Laroque v. The State Of Tex. State

• Decision Date: 19 August 2010
• Docket Number: NO. 2-09-210-CR,2-09-210-CR
• Parties: JOHN KYLE LAROQUE APPELLANT v. THE STATE OF TEXAS STATE
• Court: Texas Court of Appeals

JOHN KYLE LAROQUE APPELLANT

v.THE STATE OF TEXAS STATE

NO. 2-09-210-CR

Court of Appeals of Texas

DELIVERED: August 19, 2010

MEMORANDUM OPINION¹

Appellant John Kyle LaRoque appeals his conviction for driving while intoxicated (DWI).² In three issues, he contends that the trial court erred by providing the jury with a written definition of "operating" and by denying his requests for jury charge instructions regarding reasonable suspicion and probable cause. We affirm.

Background Facts

Laura Davis is a bartender at the Mule Pub in Fort Worth. Late one night, Davis was standing on the patio of the bar when she saw appellant's black BMW drive very fast down a narrow street next to the bar, make a U-turn, and then park in a lot across the street from the bar.³ The BMW "bounc[ed] back and forth across the street" and came within feet of hitting parked cars. For about twenty minutes, appellant stayed in the car with its motor running and its lights on. Davis continued to watch the car and eventually called 911 because she was concerned that appellant was intoxicated and would try to enter her bar. She waited until officers arrived to make sure that they approached the right car.⁴

Fort Worth Police Department Officer Brian Johnson received a dispatch call and went to the scene.⁵ When he arrived, he saw the BMW, which was still running with its lights on. He approached the car and saw appellant sitting in the driver's seat with his head down "as if he were asleep." Officer Johnson also noticed that the gearshift was still "in drive."

Officer Johnson knocked on the car's window several times. When appellant finally responded, he pulled forward until the car's front tires touched a curb. Appellant stopped the car and then rolled down his window. After Officer Johnson asked appellant to get out of the car, Officer Johnson noticed that appellant smelled like alcohol, had loud and slurred speech, and was staggering and unsteady. Also, appellant's eyes were bloodshot and watery. Based on his observations, Officer Johnson, who is certified to perform field sobriety testing, turned on his dashboard camera and conducted three standardized tests. Appellant failed all three tests, and Officer Johnson determined that appellant had lost the normal use of his mental and physical faculties.⁶ Officer Johnson arrested appellant for "suspicion of DWI" and took him to jail.

At the jail, Fort Worth Police Department Officer Rene Frias met with appellant in an intoxilyzer room and read a statutory warning to him. Officer Frias asked appellant for a breath specimen, which appellant refused. Officer Frias then repeated the walk-and-turn test, which appellant failed, and the one-leg-stand test, which he passed.⁷

The State charged appellant with DWI. Appellant pled not guilty. The jury found him guilty, and the trial court sentenced him to ninety days' confinement but suspended the sentence for two years and placed him on probation. Appellant filed his notice of appeal.

Supplemental Jury Instruction

In his first issue, appellant contends that the trial court erred by providing a written definition of "operating" to the jury upon the jury's request after its deliberation of his guilt had begun. The penal code provides that a person commits DWI when the person "is intoxicated while operating a motor vehicle in a public place." Tex. Penal Code Ann. § 49.04(a). But the penal code does not define "operating." See id.; Denton v. State, 911 S.W.2d 388, 389 (Tex. Crim. App. 1995); Dornbusch v. State, 262 S.W.3d 432, 436 (Tex. App. Fort Worth 2008, no pet.) (explaining that courts have construed "operating" "very broadly").

The trial court did not define "operating" in its original charge to the jury. After the jury had been deliberating awhile, its foreman sent a note to the trial court asking whether operation of a motor vehicle has a legal definition. The foreman then sent another note to the court stating,

It appears we are making no headway. Members of the jury on both sides have stated that they will not change their vote. The issue is whether [appellant] was "operating a motor vehicle" or not. Without a legal definition[,] there are opinions that he was and he was not. Still split 3-3.[⁸]

In response to the notes, the trial court proposed to the parties that it would give the jury the following instruction:

With respect to your note concerning "operating a motor vehicle[,]" you are instructed as follows. There is no statutory definition of the term "operate." To find operation of a motor vehicle, the totality of the circumstances must demonstrate that the defendant took action to affect the functioning of his vehicle that would enable the vehicle's use. A person may be said to operate a motor vehicle if he exerts personal effort upon the motor vehicle in a manner that shows intentional use of the vehicle for its intended purpose.

