Warfield v. State

• Decision Date: 14 June 2017
• Docket Number: NO. 03-15-00468-CR,03-15-00468-CR
• Parties: Matthew Devere Warfield, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

Matthew Devere Warfield, Appellant v. The State of Texas, Appellee

NO. 03-15-00468-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

June 14, 2017

FROM THE DISTRICT COURT OF HAYS COUNTY, 274TH JUDICIAL DISTRICT

NO. CR-14-0882, THE HONORABLE GARY L. STEEL, JUDGE PRESIDING

MEMORANDUM OPINION

A jury found appellant Matthew Devere Warfield guilty of three felony offenses—evading detention with a motor vehicle, see Tex. Penal Code § 38.04(a), (b)(2)(A), aggravated assault with a deadly weapon, see id. § 22.02(a)(2), and tampering with physical evidence, see id. § 37.09(a)(1), (c)—all arising out of a roadway encounter on the interstate. The jury assessed appellant's punishment, enhanced by a prior felony conviction pursuant to the repeat offender provision of the Penal Code, see id. § 12.42(a), (b), at confinement in the Texas Department of Criminal Justice for 20 years for the evading offense, see id. § 12.33, 40 years for the assault offense, see id. § 12.32, and 15 years for the tampering offense, see id. § 12.33. The trial court sentenced appellant in accordance with the jury's verdicts and ordered the three sentences to be served concurrently. See id. § 3.03(a). On appeal, appellant complains about the admission of evidence, the denial of his motion for mistrial, and excessive punishment resulting from an illegal sentence. Finding no reversible error, we affirm the trial court's judgments of conviction.

BACKGROUND¹

The instant charges arose out of a roadway encounter between two drivers going northbound on Interstate 35 between San Marcos and Austin, near Kyle. Jack Drewien, driving a red truck, was driving in the left of the three highway lanes. As he began to approach an 18-wheeler truck driving in the center lane, he saw a white car in his rearview mirror. As he passed the truck, he noted his speed, 75 miles per hour, and noticed that the white car was driving very closely behind him—"not just on [his] bumper, it was nearly under [his] bumper." Drewien sped up, attempting to separate from the car, but the car remained on his bumper. He then observed the driver of the white car lean over in the car with one hand on the wheel. The car remained on his bumper so Drewien continued accelerating, approaching 85 miles an hour. He cleared the 18-wheeler, moved to the center lane, and began to slow down, giving the white car clearance to go by. The white car pulled up alongside Drewien, and, according to Drewien, pointed a gun at him. Drewien braked, and the car passed. Drewien then called 911.

Officer Dago Pates, a traffic enforcement officer with the Kyle Police Department, was "clocking speeders" on Interstate 35. He clocked appellant's white Chevy Malibu travelling 83miles per hour in a 70 mph zone and initiated a traffic stop for speeding. As he was pulling appellant over, he noticed a vehicle driving behind him flashing its lights and he requested backup. Appellant pulled his vehicle onto the shoulder of the interstate. By this time, Officer Pates had been informed by dispatch that appellant possibly had a gun.² The officer drew his weapon and instructed appellant to exit the car. Appellant complied, and followed Officer Pates's subsequent instructions to move to the back of his car and then to pull his shirt up and turn in a circle to reveal whether he had a gun on his person. Officer Pates then told appellant not to move while he awaited backup. However, after about 45 seconds, appellant began drifting toward his open car door—ignoring the officer's repeated commands not to move—and got back into his car and drove off.

Officer Pates pursued appellant, and a high speed chase ensued. Ultimately, four police officers were involved in the chase,³ which lasted approximately seven minutes and covered close to 14 miles. During the chase, appellant repeatedly changed lanes, weaved through traffic, and passed in no passing zones (both on the shoulder and against the retaining wall), all while traveling at high rates of speed—speeds exceeding 100 miles per hour and reaching up to 120 miles per hour. The chase ended when a police officer moved her patrol SUV in front of appellant and forced appellant to stop by blocking his way, slowing down in front of him, and eventually cutting him off. Appellant was then removed from the car at gunpoint. After that, the only passenger in the car,Lamonika Davis, was also removed at gunpoint. Upon being apprehended, appellant told the officers that he did not want to get pulled over because he had an open beer in the car. He said that he "ran" because Officer Pates had pointed a gun at him.

