Foster v. State, 03-14-00252-CR
Decision Date | 19 January 2017 |
Docket Number | NO. 03-14-00252-CR,03-14-00252-CR |
Parties | John Joseph Foster, Appellant v. The State of Texas, Appellee |
Court | Texas Court of Appeals |
FROM THE COUNTY COURT AT LAW NO. 2 OF WILLIAMSON COUNTY
NO. 13-05449-2, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
A jury convicted appellant John Joseph Foster of the misdemeanor offense of driving while intoxicated.1 The trial court rendered judgment on the verdict and sentenced Foster to 72 hours' confinement in the Williamson County Jail. In five points of error on appeal, Foster asserts that the prosecutor improperly elicited testimony that violated Foster's right to remain silent, challenges the sufficiency of the evidence supporting his conviction, contends that the trial court abused its discretion in admitting audio recordings of a witness's phone calls to the police, and claims that Foster suffered egregious harm from the failure of the trial court to include a limiting instruction in the court's charge. We will affirm the judgment of conviction.
BACKGROUND
The jury heard evidence that on the night of June 29, 2013, following a traffic stop, Foster was arrested for driving while intoxicated. Evidence considered by the jury during trial included the testimony of Deputy Grayson Kennedy of the Williamson County Sheriff's Office, who, while off-duty, claimed to have observed Foster's vehicle commit multiple traffic violations; Trooper Joseph Stuart of the Texas Department of Public Safety (DPS), who had initiated the traffic stop, conducted field sobriety tests on Foster, and subsequently arrested him; Lieutenant Dwayne Williams of the Williamson County Sheriff's Office, who had booked Foster into jail; and Zack Kilborn, a "breath-testing technical supervisor" with DPS, who testified that, according to the results of a breath test administered to Foster following his arrival at the jail, Foster's blood-alcohol concentration was .090 and .092, above the legal limit of .080. Based on this and other evidence, which we discuss in more detail below, the jury convicted Foster of driving while intoxicated and the trial court rendered judgment on the verdict, sentencing Foster to 72 hours' confinement in county jail as noted above. This appeal followed.
ANALYSIS
Right to remain silent
During the State's direct examination of Lieutenant Williams, the officer who had booked Foster into jail, the prosecutor asked Williams if Foster had ever told Williams that "the trooper was wrong, they arrested the wrong guy, he's not guilty of anything; did he ever say[] anything like that to you?" Williams answered, "No, sir." In his first point of error, Foster assertsthat this testimony violated his post-arrest right to remain silent.2 However, Foster did not object to this testimony during trial. Accordingly, Foster has failed to preserve this issue for review.3
We overrule Foster's first point of error.
Evidentiary sufficiency
In his second point of error, Foster challenges the sufficiency of the evidence supporting his conviction. Specifically, Foster asserts that the evidence is insufficient to prove that he was intoxicated at the time he was driving.
When reviewing the sufficiency of the evidence supporting a conviction, "the standard of review we apply is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond reasonable doubt.'"4 "This standard tasks the factfinder with resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts."5 "[A]n inference is a conclusion reached by considering other facts and deducing a logical consequencefrom them."6 "On appeal, reviewing courts 'determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.'"7 "Thus, '[a]ppellate courts are not permitted to use a 'divide and conquer' strategy for evaluating sufficiency of the evidence' because that approach does not consider the cumulative force of all the evidence."8 "When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination."9 Moreover, "[o]ur review of 'all of the evidence' includes evidence that was properly and improperly admitted."10 Finally, "the same standard of review is used for both circumstantial and direct evidence cases."11 "Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient" to support a conviction.12
A person commits the offense of driving while intoxicated if he is intoxicated while operating a motor vehicle in a public place.13 "Intoxicated" is defined in the Penal Code as "not having the normal use of mental or physical faculties by reason of the introduction of alcohol, acontrolled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or having an alcohol concentration of 0.08 or more."14 In this case, the jury was instructed that it could find Foster guilty under either definition.
