Prihoda v. State

• Court: Texas Court of Appeals
• Writing for the Court: Opinion by: CATHERINE STONE
• Citation: Prihoda v. State , 352 S.W.3d 796 (Tex. App. 2012)
• Decision Date: 01 February 2012
• Docket Number: No. 04–10–00552–CR.,04–10–00552–CR.
• Parties: Ryan PRIHODA, Appellant, v. The STATE of Texas, Appellee.

352 S.W.3d 796

Ryan PRIHODA, Appellant,

v.The STATE of Texas, Appellee.

No. 04–10–00552–CR.

Court of Appeals of Texas, San Antonio.

Aug. 31, 2011.Rehearing Overruled Sept. 29, 2011.Discretionary Review Refused Feb. 1, 2012.

Suzanne M. Kramer, Attorney at Law, San Antonio, TX, Wayne A. Christian, II, Attorney at Law, Alamo Heights, TX, for Appellant.

Keri Miller, Assistant District Attorney, Bexar County, San Antonio, TX, for Appellee.

Sitting: CATHERINE STONE, Chief Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.

OPINION

Opinion by: CATHERINE STONE, Chief Justice.

Ryan Prihoda was convicted of a second offense of driving while intoxicated. On appeal, Prihoda contends: (1) he was deprived of his right to a fair trial, due course of law, and proper confrontation of the State's witness; (2) the evidence is legally insufficient; (3) the State failed to prove his prior conviction; and (4) the trial court abused its discretion in denying his motion to dismiss based on his right to a speedy trial. We affirm the judgment of conviction; however we reverse the trial court's judgment as to punishment and remand the cause for a new punishment hearing.

Witness Testimony

The arresting officer, Officer Mark Anthony Salazar, was the only witness who testified at trial. Prihoda's first and second points of error relate to Officer Salazar's testimony.

The State contends that Prihoda's first point of error is multifarious. We agree. Prihoda's complaint is multifarious because it is based on more than one legal theory and raises more than one specific complaint. See Davis v. State, 329 S.W.3d 798, 820 (Tex.Crim.App.2010), petition for cert. filed, ––– U.S. ––––, 132 S.Ct. 128, 181 L.Ed.2d 50 (2011) (No. 10–10063); Mays v. State, 318 S.W.3d 368, 385 (Tex.Crim.App.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 1606, 179 L.Ed.2d 506 (2011). In the actual point of error, Prihoda contends that Officer Salazar's inability to recall the events leading to Prihoda's arrest: (1) deprived him of his right to a fair trial and due course of law; and (2) deprived him of proper confrontation of the State's witness as constitutionally guaranteed. In his briefing of this point of error, Prihoda asserts that Officer Salazar's inability to recall the events: (1) resulted in the evidence being legally insufficient to support his conviction and required the trial court to grant a directed verdict; (2) resulted in the evidence being legally insufficient to justify Prihoda's stop and arrest; (3) deprived him of his right of confrontation under the United States and Texas Constitutions; and (4) made cross-examination a “meaningless exercise.” “By combining more than one contention in a single point of error, an appellant risks denial on the ground that the issue is multifarious and presents nothing for review.” Sparkman v. State, 55 S.W.3d 625, 630–31 (Tex.App.-San Antonio 2000, no pet.); see also Mays, 318 S.W.3d at 385 (noting multifarious issue “risks rejection on that basis alone”). As an appellate court, we may refuse to review a multifarious issue or we may elect to consider the issue if we are able to determine, with reasonable certainty, the alleged error about which the complaint is made. Stults v. State, 23 S.W.3d 198, 205 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd); Shull v. United Parcel Serv., 4 S.W.3d 46, 51 (Tex.App.-San Antonio 1999, pet. denied). The basis for all of the complaints made by Prihoda in his first point of error is his contention that Officer Salazar had no recollection of the events leading to Prihoda's arrest. In the interest of justice, we elect to consider this contention.

Officer Salazar is a fourteen-year veteran with the San Antonio Police Department. Officer Salazar observed Prihoda driving a vehicle traveling 60 miles per hour in an area where the speed limit was 45 miles per hour. Officer Salazar further observed the vehicle being driven in an erratic and dangerous manner as it was weaving through traffic without signaling any lane changes. Officer Salazar activated his overhead lights and pulled over the vehicle. When Officer Salazar approached the driver's window, he could smell the odor of alcoholic beverages coming from the vehicle. Officer Salazar testified that Prihoda's eyes appeared to be bloodshot and glassy, and Prihoda's speech was slurred and confused. When Prihoda exited the vehicle, he was somewhat unsteady on his feet. Officer Salazar administered three field sobriety tests and determined that Prihoda was intoxicated. Officer Salazar stated that Prihoda was compliant while being arrested. Officer Salazar testified that the wife of one of the two passengers in Prihoda's vehicle arrived to pick up the passengers, and the passengers were released. Officer Salazar identified the DIC–24 form containing Prihoda's information and testified that Prihoda refused to give a breath sample and refused to sign the form. Officer Salazar testified that his vehicle was not equipped with a video, and Salazar refused to be videotaped at the station.

