Kinnett v. State
| Decision Date | 22 December 2020 |
| Docket Number | NO. 01-18-01128-CR,01-18-01128-CR |
| Citation | 623 S.W.3d 876 |
| Parties | Lonnie Gene KINNETT, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Susan C. Norman, P.O. Box 55585, Houston, Texas 77255, Holly Crampton, 10900 NW Freeway, Ste. 102-B, Houston, Texas 77092, for Appellant.
Jack Roady, Criminal District Attorney, Galveston County, Texas, Alan Curry, 600 59th St., Ste. 1001, Galveston, Texas 77551, for Appellee.
Panel consists of Justices Keyes, Lloyd, and Landau.
Evelyn V. Keyes, Justice A jury convicted appellant, Lonnie Gene Kinnett, of the third-degree felony offense of driving while intoxicated (DWI) and, after finding the allegations in two enhancement paragraphs true, assessed his punishment at confinement for life.1 In seven issues, appellant contends that: (1) the trial court violated his rights to compulsory process under both the United States and Texas Constitutions by denying an application for a bench warrant, denying an application for a writ of attachment, and denying a motion for continuance; (2) the Texas Constitution provides greater protection for compulsory process than the Sixth Amendment; (3) the trial court violated his rights to confrontation under both the United States and Texas Constitutions by admitting a recording of a non-emergency call to police dispatch into evidence; (4) the trial court violated his right to a fair trial under the Fifth and Fourteenth Amendments when he was deprived of his rights to confrontation and compulsory process under the United States and Texas Constitutions; (5) his Terry stop and detention violated the Fourth Amendment because the officer lacked reasonable suspicion; (6) the trial court erroneously refused to give a jury instruction concerning illegally obtained evidence; and (7) insufficient evidence supported the judgment of conviction.
We affirm.
The State charged appellant with the third-degree felony offense of DWI. The indictment alleged that appellant had two prior convictions for DWI. Specifically, the indictment alleged as follows:
And it is further presented in and to said Court that, prior to the commission of the aforesaid offense (hereafter styled the primary offense), on the 19th day of March, 1999, in cause number 700709 in the County Criminal Court No. 10 of Tarrant County, Texas, the defendant was convicted of an offense relating to the operating of a motor vehicle while intoxicated; and on the 3rd day of December, 2004, in cause number 916318 in the 371st District Court of Tarrant County, Texas, the defendant was convicted of an offense relating to the operating of a motor vehicle while intoxicated.
The indictment also included two enhancement paragraphs, alleging that appellant had been convicted of two additional felony offenses.
At 2:32 p.m. on March 30, 2017, Michael Szanyi called the administrative number of the Santa Fe Police Department to report a reckless driver. Szanyi did not call 911. Szanyi's call to the administrative number was recorded, and the trial court admitted a recording of the call at trial. Szanyi himself did not testify.2
Szanyi reported that he had been driving directly behind a white Envoy or Trailblazer with paper license plates on the southbound lanes of Highway 646 in Santa Fe, Texas. Szanyi stated that he thought the driver might have been drinking because the driver had been driving down the center lane of the highway, was weaving in and out of traffic, and was nearly involved in a head-on collision. Szanyi saw the driver throw what looked like a "green Heineken beer bottle" from the driver's side window. Szanyi stated that the driver made a U-Turn and pulled into the parking lot of Gator Jack's, a bar in Santa Fe. When asked by the dispatcher if the driver had gone inside Gator Jack's, Szanyi responded, When the dispatcher asked, Szanyi provided his name. He was not asked to provide any other identifying information.
At 2:42 p.m., Santa Fe Police Department Officer B. Klonaris received a call from dispatch about a reckless driver. Klonaris testified that the dispatcher told him that a white Envoy or Trailblazer with paper license plates was driving recklessly on Highway 646, that the driver threw what appeared to be a green beer bottle from the window, and that the driver turned into the parking lot of Gator Jack's. Gator Jack's was located approximately one quarter of a mile from the police station. When Klonaris turned into the parking lot, he saw only one white Envoy with paper license plates and a man, later identified as appellant, sitting in the driver's seat. The vehicle was the only vehicle in the parking lot. Klonaris arrived at 2:45 p.m., thirteen minutes after Szanyi's call to the Santa Fe Police Department.
When Klonaris approached the vehicle, the engine was running and appellant appeared to be asleep in the driver's seat.3 Klonaris had to knock on the window to wake appellant up. Klonaris noticed "a smell of odor [of] alcohol on [appellant's] person" and "normal signs of intoxication," including slurred speech and disorderly clothing. Klonaris asked appellant if he had been drinking, and appellant responded that he had, at one point stating that he had started drinking two hours ago and at another point stating that he had started eight hours ago. Appellant stated that he had had his last drink two hours before the encounter with Klonaris, and he admitted driving his vehicle to Gator Jack's. Klonaris observed a six-pack of green beer bottles sitting on the passenger seat. Five bottles were present in the pack: one of the bottles was still full and the other four were empty. Klonaris agreed that this was consistent with one bottle having been thrown from the vehicle. Klonaris asked appellant if there was anyone who could come and pick him up, and when appellant responded no, Klonaris asked appellant to step out of the vehicle.
