Van Do v. State

Citation634 S.W.3d 883
Decision Date29 September 2021
Docket NumberNO. PD-0556-20,PD-0556-20
Parties Phi Van DO, Appellant v. The STATE of Texas
CourtTexas Court of Criminal Appeals

634 S.W.3d 883

Phi Van DO, Appellant
The STATE of Texas

NO. PD-0556-20

Court of Criminal Appeals of Texas.

Delivered: September 29, 2021

Clinton Morgan, Houston, for State of Texas.

Theodore Lee Wood, Austin, for Appellant.

Keller, P.J., delivered the opinion of the Court in which Hervey, Richardson, Newell, Keel and McClure, JJ., joined.

A first-time DWI is a Class B misdemeanor unless the State also proves that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, in which event it becomes a Class A misdemeanor. Appellant's charging instrument included the 0.15 allegation, but the State did not read the allegation until the punishment stage of trial. The parties agree that the 0.15 allegation is an element of the offense of Class A misdemeanor DWI. They also agree that an error occurred, but they disagree on what kind of error it is. The State also contends that the court of appeals erred in its harm analysis. Assuming the parties are correct that 0.15 allegation is an element, we conclude that the error would be the denial of the right to a jury determination of that element. We also conclude that this purported error was harmless because the 0.15 allegation was uncontroverted and the record indicates the defendant could not bring forth facts to contest it.


A. Facts

Appellant was charged by information with driving while intoxicated (DWI). The information included the aggravating allegation that "an analysis of a specimen of the defendant's BREATH showed an alcohol concentration level of at least 0.15 at

634 S.W.3d 887

the time the analysis was performed." The guilt stage of trial was before a jury and the punishment stage was before the trial court. At the guilt stage, the prosecutor read only the portion of the information that included the base elements of DWI, without the 0.15 aggravating allegation. Appellant pled "not guilty." No comment or objection was made by either party regarding the State reading only the base elements of the DWI offense to the jury.

The evidence at trial showed the following: Appellant's vehicle hit another car. Appellant approached the other car to ask if the occupants were okay, and one of the occupants noticed that Appellant smelled of alcohol. The police officer who investigated the offense noticed that Appellant smelled of alcohol and had slurred speech. Appellant admitted to the officer that he had been driving and had had two beers. Appellant was taken to the Houston Police Department Central Intoxilyzer station for further evaluation. While there, he took and failed two field sobriety tests: the one-leg-stand and the walk-and-turn tests. These were captured on video. According to the technician who later administered the breath test, Appellant slurred some of his words, but his mannerisms and speech patterns did not look like those of someone who was highly intoxicated.1

Appellant consented to a breath test. The technician who administered the breath test testified that he was a certified operator for the test, and he told the jury about the procedures he followed in connection with the test. He testified that the testing machine was not damaged, that he obtained "a valid breath sample" from Appellant, and that the machine produced a test showing a valid breath sample.2

A technical supervisor testified that the results for the two breath samples showed alcohol concentration levels of 0.194 and 0.205. She explained the scientific theory underlying the machine that analyzed the samples and said that this theory was accepted by the scientific community. She then explained how the instrument applied this theory and said that the instrument applied the theory properly in Appellant's case. She said that the machine was properly functioning when it took the breath samples, and it could accurately detect and quantitate alcohol on a person's breath. She also testified that there was a complete analytical report, that there were no incomplete test messages, that everything was clearly printed, that all of the error blanks were zeros, that the test was complete in the analysis box, and that the signature of the person who operated the machine was at the bottom of the report. She also testified that the two samples were within the allowed 0.02 concentration of each other. She also discussed the concept of tolerance to alcohol:

Tolerance is the ability to mask those outward signs of intoxication. Just because a person—just because a person has a high tolerance, does not mean
634 S.W.3d 888
their concentration will not show what they've had. If you had a six-pack of beer, your concentration will show you had a six-pack of beer even though you may not outwardly look like you consumed that much.

On cross-examination, the technical supervisor was asked various questions about the behavior she would expect from someone who tested at a 0.20: whether she would expect to see slurred speech, disorientation as to time and place, not being able to carry on a conversation, having mental confusion, passing out, or not being able to converse and tell people their phone numbers and how to travel up and down the freeways. To all of these questions she responded, "It's a possibility." At the end of these series of questions, she added, "Everybody shows outward signs of intoxication differently." When asked if "those are the standard things that you would expect that with a breath test result that is purportedly that high," she responded, "Again I can't look at a person and say, this person is a .20 based off their actions. Everybody shows signs of intoxication differently." She also acknowledged that radio frequency interference with a test was possible.

The technical supervisor further testified on cross-examination that the operational system check for the test occurred at 11:56 p.m. She said that this is when the test technically began. She said that the first breath sample was taken at midnight. She admitted that, in a sworn affidavit for an administrative license revocation (ALR) hearing, she stated that the breath test started at 11:55 p.m. and that this was an inconsistent starting time from what she testified to at trial.

On redirect examination, the technical supervisor testified that any radio frequency interference with the breath test would have caused an incomplete result, and she agreed that "since we have a valid test here, that did not happen."

