Sekula v. State

• Decision Date: 21 March 2018
• Docket Number: No. 04-16-00614-CR,04-16-00614-CR
• Parties: Stetson Roy SEKULA, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

Stetson Roy SEKULA, Appellant v. The STATE of Texas, Appellee

No. 04-16-00614-CR

Fourth Court of Appeals San Antonio, Texas

March 21, 2018

MEMORANDUM OPINION

From the County Court at Law No. 6, Bexar County, Texas

Trial Court No. 519407

Honorable Wayne A. Christian, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Patricia O. Alvarez, Justice

AFFIRMED AS REFORMED

This case stems from Appellant Stetson Sekula's driving while intoxicated conviction following a one-vehicle accident. The jury found Sekula guilty; and, the trial court assessed punishment at 180 days in the Bexar County Jail, suspended and probated for a period of one-year. On appeal, Sekula raises several issues related to the testimony of State witnesses San Antonio Police Officer Walter Henning and forensic scientist Debra Stephens. Sekula also contends the trial court erred in assessing attorney's fees. We reform the judgment to delete the assessment of the attorney's fees against Sekula and affirm the judgment as reformed.

PROCEDURAL BACKGROUND

Sekula was arrested for driving while intoxicated on June 4, 2016, and the trial court appointed defense counsel on June 12, 2016. Less than a month later, on July 8, 2016, defense counsel filed multiple, standard discovery motions, including several motions to suppress, a request for the State's witness list, and an all-encompassing "Defendant's Motion Requesting Relief of Various Sorts." Two weeks later, on July 20, 2016, defense counsel filed a "Motion to Suppress Videotape and Audiotape Evidence" and a "Motion to Take Judicial Notice of Nystagmus Causes Other than Alcohol." On August 8, 2016, the State filed its list of witnesses; and, the following day, on August 9, 2016, the State filed an amended witness list.

Sixty-six days after Sekula was arrested and charged, the matter was called for trial. On the morning of August 9, 2016, the trial court heard pretrial motions; the jury was selected that afternoon. After two days of testimony, Sekula was found guilty of driving while intoxicated. The trial court sentenced Sekula to 180 days confinement in the Bexar County Jail, suspended and probated for a term of one-year.

On appeal, Sekula contends the trial court erred in denying his (1) motions to suppress, (2) motions to exclude the expert testimony of Debra Stephens and Officer Walter Henning, and (3) motions for continuance. Sekula also contends the trial court erred in ordering that he pay court-appointed attorney's fees without a hearing to determine whether there was a change in his financial status.

We turn first to Sekula's arguments regarding the State's failure to disclose its expert witnesses as required under Texas Code of Criminal Procedure article 39.14(b). See TEX. CODE CRIM. PROC. ANN. art. 39.14(b) (West Supp. 2017).

EXPERT WITNESSES AND ARTICLE 39.14(b)

A. Arguments of the Parties

Sekula contends the State violated article 39.14(b) by not timely disclosing expert witnesses. He argues that because the State failed to comply with article 39.14(b), the trial court erred in overruling his sworn motion for continuance and allowing the experts to testify regarding the horizontal gaze nystagmus test, nystagmus in general, the results of Sekula's breath-alcohol concentration level test, and the science of breath-alcohol concentration levels.

The State counters that first, the record does not indicate, and Sekula does not argue, that the State acted in bad faith. Second, the evidence shows Sekula was not surprised by either witness and could have reasonably anticipated their testimony.

B. Texas Code of Criminal Procedure article 39.14

Texas Code of Criminal Procedure article 39.14, or the Michael Morton Act, provides that the State must, upon the defendant's request, allow the defendant access to reports, statements, and other documents in the State's possession that do not constitute work product. See id. Article 39.14(b) further provides that

On a party's request made not later than the 30th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence.

Id. art. 39.14(b). All parties agree the State provided access to its file at the time of defense counsel's appointment, including all offense reports and videotapes of the night of Sekula's arrest. The State did not, however, provide defense counsel with a separate witness list including Officer Henning's and Stephens's names, as required under article 39.14(b), until the day before the trial began. See id.