Klonaris administered the standardized field sobriety tests to appellant. Appellant displayed six clues of intoxication on the horizontal gaze nystagmus test, five clues on the walk-and-turn test, and four clues on the one-legged stand test. Klonaris concluded that appellant was intoxicated, and he placed appellant under arrest. Appellant did not consent to give a breath or blood specimen, so Klonaris obtained a warrant for a blood draw. The blood draw was performed at Mainland Medical Center in Texas City, Texas, at 5:44 p.m., approximately three hours after Klonaris first encountered appellant.
Deputy M. Stevenson, with the Galveston County Sheriff's Office, heard the dispatch to Officer Klonaris and stopped to provide assistance. During the traffic stop, Stevenson asked appellant what his name was. Appellant responded, "[y]our daddy," and in response to another comment from Stevenson stated, "[y]our effing daddy." Stevenson testified that appellant resisted arrest by making "an assertive movement towards myself while in cuffs." Stevenson stated that appellant "[b]asically lunged towards me while in cuffs." When asked if appellant showed any other signs of intoxication, Stevenson testified that appellant was "unsteady on his feet" and had "slurred speech." Stevenson testified that, in his opinion, appellant was intoxicated.
Rachel Aubel, a forensic scientist at the Texas Department of Public Safety Crime Lab in Houston, tested appellant's blood sample for blood-alcohol content. She testified that appellant's blood sample arrived at the lab in a test tube that contained both an anticoagulant and a preservative that acted "to preserve the alcohol and loss of information from the tube." The State offered Aubel's written report concerning appellant's blood-alcohol concentration into evidence.
On voir dire, defense counsel asked Aubel if she had performed a retrograde extrapolation in this case. Aubel responded that she had not and that she was not asked to do so. She also testified that the paperwork submitted with appellant's blood sample stated the time of arrest and the time the blood sample was collected, but it did not state a time that appellant was driving. The following exchange among defense counsel, Aubel, the prosecutor, and the trial court occurred:
The trial court overruled appellant's objection and admitted Aubel's written report. Aubel testified that appellant's blood-alcohol concentration was 0.134, greater than the "legal limit" for blood-alcohol concentration, 0.08. She testified that about six to seven standard-sized drinks were necessary to reach this particular blood-alcohol concentration.
On cross-examination, Aubel testified that the number in her report reflects appellant's blood-alcohol concentration at the time of the blood draw, not at the time he was driving. She agreed that if several hours had passed between the time of driving and the time of the blood draw, the concentration would likely be different.
Aubel also testified that the blood sample was taken from appellant on March 30, 2017, that the sample was received by...
To continue reading
Request your trial
-
State v. Espinosa
...Id. (noting that circumstantial evidence is as probative as direct evidence in establishing guilt); Kinnett v. State , 623 S.W.3d 876, 897–98 (Tex. App.—Houston [1st Dist.] 2020, pet. ref'd).C. APPLICATION The State argues that Officer Brasuell had probable cause to believe that appellee ha......
-
Leleo v. State
...2020, pet. ref'd). First, the party must request a writ of attachment, which the trial court must deny. Sturgeon, 106 S.W.3d at 85; Kinnett, 623 S.W.3d at 905. Second, the party show what the witness would have testified to. Sturgeon, 106 S.W.3d at 85; Kinnett, 623 S.W.3d at 905. Third, the......
-
Garcia v. State
... ... the jury; (2) the fact was contested by affirmative evidence ... at trial; and (3) the contested fact is material to the ... constitutional or statutory violation that the defendant has ... identified as rendering the particular evidence ... inadmissible." Kinnett v. State , 623 S.W.3d ... 876, 917 (Tex. App.-Houston [1st Dist.] 2020, no pet.) ... (citing Robinson v. State , 377 S.W.3d 712, 719 (Tex ... Crim. App. 2012)) ... Garcia ... argues that his trial counsel put on significant evidence in ... support of ... ...
-
Small v. State
... ... primary purpose of the call was to enable police assistance ... for an ongoing emergency" are not testimonial ... Ramjattansingh , 587 S.W.3d at 159 (citing ... Cook , 199 S.W.3d at 497-98) (relying on ... Davis , 547 U.S. at 822-23)); see also Kinnett v ... State , 623 S.W.3d 876, 909 (Tex. App.-Houston [1st ... Dist.] 2020, pet. ref'd) ("Statements made during ... 911 calls are typically considered nontestimonial because ... they are 'a cry for help' or 'the provision of ... information enabling officers ... ...