Smith v. State
| Decision Date | 29 July 2013 |
| Docket Number | NUMBER 13-11-00694-CR |
| Parties | WILLIAM SMITH A/K/A BILL SMITH, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 94th District Court
of Nueces County, Texas.
MEMORANDUM OPINIONBefore Justices Garza, Benavides, and Perkes
Appellant William Smith a/k/a Bill Smith appeals his conviction for driving while intoxicated—third offense,1 a third-degree felony enhanced to a habitual felony offender. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp. 2011). The trial courtfound appellant guilty and, on finding two prior felony conviction enhancements to be true,2 assessed punishment at twenty-five years imprisonment. See id. § 12.42(d). By four issues, appellant complains the trial court erred by: (1) refusing to appoint a new attorney on the day of trial; (2) admitting blood sample evidence; (3) allowing fingerprint expert testimony and admitting prior judgments authenticated thereby; and (4) finding that the evidence was sufficient to show two prior felony convictions. We affirm.
State trooper David Anguiano stopped appellant's vehicle because appellant was driving without wearing a seat belt. Upon approaching appellant's vehicle, Officer Anguiano "smelled the strong odor of some sort of alcoholic beverage coming from him" and saw "alcohol containers spread out throughout the vehicle." Officer Anguiano observed that appellant's movements were slow and that he had glassy, blood-shot eyes. Officer Anguiano administered five field sobriety tests; appellant failed three of them. Officer Anguiano arrested appellant for driving while intoxicated.
Officer Anguiano testified that appellant made "a statement to the fact that it was a felony D.W.I. for him." Officer Anguiano "ran [appellant's] information" with his in-car computer and verified appellant's criminal history with the communications operator. Upon learning appellant had two previous D.W.I. convictions, Officer Anguiano believed he was authorized by law to obtain a mandatory blood draw. Appellant did not give hisconsent, and no warrant was obtained. The blood draw was taken about one hour after appellant was stopped.
Anna Marie Quintanilla testified that she worked as a medical technologist at Northwest Regional Hospital and that part of her duties include collecting blood and testing specimens. She stated that she is a licensed medical technologist with twenty years of experience, and that she is qualified to draw blood specimens. She explained the standard procedures. She testified that she collected appellant's blood sample and that the blood sample was taken using reliable hospital procedures recognized by the scientific community and as required by State regulations.
Emily Bonvino, a Department of Public Safety forensic scientist, testified regarding the blood test results. Appellant's blood sample contained .21 grams of alcohol per 100 milliliters of blood.
By his fourth issue, appellant contends the trial court erred "by forcing appellant to trial with appointed counsel to whom appellant objected." Appellant's issue inquires whether appointed counsel had a duty to timely relay appellant's request for new counsel to the court and whether appellant is entitled to rely on appointed counsel in discharging his duties. Appellant, however, does not cite any authority that supports his argument for reversal based upon defense counsel's alleged duty to notify the trial court concerning appellant's desire for the appointment of other counsel.
We review a trial court's ruling on a motion for withdrawal and replacement of appointed counsel under an abuse of discretion standard. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000) (en banc). As expressed in King:
[T]he right to counsel may not be manipulated so as to obstruct the judicial process or interfere with the administration of justice. Further, personality conflicts and disagreements concerning trial strategy are typically not valid grounds for withdrawal. A trial court has no duty to search for counsel agreeable to the defendant.
Id. (citations omitted).
Once a trial court appoints an attorney to represent an indigent defendant, the defendant has been accorded the protections provided under the Sixth and Fourteenth Amendments to the United States Constitution and Article 26.04 of the Texas Code of Criminal Procedure, and the defendant then carries the burden of proving entitlement to a change of counsel. See U.S. CONST. amend. VI, XIV; TEX. CODE CRIM. PROC. ANN. art. 26.04 (West 2011); Barnett v. State, 344 S.W.3d 6, 24 (Tex. App.—Texarkana 2011, pet. ref'd) (citing Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976)); see also Hill v. State, 686 S.W.2d 184, 187 (Tex. Crim. App. 1985); Watkins v. State, 333 S.W.3d 771, 775 (Tex. App.—Waco 2010, pet. ref'd); Maes v. State, 275 S.W.3d 68, 71 (Tex. App.—San Antonio 2008, no pet.) ( that defendant is responsible for "making the trial court aware of his dissatisfaction with counsel, stating his grounds for his dissatisfaction, and offering evidence in support of his complaint"). A defendant may not wait until the day of trial to demand different counsel or to request counsel be dismissed so he may retain other counsel. Webb, 533 S.W.2d at 784; Gilmore v. State, 323 S.W.3d 250, 264 (Tex. App.—Texarkana 2010, pet. ref'd).
