Kimball v. State

• Decision Date: 12 July 2000
• Docket Number: No. 10-98-205-CR,10-98-205-CR
• Citation: 24 S.W.3d 555
• Parties: (Tex.App.-Waco 2000) DAVID WILLIAM KIMBALL, Appellant v. THE STATE OF TEXAS, Appellee Delivered and Filed on
• Court: Texas Court of Appeals

Page 555

24 S.W.3d 555 (Tex.App.-Waco 2000)

DAVID WILLIAM KIMBALL, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-98-205-CR

IN THE TENTH COURT OF APPEALS OF TEXAS, WACO

Delivered and Filed on July 12, 2000

From the County Court at Law No. 2 McLennan County, Texas Trial Court # 972138-CR2

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Before Chief Justice Davis, Justice Vance, and Justice Gray

O P I N I O N

TOM GRAY, Justice

David William Kimball was found guilty by a jury of the offense of Driving While Intoxicated. At trial, the prosecution's proof of all elements of the offense was uncontested with the exception of the element of intoxication. The evidence to convict him consisted of the arresting officer's testimony regarding his performance of standard sobriety tests, his own admissions, and a videotape of the traffic stop. The judgment of the trial court is affirmed.

Procedural Background

Kimball was charged with the misdemeanor offense of Driving While Intoxicated. To this charge, he pled not guilty. The jury convicted him and the trial court sentenced Kimball to 90 days in jail and a $2000.00 fine plus court costs. The trial court suspended the imposition of the jail time and fine and probated the sentence for 12 months and ordered Kimball to pay $400.00 plus court costs. He appeals in nine issues.

The Evidence

On May 25, 1997, Kimball was stopped for investigation of driving while intoxicated by a DPS Trooper. The trooper had received a radio broadcast from the DPS Waco Communications Dispatcher that an unidentified motorist had called in information about a possible intoxicated driver. Specifically, the caller reported that the driver was headed north from Bell County, driving a white Ford pickup truck with a gray stripe, and gave the license plate number of the vehicle. The trooper proceeded to travel north on I-35. The trooper located the described vehicle. As the trooper was verifying the license plate number, the trooper testified that he saw the pickup swerve partially onto the right improved shoulder of the highway, and then swerve back into the traffic lane. At this point, the trooper activated the video camera in his car. The driver swerved onto the shoulder approximately two more times. Based on probable cause of failure to maintain a single lane, the trooper stopped the vehicle driven by Kimball.

The trooper testified that during this initial stop Kimball said that he had not been drinking. The trooper also testified that he smelled a moderate odor of an alcoholic beverage on Kimball and that his eyes were red, glassy, and bloodshot. He then asked Kimball to perform three standardized sobriety tests. These tests were designed to determine whether or not a suspect is intoxicated to the point of being impaired. After conducting the tests, the trooper concluded that Kimball was intoxicated and placed him under arrest. According to the trooper's testimony, while in the front seat of the trooper's vehicle, Kimball admitted that he had been "nursing a beer." After being taken to jail and given the statutory warnings, the trooper testified that Kimball was asked to submit a sample of his breath for alcohol concentration analysis, which he refused but made other incriminating statements. Kimball's vehicle was inventoried which resulted in the discovery of an open container of beer. At trial, the only element of DWI Kimball contested was the element of intoxication. Kimball argued that the field sobriety tests were poorly performed and improperly administered. He produced an expert witness who testified to the possible invalidity of the test due to less than ideal conditions in the field and the length of time taken to administer the three tests. Specifically, the expert testified that the horizontal gaze nystagmus test was not administered under laboratory conditions, in that the lighting conditions were poor and the test was administered too quickly. The expert also testified that the walk-and-turn test was invalid because it was not administered on a painted line, traffic conditions were poor, and because Kimball was overweight. He further testified that the weather conditions under which the one-leg stand test was administered was poor and disputed the officer's scoring of the test.