In closing argument, defense counsel contended that the discrepancy in the technical supervisor's testimony regarding the start time for the breath test "makes the test erroneous." Defense counsel characterized the discrepancy as between 11:55 p.m. and midnight. Defense counsel also contended that the video showed that Appellant's speech was not slurred, that he was "in tune with time and place," and that his speech was otherwise clear. He also argued, "You don't get a 19 or a 2-0 and then have somebody evidence clear speech."

The jury charge alleged the base elements of DWI: that the defendant operated a motor vehicle in a public place while intoxicated. "Intoxicated" was defined as either (1) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, or (2) having an alcohol concentration of .08 or more. The jury charge did not include the 0.15 aggravating allegation, and neither party objected to its absence. The jury returned a guilty verdict and was released from service.

Four days later, the trial judge held the punishment stage of trial. At the beginning of the proceeding, the State read the 0.15 aggravating allegation. Defense counsel objected:

Your Honor, that element was not presented to the jury for their consideration as part of deliberations. We would object to the enhanced element at this time. They tried it as a loss of use case.

The State responded:

The response from the State is that it's a punishment element. It wasn't an element of the actual offense. We did have evidence that the analysis of the breath was above a .15. We tried it as—all
634 S.W.3d 889
three were able to prove intoxication and the BAC actually came out at trial.

The trial court overruled the objection and immediately found the 0.15 aggravating allegation to be true. No evidence was presented at the punishment stage, the State offered no closing argument, and defense counsel requested probation.

When the trial court asked if there was any legal reason why the Court should not impose punishment, defense counsel and Appellant both said that there was not. The trial court then assessed a sentence of one year, probated the sentence for twelve months, assessed a fine of $250, and talked about some conditions of probation. The trial court asked the defendant if he had any questions, and the defendant said that he did not. The trial court then asked, "Anything else from anyone?" The prosecutor and defense counsel both responded that they had nothing further to say.

B. Appeal

Appellant complained on appeal about the trial court's determination of the 0.15...

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5 cases
  • Scott v. State
    • United States
    • Court of Appeals of Texas
    • October 24, 2022
    ...State reintroduce the evidence heard before the charging instrument was read (or the parties can stipulate to the evidence). Do v. State, 634 S.W.3d 883, 892 (Tex. Crim. App. 2021); see Warren, 693 S.W.2d at 416 ("The procedure to be followed has been long established: upon learning of the ......
  • Carter v. State
    • United States
    • Court of Appeals of Texas
    • June 8, 2022
    ...alleged error, if any, was harmful to the outcome of his case, and therefore has not shown that reversal is appropriate. Van Do v. State, 634 S.W.3d 883, 899 (Tex. Crim. App. 2021). Instead, Appellant has offered a narrative that purports to substantiate his position and has urged us to acc......
  • Lira v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • January 11, 2023
    ...parte Martin, 747 S.W.2d 789, 792-93 (Tex. Crim. App. 1988). [33] 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). [34] See also Do v. State, 634 S.W.3d 883, 897 (Tex. Crim. App. 2021) ("But only federal constitutional errors can be structural, and most are not."). [35] Greer v. United States, 1......
  • Stredic v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 11, 2022
    ...mandatory requirement, is categorically immune to a harmless error analysis."). We reaffirmed that principle just last year. Do v. State, 634 S.W.3d 883, 896-97 (Tex. Crim. App. 2021) ("If an error is 'structural,' it is exempt from a harm analysis. But only federal constitutional errors ca......
  • Request a trial to view additional results
4 books & journal articles
  • Post-trial issues
    • United States
    • James Publishing Practical Law Books Texas Criminal Lawyer's Handbook. Volume 1-2 Volume 2
    • May 5, 2022
    ...the court can determine “beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” Van Do v. State, 634 S.W.3d 883, 897 (Tex. Crim. App. 2021). §21:51 Forms for Appeals See our companion book Texas Criminal Forms (James Publishing) for the following sampl......
  • Pretrial motions
    • United States
    • James Publishing Practical Law Books Texas Criminal Lawyer's Handbook. Volume 1-2 Volume 1
    • May 5, 2022
    ...allegation, but the introduction of evidence before the charging instrument or punishment allegation was read. Van Do v. State, 634 S.W.3d 883, 892-3 (Tex. Crim. App. 2021). When the charging instrument was not read at all, the remedy on appeal is a new trial, since, in such a case, none of......
  • Trial issues
    • United States
    • James Publishing Practical Law Books Texas Criminal Lawyer's Handbook. Volume 1-2 Volume 2
    • May 5, 2022
    ...of an “element” of the offense from the jury instructions in violation of the constitutional right to a jury trial. Van Do v. State, 634 S.W.3d 883, 897 (Tex. Crim. App. 2021). Reversible error in the giving of an abstract instruction generally occurs only when the instruction is an incorre......
  • The Elements of DWI
    • United States
    • James Publishing Practical Law Books Texas DWI Manual Legal principles
    • May 5, 2023
    ...the Court of Criminal Appeals has been unwilling to clarify the issue—even when given a perfect opportunity to do so. Do v. State, 634 S.W.3d 883 (Tex. Crim. App. 2021) Facts: Appellant was charged with DWI by an information that included the allegation that his breath showed an alcohol con......

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