Wappler v. State

• Decision Date: 08 December 2005
• Docket Number: No. 01-01-00389-CR.,01-01-00389-CR.
• Citation: 183 S.W.3d 765
• Parties: Donovan Keith WAPPLER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

183 S.W.3d 765

Donovan Keith WAPPLER, Appellant, v. The STATE of Texas, Appellee.

No. 01-01-00389-CR.

Court of Appeals of Texas, Houston (1st Dist.).

December 8, 2005.

Rehearing Overruled January 26, 2006.

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Donovan Wappler, Mark R. Yanis, Grant Matthew Scheiner, Houston, TX, for Appellant.

Lori Deangelo Fix, Assistant Dist. Atty., Houston, TX, for Appellee.

Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.

OPINION ON REMAND FROM THE COURT OF CRIMINAL APPEALS

ELSA ALCALA, Justice.

A jury found appellant, Donovan Keith Wappler, guilty of the misdemeanor offense of driving while intoxicated (DWI). The trial court, in accordance with an agreement between appellant and the State, assessed appellant's punishment at 42 days in jail. On appeal, appellant argued that the trial court erred in imposing a 15-minute time limit on voir dire. We found that, by objecting to the trial judge's proposed dismissal of the panel, appellant waived his right to complain that he did not have an adequate opportunity to conduct voir dire of the panel because any error caused by the voir-dire limitation would have been cured by the dismissal of the jury panel.¹ See Wappler v. State, No. 01-01-00389-CR (Tex.App.-Houston [1st Dist.] Jan. 9, 2003), reh'g denied, opinion withdrawn, substituted opinion at 104 S.W.3d 661. Appellant subsequently filed a motion for rehearing with this Court. We denied the motion, but withdrew our original opinion and substituted a new opinion. See Wappler v. State, 104 S.W.3d 661 (Tex.App.-Houston [1st Dist.] 2003). In our substituted opinion, we held that appellant was estopped from complaining about the voir-dire time limitation because he affirmatively asked the court to seat a jury from the venire that he claimed he did not have adequate opportunity to question. Id. at 665-66.

Appellant subsequently filed a petition for discretionary review with the Court of Criminal Appeals to challenge our holding that he was estopped from complaining about an inadequate opportunity to conduct voir dire after objecting to the trial judge's expressed intent to dismiss the panel.² The Court of Criminal Appeals reversed and remanded the case to this Court with instructions to consider the merits of this issue. See Wappler v. State, 138 S.W.3d 331 (Tex.Crim.App.2004). Accordingly, on remand, we addressed the merits of appellant's first point of error, that the trial court erred by giving him only 15 minutes to conduct voir dire. Appellant moved for en banc reconsideration of our opinion issued February 24, 2005. We withdraw that opinion and vacate its judgment, issue this opinion in its stead, and deny appellant's motion for en banc reconsideration as moot. We reverse the cause and remand for a new trial.

Facts

On December 2, 2000, Mary Chang was on her way from work when she stopped at a yield sign. Appellant, who was driving a Ford Taurus, hit her car from the rear. Chang got out of her car and saw that appellant was the only person in the Taurus. As Chang approached appellant to ask him what had happened, she could smell alcohol on his breath.

Chang called 911 from her cell phone and then called her husband. Chang noticed that appellant was "unbalanced" when he got out of his car, and that he had to hold onto his car to walk. Chang testified that appellant was "completely drunk." When Chang asked appellant for his insurance information, he handed her three cards, but he did not say anything. Appellant said that he wanted to go to a gas station to make a telephone call. Chang was afraid that appellant would have an accident if he left, so she handed him her cellular telephone. Appellant was unable to dial, so he handed Chang's telephone back to her, and she dialed the number for him. While they were waiting for EMS, appellant got inside his car. Chang noticed that appellant appeared to be cleaning the inside of his car.

Chang's husband, Steve Fargo, arrived at the scene within 10 to 15 minutes after the accident. Fargo smelled alcohol on appellant's breath and noticed that appellant was disoriented and seemed to be "meandering" around. Fargo called the police from the scene and again told them where the accident was located. Appellant interrupted and insisted that they were on Highway 249, rather than the Sam Houston Parkway at Bammel North Houston.

