Capps v. State
| Decision Date | 15 March 2013 |
| Docket Number | No. 06-12-00055-CR,06-12-00055-CR |
| Parties | BENJAMIN CHASE CAPPS, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
Before Morriss, C.J., Carter and Moseley, JJ.
Benjamin Chase Capps was convicted by a jury of driving while intoxicated (DWI), third or more, a third degree felony. His punishment was enhanced by his plea of true to a prior conviction; Capps received a sentence of twenty years' imprisonment. On appeal, Capps challenges the trial court's jurisdiction and argues that the trial court erred in (1) failing to omit jury instructions over objections that they constituted a comment on the weight of the evidence, (2) allowing testimony from a non-expert witness about intoxication, (3) allowing extraneous-offense evidence at the punishment stage, (4) allowing the use of a PowerPoint presentation during the State's closing argument, and (5) failing to grant Capps' request to omit parole and good time instructions in the punishment charge. We affirm the trial court's judgment because we find that the trial court was within its jurisdiction and committed no error with respect to Capps' complaints.
The offense of DWI is a class B misdemeanor. See TEX. PENAL CODE ANN. § 49.04(b) (West Supp. 2012). However, this offense becomes "a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted: . . . two times of any other offense relating to the operating of a motor vehicle while intoxicated." TEX. PENAL CODE ANN. § 49.09(b)(2) (West Supp. 2012). The State's indictment alleged that Capps was previously convicted of DWI "on the 14th day of March, 2001, in cause number 2000-5038 in the County Court of Gregg County, Texas" and "on the 5th day of July, 2001, in cause number 26761 in the County Court of Upshur County, Texas." The State's allegations of these predicateoffenses vested the district court with jurisdiction over this third degree offense. See Martin v. State, 200 S.W.3d 635, 640 (Tex. Crim. App. 2006); Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999).
At trial, the State introduced a stipulation of evidence and judicial confession signed by Capps, which admitted the convictions of the predicate offenses. The stipulation of evidence was received without objection. In his briefing, Capps appears to argue that the stipulation was "awkward," and unclear. We disagree. The stipulation read:
I, BENJAMIN CHASE CAPPS . . . judicially confess to the following facts and agree and stipulate that these facts are true and correct: that on or about the 31st day of August, 2009 in Gregg County, Texas, I, BENJAMIN CHASE CAPPS did then and there prior to being charged with the aforesaid offense, on the 14th day of March, 2011, in cause number 2000-5038 in the County Court of Gregg County, Texas, I was convicted of an offense relating to the operating of a motor vehicle while intoxicated; and on the 5th day of July, 2001, in cause number 26761 in the County Court of Upshur County, Texas, I was convicted of an offense relating to the operating of a motor vehicle while intoxicated, as charged in the indictment.
This stipulation and judicial confession had the effect of withdrawing the fact of two prior convictions from issue and dispensed with the need to prove them. Bryant v. State, 187 S.W.3d 397, 400 (Tex. Crim. App. 2005) (); see generally Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000).1
Our review of error in this jury charge involves a two-step process. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim. App. 2009). Initially, we determine whether error occurred and then evaluate whether sufficient harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at 731-32.
A trial court must submit a charge setting forth the "law applicable to the case." TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). "The purpose of the jury charge . . . is to inform the jury of the applicable law and guide them in its application to the case." Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007).
During guilt/innocence, the trial court submitted this instruction to the jury:
THE DEFENDANT STIPULATED THAT HE HAS BEEN PREVIOUSLY CONVICTED TWO TIMES OF DRIVING WHILE INTOXICATED. BECAUSE THIS ELEMENT IS UNCONTESTED, NO OTHER EVIDENCE REGARDING THE PRIOR CONVICTIONS IS NECESSARY. YOU ARE HEREBY DIRECTED TO FIND THIS ELEMENT IS NOW PROVEN. THESE PRIOR CONVICTIONS MAY NOT BE USED FOR ANY OTHER PURPOSE IN DETERMINING THE GUILT OR INNOCENCE OF THE DEFENDANT ON THIS CHARGE.
