IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 21, 2007
______________________________ELI EDWARDS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;
NOS: 4294, 4295, 4296, 4297, 4298 & 4299;
HON. STEVEN RAY EMMERT, PRESIDING _______________________________
Opinion ____________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Eli Edwards (appellant) appeals his convictions for aggravated robbery and aggravated kidnaping. Via three issues, he contends that the trial court erred by 1) admitting evidence of an extraneous offense, 2) improperly defining the term "abduct" in the jury charge and 3) entering an order requiring him to serve his six sentences consecutively. We affirm the judgments as reformed.
BackgroundJimmy Maddox (Maddox) was at home with his wife and daughter when two masked men broke through the front door. The men were armed with shotguns and told the group to lay on the floor. Thereafter, they were threatened with death, moved to a cellar, and bound with cords. So too was Maddox asked for money, and he disclosed to his assailants where it could be found. Eventually, Maddox freed himself and the others in his family. He then noticed his Buick had been taken and called 911.
Eventually, law enforcement officials encountered two individuals driving the Buick and a chase ensued which resulted in the vehicle being abandoned. A search of the car revealed items taken from the Maddox household plus various weapons. The next day appellant was captured and arrested for the robbery.
Issue One - Extraneous Offense Used to Show IdentityIn his first issue, appellant posits that the trial court erred in admitting evidence of an extraneous offense. The evidence involved testimony about appellant having taken weapons (shotguns) during a burglary in Oklahoma. Moreover, appellant was identified as one of the burglars who took the shotguns. One or more of those very weapons were later found in the Maddox Buick after the robbery and chase. This was of import to the State because it helped identify appellant as one of the Maddox robbers; again, the robbers wore masks and could not be identified through facial features. So, in the State's view, evidence about the Oklahoma burglary and who was involved in it helped tie appellant to the later robbery in Texas. Thus, the evidence allegedly was both relevant and admissible under Texas Rule of Evidence 404(b). We agree and overrule the point.
Finding in the Buick a shotgun appellant stole in Oklahoma has the propensity of linking appellant to the Maddox robbery, given that a shotgun was used in the robbery. More importantly, it cannot be legitimately denied that the identity of the robbers was in issue. Indeed, appellant, through his legal counsel, argued to the trial court that the evidence of identity was very weak. So, the extraneous burglary, in general, and the property taken during it, in particular, was relevant to an element in dispute. And, that the Oklahoma offense may not have involved an act either identical or similar to the Texas crime matters not for the identity between the criminal acts occurring in Oklahoma and Texas were not important. Of import was the identity between the weapons taken in Oklahoma, the ones used to rob the Maddox family and the ones later found in the car for the weapons and appellant's tie to them is what identifies him as a robber. Thus, Page v. State, 213 S.W.3d 332 (Tex. Crim. App. 2006), a case upon which appellant relies heavily in attempting to show error, is inapposite.
Page dealt with an attempt to prove identity through comparing a series of acts. In that situation, one cannot dispute that the acts have to be sufficiently similar to warrant an inference that the person who committed some committed all. Here, however, the acts undertaken during both offenses matter not for the focus lies on the identity between the weapons taken by appellant during one offense and later used at another. So, because evidence of extraneous offenses are admissible to prove identity, Tex. R. Evid. 404(b); Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004), and evidence of the Oklahoma burglary furthered that purpose at bar, we cannot say that the trial court abused its discretion in permitting several witnesses to disclose it at trial. (1) See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (stating that a trial court errs viz its decisions to admit evidence when it abuses its discretion and the decision falls outside the zone of reasonable disagreement).
Issue Two - Jury Charge
In his second issue, appellant contends that the trial court's failure to properly define "abduct" in its jury charge caused him egregious harm. That is, the abstract definition of "abduct" included in the charge differed from the manner in which the term was used in the indictment. However, its description in the application paragraph of the charge was identical to that in the indictment. (2) So, while the definition did not track the indictment, the application paragraph did, and appellant did not object to the circumstance. We overrule the issue.
The record evidence supported appellant's conviction of the offense as described in the indictment. Furthermore, the application paragraph tracked the indictment, and the words in the application paragraph were plain and easily understood. Medina v. State, 7 S.W.2d 633, 640 (Tex. Crim. App. 1999) (holding that where the application paragraph correctly instructs the jury, an error in the abstract instruction is not egregious); Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds, Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997) (holding that reversal is required when an accurate definition in the abstract definition is necessary to implement the application paragraph); Williams v. State, No. 01-06-00037-CR, 2007 Tex. App. Lexis 1158 (Tex. App. -Houston [1st Dist.] February 15, 2007, no pet. h.) (holding that when the application paragraph correctly instructs the jury, a superfluous abstract definition is not egregious). Thus, despite the definition, the jury nevertheless was told in unambiguous language that it could not convict unless it found appellant guilty as charged in the indictment. Given these circumstances, we do not find that appellant was egregiously harmed by the purported error.
