IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 8, 2002
______________________________
EUGENE SHANNON MARTINEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 121ST DISTRICT COURT OF TERRY COUNTY;
NO. 4560; HONORABLE KELLY G. MOORE, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
Appellant Eugene Shannon Martinez appeals from his conviction and sentence pursuant to a plea of guilty to the charge of aggravated sexual assault. We affirm.
On September 11, 2000, appellant entered a plea of guilty to a charge of aggravated sexual assault. The trial court heard evidence and accepted appellant's plea. Appellant and the State had not entered into a plea bargain. The trial court held a sentencing hearing on September 28, 2000, heard evidence and sentenced appellant to confinement for 50 years in the Texas Department of Criminal Justice-Institutional Division and a fine of $10,000.
Counsel for appellant has filed a Motion to Withdraw and a Brief in Support thereof. In support of the motion to withdraw, counsel has certified that, in compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), the record has been diligently reviewed and that in the opinion of counsel, the record reflects no reversible error or grounds upon which an arguably meritorious appeal can be predicated. Counsel thus concludes that the appeal is without merit. Counsel has discussed why, under the controlling authorities, there is no reversible error in the trial court proceedings and judgment. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).
Counsel has attached exhibits showing that a copy of the Anders brief and Motion to Withdraw have been forwarded to appellant, and that counsel has appropriately advised appellant of appellant's right to review the record and file a response to counsel's motion and brief. The clerk of this court has, by letter, likewise advised appellant of his right to file a response to counsel's Anders brief. Appellant has not filed a response to counsel's motion and brief.
We have made an independent examination of the record to determine whether there are any arguable grounds meriting appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). The record indicates, among other matters, that appellant was timely indicted, represented by legal counsel, signed admissions of guilt and written admonishments, and was orally examined and admonished by the trial judge before the guilty plea was accepted. The punishment levied was within the range provided by statute. We agree that the appeal is without merit.
Accordingly, counsel's Motion to Withdraw is granted. The judgment of the trial court is affirmed.
Phil Johnson
Justice
Do not publish.
ing all of this evidence in the light most favorable to the jury's verdict, we conclude that it was legally sufficient to support the jury's finding that appellant committed the offense of driving while intoxicated.
When reviewing the factual sufficiency of the evidence, we view the evidence in a neutral light and set aside the verdict only if the evidence supporting the verdict, standing alone, is too weak to support a finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is so strong that the beyond a reasonable doubt standard could not have been met. See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). If we conclude that the evidence was factually sufficient to support the verdict, we should address appellant's main arguments and explain why we are not persuaded by them. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).
After reviewing all of the evidence in a neutral light, we conclude that it was factually sufficient to support the jury's conviction of appellant. Appellant's main arguments contend (1) that evidence, including the field sobriety tasks, was obtained as a result of a continued detention which lacked probable cause, (2) and (2) that improper application of the field sobriety tasks rendered them invalid and, thus, they could not constitute evidence of appellant's intoxication. We believe that appellant's first challenge goes to the admissibility of evidence. However, challenges to the admissibility of evidence are not properly raised in a sufficiency issue. (3) Appellant also contends that, because the field sobriety tasks were improperly administered, the testimony of Day relating to the field sobriety tasks should have been given no weight and, thus, should not be considered in determining if the evidence was sufficient to support the verdict. Unless the record clearly reveals that a different result is appropriate, we must defer to a jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, which is primarily a determination to be made by observation of the witnesses giving the testimony. See Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). In the present case, the jury chose to give less weight to appellant's cross-examination of Day, in which he challenged the reliability of the tasks, than it gave to Day's direct testimony where he testified, among other things, that appellant failed even to follow the instructions necessary to perform the tasks. Having considered all the evidence in a neutral light, while giving appropriate deference to the factual determinations of the jury, we conclude that the evidence was factually sufficient to support the jury's verdict.
