Opinion issued August 8, 2002
In The
Court of Appeals
For The
First District of Texas
NO. 01-00-01218-CR
____________
JOSEPH WILLIAM LIGHTCAP, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Court at Law No. 6
Harris County, Texas
Trial Court Cause No. 0997742
O P I N I O N
A jury found appellant, Joseph William Lightcap, guilty of the misdemeanor offense of driving while intoxicated ("DWI") and found true the allegations contained in an enhancement paragraph for a prior conviction for possession of marihuana. The trial court assessed punishment at 180 days in jail, probated for two years, and imposed a $2,000 fine. In three points of error, appellant contends the trial court erred in overruling his motion to suppress evidence, in admitting evidence of extraneous offenses, and by including a jury instruction on the synergistic effect of alcohol with prescription drugs.
We affirm.
Background
Tomball Police Officer Paul Kowalik testified that, in the early morning hours of April 25, 2000, while using a radar unit, he observed appellant driving a car at 60 miles per hour ("mph") in a 45-mph zone on FM 249. Kowalik turned on his overhead emergency lights, and appellant pulled over into a nearby parking lot. Appellant stepped out of the car and placed chewing tobacco in his mouth. Kowalik approached appellant and noticed that appellant spoke with slurred speech, and, after appellant coughed, noticed appellant had a strong odor of alcohol on his breath.
Kowalik administered several field sobriety tests to appellant, and testified that appellant failed the horizontal gaze nystagmus ("HGN") test, the Romberg test, the one-leg stand test and the walk-and-turn test. Appellant's performance on these tests was recorded on videotape.
Appellant testified that he was at a sports bar from 11:00 p.m. to approximately 2:15 a.m. the night of his arrest and had not consumed any alcoholic beverages. Rather, appellant testified he had taken Zoloft and Xanax, as prescribed by his doctor, which made him dizzy. He further presented the testimony of an expert, Dr. George Glass, who described the effects of Zoloft and Xanax, both anti-depressants. Dr. Glass testified that both drugs can cause nystagmus and that the consumption of alcoholic beverages with either of these drugs would intensify the effects of alcohol.
Motion to Suppress Evidence
In his first point of error, appellant contends the trial court erred in overruling his motion to suppress evidence. Specifically, appellant contends the trial court erred in suppressing evidence because the officer lacked "probable cause" for the stop and detention. Appellant argues the officer lacked "probable cause" because appellant's "speed is in dispute," i.e., appellant testified he was driving 50 mph in a 50-mph zone, while Officer Kowalik testified appellant was driving 60 mph in a 45-mph zone.
Standard of Review
Unless there is an abuse of discretion, a trial court's ruling on a motion to suppress evidence will not be set aside. Taylor v. State, 945 S.W.2d 295, 297 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). We will afford almost total deference to a trial court's determination of facts supported by the record, especially when based on the evaluation of the credibility and demeanor of witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The fact finder is the sole judge of the witness's credibility and may accept or reject any or all of the witness's testimony. Taylor, 945 S.W.2d at 297. In reviewing a ruling on a question of application of the law to the facts, we review the evidence in the light most favorable to the trial court's ruling. Guzman, 955 S.W.2d at 89. However, we review de novo a trial court's determination of reasonable suspicion and probable cause. Id. at 87.
Investigative Detention
It is clear that circumstances short of probable cause may justify a temporary investigative detention. Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989). A police officer may make a temporary investigative detention of a person if the officer has a reasonable suspicion that some activity out of the ordinary is or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication that the activity is related to a crime. Stone v. State, 703 S.W.2d 652, 654 (Tex. Crim. App. 1986).
Thus, as in Stone, whether the officer had "probable cause" to stop the car is irrelevant, since he did not need probable cause to do so; rather, he needed only a reasonable suspicion based on articulable facts. Id. at 654-55. Here, Officer Kowalik testified that he determined, by radar, that appellant was driving a car at 60 mph in a 45-mph zone. This gave Kowalik reasonable suspicion, based on articulable facts, that appellant was committing the offense of speeding. A stop that meets the test for reasonable suspicion is lawful even if the facts supporting the stop are ultimately shown to be inaccurate or false. Icke v. State, 36 S.W.3d 913, 916 (Tex. App.--Houston [1st Dist] 2001, pet. ref'd).
We overrule appellant's first point of error.
Admission of Extraneous Offenses
In his second point of error, appellant contends the trial court erred in admitting into evidence parts of the videotape containing audible references to marihuana residue in appellant's car and a report of a prior conviction for driving while intoxicated.
The introduction of extraneous offenses to the jury is inherently prejudicial, and, hence, harms a defendant because it requires the defendant to defend against not only the charged offense, but also his uncharged actions. Sattiewhite v. State, 786 S.W.2d 271, 285 (Tex. Crim. App. 1989). The admission of extraneous offenses also prejudices a defendant because of a jury's natural inclination to infer guilt to the charged offense from the extraneous offenses. Templin v. State, 711 S.W.2d 30, 32 (Tex. Crim. App. 1986). One method of lessening the potential prejudice from the inclusion of extraneous offense evidence is to give a limiting instruction to the jury. Robinson v. State, 701 S.W.2d 895, 899 (Tex. Crim. App. 1985). There is a presumption that a jury will properly consider evidence when correctly instructed by the trial judge. Rose v. State, 752 S.W.2d 529, 554 (Tex. Crim. App. 1988). Conversely, where no instruction is given, we cannot follow the presumption that the jury properly considered the evidence at trial.