During cross-examination, Officer Salazar testified that when he ran Prihoda's name and date of birth through his computer, he discovered that Prihoda had three municipal warrants outstanding for tickets. When asked if he had a “finite recollection of exactly what time” he ran Prihoda's information through the computer, Officer Salazar stated he did not remember “exactly when it was.” Officer Salazar testified that he also discovered that Salazar had a prior DWI. Officer Salazar testified that one of the passengers in Prihoda's vehicle was sober while the other passenger was highly intoxicated. Officer Salazar stated that the passenger was “falling down drunk,” and Officer Salazar thought the passenger probably could not even turn on a car. On a scale of one to ten in terms of intoxicated state, Officer Salazar testified that the passenger was a nine or an eight, while Prihoda was probably around a six or a seven. When Officer Salazar was asked whether he had a “finite recollection” of his observations of Prihoda, he answered, “No, sir.”

Defense counsel then objected that Officer Salazar's testimony was not competent evidence for the trial court to consider, asserting, “It appears he is just reciting hearsay off of the police report and doesn't have a finite recollection of any of these issues.” The trial court granted defense counsel permission to take Officer Salazar on voir dire. Officer Salazar admitted that the arrest was three years prior to trial and that he had probably arrested 200 individuals for driving while intoxicated since his arrest of Prihoda. Officer Salazar further stated “without my report, I wouldn't be able to remember very much.” Defense counsel then moved for a directed verdict asserting, “The officer needs to have a finite recollection of this arrest. He can refer to his police report that will refresh his memory, but the officer himself has just told us it is not refreshing his memory. He has no memory to refresh.” The prosecutor countered that Officer Salazar was not required to have a “finite memory” and was “remembering quite a bit of things that [were] not on the report such as [the] passengers and their condition.” In response to the trial court's question regarding whether he could remember a little or a lot, Officer Salazar stated he did not remember the specifics of the arrest but he “vaguely remember[ed] the incident because of the fact that there were those passengers that were in there.” Officer Salazar stated that he remembered the passenger being drunk and the conversation about the wife of one of the passengers picking them up. Officer Salazar asserted, “So I remember this incident but not perfectly like [defense counsel] is saying, but I do recall the incident. I do remember more or less the incident. There was those little things that jarred my memory.” In response to further questioning by defense counsel, Officer Salazar admitted that he would not have recognized Prihoda if he had not been sitting in the courtroom. In response to defense counsel's question regarding whether he had a “finite recollection” of Prihoda performing any field sobriety tests, Officer Salazar sated, “I know it happened, but without the report—In all honesty I couldn't remember without my report.” In response to defense counsel's question about whether Officer Salazar remembered Prihoda and having an interaction with him in 2007, Officer Salazar responded, “I mean, I remember him after reading the report and going over the incident that was documented. After that happened, yes, I do remember.” Officer Salazar further stated, “With the report, I do remember [Prihoda].” Officer Salazar did admit, however, that he could not identify Prihoda in court as the person he arrested that night.

On re-direct examination, Officer Salazar testified that a mug shot was taken of Prihoda on the night of his arrest, and a copy of the mug shot was introduced into evidence. Officer Salazar identified Prihoda as being the person in the mug shot.

On re-cross examination, defense counsel asked Officer Salazar if he had a personal recollection of arresting Prihoda on June 2, 2007. Officer Salazar responded, “In my mind, I am confused because with my report I do remember. Without my report, I don't remember.” Officer Salazar further explained, “But with the report, I am able to bring it back from memory recall.”

Initially, we note “memory loss does not render a witness ‘absent’ for Confrontation Clause purposes if [the witness] is present in court and testifying.” Woodall v. State, 336 S.W.3d 634, 644 (Tex.Crim.App.2011). Moreover, as Prihoda acknowledges in his brief, an uncertain in-court identification will not make a verdict improper for lack of evidence if other evidence corroborates it. Anderson v. State, 813 S.W.2d 177, 179 (Tex.App.-Dallas 1991, no pet.). In such a case, “[t]he witness's uncertainty goes to the weight of the...