After appellant's counsel asked the trial court a question about the instruction, she ultimately told the court that she did not object to it, and the court gave the instruction to the jury. Approximately an hour later, the jury found appellant guilty.

Appellant contends on appeal that the trial court's instruction was improper because (1) "operating" does not have a peculiar legal meaning and the term should have been left to the jury's interpretation of the term's plain, ordinary meaning, and (2) the instruction was a comment on the weight of the evidence. The State contends that the trial court gave the jury a correct, necessary instruction.

"When the trial judge responds substantively to a jury question during deliberations, that communication essentially amounts to an additional or supplemental jury instruction.... Therefore, in determining whether the subject matter of the communication was proper, we look to the rules governing instructions." Daniell v. State, 848 S.W.2d 145, 147 (Tex. Crim. App. 1993) (citations omitted); see Tex. Code Crim. Proc. Ann. art. 36.16 (Vernon 2006) (stating that after the parties finish their closing arguments, a "further charge" may be given to a jury upon the jury's request); Villarreal v. State, 205 S.W.3d 103, 106 (Tex. App. Texarkana 2006, pet. dism'd); Rogers v. State, 38 S.W.3d 725, 729 (Tex. App. Texarkana 2001, pet. ref'd). Appellate review of error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim. App. 2009). Initially, we must determine whether error occurred. If it did, we must then evaluate whether sufficient harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at 731-32.

A trial court has broad discretion in submitting proper definitions and explanatory phrases to the jury. Roise v. State, 7 S.W.3d 225, 242 (Tex. App. Austin 1999, pet. ref'd), cert. denied, 531 U.S. 895 (2000); Macias v. State, 959 S.W.2d 332, 336 (Tex. App. Houston [14th Dist.] 1997, pet. ref'd); see also Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007) (explaining that a trial court "shall... deliver to the jury... a written charge distinctly setting forth the law applicable to the case"). "[T]erms not legislatively defined are typically to be understood as ordinary usage allows, and jurors may thus give them any meaning which is acceptable in common parlance." Medford v. State, 13 S.W.3d 769, 771-72 (Tex. Crim. App. 2000); see Lee v. State, 866 S.W.2d 298, 301 (Tex. App. Fort Worth 1993, pet ref'd) ("When a defendant is prosecuted for violation of a statute, it is not error for the court to refuse to define a word used inthe statute when the word is used in its ordinary sense, and is easily comprehended by everyone."). However, when a term is not statutorily defined but has an "established legal meaning, or... a peculiar and appropriate meaning in the law," then "[j]ustice would be better served... if jurors were provided a precise, uniform definition to guide their determination." Medford, 13 S.W.3d at 772; see also Tex. Gov't Code Ann. § 311.011(b) (Vernon 2005) ("Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.").

We have held that "operating" does not have an "established" or "peculiar" meaning but rather has a plain meaning that jurors are free to construe. Yocom v. State, No. 02-03-00181-CR, 2004 WL 742888, at *11 (Tex. App. Fort Worth Apr. 8, 2004) (not designated for publication), pet. ref'd, 149 S.W.3d 159 (Tex. Crim. App. 2004). Thus, trial courts are not required to define "operating." Id.; see Brown v. State, 773 S.W.2d 65, 67-68 (Tex. App. Fort Worth 1989, pet. ref'd). However, merely because a trial court is not required to give an instruction regarding a term does not mean that the court errs by doing so. See Koah v. State, 604 S.W.2d 156, 162 (Tex. Crim. App. [Panel Op.] 1980) (indicating that a definition given by a trial court was proper, although it was not taken from a statute, because the definition was "substantially the same as the meaning given the term when construed by other Courts"); Kimbro v. State, 157 Tex. Crim. 438, 440, 249 S.W.2d 919, 920 (1952); Haynes v. State, 150 Tex. Crim. 337, 339-40, 200 S.W.2d 824, 825-26 (1947); Lockhart v. State, 108 Tex. Crim. 597, 599, 1 S.W.2d 894, 895 (1927) ("In our opinion it is not necessary to give any definition of the terms used in the statute, but, one having been attempted, we think it not erroneous.").

The trial court's definition of "operating a motor vehicle" tracks the definition that has been routinely adopted by courts in this state.⁹ See Denton, 911 S.W.2d at 390; Dornbusch, 262 S.W.3d at 436; Yocom, 2004 WL 742888, at *2; Hearne v. State, 80 S.W.3d 677, 679 (Tex. App. Houston [1st Dist.] 2002, no pet.); Barton v. State, 882 S.W.2d 456, 459 (Tex. App. Dallas 1994, no pet.). We have not found any authority holding that, in a circumstance such as the one in this case, a trial court...