C. Testimony before the Trial Court

San Antonio Police Officer Walter Henning testified that shortly after midnight, on June 4, 2016, he was dispatched to the corner of Prue Road and Old Prue Road for a major, single-vehicle accident. When Officer Henning arrived, the driver of the vehicle was not at the scene. Sekula was located less than a quarter of a mile from the accident scene. Officer Henning described Sekula as having "some small lacerations on him and had some, like, plants and stuff on his clothing, remnants of plants." The officer confirmed that Sekula was not injured and did not require medical assistance.

Officer Henning testified Sekula's eyes were bloodshot and he "was emitting an odor of alcoholic beverages. . . . Not very, very strong, but strong enough where I could smell it. I would say moderate." Sekula affirmed to Officer Henning that he was in an accident on Prue Road, and explained that "he was traveling somewhere between 60 and 70 miles per hour, possibly 80, [when] he lost control." Referring to his notes, Officer Henning testified that Sekula told him, "To be honest with you, completely honest, there was alcohol involved." The officer described Sekula as polite, talkative, and his speech as "slurred." Sekula relayed to Officer Henning that he had purchased twenty Budweiser beers and that he had consumed "about six" of the beers and "half a shot of Jack Daniel's whiskey." On cross-examination, Officer Henning acknowledged Sekula told him the accident was not a result of his "being drunk," but because he was "stupid." Based on Sekula's appearance and demeanor, Officer Henning decided to administer field sobriety tests.

Outside the presence of the jury, defense counsel objected, asserting that because Officer Henning was an expert with regard to any testimony about the horizontal gaze nystagmus test or nystagmus in general, and the State failed to designate Officer Henning as an expert witness, pursuant to article 39.14(b), the officer was precluded from offering testimony about the field sobriety test or the causes of nystagmus. Defense counsel further explained he would have thesame argument with regard to forensic expert Debra Stephens if the State planned to call her as a witness.

Trial Court: Where were you yesterday before we went into voir dire and picked a jury when I said, "Is there anything before trial and before picking a jury that we need to talk to? Any pretrial motions, any other issues we need to take up outside the jury presence?" And the State said they had a motion in limine, and we talked about that. And I don't recall if you had anything at all, but you certainly didn't bring this up yesterday. Why not?

Defense Counsel: Judge, I don't know what they're going to do, what experts they're going to put on.

Trial Court: Well, why didn't you say, "Yes, I have an issue. They haven't given us a valid witness list." And, "Hey, by the way, they haven't given us our discovery for the breath test." You didn't say a word. Why?

Defense Counsel: The breath test was because we never received proper disclosure of the expert. And the witness list, it's not my job to cure their errors, Your Honor.

After the trial court denied his motion, defense counsel urged his sworn motion for continuance asserting that under the same principles, he could not effectively cross-examine either expert.

Trial Court: And why didn't you bring this to my attention yesterday before we spent four and a half hours picking a jury?

Defense Counsel: Judge, again, the State is just now bringing their experts.

Trial Court: Answer my question, Counsel. Why did you not bring it to my attention yesterday? If you wanted a continuance, you knew the State was going to put on breath-test evidence. We discussed it yesterday at length. You didn't say a word of it to the Court. Why didn't you object?

Defense Counsel: I don't know that they want to put on breath-test evidence. There's two other ways to prove this case.

Trial Court: Now, Counsel, you're not telling the truth, so have a seat and be quiet.

The jury was brought back into the courtroom and the trial proceeded. Officer Henning testified that he observed four clues out of six when he conducted the horizontal gaze nystagmus test on Sekula. The officer also testified that Sekula exhibited three clues out of eight on the walkand turn test, and one out of four clues on the one-leg stand test. Officer Henning further testified that, based on the totality of the circumstances, including his training and experience in viewing intoxicated individuals, he concluded Sekula was intoxicated. Sekula was placed under arrest and Officer Henning transported Sekula to booking where Sekula agreed to submit to a breath-alcohol test.

In addition to other officers at the scene, and lay witnesses, the State called Debra Stephens, a technical supervisor with Alamo Forensic Services. Stephens explained how alcohol affects an individual's central nervous system and how brake-reaction time in a vehicle will be slowed. She also testified that alcohol affects the optic nerve and an individual's ability to see clearly, specifically one's peripheral vision,...