Vrba v. State

• Decision Date: 30 January 2002
• Docket Number: No. 10-00-083-CR.,10-00-083-CR.
• Parties: Lynwood Anthony VRBA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

69 S.W.3d 713

Lynwood Anthony VRBA, Appellant, v. The STATE of Texas, Appellee.

No. 10-00-083-CR.

Court of Appeals of Texas, Waco.

January 30, 2002.

W.V. Dunnam, Jr., Dunnam & Dunnam, L.L.P., Waco, for appellant.

John W. Segrest, McLennan County Dist. Atty., James Wiley, McLennan, County Asst. Dist. Atty., Waco, appellee.

Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.

OPINION

REX D. DAVIS, Chief Justice.

A jury convicted Lynwood Anthony Vrba of felony driving while intoxicated. The jury found that Vrba had been previously convicted of two felonies alleged to enhance his punishment to that for an habitual offender and sentenced him to sixty years' imprisonment. Vrba presents twenty-seven issues on appeal. We will reverse.

In general terms, Vrba alleges that the court erred by:

• allowing the State to read its allegations of eight prior DWI convictions to the jury after the parties had initially stipulated that he was the same person convicted in two of them (issues 1-5 and 26-27);

• permitting the State to mention his "confession" of intoxication in opening statements and admitting it in evidence because it was the product of a custodial interrogation and made without the benefit of Miranda warnings (issues 6-8);

• overruling his objection to the absence from the charge of an article 38.23 instruction (issues 9-10);

• overruling his objection to the absence from the charge of an instruction on the necessity defense (issue 11);

• overruling his objection and refusing his request for an instruction to disregard the State's attempt to admit the offense report in evidence (issues 12-13); and

• permitting the State to introduce a prior DWI conviction for an offense committed before September 1, 1994 for which he had received a probated sentence (issues 14-16).

Vrba contends in his remaining issues that:

• the verdict does not support his conviction because the jury was not required to make specific findings on each prior conviction alleged in the indictment (issues 17 and 21-23);

• the charge erroneously refers to other substances besides alcohol as possible intoxicants (issues 18-20); and

• assessing his punishment within the range for an habitual offender constitutes cruel and unusual punishment (issues 24-25).

BACKGROUND

A Bellmead police officer transporting arrestees to jail observed a red car driving in a manner which led him to believe the driver was intoxicated. He requested assistance via a radio broadcast. Texas Alcoholic Beverage Commission Agent Danny Pavlas responded to his call. According to Pavlas, he observed a red car driving in his direction which matched the description given in the radio broadcast. The car was traveling between twenty and thirty miles per hour though the posted speed limit was fifty-five. Pavlas saw the Bellmead officer following the red car.

As Pavlas approached, the red car drifted across the centerline of the highway. Pavlas moved to the right shoulder to avoid a collision then turned around to follow. He confirmed with the Bellmead officer that this was the suspect vehicle. As he followed both cars, he observed the red car again drift into the oncoming lane and then back across to the shoulder. Pavlas directed the Bellmead officer to activate his overhead lights and stop the car. After the red car pulled over, the Bellmead officer continued on to jail.

As Pavlas approached the driver's-side door, he noticed that Vrba was in the driver's seat and Sherry Reece was in the front passenger's seat. He smelled "a strong odor of alcohol coming from the vehicle." He asked Vrba to step to the rear of the car. Vrba held his car for support as he walked to the rear. He leaned against the back of the car once there. Pavlas noticed that Vrba "had a strong odor of alcohol coming from his breath," bloodshot eyes, and slurred speech. Pavlas asked Vrba whether he had been drinking. Vrba responded, "Yes, lots." Pavlas then asked Vrba to perform some field sobriety tests, which he refused. Vrba told him, "I am drunk. I don't need a test to tell you I am drunk. I am drunk. This ain't my first rodeo."

Vrba disputed much of Pavlas's testimony. He testified that Reece called him at home and asked him to join her at a local bar to "have a beer." Vrba went to the bar and "drank a beer and a half." At that point, they decided to go to Vrba's house. Reece drove as they left the bar. Because Vrba complained about the manner in which she was driving, she pulled over and allowed him to drive. Vrba testified that he "had not driven a hundred yards" before he was stopped. He explained that he had not had sufficient time to reach the posted speed limit before the stop. He insisted that he drove appropriately and never crossed into the oncoming lane of traffic.

