Ford v. State, 05-02-00065-CR.

• Court: Court of Appeals of Texas
• Citation: 129 S.W.3d 541
• Docket Number: No. 05-02-00065-CR.,05-02-00065-CR.
• Parties: Richard Darrell FORD, Appellant, v. The STATE of Texas, Appellee.
• Decision Date: 28 January 2003

129 S.W.3d 541 Richard Darrell FORD, Appellant,
v.
The STATE of Texas, Appellee. No. 05-02-00065-CR. Court of Appeals of Texas, Dallas. January 28, 2003. Rehearing Overruled March 31, 2003. Discretionary Review Refused November 5, 2003.

[129 S.W.3d 544]

George R. Milner, Gary A. Udashen, Sorrels & Udashen, Dallas, for Appellant.

William T. (Bill) Hill, Jr., Cheryl D. Holder, Asst. Dist. Atty., Dallas, for State.

Before Justices MOSELEY, LANG, and LAGARDE.¹

OPINION

Opinion by Justice LANG.

Richard Darrell Ford appeals his conviction, after a jury trial, of driving while intoxicated (DWI). The trial court assessed punishment at 180 days in jail, probated for twenty-four months, and a $1000 fine. In nine issues, appellant asserts (1) the trial court erred by overruling his objection to the jury charge definition of "normal use," (2) the trial court erred in denying his motion for new trial based on a juror's incorrect answers during voir dire and the juror's subsequent role in the deliberations process, and (3) the evidence is factually insufficient to support his conviction. For reasons that follow, we resolve appellant's nine issues against him and affirm the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of July 9, 2000, appellant was driving his automobile in Dallas when he made a left turn onto an intersecting street. A policeman driving in the opposite direction coming towards appellant was forced to slam on his brakes to avoid a collision. The policeman, Officer Jeffrey Jones, pulled appellant's car over.

Officer Jones immediately noticed appellant's eyes were bloodshot and recognized the smell of alcohol on his breath. Appellant admitted to consuming two beers.

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When asked, appellant was unable to correctly recite a portion of the alphabet. Jones asked Michael Phillips, the officer riding with him who was trained and certified in administering sobriety tests, to examine appellant. Phillips conducted several sobriety tests, determined that appellant was intoxicated, and arrested him. Jones and Phillips transported appellant to a police station, where they performed more tests. Appellant did not consent to breath or blood samples, but police videotaped him in an intoxilyzer room.

Appellant pleaded not guilty to the charge of driving while intoxicated. During voir dire, a prospective juror, Eric Greggerson, volunteered that he had previously been arrested for DWI. When asked by appellant's trial counsel whether he had gone to trial on his DWI, Greggerson stated that he had. Further, Greggerson stated he could be completely fair to the accused despite his own DWI experience. Neither side used a peremptory strike on Greggerson, and he was selected to serve on the jury, which found appellant guilty of DWI.

"NORMAL USE" DEFINITION

In his first issue, appellant argues the trial court erred in overruling his objection to the jury charge definition of "normal use." Specifically, appellant claims that since the statute does not contain a definition of "normal use," the trial court was not allowed to create its own definition. For support of this argument, Appellant relies exclusively on Murphy v. State, 44 S.W.3d 656 (Tex.App.-Austin 2001, no pet.). In the case at bar, the court submitted the following definition as part of the jury charge: "`Normal use' as used herein means the manner in which a normal non-intoxicated person would be able to use his mental or physical faculties."

A. Standard of Review

In reviewing a claim of charge error, we must first determine whether the jury charge contains error. Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App. 1998); see also Tex.R.App. P. 44.2. If the charge does contain error, we must then determine whether sufficient harm resulted from the error to require reversal. Mann, 964 S.W.2d at 641. Where an appellant has made a timely objection at trial, an appellate court will search for only "some harm." Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App.1994).

B. Applicable Case Law

In Murphy v. State, the appellant challenged the trial court's definition of "normal use" in the jury charge. The charge read as follows:

The term "normal use," means a normal non-intoxicated person. Whether or not the defendant had the normal use of his mental and physical faculties does not require proof of the defendant's normal abilities. Rather, it means that the faculties which must be tested belong to the defendant. You should consider if the defendant could use his faculties on the occasion in question in the manner in which the normal non-intoxicated person would be able to use his faculties.