During a break in the State's first witness's testimony, appellant informed the trial court that "everything has happened so fast lately, and I really—I didn't feel that I was being represented in the way that I need to be." Appellant stated he was present under duress because he was not being represented in the manner he preferred and that hisattorney refused to "relieve himself" despite appellant's persistent requests. The record is otherwise silent in that regard. The trial court denied appellant's motion to dismiss his attorney and to appoint a new one, noting that the case was "seven months old" and that appellant had never written the trial court or in any other manner communicated his alleged duress prior to that moment.
We hold that appellant's conclusory and untimely claim that his attorney was not satisfactorily representing him did not show appellant was entitled to a change of counsel. See Hill, 686 S.W.2d at 187; Watkins, 333 S.W.3d at 775; Maes, 275 S.W.3d at 71. The trial court did not abuse its discretion by denying his day-of-trial request. See Webb, 533 S.W.2d at 784; Gilmore, 323 S.W.3d at 264. We overrule appellant's fourth issue.
By his first issue, appellant argues the trial court erred by admitting a blood sample that was allegedly taken in violation of the Fourth Amendment of the United States Constitution and section 724 of the Texas Transportation Code. See U.S. CONST. amend. IV; TEX. TRANSP. CODE ANN. § 724.012(b)(3)(B) (West 2011).
Appellant argues that the United States Supreme Court's recent holding in Missouri v. McNeely, which was decided while this appeal was pending,4 invalidates his blood draw because "the State did not meet its burden of demonstrating an exigent circumstance existed . . . ." See 133 S.Ct. 1552, 1567-68 (2013). Appellant asserts the trial court erred by admitting the blood draw evidence because the warrantless seizure ofa person's blood is not permitted under the Fourth Amendment to the United States Constitution without a showing of exigent circumstances. See id.; U.S. CONST. amend. IV. The State claims appellant failed to preserve this issue for review on appeal. We agree with the State.
Preservation of error is a prerequisite to presenting a claim on appeal. See TEX. R. APP. P. 33.1(a). Even constitutional errors can be waived by the failure to preserve them. See Trevino v. State, 174 S.W.3d 925, 927 (Tex. App.—Corpus Christi 2005, pet. ref'd) (citing Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986)). To preserve error, an appellant must timely object, specify the grounds for the objection, and obtain a ruling. TEX. R. APP. P. 33.1(a); see Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (en banc). The trial court's "ruling must be conclusory; that is it must be clear from the record the trial judge in fact overruled the defendant's objection or otherwise error is waived." Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991) (en banc) (citing Bailey v. State, 532 S.W.2d 316, 322 (Tex. Crim. App. 1975)); see Ochoa v. State, 119 S.W.3d 825, 828 (Tex. App.—San Antonio 2003, no pet.); see also Hernandez v. State, No. 13-11 -00230-CR, 2012 WL 1255202, at *9 (Tex. App.—Corpus Christi Apr. 12, 2012, no pet.) (mem. op., not designated for publication).
A trial court's ruling on an objection may be implicit rather than explicit. See TEX. R. APP. P. 33.1(a)(2)(A). A trial court implicitly rules on an objection when "its actions or other statements otherwise unquestionably indicate a ruling." Rey v. State, 897 S.W.2d 333, 336 (Tex. Crim. App. 1995) (citing Moody v. State, 827 S.W.2d 875 (Tex. Crim. App. 1992)); see Montanez v. State, 195 S.W.3d 101, 104 (Tex. Crim. App. 2006); Dahlem v. State, 322 S.W.3d 685, 691 (Tex. App.—Fort Worth 2010, pet. ref'd).
Appellant did not move to suppress the blood sample evidence before trial, but objected to its admission during trial on the grounds that, inter alia, section 724.012 of the Texas Transportation Code, under which appellant's blood was seized, was unconstitutional.5 The trial court did not rule on appellant's constitutionality objection, but carried the issue. The State subsequently again moved to admit the blood sample evidence, and appellant again generally objected on constitutional grounds. The trial court thereafter admitted the blood sample evidence but reserved the constitutional issue, assuring appellant's counsel he would have an opportunity to brief the...
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