Rodriguez v. State, No. 08-03-00497-CR (TX 9/22/2005)
| Decision Date | 22 September 2005 |
| Docket Number | No. 08-03-00497-CR.,08-03-00497-CR. |
| Parties | MIGUEL RODRIGUEZ, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Supreme Court |
Appeal from the County Court at Law No. 1 of El Paso County, Texas, (TC# 20020C16043).
Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
This is an appeal from a jury conviction for the offense of driving while intoxicated. The jury assessed punishment at 180 days' confinement and a fine of $2,000. We affirm the judgment of the trial court.
The evidence at trial revealed that on September 23, 2002 at 2:27 a.m., Deputy Julio Cesar Gonzalez of the El Paso County Sheriff's Department, and his partner, Deputy Jose Luis Hernandez, were patrolling near the 1800 block of Fabens Street in El Paso County, Texas. Appellant's vehicle passed them going the other direction with his hazard lights on. Deputy Gonzalez saw Appellant pull over to the side of the road, and he made a U-turn to aid Appellant because Deputy Gonzalez thought Appellant was flagging the officers down due to car problems. Appellant had stopped his vehicle half on and half off the road creating a dangerous situation. When Deputy Gonzalez approached Appellant, he stated that his wife was in labor and he was going to get her to take her to the hospital.1 He asked the officers for an escort. Deputy Hernandez responded that they did not usually provide such a service. The officer noticed that Appellant's eyes were red, his speech was slurred, and he smelled of alcohol. There was a beer bottle between his legs.
Appellant was asked to get out of the car. As Deputy Gonzalez and Appellant were walking toward the patrol car, the deputy asked Appellant if he had been drinking. Appellant responded that he had consumed two beers and that the deputy had seen him earlier at Rodarte's Bar. Deputy Gonzalez told Appellant that he was going to administer a field-sobriety test. No Miranda warnings were administered prior to the testing. At that juncture, and not in response to any questioning, Appellant stated that he had consumed six beers.
The first test given to Appellant was the Horizontal Gaze Nystagmus test. The results of that test indicated that Appellant was intoxicated. Next, Deputy Gonzalez administered the walk-and-turn test, and then the one-legged stand test. The results of both those tests indicated Appellant was intoxicated. As a result of the tests and from observing Appellant's demeanor, the deputies concluded that Appellant was intoxicated and his mental and physical faculties were impaired. Appellant was taken to the El Paso County Sheriff's Station where he was Mirandized and subsequent sobriety tests were performed. Both officers testified that Appellant exhibited signs of intoxication during those tests. Appellant did not consent to a breath test.
Appellant's common-law wife, Angelica Sanchez, testified on Appellant's behalf. She stated that Appellant was at his grandmother's house for a family gathering on September 23. She did not attend the gathering as she was near delivery and she required bed rest. She testified that she spoke with Appellant by phone at about 1 a.m. Appellant did not seem to be intoxicated. Later she called Appellant to take her to the hospital because Appellant had the only car. However, Appellant was arrested and the car was towed to her residence. When the car arrived she and her mother drove to the hospital at approximately 7 a.m. She did not find any beer in the car; although she may not have noticed any beer due to her feeling labor pains. She noted that Appellant had previously dislocated his ankle and he had removed his cast before he was supposed to.
Ana Chavez testified that she was at the party attended by Appellant. She stated that Appellant had several beers and he did not consume any beer thereafter. She stated that it was possible that Appellant consumed more beer during a period when she was gone from the party. Chavez related that when she returned to the party, Appellant told her he needed his car which she had borrowed because his wife was in labor.
During the charge conference, Appellant argued that the statements he made to the officers were made during custodial interrogation and were inadmissible. He requested the following jury instruction:
On instruction of evidence the law provides that no evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas or the Constitution or laws of the United States of America shall be admitted in evidence against the accused in a trial in any criminal case.
Before you consider the testimony of . . . Deputy Gonzalez and Hernandez regarding statements of the defendant, if any, you must first find and believe beyond a reasonable doubt that the statements were voluntarily made. Unless the jury so believes beyond a reasonable doubt the jury shall not consider such statements for any purpose or any evidence obtained as a result thereof.
The court denied Appellant's request.
Appellant also requested a jury instruction on the defense of necessity, which stated:
[Y]ou are instructed that conduct is justified if the actor reasonably believes the conduct is immediately necessary to avoid imminent harm and that the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct.
The term conduct means an act or omission and its accompanying mental state.
A reasonable belief means a belief that would be held by an ordinary and prudent person in the same circumstance as the actor.
By the term ordinary standards of reasonableness is meant the standards that an ordinary and prudent person would apply to the circumstances that the actor faced.
Now, if you find from the evidence beyond a reasonable doubt on the occasion in question the defendant did operate a motor vehicle while intoxicated, but you further find from the evidence or you have a reasonable doubt thereof that at the time of such conduct by defendant, if any, the defendant reasonably believed that such conduct on his or her part was immediately necessary to avoid imminent harm to wit: To prevent . . . harm to the wife and unborn child.
The court denied the requested instruction.
During closing argument at the guilt-innocence stage of trial, the following exchange occurred:
In Issue No. One, Appellant asserts that the court erred by allowing incriminating statements made by Appellant before he was Mirandized to come before the jury through the testimony of the deputy sheriff. Specifically, Appellant contends that the deputies had concluded Appellant was intoxicated prior to the administration of any sobriety tests; therefore, the questioning concerning what, if anything, Appellant had to drink was a custodial interrogation, and the statements should not have been admitted due to the failure to provide the requisite Miranda warnings. Appellant also maintains that his failure to object to the statements does not bar this Court's consideration of the issue on appeal as the error deprived Appellant of a fair and impartial trial.
Regarding the last contention, as a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion, and the trial court ruled on the request, objection, or motion. Tex. R. App. P. 33.1(a)(1) and (2); Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999). Further, a party must continue to object every time inadmissible evidence is offered. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Gillum v. State, 888 S.W.2d 281, 285 (Tex. App.-El Paso 1994, pet. ref'd); Tex. R. App. P. 33.1. Error in the admission of evidence is cured when the...
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