IN THE
TENTH COURT OF APPEALS
No. 10-04-00336-CR
Jeffrey C. Vaccaro,
Appellant
v.
The State of Texas,
Appellee
From the 220th District Court
Bosque County, Texas
Trial Court No. 03-05-13639-BCCR
MEMORANDUM Opinion
A jury convicted Jeffrey C. Vaccaro of felony driving while intoxicated. After Vaccaro pleaded “true” to enhancement allegations, the jury found that his car was a deadly weapon and assessed his punishment at thirty-five years’ imprisonment. Vaccaro contends in seven issues that: (1) the evidence is legally and factually insufficient to prove that he was intoxicated when he was driving his pickup truck (two issues); (2) his right to due process was violated when the court permitted the State to refer to his prior DWI convictions before the jury on several occasions even though he stipulated to them before trial; (3) his right to due process was violated because the indictment alleged prior felony DWI convictions under the general enhancement provisions of the Penal Code to enhance his punishment to that for an habitual offender; (4) his right to due process was violated when the court permitted the jury to view a videotape in its entirety during deliberations even though only selected portions of the videotape had been admitted in evidence; (5) his right to due process was violated when the court submitted a deadly-weapon question in the charge because the State did not give adequate notice of its intent to seek a deadly-weapon finding; and (6) he received ineffective assistance of counsel.[1]
We will affirm.
Legal and Factual Sufficiency
Vaccaro contends in his first and second issues respectively that the evidence is legally and factually insufficient to prove that he was intoxicated when he was driving his pickup.
When reviewing a legal insufficiency complaint, we consider all the evidence in the record and ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004) (quoting Jackson v. Va., 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)).
When reviewing a factual insufficiency complaint, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the jury’s verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson, 23 S.W.3d at 7. We do not indulge in inferences or confine our view to evidence favoring one side. Rather, we look at all the evidence on both sides and then make a predominantly intuitive judgment. Id.
The complainant Rose Zapata testified that Vaccaro rear-ended her car shortly after 9:00 p.m. on the date in question. Vaccaro opened the door of his pickup truck but remained in the driver’s seat. He told Zapata that he did not have his driver’s license or insurance, but he wrote his name down for her. Zapata then noticed that he “smelled [of] liquor.” When he got out of the truck, he “couldn’t stand straight” or “speak clearly.” Vaccaro became angry when he noticed the damage to his pickup. Zapata got in her car, and Vaccaro started “banging” on it. She again “smell[ed] the alcohol on him” as he stood by her window. Although he was “yelling” and “cussing” at her, she did not argue with him because “he was drunk.” Vaccaro then left the scene.
Zapata returned home and called the police. When an officer responded, she gave him Vaccaro’s name and license plate number and a description of his pickup. A sheriff’s deputy and a DPS trooper located Vaccaro’s pickup in a parking lot at about 10:00 p.m. and found him asleep in the driver’s seat. They awakened Vaccaro and had him get out. The deputy testified that he smelled “a heavy odor or alcoholic beverage” coming from Vaccaro, that Vaccaro was “confused,” and that his eyes were “bloodshot and watery.” A portable breath testing device indicated the presence of alcohol. Thus, the deputy concluded that Vaccaro was intoxicated.
The trooper testified that Vaccaro had slurred speech, “a strong odor about him,” a lack of balance, and “didn’t have any idea where he was.” The trooper relied on these observations plus Vaccaro’s earlier involvement in the collision with Zapata to conclude that he was intoxicated.
The officers also discovered two open beer cans and ten unopened cans in the cab of Vaccaro’s pickup.
Vaccaro does not challenge the sufficiency of the evidence to prove he was intoxicated at the time of his arrest. Rather, Vaccaro contends that there is legally and factually insufficient evidence to prove he was intoxicated when his pickup rear-ended Zapata’s car. He cites Stoutner v. State, 36 S.W.3d 716 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d), for the proposition that evidence of intoxication at the moment of arrest is not necessarily sufficient to prove intoxication while driving if an unknown period of time elapsed between the time of driving and the time of arrest. See id. at 721 (citing Weaver v. State, 721 S.W.2d 495, 498-99 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d)).
