Cowger v. State, No. 12-08-00459-CR (Tex. App. 1/29/2010)
| Decision Date | 29 January 2010 |
| Docket Number | No. 12-08-00459-CR.,12-08-00459-CR. |
| Parties | CHRIS RANDALL COWGER, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 124th Judicial District Court of Gregg County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
Appellant Chris Randall Cowger appeals his conviction for felony driving while intoxicated (DWI). He raises five issues on appeal. We affirm.
Shortly after midnight on October 30, 2007, Longview police officer Jason Hampton observed Appellant driving away from a house that was a known narcotics trafficking location. The house had been the site of at least twenty-five felony arrests that had occurred over the two to three year period preceding the arrest. Officer Hampton stopped Appellant after seeing him commit two traffic violations. Appellant was upset because he had been stopped, and Officer Hampton considered his behavior "erratic." The officer asked Appellant to step out of his vehicle, and Appellant complied. However, Appellant fumbled getting his license out of his wallet and provided inconsistent details in explaining why he possessed three different drivers licenses. Officer Hampton suspected that Appellant was intoxicated, and began conducting field sobriety tests. He checked for horizontal nystagmus, which he did not find. Officer Hampton did not detect any odor of alcohol coming from Appellant's person, but he noticed gold paint on Appellant's knuckles. Officer Hampton observed that, even though the stop occurred at night, Appellant had fixed, "pinpointed" pupils, when ordinarily a person's pupils would have been dilated until presented with a light source. The officer asked Appellant to perform other field sobriety tests requiring coordination, but decided not to proceed with them after Appellant stated that he was disabled. Therefore, Officer Hampton did not conduct the walk and turn test or the one leg stand.
Appellant offered to give a breath sample, but refused to give a blood sample. Based on his observations of Appellant, the officer arrested Appellant. Appellant was indicted for felony DWI because he had two prior DWI convictions. At trial, the jury convicted Appellant of felony DWI and assessed four years of imprisonment.
In his first issue, Appellant challenges the portion of the jury charge instructing the jury that it "may consider the Defendant's refusal to submit to a blood test, if he did, as evidence of intoxication in this case." Appellant argues that this instruction was an impermissible comment on the weight of the evidence.
The function of the jury charge is to inform the jury of the applicable law and to guide the jury in its application of the law to the case that the jury must decide. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). Because judges are neutral arbiters in the Texas adversarial system, the charge must not express any opinion as to the weight to be accorded to the evidence. See TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007); Brown v. State, 122 S.W.3d 794, 797 (Tex. Crim. App. 2003). When reviewing a jury charge, we first determine whether error exists and, if error does exist, we address whether the harm caused by the error warrants reversal. Hutch, 922 S.W.2d at 170-71.
"A person's refusal of a request by an officer to submit to the taking of a specimen of breath or blood . . . may be introduced into evidence at the person's trial." TEX. TRANSP. CODE ANN. § 724.061 (Vernon 1999). In the past, trial judges often instructed juries in DWI trials using language similar to that in the statute. This practice is now prohibited by the holding of the Texas Court of Criminal Appeals "that a jury instruction informing the jury that it may consider evidence of a refusal to take a breath [or blood] test constitutes an impermissible comment on the weight of the evidence." Bartlett v. State, 270 S.W.3d 147, 154 (Tex. Crim. App. 2008). Of course, that evidence is still admissible, and the jury may consider it. See TEX. TRANSP. CODE ANN. § 724.061 (Vernon 1999).
Where, as here, a defendant does not object to the jury charge, reversible error exists only if the record shows a defendant has suffered not only actual harm, but egregious harm resulting from the incorrect charge. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (). Egregious harm arises if the error is so severe that it deprived the accused of a fair and impartial trial. Id. In determining whether egregious harm exists, we consider the following factors: (1) the entire jury charge; (2) the state of the evidence; (3) the arguments of counsel; and (4) any other relevant information in the record as a whole. Id.; see also Vargas v. State, 271 S.W.3d 338, 340 (Tex. App.-San Antonio 2008, no pet.) (applying egregious harm test to instruction at issue here). "Egregious harm is a difficult standard to prove and such determination must be done on a case-by-case basis." Hutch, 922 S.W.2d at 171.