PROCEDURAL BACKGROUND

The indictment as amended alleges that Vrba was intoxicated "by reason of the introduction of alcohol, a controlled substance, a drug, or a dangerous drug into his body." The indictment alleges eight prior DWI convictions from 1968 to 1995 to elevate the offense to a third degree felony. The indictment alleges two non-DWI felonies to enhance his punishment to that for an habitual offender.

Under the authority of the Court of Criminal Appeals decision in Tamez v. State, Vrba sought to stipulate to two of the prior DWI convictions alleged to prevent the State from reading all eight allegations to the jury or admitting evidence of them during the guilt-innocence phase. 11 S.W.3d 198, 202-03 (Tex.Crim.App. 2000). When the State read the allegations of the indictment to the jury at the beginning of the guilt-innocence phase, it read only the two prior DWI allegations to which Vrba had offered to stipulate. A dispute arose during trial about the terms of the stipulation. The court then allowed the State to read all eight allegations to the jury and offer evidence of the prior convictions over Vrba's objection.

At the conclusion of the guilt-innocence phase, Vrba asked the court to submit an instruction to the jury under article 38.23 of the Code of Criminal Procedure because of the conflicts between Vrba's testimony and the evidence offered by the State regarding the basis for the stop. The court denied this request.

The jury found Vrba guilty as charged. At punishment, the jury found both enhancement allegations true and sentenced him to sixty years' imprisonment.

ARTICLE¹ 38.23 INSTRUCTION

Vrba's ninth and tenth issues challenge the court's failure to submit an article 38.23 instruction in the charge. The State responds that Vrba's "self-serving testimony" did not present a factual dispute sufficient to require submission of such an instruction.

Specifically, Vrba contends in his ninth issue that the court erred by failing to submit an instruction in the application paragraph of the charge which directed the jury to acquit him if it found that Pavlas did not have a legally permissible basis for the stop. He argues in his tenth issue that the court erred by failing to submit an instruction to the jury that it not consider any evidence seized as a result of the stop if it found that Pavlas did not have a legally permissible basis for the stop.

Article 38.23(a) provides as follows:

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Tex.Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp.2002).

The Court of Criminal Appeals has construed article 38.23(a) to mean that, "when conflicting evidence raises an issue regarding the right to stop a driver, a court is statutorily bound to include a requested charge on this issue." Reynolds v. State, 848 S.W.2d 148, 149 (Tex.Crim.App.1993); accord Gerron v. State, 57 S.W.3d 568, 572 (Tex.App.—Waco 2001, pet. filed); Stoutner v. State, 36 S.W.3d 716, 720 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd); see also Pierce v. State, 32 S.W.3d 247, 251 (Tex.Crim.App.2000) (article 38.23 instruction required "only if there is a contested issue of fact").

In many cases in which an article 38.23 instruction is required, a trial court may instruct the jury to not consider any evidence which was obtained as a result of the contested search or seizure if the jury finds that the facts do not provide a valid basis for the search or seizure. See, e.g., Coleman v. State, 45 S.W.3d 175, 181 (Tex. App.—Houston [1st Dist.] 2001, pet. ref'd) ("Therefore, if you believe beyond a reasonable doubt that the peace officer lawfully obtained the evidence, you may consider it. If you have a reasonable doubt that the peace officer lawfully obtained the evidence you may not consider it."). Even assuming an affirmative finding however, an acquittal will not necessarily follow if the State has other evidence of guilt obtained apart from the illegal search or seizure. See, e.g., Oliver v. State, 10 S.W.3d 411, 416 (Tex.App.—Waco 2000, no pet.).

Conversely, when as in Vrba's case the entirety of the State's case rests on the validity of a traffic stop, the trial court may properly instruct the jury that it must enter a verdict of acquittal if it finds that the facts do not provide a valid basis for the search or seizure. See, e.g., Reynolds v. State, 967 S.W.2d 493, 495 (Tex.App.—Houston [1st Dist.] 1998), aff'd, 4 S.W.3d 13 (Tex.Crim.App.1999) ("since you will have no further evidence to consider, you shall return a verdicr [sic] of `Not Guilty.'").

Pavlas offered two justifications for Vrba's stop: (1) his driving slowly; and (2) his crossing into the...