Murphy, 44 S.W.3d at 661. The court concluded the instruction was erroneous because it was "confusing, misleading, and a misstatement of the law." Id. at 664. In so doing, the court immediately clarified, in a footnote: "We do not imply that none of the matters contained in the complained-of jury instruction could not be the subject of a proper jury charge. We simply hold that it was erroneous to consolidate these matters as a definition of `normal use' under the circumstances presented." Id. at 666 n. 8.

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The court then conducted an Almanza² harm analysis and determined that the error was not harmless because of the emphasis placed on the erroneous definition by the prosecutor in closing argument. Thus, the court reversed and remanded the case to the trial court. Id. at 666.

The State's argument in Murphy relied on the Austin court's decision in Atkins v. State, 990 S.W.2d 763 (Tex.App.-Austin 1999, pet. ref'd). In Atkins, the Austin court affirmed a DWI conviction over the appellant's sufficiency of the evidence challenge. Although the jury charge included a definition of "normal use," the definition used in Atkins was not the same one used in Murphy. The Atkins definition was as follows: "`Normal use' means the manner in which the normal non-intoxicated person would be able to use his faculties." Id. at 769. In Murphy, the court noted that Atkins held the jury charge properly stated the statutory standards, yet Atkins did not expressly approve the specific definition of "normal use" in the jury charge. See Murphy, 44 S.W.3d at 662-63. In support of its decision to reverse the conviction, the Murphy court noted that the definition set out in Atkins was "a far cry from even the first sentence in the objected-to and questioned instruction in [Murphy ].... The balance of the definition of `normal use' given in the instant case is in no way similar or supported by Atkins." Id. at 663 (emphasis added).

In a more recent case, Davy v. State, 67 S.W.3d 382 (Tex.App.-Waco 2001, no pet.), the appellant also challenged the jury charge's definition of "normal use." The instruction in that case was as follows: "Normal use as used herein means the manner in which a normal non-intoxicated person would be able to use his mental or physical faculties."³ Id. at 394. The Waco court of appeals affirmed the trial court by holding that the charge, taken as a whole, properly instructed the jury on the law applicable to DWI, including the term "normal use." Id. at 395-96.

C. Application of Law to the Facts

Appellant argues the Murphy charge and the charge in the instant case are "essentially the same thing." We disagree. The definition used in this case is identical to that which the Waco court of appeals approved in Davy and is only nominally different from the one used in Atkins. It follows then—to borrow the language of the Austin court—that the definition in this case is a "far cry" and is "in no way similar" to the definition disapproved of in Murphy. We conclude the jury charge in this case did not contain error. Accordingly, we resolve appellant's first issue against him.

JUROR MISCONDUCT

In his second, third, and fourth issues, appellant argues the trial court erred in denying his motion for new trial because a juror's "incorrect and misleading answers" during voir dire violated his rights under the United States and Texas Constitutions and under appellate rule 21.3. In his fifth, seventh, and eighth issues, appellant argues the trial court erred in denying his motion for new trial because jury misconduct during deliberations violated his rights under the United States and Texas

129 S.W.3d 547

Constitutions and under appellate rule 21.3(g).⁴ In his sixth issue, appellant contends the trial court erred in denying his motion for new trial based on the jury's receipt of other evidence during deliberations in violation of appellate rule 21.3(f).⁵

A. Standard of Review

A trial court's ruling denying a defendant's motion for new trial is reviewed under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App.2001). The court of appeals does not substitute its judgment for that of the trial court, but simply determines whether the trial court's analysis was arbitrary or unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App. 1995). The trial court is the sole judge of the credibility of any testifying jurors; where there is conflicting evidence on an issue of fact as to jury misconduct, the trial judge determines the issue, and there is no abuse of discretion in overruling the motion for new trial. Id. (quoting Thomas v. State, 699 S.W.2d 845, 854 (Tex.Crim. App.1985)).

B. Applicable Law

1. Voir Dire

The voir dire process is designed to insure, to the fullest extent possible, that an intelligent, alert, disinterested, impartial, and truthful jury will perform the duty assigned to it. Armstrong v. State, 897 S.W.2d 361, 363 (Tex.Crim.App. 1995); De La Rosa v. State, 414 S.W.2d 668, 671 (Tex.Crim.App.1967). "Where a juror withholds material information in the voir dire process, the parties are denied the opportunity to exercise their challenges, thus hampering their selection of a disinterested and impartial jury." Salazar v. State, 562 S.W.2d 480, 482 (Tex.Crim. App. [Panel Op.]...