To preserve error in regard to the admission of extraneous offense evidence, a defendant must first object under Rule 404(b). Tex. R. Evid. 404(b); Saldivar v. State, 980 S.W.2d 475, 491 (Tex. App.--Houston [14th Dist] 1998, pet. ref'd). The State must then show the proffered evidence is relevant apart from its tendency to show that the defendant is a criminal. Saldivar, 980 S.W.2d at 491. At the defendant's request, the trial court should then require the State to articulate the limited purpose for which the evidence is offered. Id. In making its determination as to the relevancy of the evidence, the trial court must determine, at the proffer of the evidence, that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense. Id. If the trial court determines the evidence is relevant, the defendant must then object under Rule 403 and obtain a ruling as to whether the probative value of the evidence is substantially outweighed by its prejudicial effect. See Tex. R. Evid. 403.
At trial, appellant raised a Rule 404(b) objection to the audio reference on the videotape to marihuana residue in his car. The State argued the reference was admissible on the grounds that it occurred contemporaneous with the traffic stop and DWI investigation and was relevant to show appellant's state of mind. The trial court denied appellant's objection and admitted the videotape in its entirety. Appellant did not make a Rule 403 objection to the marihuana residue reference and did not request a limiting instruction to lessen any prejudice. See Robinson, 701 S.W.2d at 899. While the jury was deliberating, appellant's counsel stated on the record as follows:
I chose not to bring attention to the mari[h]uana aspect by not asking for an instruction relating to an extraneous offense which would have been related to the mari[h]uana and neither I or Counsel for the State in argument made any reference to the mari[h]uana. So in that respect I feel that I made the appropriate decision.
Consequently, appellant failed to preserve error regarding the reference to the marihuana residue on the videotape. Tex. R. App. P. 33.1.
Appellant also made no objection to the audio portion of the videotape referring to a prior conviction for DWI. (1) Therefore, appellant did not preserve this issue for review. Tex. R. App. P. 33.1; Saldivar, 980 S.W.2d at 491.
We overrule appellant's second point of error.
Jury Charge
In his third point of error, appellant contends the trial court erred by including an instruction on the synergistic effects of alcohol with Zoloft and/or Xanax in the jury charge. Appellant complains the trial judge erred because the instruction submitted an alternative theory of guilt in the jury charge that was not alleged in the information. He argues the instruction authorized the jury to convict him if it found either that he was intoxicated by alcohol alone, as alleged in the indictment, or because he consumed alcohol in combination with Zoloft or Xanax, an allegation not contained within the information.
The information charged appellant with operating a motor vehicle in a public place while intoxicated, i.e., "not having the normal use of his mental and physical faculties by the reason of the introduction of alcohol into his body."
The relevant portion of the jury charge reads as follows:
You are further instructed that if a Defendant indulges in the use of Zoloft or Xanax, to such an extent that he thereby makes himself more susceptible to the influence of alcohol than he otherwise would have been, and by reason thereof becomes intoxicated from recent use of alcohol, he would be in the same position as though his intoxication was produced by the use of alcohol alone.
Now, therefore, if you find and believe from the evidence beyond a reasonable doubt that the Defendant, JOSEPH WILLIAM LIGHTCAP, on or about the 25th day of April, 2000, in Harris County, Texas, did while intoxicated, namely, not having the normal use of the defendant's mental or physical faculties by the reason of the introduction of alcohol into the defendant's body, and while so intoxicated, by reason of the introduction of alcohol into his body, either alone or in combination with Zoloft or Xanax, did drive or operate a motor vehicle in a public place, you shall find the defendant guilty.
(Emphasis added.)
In support of his argument that the instruction submitted an alternative theory of guilt not in the information, appellant relies on Rodriguez v. State, 18 S.W.3d 228, 229 (Tex. Crim. App. 2000). However, this case is readily distinguishable from Rodriguez, where no "susceptibility theory" was put forward, merely a new charge of intoxication by a combination of drugs and alcohol not alleged in the information. Id.
Here, the instruction did not expand on the allegations in the information. See Sutton v. State, 899 S.W.2d 682, 685 (Tex. Crim. App. 1995) (plurality opinion). In accordance with Sutton, the charge authorized conviction only if the jury found appellant had been intoxicated with alcohol, either alone or in combination with drugs that made him more susceptible to the alcohol. See id. To return a guilty verdict, the jury was still required to find, beyond a reasonable doubt, that appellant was intoxicated by reason of the introduction of alcohol into his body. See id. The jury clearly did so, finding appellant guilty "as charged in the information." Accordingly, we conclude the trial court did not err in including the instruction in the jury charge.
We overrule appellant's third point of error.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Mirabal, Hedges, and Jennings.
Do not publish. Tex. R. App. P. 47.
1.