State v. Lyons

• Decision Date: 07 March 1990
• Docket Number: No. 2-88-021-CR,2-88-021-CR
• Citation: 785 S.W.2d 946
• Parties: The STATE of Texas, Appellant, v. Thomas Michael LYONS, Appellee.
• Court: Texas Court of Appeals

Page 946

785 S.W.2d 946

The STATE of Texas, Appellant, v.Thomas Michael LYONS, Appellee.

No. 2-88-021-CR.

Court of Appeals of Texas Fort Worth.

March 7, 1990.

Rehearing Denied April 10, 1990.

Jerry Cobb, Criminal Dist. Atty., Gwinda Burns, Asst. Dist. Atty., Denton, for appellant.

Fred Marsh, Denton, for appellee.

Before WEAVER, C.J., and KELTNER and JOE SPURLOCK, II, JJ.

OPINION

WEAVER, Chief Justice.

The State appeals from the trial court's grant of a new trial to appellee, Thomas Michael Lyons(Lyons).SeeTEX.CODE CRIM.PROC.ANN. art. 44.01(a)(3)(Vernon Supp.1990).Lyons was convicted by a jury of driving while intoxicated (DWI).SeeTEX.REV.CIV.STAT.ANN. art. 6701l-1(Vernon Supp.1990).The jury assessed punishment at sixty days confinement in the county jail, recommending that the confinement be probated, and a fine of $600.The trial court entered judgment in accordance with the verdict, suspending the jail term and placing Lyons on probation for twenty-four months.

The trial court granted a new trial to Lyons based on Lyons' motion for new trial which alleged: (1) that the trial court misdirected the jury in its charge that the jury could find Lyons guilty if it found that Lyons did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body or if it found Lyons had a breath alcohol concentration of at least 0.10 grams of alcohol per 210 liters of breath; (2) that the State suppressed evidence by failing to videotape Lyons because it was the policy of the Department of Public Safety(DPS) not to videotape and that the jury's verdict of guilty was contrary to the court's charge on the failure to videotape; and (3) that the arresting officer failed to advise Lyons of his right to a blood test, and that the jury's verdict of guilty was contrary to the court's charge in that regard.Lyons maintained that the latter two errors rendered the jury's verdict contrary to the law and the evidence.SeeTEX.R.APP.P. 30(b)(9).In accordance with TEX.R.APP.P. 31(e)(2), the trial judge granted the motion without any indication of his findings in doing so.

We affirm the trial court's order granting the new trial.

We first dispose of appellee's "Additional Reply Point" where appellee complains that only the "head prosecuting attorney" is authorized to "handle" State appeals pursuant to TEX.CODE CRIM.PROC.ANN. art. 44.01.Appellee points out that the State is only authorized to appeal the grant of a new trial by way of a "prosecuting attorney."Id.art. 44.01(a)(3) and (d)."Prosecuting attorney" is defined as:

[T]he county attorney, district attorney, or criminal district attorney who has the primary responsibility of prosecuting cases in the court hearing the case and does not include an assistant prosecuting attorney.

Id.art. 44.01(i).The rule states who may make an appeal on behalf of the State, but says nothing about who may "handle" the appeal.However, appellee makes no allegation that the relevant district attorney did not make this appeal.Appellee is complaining that the brief and argument were submitted to this court by an assistant district attorney, rather than by the district attorney himself.

We note that the notice of appeal by the State was signed by the district attorney.We believe that this action satisfied article 44.01(i)(that the State's appeal must be made by the district attorney, and not an assistant).We do not agree with appellee that the rule calls for the district attorney to personally "handle" every aspect of all appeals by the State.Not only is such a reading well beyond the meaning of the rule on its face, it also would be highly impractical to so constrain the activities of the district attorney.Therefore, we hold this appeal by the State was properly made, and appellee's reply point is overruled.

The State brings three points of error corresponding to three grounds alleged in the motion for new trial.Because any of Lyons' grounds may be sufficient to allow the grant of a new trial, we conclude that we must affirm the trial court's order if we determine that the court acted within its discretion in granting the motion under any one of the grounds alleged.We concentrate our discussion on the second ground, the issues related to the failure to videotape Lyons.However, we will first discuss the trial court's power to order a new trial.