Most of the evidence of Kimball's intoxication regarding his driving and his admissions and conduct at the scene came from the arresting officer. The events of the traffic stop, initial contact, field sobriety tests, and arrest were captured on an in-vehicle video tape in the trooper's vehicle. Pursuant to pretrial rulings of the trial court, the whole of the audio portion of the video tape was found to be inadmissible due to the very poor quality and danger of improper dual interpretation.

Issue one - Legal Sufficiency

In issue one, Kimball argues that the evidence was legally insufficient to support a conviction for the offense of driving while intoxicated. When reviewing a claim of legal insufficiency of the evidence, we must determine, after considering all the evidence in the light most favorable to the verdict, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998); Westfall v. State, 970 S.W.2d 590, 595 (Tex. App.--Waco 1998, pet. ref'd). This review is the same for both direct and circumstantial evidence cases. Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992); see also Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991). Whether the evidence satisfies the Jackson test is a question of law. Clewis v. State, 922 S.W.2d 126, 132 (Tex. Crim. App. 1996).

When viewing all the evidence, which has been summarized above, in the light most favorable to the verdict, the jury could have found the essential elements of the crime beyond a reasonable doubt and rejected Kimball's strategy to create doubt as to the element of intoxication. Thus, the evidence was legally sufficient. Kimball's first issue is overruled.

Issue Two - Factual Sufficiency

In issue two, Kimball contends that the evidence was factually insufficient to support a conviction for the offense of driving while intoxicated. If a party is attacking the factual sufficiency of an adverse finding on an issue to which they did not have the burden of proof, they must demonstrate that there is insufficient evidence to support the adverse finding. Johnson v. State, 23 S.W.3d 1, 10 (Tex. Crim. App. February 9, 2000).

The complete and correct standard a reviewing court must follow to conduct a Clewis¹ factual sufficiency review of the elements of a criminal offense asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof....

Id. at 18. "Having done so, the court should set aside the verdict only if the evidence standing alone is 'so weak' as to be clearly wrong and manifestly unjust." Johnson, at 10. If the reviewing court determines a manifest injustice has occurred, and it would, therefore, be improper to defer to the fact finder's decision then the reviewing court must provide a clearly detailed explanation of that determination that takes all of the relevant evidence into consideration. Id. at 19; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

While evidence may be in conflict, it is for the jury, as trier of fact, to resolve any conflicts and inconsistencies in the evidence. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). Even where there is no conflict, the jury may give no weight to some evidence, and thereby reject part or all of a witness' testimony. See Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). The jury is also the judge of the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

The jury was required to find that Kimball committed the offense of driving while intoxicated beyond a reasonable doubt. Based on the evidence summarized above, the jury had before it evidence both in support of and controverting a finding that Kimball was driving while under the influence of alcohol. Based upon our review of all the evidence under the applicable standards, it was factually sufficient to support the verdict on the element of intoxication. Kimball's second issue is overruled.

Issue Three - Instruction

In his third issue, Kimball contends the trial court erred in denying his motion for mistrial when the State attempted to elicit testimony concerning his request for an attorney. During examination of the State's first witness, the prosecution asked, "At any time did the defendant request permission to call an attorney?" Kimball immediately objected and the trial court sustained the objection. Kimball then asked for a jury instruction to disregard the State's question and moved to have the question struck from the record. Both of the requests were granted, and the court gave the jury an instruction² to disregard the State's question. Then, Kimball moved for a mistrial which was overruled by the trial court.

An instruction to disregard will be presumed effective unless the facts of the case "suggest[s] the impossibility of withdrawing the impression produced on the minds of the jury." Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988) (citing Hatcher v. State, 43 Tex. Crim. 237, 65 S.W.2d 97, 98 (1901); Veteto v. State, 8 S.W.3d 805 (Tex.App.--Waco 2000, no pet. h.). The effectiveness of a curative instruction is determined on a case-by-case basis. Id.; Fletcher v. State, 852 S.W.2d 271, 275 (Tex....