The jury considered the following evidence on the issue of intoxication. Deputy Kennedy testified that on the night of June 29, 2013, he was driving east on FM 1431 in Cedar Park when he noticed "bright lights coming up behind [him] while [he] was sitting at a red light." Kennedy testified that he then observed a black BMW "run [the] red light," almost striking Kennedy's vehicle as it did so. At that point, Kennedy recounted, he decided to call the Cedar Park Police Department and report what he had seen. Kennedy further testified that he had proceeded to follow the vehicle and had, thereafter, observed the vehicle run another red light, briefly cross the yellow dividing line separating the eastbound and westbound lanes of traffic, and exceed the posted speed limit of 60 or 65 miles per hour. According to Kennedy, the vehicle was traveling approximately 75 miles per hour at one point and 90 miles per hour at another.15 As the vehicle continued traveling east, Kennedy called the Williamson County Sheriff's Office to report the traffic violations, later explaining that the Cedar Park Police Department would lose jurisdiction to stop the vehicle once it passed the city limits. Based on what he had observed, Kennedy asserted that if he had been on duty and in his patrol vehicle at the time, he "absolutely" would have stopped the vehicle himself.
Kennedy further testified that the vehicle eventually turned left onto the access road of I-35, entered the highway at a speed of approximately 80 to 85 miles per hour, proceeded to "straddle" two lanes of the highway as the vehicle traveled northbound at speeds of approximately 82 to 90 miles per hour, failed to signal a lane change as it entered the middle lane of traffic, and eventually reached a speed that Kennedy estimated was approximately 100 miles per hour. According to Kennedy, the vehicle almost collided with another vehicle as it proceed to "blow[] around" other traffic on the highway. Shortly thereafter, Kennedy continued, a state trooper arrived and initiated a traffic stop on the vehicle.
DPS Trooper Joseph Stuart initiated the traffic stop at approximately 11:26 p.m. Stuart testified that as he approached the vehicle and made contact with the driver, "[t]he vehicle smelled of alcohol." Stuart identified the driver as Foster, a lieutenant with the Williamson County Sheriff's Office. According to Stuart, when Foster "handed me his wallet he was shaking so badly that he couldn't get the little felt off the badge to show it to me, [so] I had to take it from it and actually look at it myself." Upon learning that Foster was a police officer, Stuart explained, he became "very nervous" because "when police officers get arrested it's always a big deal." Stuart testified that he asked Foster if he had been drinking and that Foster initially responded that he had not. However, according to Stuart, Foster later admitted that he had been drinking earlier in the evening, at approximately 7:00 p.m., and that he had a "beer and a vodka drink."
Stuart further testified that he then proceeded to administer the standardized field sobriety tests to Foster. According to Stuart, Foster had exhibited four out of six possible "clues" of intoxication on the horizontal gaze nystagmus (HGN) test, which is, Stuart explained, the minimumnumber of clues that would indicate intoxication.16 Stuart added that Foster exhibited additional signs of intoxication on the walk-and-turn and one-leg-stand tests. Specifically, Stuart explained, on the walk-and-turn test, Foster "stopped" while he was walking and "stumbled when he was trying to turn," and, on the one-leg-stand test, Foster "put his foot down and used his arms for balance." After observing Foster's performance on the field sobriety tests, Stuart arrested Foster for driving while intoxicated.
A video recording of the traffic stop and field sobriety tests, taken from Stuart's dash-board camera, was admitted into evidence. As reflected on the recording, at one point during the stop, Stuart turned off his body microphone and proceeded to have a conversation with another officer, Trooper Nathaniel Head, who had arrived to assist Stuart. Stuart testified that he did not remember what he had said to Head during the time when his microphone was turned off. After the microphone had been turned back on, Stuart can be heard telling Head that "the clues weren't solid." When asked to explain what he meant by that, Stuart testified that he had observed only the "minimum" number of clues suggesting intoxication. However, Stuart added that he had "no doubts at all" regarding his decision to arrest Foster for driving while intoxicated.
Stuart subsequently transported Foster to the Williamson...
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