From the early days of our State, appellate courts have recognized the difference between the appellate court's right to reverse a judgment and the trial court's power to exercise discretion in granting a new trial:

The District Court must exercise a certain discretion in the granting or refusing of new trials.In considering the motion the court may judge not only of the competency but of the effect of evidence.There may be cases where the court might well grant a new trial if, in the opinion of the presiding judge, injustice had been done; while, at the same time, should a new trial be refused, this court would not be warranted in reversing the judgment.The judge who presides at the trial is afforded much better and more ample means of judging of the merits of the application than the revising court can be.And therefore it is the governing rule of the action of this court, affirmed and enforced by repeated decisions from the earliest cases upon the subject to the present time, not to reverse the judgment of the District Court refusing a new trial unless some principle of law has been violated, misconceived, or disregarded to the prejudice of the party, or there is good reason to apprehend that injustice has been done in refusing the application.

Jordan v. State, 10 Tex. 479, 502(1853)(affirming a criminal conviction).

During the period in which it had jurisdiction over criminal cases, the Texas Supreme Court repeatedly exhorted the district courts, who had both the jury and witnesses before them, to grant new trials whenever it appeared that justice had not been done.See, e.g., Owens v. State, 35 Tex. 361, 362(1871-72).The high court noted that district courts did not have to abide by the stringent rules governing appellate courts, but should apply a more liberal rule in granting new trials.Id. at 362-63.

In Mullins v. State, 37 Tex. 337(1872-73), the court concluded that:

The discretion of the District Court, in granting new trials, is almost the only protection to the citizen against the illegal or oppressive verdicts of prejudiced, careless, or ignorant juries, and we think the District Courts should never hesitate to use that discretion whenever the ends of justice have not been attained by those verdicts.

Id. at 339-40.See alsoState v. Webb, 41 Tex. 67, 69, 75-76(1874) wherein the supreme court upheld the trial court's arrest of judgment which followed the jury's verdict of guilt.In Webb, the court again admonished trial courts to protect accused citizens "from the effects of law illegally administered" by the jury.Id. at 76.

While much of our criminal law has changed since the above four cases were decided, case law still holds that we may only reverse the trial court's grant of a new trial when we find a clear abuse of the trial court's discretion.See, e.g., Appleman v. State, 531 S.W.2d 806, 810(Tex.Crim.App.1975);Knox v. State, 111 Tex.Crim. 601, 13 S.W.2d 378, 378(1929);State v. Thomas, 768 S.W.2d 335, 336-37(Tex.App.--Houston[14th Dist.]1989, no pet.);25 TEX.JUR.3dCriminal Law sec. 3570(1983); and the following cases cited by Lyons: Hill v. State, 480 S.W.2d 670, 673(Tex.Crim.App.1972);Tsamouris v. State, 472 S.W.2d 141, 142(Tex.Crim.App.1971);Bryan v. State, 406 S.W.2d 210, 216(Tex.Crim.App.1966), cert. denied, 386 U.S. 1023, 87 S.Ct. 1378, 18 L.Ed.2d 461(1967);Davis v. State, 649 S.W.2d 380, 382(Tex.App.--Fort Worth1983, pet. ref'd).

The statute upon which Lyons based his second ground for new trial reads as follows:

Section 24.(a) Each county with a population of 25,000 or more according to the most recent federal census shall purchase and maintain electronic devices capable of visually recording a person arrested within the county for an offense under Article 6701L-1, Revised Statutes, or Subdivision (2), Subsection (a), Section 19.05, Penal Code.

(b) The sheriff of the county shall determine upon approval by the county commissioners court the number of devices necessary to ensure that a peace officer arresting a defendant for an offense listed in Subsection (a) of this section may visually record the defendant's appearance within a reasonable time after the arrest.

(c) The fact that an arresting officer or other person acting on behalf of the state failed to visually record a person arrested for an offense listed in Subsection (a) of this section is admissible at the trial of the offense if the offense occurred in a county required to purchase and maintain electronic devices under this section."

Driving While Intoxicated Act, ch. 303, sec. 24, 1983 Tex.Gen.Laws 1568, 1605, hereinafter referred to as "the statute."This statute is located at the conclusion of TEX.REV.CIV.STAT.ANN. art. 6701l-1.Our court has stated that the statute contemplates and requires that visual recordings be made of DWI suspects.SeeWeaver v. State, 700 S.W.2d 776, 777(Tex.App.--Fort Worth1985, pet. ref'd).¹

The substantive law underlying the trial court's grant of a new trial in this case is discussed in a trio of United States Supreme Courtcases dealing with "access to evidence" issues.Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281(1988);California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413(1984);United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193(1982).

In Youngblood, the State negligently failed to preserve semen samples which might have exonerated the defendant.Youngblood, 488 U.S. at ----, 109 S.Ct. at 334-35.However, the high Court found no...