Harris v. State

• Court: Texas Court of Appeals
• Writing for the Court: Before CHAPA; ONION
• Citation: Harris v. State, 866 S.W.2d 316 (Tex. App. 1993)
• Decision Date: 29 October 1993
• Docket Number: No. 04-91-00486-CR,04-91-00486-CR
• Parties: John HARRIS, Appellant, v. The STATE of Texas, Appellee.

Page 316

866 S.W.2d 316

John HARRIS, Appellant, v. The STATE of Texas, Appellee.

No. 04-91-00486-CR.

Court of Appeals of Texas San Antonio.

Oct. 29, 1993.

Mark Stevens, Stephanie L. Barclay, San Antonio, for appellant.

Steven C. Hilbig, Criminal Dist. Atty., Angela Moore, Asst. Criminal Dist. Atty., San Antonio, for appellee.

Before CHAPA, C.J., and BIERY and ONION, ¹ JJ.

OPINION

ONION, Justice (Assigned).

This appeal is taken from a conviction for driving a motor vehicle while intoxicated. After the jury found appellant guilty, the trial court assessed punishment after finding as true the enhancement of punishment paragraph of the information alleging that as a direct result of the offense another person, Nicole Ledford suffered serious bodily injury. Punishment was assessed by the trial court at confinement in the county jail for one year and a fine of two thousand dollars ($2000).

Based on this voluminous record, appellant advances twelve points of error, some concerning rapidly evolving issues of current criminal law in this state. He raises questions about the amendment of the information, the elicitation of testimony concerning his post-arrest silence, the alteration of a defense exhibit after it had been admitted into evidence without objection, the admission into evidence of exhibits from the criminal investigative laboratory records over a "hearsay" objection as well as the admission into evidence of a "mug [shot] log," and the prosecutor's jury argument. In addition, appellant challenges not the legal but the factual sufficiency of the trial court's finding that appellant caused serious bodily injury to another person.

Appellant does not challenge the legal sufficiency of the evidence to sustain the conviction. A brief recitation of the facts, however, will place the points of error in proper perspective. About 9:20 p.m. on Christmas night, December 25, 1989, at the intersection of Hausman Road and Loop 1604 in Bexar County, there was a collision between appellant's pick-up truck and Sandra Ledford's Dodge automobile. Appellant was alone in his truck. Ledford was driving her car accompanied by her daughters, Jill and Nicole.

Ledford had had Christmas dinner with her parents at their home in Helotes. She had consumed three glasses of punch spiked with Vodka between 6:45 and 7:45 p.m. Thereafter she ate cookies and drank coffee. Ledford left for her own home about 9 p.m. Ledford testified that appellant's vehicle ran a red traffic light at the intersection and struck her car injuring her daughters.

Appellant spent the afternoon and early evening at the home of his girlfriend's parents where he ate Christmas dinner. Appellant related that between 1 p.m. and 8 p.m. he consumed four beers and a glass of wine. Appellant's girlfriend and her father testified that appellant was not intoxicated when he left their home. Appellant stated that he later went to a party being given by a friend, but that he stayed there only a few minutes and did not consume any alcoholic beverages. Appellant testified that the Ledford car ran a red traffic light and struck his truck.

Jill Ledford and Ogden Chamberlain, a passing motorist who stopped, both testified that almost immediately after the accident appellant apologized for "running" the red light. A chemical analysis of appellant's blood sample showed an alcoholic concentration of 0.13, which is above the legal limit (0.10) for intoxication in Texas. Police officers and other witnesses testified that Sandra Ledford was not intoxicated at the time of the accident.

Truman Hall, an accident reconstruction expert, testified for the defense. Based upon his calculations, Hall believed that Ledford ran the red light and caused the accident. The jury rejected appellant's version of the facts and found him guilty of driving while intoxicated.

At the penalty stage of the trial before the court, Sandra Ledford testified that her daughter, Nicole, was in a coma for several months after the accident and was having to learn to talk and walk again. The medical records showing Nicole's closed head injury with brain stem damage and numerous fractures were admitted by stipulation. The trial court found appellant had caused serious bodily injury to Nicole Ledford and assessed punishment.

In points of error one and two, appellant argues that the prosecutor erred by eliciting evidence that appellant (1) did not give his version of the accident to the police, and (2) only answered "some" of the officer's questions because these were comments on appellant's post-arrest silence in violation of article I, section 10, of the Texas Constitution.