Harris County Constable Steven Romero arrived at the scene at about 7:50 p.m. He noticed that appellant had alcohol on his breath, that his speech was "kind of slurred," and that he had bloodshot eyes. Fargo told the officer that he had seen appellant wiping his dashboard with a rag before Romero arrived. Romero found a rag on the ground that smelled like alcohol.

Romero performed a horizontal gaze nystagmus (HGN) test, on which appellant exhibited all six clues.³ He then asked appellant to perform several field sobriety tests, but appellant refused. Appellant was uncooperative, insisted that he had done nothing wrong, and refused to put his hands on the car. Romero grabbed appellant's sleeve, placed appellant's hands on the car, handcuffed him, and patted him down. Romero testified that appellant's pants were wet and that, after he patted appellant down, Romero's hand smelled like urine. Appellant was placed in the back of the patrol car. Romero gave appellant no statutory warnings at the scene.

At some point during the investigation, Romero asked appellant whether he had been drinking. Appellant stated that he had been drinking at a casino in Louisiana, but that he had taken his last drink two hours earlier. Romero took appellant to the police station, where he was read his statutory rights. Romero offered appellant a breath test, which he refused. Appellant also refused to perform any field-sobriety tests. Appellant's refusals were videotaped; the videotape showed appellant to be belligerent.

Procedural History

During jury selection at appellant's trial, the jury panel initially consisted of 20 people. The trial judge conducted preliminary voir dire of the venire members. The trial judge introduced herself and had the attorneys stand and introduce themselves. She asked the panel members if anyone knew either herself or the attorneys. She asked the panel if they were qualified voters in Harris County; if anyone had ever been convicted of theft or any felony; if anyone was under indictment or legal accusation for theft or any felony; if anyone had ever been arrested; if anyone had himself or had someone close to him been arrested or charged with DWI; if everyone could read English; and if anyone had anything private to discuss with the Court. The trial judge instructed the venire members that she would speak individually to anyone who had any information on these topics.

At the bench, for about an hour, the trial court and the attorneys each questioned the jurors who had information concerning the topics addressed by the Court. Of the panel of 20 venire members, nine people had information concerning the trial court's voir-dire questions. The trial court and both the State's and the appellant's attorneys each individually questioned venire members 1, 2, 4, 7, 10, 11, 12, 15, and 18. The trial court granted six challenges for cause on venire members 1, 2, 4, 10, 12, and 15 and excused them from the courtroom.

The trial court then asked each of the remaining 14 venire members to stand up individually and state his name and occupation. The remaining jurors then individually stated their names and described their occupations. The trial court explained to the jury that each side would conduct voir dire for 15 minutes. Neither the State nor appellant's attorney voiced any objections to the court's time limit of 15 minutes.

The State's attorney questioned members of the venire panel concerning the elements of the DWI offense, their feelings about police officers, ways jurors could tell whether a driver or person was intoxicated, and the jurors' willingness to convict based on the testimony of one witness. The trial court granted the State an additional minute and one-half to finish its voir dire when time was called, on the grounds that the court had made a few comments from the bench during the State's voir dire.

Appellant's attorney then conducted his voir dire. He asked how many people were missing work to be in court, whether the jurors believed that people were innocent until proven guilty, whether the jurors wondered what appellant had done, and whether anyone had served on a grand jury; he then explained the concept of "beyond a reasonable doubt." Appellant's attorney also asked the venire members whether they could think of any reason why a sober person might not want to take a breath test and whether any of the venire members had experienced any bad interactions with police officers. Appellant's attorney then discussed reasons people might choose not to testify in their own defense at their trial.

When time was called, appellant's counsel requested additional time for voir dire, stating that he had more issues to cover. The court would not allow him any more time and told him that he could read the questions he wanted to ask the venire members into the record at the break, after the parties had exercised their peremptory strikes. The trial court then granted two challenges for cause, leaving 12 venire members remaining on the panel.

Appellant argued that he should be allowed to make his bill of exceptions before making his strikes and before the jury was impaneled, but the trial judge denied this request. Immediately before the parties began to exercise their peremptory challenges, however, venireperson number 18 asked to approach the bench. The venireperson informed the court that he would be biased against the defendant and for the State. The State and the defense both moved to strike venireperson 18, and the judge struck him from the panel. After striking this member of the...