Preview:George Bradford Coleman v. The State of Texas-Appeal from County Court of Wilson County
No. 04-00-00097-CR George Bradford COLEMAN, Appellant v. The STATE of Texas, Appellee From the County Court, Wilson County, Texas Trial Court No. 22,210 Honorable Joe E. Briscoe, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Alma L. L pez, Justice Catherine Stone, Justice Karen Angelini, Justice Delivered and Filed: March 13, 2002 AFFIRMED A jury convicted George Bradford Coleman of driving while intoxicated. Coleman appeals, asserting there is legally and factually insufficient evidence to support the trial court's judgment. Coleman further maintains the trial court erred in admitting evidence of his refusal to submit a blood specimen and evidence that he possessed a gun. We affirm. Evidence Adduced at Trial On November 18, 2000, Christine Nelson observed Coleman erratically driving his car. According to Nelson, Coleman was "playing tag" with her car. At one point, Coleman held up an open beer bottle and then "sped off quickly in front of" her. Nelson was concerned about Coleman's driving and called 911. While she was on the phone with the emergency operator, Nelson rounded a curve in the road and came upon Coleman's car "wrecked into the embankment." Nelson noticed an officer had already arrived at the scene of the accident. Galen Keith Jansky, a regular reserve officer with the Wilson County Sheriff's Department, observed Coleman's car traveling at a high rate of speed around a curve in the road before losing control. Jansky noticed the rear end of the car "fishtail" and saw smoke coming from the tires. The car then careened into a ditch, became airborne, and landed near a driveway. Jansky advised a dispatcher of the accident and approached the vehicle. According to Jansky, Coleman was incoherent, but eventually regained his senses and declared that he was all right. Coleman did not appear to be injured. Jansky noticed a strong order of alcohol on Coleman's breath. He also saw Corona beer bottles inside the car. Some of them had been opened, while others remained closed. Coleman reached over toward the open glove compartment, which contained a large amount of cash and a pistol. Coleman became more and more coherent as the minutes passed. According to Jansky, the more lucid Coleman became, the more apparent it was to him that Coleman was intoxicated because of the smell of alcohol on his breath and his slurred speech. Officer Anthony G. Flores arrived at the scene of the accident and spoke briefly to Coleman. Flores smelled a "strong odor of an alcoholic beverage on his breath" and noted that Coleman's speech was somewhat slurred. Flores did not

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conduct field sobriety tests on Coleman. After EMS arrived on the scene and immobilized Coleman, they took him to the hospital. Flores followed the EMS unit to Wilson Memorial Hospital. Approximately thirty minutes passed between the time Flores arrived at the accident scene and when he arrived at the hospital. According to Flores, Coleman became argumentative and refused to cooperate with hospital staff. Coleman's breath still smelled of alcohol and his speech remained slurred. Flores also noticed Coleman's eyes were bloodshot. Flores concluded Coleman was intoxicated and placed him under arrest. Flores asked Coleman to provide a blood sample and read to Coleman the required statutory warnings, called the DIC24. Coleman, however, refused to give a blood sample. Flores asked Coleman to sign the statutory warning indicating his refusal to provide the sample, but Coleman declined. Flores did not check the box on the DIC-24 which indicates the subject's refusal to allow the taking of a specimen, and Coleman did not sign the document indicating his refusal. At trial, Flores acknowledged that someone with a serious injury may have bloodshot eyes and possibly refuse treatment for his or her injuries. Dr. Scott Matthew Kelly, the Emergency Room Director at Wilson Memorial Hospital, examined Coleman after the accident. Coleman admitted to Kelly that he had three beers at noon. Coleman refused all treatment and was later transported to Brooke Army Medical Center ("BAMC"). During the time Kelly observed Coleman, Kelly concluded he did not have the normal use of his mental or physical faculties. Kelly recognized, however, that patients with head trauma may experience slurred speech. Charla Sealy, Coleman's ex-girlfriend, met him at the hospital after the accident. Sealy rode in the ambulance with Coleman to BAMC. The doctors at BAMC stabilized Coleman's neck with a halo. Coleman remained at BAMC for two days following the accident. Sealy testified that Coleman only occasionally drinks alcohol and that he prefers Pearl Light. Sealy drinks Corona beer. Sealy also testified about the condition of the roadway where the accident occurred. According to Sealy, the roads had been damaged during the October 1998 flood. Sealy observed debris on the side of the road, including bales of hay, tin, and lumber. Although the road had been repaired, there was gravel and the pavement was rough. Coleman's accident occurred approximately one month after the flood. Officer Jansky recognized that although many roads in the area where the accident occurred were damaged during the October 1998 flood, the portion of the road where the accident took place was not covered by water during the flood. Jansky patrolled that portion of the road daily and never observed any debris from the flood in the road. Flores likewise noted the roadway where the accident took place was free from debris. Thomas E. Ortmann, an administrator for the Texas Department of Transportation, confirmed that the roads near the location of Coleman's accident had been spot sealed and swept. Ortmann testified that the roads were safe for operating speeds. Sufficiency of the Evidence Standard of Review In his first and second issues, Coleman challenges the legal and factual sufficiency of the evidence supporting the jury's finding that he was intoxicated. When considering a challenge to the legal sufficiency of the evidence, we review the relevant evidence, both direct and circumstantial, in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 318 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Macri v. State, 12 S.W.3d 505, 507 (Tex. App.-San Antonio 1999, pet. ref'd). In doing so, we ask whether a rational trier of fact could have found all of the essential elements of the offense to arrive at the challenged finding beyond a reasonable doubt. Jackson, 443 U.S. at 318; Macri, 12 S.W.3d at 507. We are mindful, however, of the factfinder's role in resolving conflicts in the testimony and drawing reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 318; Macri, 12 S.W.3d at 507.