Issue Two: Challenges for Cause
By his second issue, appellant contends that the trial court erred in denying three challenges for cause to venire members that indicated that they believed that the law should make it a violation for a person to drink any amount of alcohol and then drive a motor vehicle. (4)
Appellant specifically asked the venire panel, "How many of you think that the drinking and driving statute should be if you have consumed alcohol, period, you should be in violation of the law?" All three venire members challenged by appellant responded in the affirmative. Each were individually questioned regarding their views and each indicated that they could set aside their personal views of what the law should be and follow the law as it exists. At worst, each of the three venire members gave equivocal responses.
When a prospective juror expresses a bias or prejudice in favor of or against the defendant (as opposed to a bias or prejudice against the law), it is not ordinarily deemed possible for such a juror to be qualified by simply stating that he or she can set aside such bias or prejudice. See Smith v. State, 907 S.W.2d 522, 530 (Tex.Crim.App. 1995). Further, when a prospective juror is shown to be biased or prejudiced against the law, as a matter of law, the prospective juror may not be rehabilitated and must be excused if challenged. See Clark v. State, 717 S.W.2d 910, 917 (Tex.Crim.App. 1986). However, when bias or prejudice are not established as a matter of law, the trial court has discretion to determine whether any bias or prejudice exists to such an extent as to disqualify the juror from service. See Nance v. State, 807 S.W.2d 855, 866 (Tex.App.-Corpus Christi 1991, pet. ref'd). In reviewing a trial court's ruling on a challenge for cause based on bias or prejudice, the decision of the trial court will not be disturbed absent an abuse of discretion. Vaughn v. State, 833 S.W.2d 180, 184 (Tex.App.-Dallas 1992, pet. ref'd).
In the present case, while appellant contends that the challenged venire members voiced bias or prejudice against the defendant and were therefore disqualified from service, we fail to see how appellant's question, which specifically asked the venire panel about their feelings regarding the law, could have identified any bias or prejudice other than a bias or prejudice against the law. Appellant does not contend and we do not conclude that the opinions expressed by the potential jurors constituted bias or prejudice as a matter of law. See Clark, 717 S.W.2d at 917; Nance, 807 S.W.2d at 866. All three challenged venire members agreed that they would follow the law. However, to the extent that appellant contends that the challenged venire members were equivocal in their agreements to follow the law, we accord great deference to the trial court's ruling on the rehabilitation of a challenged venire member because the trial court is in the best position to view the potential jurors and assess the strengths of their views. See Nichols v. State, 754 S.W.2d 185, 195 (Tex.Crim.App. 1988). Appellant has not established that the trial court abused its discretion by denying his challenges for cause.
Conclusion
We affirm the judgment of the trial court.
Mackey K. Hancock
Justice
Do not publish.
1. Appellant does not specify whether his issue challenges the legal or factual sufficiency of the evidence. While we would strongly encourage appellants to identify the basis of their sufficiency challenges, in the interest of justice, we will interpret appellant's issue as challenging both the legal and factual sufficiency of the evidence supporting his conviction.
2. While appellant identifies the applicable legal standard for a continued detention to be probable cause, the correct legal standard is whether articulable facts existed to warrant a reasonable suspicion that the detainee has, is, or soon will be engaged in illegal conduct. See Powell v. State, 5 S.W.3d 369, 377 (Tex.App.-Texarkana 1999, pet. ref'd).
3. Further, appellant's contention, that the continued detention was unlawful and that any evidence obtained as a result was inadmissible, was not preserved for our review. At trial, appellant failed to raise any objection to the admission of this evidence. See Tex. R. App. P. 33.1(a); Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App. 1998). However, even if preserved, Day's testimony that appellant acted normally prior to administration of the field sobriety tasks does not negate Day's testimony that appellant had the odor of alcohol on his breath and that his eyes were bloodshot and glassy. We believe that Day articulated facts that made it reasonable to suspect that appellant was intoxicated, thus justifying the continued investigation. See Powell, 5 S.W.3d at 377.
4. A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. See Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003). "Intoxicated," as applicable to the present case, means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body. Id. § 49.01(2).