At the charge conference, Capps objected to this language as a comment on the weight of the evidence, but noted that there was no "expectation to argue against the stipulation." Counsel clarified, After consulting Martin v. State, 200 S.W.3d 635 (Tex. Crim. App. 2006),and the "Texas Criminal Pattern Jury Charges on intoxication and controlled substances, Section A4.17," the objection was overruled.
In Martin, the Texas Court of Criminal Appeals directed that the jury charge "include some reference to the jurisdictional element of two prior DWI convictions in a felony DWI trial" and that it also include "some reference to the defendant's stipulation and its legal effect of establishing the jurisdictional element." Id. at 641. It wrote that one manner of accomplishing this task could be:
to simply charge the elements of the underlying DWI offense and include a paragraph stating that the defendant has stipulated to the existence of two (specified or unspecified) prior DWI convictions, and thus the jury is directed to find that those elements of felony DWI are established.
Id. at 639. That is precisely what the trial court did in this case. Capps attempts to distinguish Martin by stating that while the case "speaks of 'prior convictions' and stipulation thereto by a defendant . . . [as] 'established,'" the case "never sanctions the use of a word like 'proven,' which carries with it the especial [sic] connotation of a burden on proof and acceptability of evidence, i.e. the weight of evidence."
We do not find any significant difference between the term proven and the term established. The trial court acted in accordance with Martin. Finding no error in the submission of this jury instruction, we overrule Capps' point of error.
After the arresting officer, Jeremy Higginbotham, testified that he noticed Capps' glassy, red eyes, slurred speech, loss of fine motor skills, and slowed movement,2 Capps asked the court to take Higginbotham on voir dire outside of the presence of the jury. During voir dire, it was established that Higginbotham was not an ophthalmologist or optometrist. After voir dire, Capps lodged the following objection and argument:
I believe that the officer should be prevented from testifying with regards to the results of an HGN exercise. I don't think that he can—that he's qualified to tell us what the causes of a particular eye movement is. And I think that only an ophthalmologist should be permitted to interpret the particular eye movement as indicative of intoxication.
The objection was overruled, and Higginbotham testified that he observed six out of six clues on the horizontal gaze nystamus (HGN) test, which indicated intoxication.
Capps argues that the trial court erred in allowing Higginbotham to testify about the HGN test without "any offer made by the State to supply a scientific basis . . . for those opinions."3
In Emerson v. State, it was argued that "the HGN test is a 'scientific' test, similar to a breathalyzer test, and that the HGN test results should not have been admitted because [the arresting officer] was not qualified as a scientific expert." Emerson v. State, 880 S.W.2d 759, 762 (Tex. Crim. App. 1994). This exact argument is made here. Rejecting this argument, the Texas Court of Criminal Appeals espoused upon the scientific reliability of the HGN test and took judicial notice "of the reliability of both the theory underlying the HGN and its technique."Id. at 768-69. Thus, pursuant to Emerson, only the following requirements are needed in order for an officer to testify about the results of an HGN test:
For testimony concerning a defendant's performance on the HGN test to be admissible, it must be shown that the witness testifying is qualified as an expert on the HGN test, specifically concerning its administration and technique. In the case of a police officer or other law enforcement official, this requirement will be satisfied by proof that the officer has received practitioner certification by the State of Texas to administer the HGN. A witness qualified as an expert on the administration and technique of the HGN test may testify concerning a defendant's performance on the HGN test . . . .
Capps acknowledges that Emerson stands "for the proposition that HGN evidence [is] admissible even without the ability of the policeman to qualify as an expert in the science underlying the test." Yet, Capps cites United States v. Horn, 185 F. Supp. 2d 530, 561 (D. Md. 2002), a case which does not control in Texas courts, to support his claim that Emerson "has been questioned by at least one court." Unquestionably, however, Emerson has been cited with favor in many Texas courts, including this...
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