After appellant and Davis were out of the car, the police officers on the scene searched for the gun Drewien reported. No gun was found on appellant, on Davis, or in appellant's car. Davis disclosed to the officers that appellant had given her the gun during the chase and told her to throw it out of the window, and she did. She was unable to recall precisely their location on the interstate when she threw it out. Subsequent efforts to locate the gun along the highway, even with Davis's assistance, were unsuccessful.

DISCUSSION

Appellant raises four points of error. In his first two points of error, appellant asserts that the trial court erred in admitting hearsay testimony from passenger Lamonika Davis and allowing an in-court demonstration by Officer Pates. In his third point of error, appellant contends that the trial court erred in denying his motion for mistrial. Finally, in his fourth point of error, appellant argues that he was subjected to excessive punishment as a result of an illegal sentence.

Alleged Hearsay Evidence

At trial, the State presented the testimony of Lamonika Davis, the passenger in appellant's car at the time of the incident. After describing how appellant removed a handgun from under his seat and then pointed it at the driver of the red truck "right in front of [her] face," Davis testified that appellant began driving faster because "an officer started to pull us over." She said thatshe knew it was an officer trying to pull them over "[b]ecause of the lights and the sirens and the intercom." Then, the following exchange occurred:

PROSECUTOR : Was there any doubt in your mind at this point that there was a police officer behind you guys?

MS. DAVIS: No, sir.

PROSECUTOR: Did [appellant] indicate that there was a doubt in his mind that there was a police officer trying to pull you guys over?

APPELLANT: Objection, Your Honor. Hearsay.

THE COURT: Overruled.

MS. DAVIS: No, sir.

In his first point of error, appellant maintains that the trial court erred in allowing this testimony into evidence because "the question called for hearsay, and only hearsay."

We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016); Sandoval v. State, 409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.). An abuse of discretion does not occur unless the trial court acts "arbitrarily or unreasonably" or "without reference to any guiding rules and principles." State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). Further, we may not reverse the trial court's ruling unless the determination "falls outside the zone of reasonable disagreement." Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); see Henley, 493 S.W.3d at 83 ("Before a reviewing court may reverse the trial court's decision, 'it must find the trial court's ruling was soclearly wrong as to lie outside the zone within which reasonable people might disagree.'") (quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008)). An evidentiary ruling will be upheld if it is correct on any theory of law applicable to the case. Henley, 493 S.W.3d at 93; Sandoval, 409 S.W.3d at 297.

Generally, hearsay evidence is not admissible except as provided by statute or the Texas Rules of Evidence. Tex. R. Evid. 802. Hearsay is a statement, other than one made by the declarant while testifying at the current trial or hearing, that is offered to prove the truth of the matter asserted in the statement. Tex. R. Evid. 801(d); see Sandoval, 409 S.W.3d at 281. A statement includes both oral and written expressions as well as nonverbal conduct intended as a substitute for verbal expression. Tex. R. Evid. 801(a) (defining "statement").

Here, appellant complains of no "statement," as defined in Rule 801(a), but rather Davis's testimony about the absence of a statement, which is not hearsay. See Tex. R. Evid. 801(a); see, e.g., Garraway v. State, No. 03-14-00595-CR, 2017 WL 1404726, at *5 (Tex. App.—Austin Apr. 11, 2017, no pet.) (mem. op., not designated for publication) (concluding that witness's testimony that none of burglary victims named in indictment had given defendant consent to enter their apartments or to take their property was not statement as defined by Rule 801(a)); Morrow v. State, 486 S.W.3d 139, 162-63 (Tex. App.—Texarkana 2016, pet. ref'd) (concluding that it was "doubtful" that defendant's online presence or activity on website could reasonably be considered nonverbal statement that would constitute statement for purposes of hearsay definition). The challenged portion of Davis's testimony was not evidence of a statement that appellant had made,but rather evidence of the fact that appellant did not make a statement. "Because no out-of-court statement was offered, no hearsay was uttered." See Morrow, 486 S.W.3d at 162.

However, even if the absence of appellant's comment—or lack of indication—could somehow be considered a statement, see, e.g., Tex. R. Evid. 801(a) ("statement" includes nonverbal conduct if conduct is intended as substitute for verbal expression); Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004) (recognizing silence as adoptive admission by party opponent); Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989) (discussing concept of...