Issue Three - Order Requiring Sentences to Run ConsecutivelyAppellant contends that the trial court erred in entering an order wherein it "stacked" appellant's sentences. In other words, appellant would be required to serve the six sentences consecutively as opposed to concurrently. The State concedes this point and asks us to reform the six judgments. We agree and sustain the issue.
Accordingly, the judgments of the trial court are reformed to delete the accumulation orders. Robbins v. State, 914 S.W.2d 582, 584 (Tex. Crim. App. 1996). As reformed, the judgments of the trial court are in all other respects affirmed.
Brian Quinn
Chief Justice
Publish.
1. Appellant does not raise Texas Rule of Evidence 403.
2. The trial court charged the jury as follows: "'abduct' means to restrain a person with intent to prevent
his/her liberation by using or threatening to use deadly force." So too did it state that "'restrain' means to
restrict a person's movements without consent, so as to interfere substantially with the person's liberty, by
moving the person from one place to another or by confining the person." Through the application paragraph,
it then informed the jury of the following:
. . . if you find from the evidence beyond a reasonable doubt that on or about the 12th day of March, 2006 in Wheeler County, Texas, [appellant], did then and there, intentionally or knowingly abduct []Maddox, by restricting the movements. . . by confining him, with the intent to prevent [] liberation, secreting or holding [] in a place where [] was not likely to be found, and [appellant] did then and there use or exhibit a deadly weapon, to wit: a gun, during the commission of said offense, . . . .
speech. The officer conducted standard field sobriety tasks and determined appellant was intoxicated. A specimen of appellant’s blood was taken on his arrival at the hospital and the results of the test showed he had a blood alcohol concentration of 0.15 grams of alcohol per 100 milliliters of blood.
Analysis
In appellant’s two issues, he argues the evidence presented at trial was factually insufficient to prove beyond a reasonable doubt that on or about January 1, 2006, he operated a motor vehicle in a public place while intoxicated by having a blood alcohol concentration of 0.08 or more or by not having the normal use of mental or physical faculties by reason of introduction of alcohol into his body. To establish that appellant committed the offense of intoxication assault, the State had to demonstrate that he, (1) by accident or mistake, (2) while operating a motor vehicle, (3) in a public place, (4) while intoxicated, (5) by reason of that intoxication, (6) caused serious bodily injury to another. See Tex. Penal Code Ann. § 49.07(a)(1) (Vernon 2003). See also Ex parte Watson, __ S.W.3d __, 2009 WL 1212565, *3 (Tex.Crim.App. 2009) (examining elements of intoxication assault). “Intoxicated” means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, or having an alcohol concentration of 0.08 or more. See Tex. Penal Code Ann. § 49.01(2)(A), (B) (Vernon 2003). Appellant’s argument on appeal focuses on the evidence of his intoxication.
A factual sufficiency review considers whether the evidence supporting guilt, though legally sufficient, is so weak that the jury’s verdict seems clearly wrong and manifestly unjust, or evidence contrary to the verdict is such that the jury’s verdict is against the great weight and preponderance of the evidence. Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App. 2008); Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). In a factual sufficiency review, we consider all the evidence, in a neutral light. Grotti, 273 S.W. 3rd at 283; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414. Although an appellate court’s authority to review factual sufficiency permits the court to disagree with the fact finder’s determinations, even to a limited degree those concerning the weight and credibility of the evidence, the appellate court must accord them due deference. Marshall, 210 S.W.3d at 625; Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000). See also Steadman v. State, 280 S.W.3d 242, 246-47 (Tex.Crim.App. 2009). When there is a conflict in the evidence, to find it factually insufficient we must first be able to say, with some objective basis in the record, that the great weight and preponderance of all the evidence contradicts the jury’s verdict. Watson, 204 S.W.3d at 417. We must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. Laster v. State, 275 S.W.3d 512, 518 (Tex.Crim.App. 2009); Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).