In the charge in this case, the trial court instructed the jury that it "may consider the [appellant's] refusal to submit to a blood test, if he did, as evidence of intoxication in this case." The trial court erred by including the instruction in the jury charge. See Bartlett, 270 S.W.3d at 154. However, Appellant did not object to the submission of this instruction. Therefore, to determine whether reversible error exists, we must determine whether the inclusion of the instruction caused Appellant egregious harm. See Richardson v. State, 879 S.W.2d 874, 882 (Tex. Crim. App. 1993).
Examining the jury charge itself, the instruction was two lines of the entire charge and was not set out in a separately numbered paragraph. The charge was otherwise unobjectionable and contained common instructions and questions for a DWI case. Furthermore, the charge did not reduce the State's burden of proof. See Hess v. State, 224 S.W.3d 511, 516 (Tex. App.-Fort Worth 2007, pet. ref'd).
Second, there was sufficient evidence to convict Appellant despite the erroneous inclusion of the instruction in the charge. Appellant was observed leaving a known drug house shortly after midnight. He fumbled with his wallet when trying to retrieve his drivers license. He made inconsistent statements regarding his possession of three drivers licenses. He claimed that he could not perform the field sobriety tests because he was disabled. But the State introduced evidence that he was seen walking through the courthouse at a brisk pace without difficulty and that he crossed a waist high plastic chain by quickly lifting each of his legs over the chain. His pupils were pinpointed and not reactive to light. Appellant admitted to taking 120 Vicodin pills and 240 methadone pills each month. He also admitted that he had just taken two of each shortly before the traffic stop.
As to the third factor, the prosecutor argued as follows in closing argument:
The very next line, you're instructed that you may consider the defendant's refusal to submit [to] a blood test as evidence of intoxication in this case. You may consider that. How much weight do you want to give it, that's for you to decide. You can find him guilty off [sic] this alone, all right? Why would he not give it? Is he afraid of needles?
A refusal to provide a specimen of blood is admissible evidence. TEX. TRANSP. CODE ANN. § 724.061. Although a judge may no longer instruct the jury on the refusal to provide a blood or breath specimen, a comment by the prosecutor on the refusal is permissible. Leija v. State, No. 04-08-00679-CR, 2009 WL 331897, at *3 (Tex. App.-San Antonio Feb.11, 2009, no pet.) (mem. op., not designated for publication) (concluding that a prosecutor may still comment on a refusal to submit to a breath or blood test in light of Bartlett); Vargas, 271 S.W.3d at 341 (same). Further, the State may summarize evidence as part of its jury argument, which includes the failure to submit to a breath or blood test and that such failure is evidence of intoxication. Leija, 2009 WL 331897, at *3; Vargas, 271 S.W.3d at 341. Thus, the State's argument, insofar as it constitutes a comment on Appellant's refusal to submit to a blood test or a summary of the evidence, is proper.1
After considering the above factors and the evidence related to each factor as a whole, we cannot conclude that the charge error was so severe that it deprived Appellant of a fair and impartial trial. Accordingly, we hold that the inclusion of the instruction in the jury charge does not amount to egregious harm.
We overrule Appellant's first issue.
In his third issue, Appellant contends that the trial court erred in allowing the testimony of Deputy Yvette Roth, whom the State had not listed as a potential witness, without granting a continuance.
The standard of review where a witness not included on a witness list is permitted to testify is whether the trial court abused its discretion in allowing the testimony. See Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993); Stoker v. State, 788 S.W.2d 1, 15 (Tex. Crim. App. 1989). The burden to show that the trial court abused its discretion is on the appellant. See Depena v. State, 148 S.W.3d 461, 467 (Tex. App-Corpus Christi 2004, no pet.). Unless the appellant makes the necessary showing, the trial court's decision to allow the testimony will not be disturbed on appeal.See id.; Castaneda v. State, 28 S.W.3d 216, 223 (Tex. App.-El Paso 2000, pet. ref'd).
Before making his opening statement, the prosecutor announced the following:
This just came to the State's attention yesterday afternoon, . . the defendant exited the courthouse, he was witnessed by ...
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