Both points of error concern the testimony of Officer Lloyd Griggs to which appellant timely objected. We briefly review the evidence prior to the admission of the complained-of testimony. San Antonio Police Officers Edward Gonzales and Lloyd Griggs were dispatched to investigate the accident in question. Upon arrival at the scene, they observed the vehicles in the middle of an intersection and group of people standing nearby. Officer Griggs began placing flares on the road and Officer Gonzales approached the group to identify the drivers. After he identified the drivers, Gonzales testified that he asked appellant to come to the side of the road and that he "had" appellant walk in front of him. Gonzales had smelled the odor of intoxicants on appellant's breath and had observed appellant stagger. In response to Gonzales's questions, appellant stated he was not injured. Officer Gonzales shined his flashlight on appellant to see if he could observe injuries and continued the conversation. Gonzales saw that appellant's pants were wet in the crotch area, that appellant's eyes were bloodshot, and that his speech was slurred. At this point, Officer Gonzales left appellant and went to confer with Officer Griggs about appellant's intoxication. Gonzales asked Griggs to go "back" and talk to appellant. Gonzales watched Griggs walk to where appellant was standing and observed them conversing. Gonzales related that Officer Griggs "came back and confirmed what I thought." After this conversation, appellant was arrested and placed in the patrol vehicle.

It was when Officer Griggs testified about his conversation with appellant that the complained-of testimony was elicited. On direct examination, the record reflects:

Q: Did you ask him about the accident?

A: Yes, sir. I did.

Q: Did you elicit any kind of response from him?

A: Yes, sir.

Q: Did he answer any questions?

A: Some of them, yes, sir.

MR. STEVENS: (DEFENSE COUNSEL) Your Honor, again I'm going to object to that response as an attempt to penalize him for any post-arrest--post-Miranda silence. And that's illegal.

MR. SEPULVEDA: This was not post-Miranda.

MR. STEVENS: Post-arrest then. It's still improper to do that. That's my objection.

THE COURT: Overruled. ²

(Emphasis added.)

Immediately thereafter, the record shows on direct examination the following:

Q: What else did you ask him?

A: I asked for an explanation of the accident from his--what he could tell me as to the cause of the accident.

Q: Did he ever give you a version of what happened in this accident?

A: No, he didn't.

MR. STEVENS: Same objection. I reurge that objection.

THE COURT: Overruled.

(Emphasis added.) ³ Officer Griggs then continued to testify and stated his belief that appellant was unable to answer questions because of the state of appellant's intoxication.

In Texas post-arrest silence may not be used against a defendant, even if he has not been warned pursuant to Miranda. ⁴ Sanchez v. State, 707 S.W.2d 575, 580 (Tex.Crim.App.1986); see also Cuellar v. State, 613 S.W.2d 494, 495 (Tex.Crim.App. [Panel Op.] 1981); Womack v. State, 834 S.W.2d 545, 546 (Tex.App.--Houston [14th Dist.] 1992, no pet.); Juhasz v. State, 827 S.W.2d 397, 405 n. 3 (Tex.App.--Corpus Christi 1992, pet. ref'd). Even when the defendant testifies, he may not be cross-examined about his post-arrest silence unless it is first established that he made a post-arrest inconsistent statement. Turner v. State, 719 S.W.2d 190, 193 (Tex.Crim.App.1986). Clearly, however, it is permissible to inquire into a defendant's pre-arrest silence. Waldo v. State, 746 S.W.2d 750, 755 (Tex.Crim.App.1988); Mowbray v. State, 788 S.W.2d 658, 666 (Tex.App.--Corpus Christi 1990, pet. ref'd), cert. denied, 498 U.S. 1101, 111 S.Ct. 999, 112 L.Ed.2d 1082 (1991); see also Jenkins v. Anderson, 447 U.S. 231, 238-39, 100 S.Ct. 2124, 2129-30, 65 L.Ed.2d 86 (1980).

The State urges that appellant had not been placed under arrest when Griggs was questioning him at the scene of the accident. Appellant asserts that Officer Gonzales "had" appellant walk in front of him to the side of the street. He argues that "appellant was under arrest at this point." Neither party however, briefs the issue with regard to the facts of this case.

"A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant." TEX.CODE CRIM.PROC.ANN. art. 15.22 (Vernon 1977). A statutory arrest occurs "when a person's liberty of movement is restricted or restrained." Burkes v. State, 830 S.W.2d 922, 925 (Tex.Crim.App.1991); Amores v. State, 816 S.W.2d 407, 411 (Tex.Crim.App.1991); Hoag v. State, 728 S.W.2d 375, 379 (Tex.Crim.App.1987). An investigative detention "is one during which police are allowed to briefly question a suspicious person respecting his identity, his reason for being in the area or location, and to make similar reasonable inquires of a truly investigatory nature." Amores, 816 S.W.2d at 412; Johnson v. State, 658 S.W.2d 623, 626 (Tex.Crim.App.1983).

In the instant case, Officers Gonzales and Griggs arrived at the scene of a vehicular accident. While Griggs set out flares, Gonzales began an inquiry to determine who were the drivers. He asked appellant...