We find the evidence factually sufficient to prove appellant operated the Cavalier while intoxicated. The State presented testimony from the regional laboratory manager with the Texas Department of Public Safety Crime Lab, regarding appellant’s blood alcohol concentration. The manager testified that his test of the sample of appellant’s blood yielded a blood alcohol of 0.15 grams per 100 milliliters of blood, a level above the 0.08 legal level. Appellant does not challenge on appeal the evidence his blood alcohol level at the time the sample was taken was almost double the 0.08 legal limit, nor does he challenge the probative value of that evidence to establish he was intoxicated while he drove.
Appellant focuses his attack on the evidence he had lost the normal use of his mental or physical faculties by reason of introduction of alcohol into his body. The State’s evidence included appellant’s female passenger’s testimony at trial that she and appellant had been drinking at a friend’s house the hour before the accident. She also testified that she thought appellant was intoxicated. The responding police officer testified he detected a strong odor of an alcoholic beverage coming from appellant’s breath. He also testified that appellant admitted to drinking five beers and one “shot” prior to the accident. The officer testified he saw that appellant’s eyes were glassy and bloodshot and his speech was slightly slurred. The officer agreed that his report mentioned that the beer can shown in the photograph presented at trial was cold at the time he arrived on the scene. The officer also testified that he observed a mixed alcoholic drink in the same console of the car. The officer further testified regarding the standard field sobriety tasks he administered to appellant and to appellant’s poor performance on those tasks. A patrol car video showing the administration of these tests was also presented. The officer opined that appellant was intoxicated and alcohol caused the intoxication. The testimony of a police officer that an individual is intoxicated is probative evidence of intoxication. Henderson v. State, 29 S.W.3d 616, 622 (Tex.App.–Houston [1st Dist.] 2000, pet. ref’d). Further, a blood alcohol level beyond the legal limit, such as appellant’s, is probative evidence of a person’s loss of his faculties. Id., citing Daricek v. State, 875 S.W.2d 770, 773 (Tex.App.–Austin 1994, pet. ref’d).
As evidence contrary to the jury’s verdict, appellant points to evidence another vehicle was involved in the accident. The passenger testified that while she and appellant were driving, a white work truck “kept bumping our car” in the back, eventually hitting them hard enough to cause their car to turn and wreck. The police officer testified appellant initially told him that a “small dark colored sport utility vehicle had begun harassing them as they drove home” and rammed them from behind, intentionally running them off the road. Appellant later told the officer that he was trying to get away from the other vehicle and that in doing so, he hit a tree or a curb.
The trier of fact is the sole judge of the credibility of witnesses and may believe or disbelieve any part of a witness’s testimony. Gaines v. State, 874 S.W.2d 733, 734 (Tex.App.–Houston [1st Dist.] 1994, no pet.). Further, the trier of fact may believe a witness even though his testimony is contradicted. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); Gaines, 874 S.W.2d at 735. The jury here was free to disbelieve the testimony that another vehicle hit the Cavalier from behind. The police officer testified he did not think the Cavalier was hit by another vehicle. He said there was damage to the Cavalier’s front passenger door but no recent damage to the rear of the vehicle. He said the damage that was present on the rear of the car appeared to be old, as it was covered in road grime. He also testified during re-direct that the passenger told him she did not remember being chased or hit by another vehicle but appellant told her that they had been hit.
Appellant also points to the police officer’s testimony that it was windy when he administered the field sobriety tasks and that wind conditions may affect a person’s ability to perform on the tests. He also argues the verdict is contradicted by the officer’s testimony that after finding tree bark embedded in the Cavalier, the officers tried unsuccessfully to find a tree that had been damaged or had white paint on it.
Lastly, we note that appellant seems to advance the argument that the State’s proof suggests only that he was intoxicated and was involved in a car accident, but does not prove he was involved in the accident because he was intoxicated. This argument also relies on the statements of appellant and his passenger regarding the involvement of a second vehicle. As noted, we find the jury rationally could have discounted those statements. Instead, the jury rationally could have accepted the opinion of the officer that “the accident was the direct result of [appellant] operating the vehicle while intoxicated.”
Having considered all the evidence in a neutral light, we find that appellant has shown, at most, that the evidence conflicted with respect to whether his intoxication caused the accident. The State’s evidence was not so weak that the jury’s verdict seems clearly wrong and manifestly unjust. A verdict is not manifestly unjust simply because the jury resolved conflicting views of the evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). Nor do we find that the great weight and preponderance of all the evidence contradicts the jury’s verdict. Watson, 204 S.W.3d at 417. Accordingly, we overrule appellant’s two issues and affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.