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In considering the factual sufficiency of the evidence, we view all of the evidence in a neutral light, setting aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 7; Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We review the jury's deliberation and weighing of the evidence in a deferential manner to avoid substituting our judgment for the jury's. Johnson, 23 S.W.3d at 7; Clewis, 922 S.W.2d at 133. Recently, the Texas Court of Criminal Appeals clarified application of the factual sufficiency standard of review, advising courts of appeals to ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof."Johnson, 23 S.W.3d at 11. Discussion Coleman contends the evidence is legally and factually insufficient to support a finding that he was intoxicated. However, the evidence shows that Coleman was driving erratically and lifted a beer bottle at another motorist. Coleman lost control of his vehicle on a curve in the road, and crashed his car. Coleman was incoherent immediately following the accident, his breath smelled of alcohol, his speech was slurred, and his eyes were bloodshot. Coleman was argumentative with the hospital staff. Dr Kelly concluded Coleman had lost the normal use of his mental and physical faculties. Viewing this evidence in its most favorable light to the jury's verdict, we hold the jury could have found beyond a reasonable doubt that Coleman was intoxicated. Jackson, 443 U.S. at 318; Macri, 12 S.W.3d at 507. And, even though there is some evidence that Coleman experienced some trauma as a result of the accident and that the roadway where the accident occurred was obstructed, the jury's verdict is not so contrary to the overwhelming weight of the evidence so as to be manifestly unjust. Johnson, 23 S.W.3d at 7; Clewis, 922 S.W.2d at 129. Coleman's first and second issues are overruled. Admission of Evidence Standard of Review In his third and fourth issues, Coleman maintains the trial judge erred in admitting evidence of his refusal to submit to a blood specimen and evidence that he carried a gun in his car on the day of the accident. We review a trial court's decision to admit or exclude evidence for an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 37980 (Tex. Crim. App. 1991)(opinion on reh'g). An abuse of discretion occurs when a court acts without reference to any guiding rules and principles or when it acts arbitrarily or unreasonably. Id. As long as the trial court's ruling was within the "zone of reasonable disagreement," there is no abuse of discretion. Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim. App. 1996); Montgomery, 810 S.W.2d at 391. Discussion 1. Test Refusal Evidence When a person is arrested for operating a motor vehicle while intoxicated, the arresting officer, if he has reasonable grounds to believe the person is intoxicated, may request the person give a specimen of blood or breath. Tex. Trans. Code. Ann. 724.012 (Vernon 1999). Before making such a request, the arresting officer must inform the person orally and in writing of the person's right to refuse his request and the consequences of a refusal. Id. 724.015 (Vernon Supp. 2001); Schaum v. State, 833 S.W.2d 644, 646 (Tex. App.-Dallas 1992, no pet). These statutory warnings are provided to the person in a document commonly referred to as a DIC-24. Coleman contends that because Officer Flores did not indicate on the DIC-24 form that Coleman refused to allow the taking of a specimen, and because Coleman did not sign the document indicating his refusal, any evidence of his refusal was inadmissible. Although is it undisputed that Officer Flores neglected to check the box that reflected Coleman refused to provide a blood specimen and that Coleman refused to sign the document indicating his refusal, the record shows that Flores complied with section 724.015. The evidence shows Flores arrested Coleman on suspicion of driving while intoxicated, provided him with a DIC-24 that admonished Coleman in writing of his right to refuse to submit a specimen, and read the DIC-24 to Coleman. Accordingly, the trial court did not abuse its discretion in admitting evidence of Coleman's

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refusal to provide a blood specimen. Coleman's third issue is overruled. 2. Gun In his final issue, Coleman contends the trial court erred in admitting evidence of a gun. However, Coleman has waived his complaint. The proper method of pursuing an objection to an adverse ruling, and thus preserving error, is to (1) object and, if the objection is sustained, (2) request an instruction to disregard, and (3) if an instruction is given, move for a mistrial. Harris v. State, 784 S.W.2d 5, 12 n.4 (Tex. Crim. App. 1989). Jansky testified during trial that Coleman reached toward his glove compartment, which contained a gun. Coleman's trial counsel objected, arguing that the testimony's probative value was outweighed by the danger of unfair prejudice. The trial court sustained the objection and instructed the jury to disregard the testimony. Coleman's counsel did not move for a mistrial. Coleman's complaint is waived. Later, on cross-examination, Coleman's trial counsel elicited testimony from Jansky, in which he described a conversation between himself and Coleman. According to Janksy, during the conversation, Coleman admitted to having a concealed handgun license. Coleman's trial counsel did not object to Jansky's statements. Accordingly, assuming Coleman's complaint involves the admission of evidence of a concealed handgun license, the complaint is waived. Tex. R. App. P. 33.1. Coleman's final issue is overruled. Conclusion We hold there is legally and factually sufficient evidence to support the jury's finding that Coleman operated a motor vehicle while he was intoxicated. Furthermore, we hold the trial court did not err in admitting evidence of Coleman's refusal to submit a blood specimen or in admitting evidence of a gun. Accordingly, the trial court's judgment is affirmed. Karen Angelini, Justice DO NOT PUBLISH

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