We agree that this is a correct proposition. However, the facts of Vaccaro’s case are similar to those in Chaloupka v. State, 20 S.W.3d 172 (Tex. App.—Texarkana 2000, pet. ref’d). There, the defendant was involved in a collision then fled the scene at a high rate of speed. Id. at 174. Witnesses followed the defendant to a rest area where he stopped, went to a picnic table, and began drinking beer. Id. A trooper testified that he was intoxicated when the trooper arrested him at the rest area. Id.
The Texarkana Court agreed that the trooper’s testimony did not establish that the defendant was intoxicated while driving. Id. at 175. However, the court held that the other witnesses’ testimony was sufficient to establish this element of the State’s case.
The evidence does demonstrate that Chaloupka was driving erratically on the highway and caused a collision, as testified by two drivers and the driver of the vehicle that was struck; there was evidence that when he left his vehicle at the rest area, he was stumbling and could not keep his balance. This evidence, independent of the testimony by the police officer, showed that he had been driving without the normal use of his physical faculties.
Id.
The same analysis applies to Vaccaro’s case. Therefore, when Zapata’s testimony is viewed in the light most favorable to the verdict, the evidence is legally sufficient to establish that Vaccaro was intoxicated when he rear-ended her car.
For his factual sufficiency challenge, Vaccaro refers to testimony of friends who testified that he was not intoxicated when they last saw him, almost two hours before the collision. Although we agree that this evidence would support a finding that Vaccaro was not intoxicated when he rear-ended Zapata’s car, this evidence is not so strong as to render the jury’s verdict clearly wrong and manifestly unjust. See Watson, 204 S.W.3d at 414-15.
Accordingly, we overrule Vaccaro’s first and second issues.
Stipulation to Prior Convictions
Vaccaro contends in his third issue that his right to due process was violated when the court permitted the State to refer to his prior DWI convictions before the jury on several occasions even though he stipulated to them before trial. He specifically complains that the State improperly referred to the prior convictions during voir dire, during the reading of the indictment at the beginning of trial, and during closing argument.
The parties stipulated in writing to Vaccaro’s prior DWI convictions before trial. During voir dire, the prosecutor generally commented to the venire panel that “the indictment goes on to talk about the requisite prior convictions necessary to make this a felony DWI.” Vaccaro did not object to this comment.
At the beginning of the guilt-innocence phase, the prosecutor read the allegations of the indictment to the jury including allegations of four prior DWI convictions alleged to elevate the present offense to a felony. See Tex. Code Crim. Proc. Ann. art. 36.01(a)(1) (Vernon 2007). Again, Vaccaro did not object.
In closing argument, the prosecutor referred to the portion of the charge requiring the jury to find that Vaccaro had at least two prior DWI convictions. The prosecutor then called the jury’s attention to Vaccaro’s stipulation to his prior DWI convictions, which had been admitted without objection. Vaccaro objected when the prosecutor encouraged the jury to examine the stipulation to decide whether he had been previously convicted as alleged. The court overruled Vaccaro’s objection.
Vaccaro has not preserved for appellate review his complaints regarding the prosecutor’s comment during voir dire and the reading of the indictment. See Tex. R. App. P. 33.1(a)(1).
The Court of Criminal Appeals has recently categorized the appropriate procedures to be followed when a defendant stipulates to prior DWI convictions in a felony DWI trial. See Martin v. State, 200 S.W.3d 635, 640-41 (Tex. Crim. App. 2006). Among those procedures are the following:
During the trial, the jury may be informed of the stipulation and any written stipulation may be offered into evidence before the jury, but the evidence is sufficient to support a defendant’s conviction even if the stipulation is not given or read to the jury;
The jury charge must include some reference to the jurisdictional element of two prior DWI convictions in a felony DWI trial;
The jury charge must include some reference to the defendant’s stipulation and its legal effect of establishing the jurisdictional element.
Id.
Accordingly, the court did not err by overruling Vaccaro’s objection to the prosecutor’s closing argument encouraging the jury to examine the stipulation. Thus, we overrule Vaccaro’s third issue.
General Enhancement Allegations
Vaccaro contends in his fourth issue that his right to due process was violated because the indictment alleged prior felony DWI convictions under the general enhancement provisions of the Penal Code to enhance his punishment to that for an habitual offender. However, Vaccaro did not object to the indictment on this basis. Moreover, this Court has previously concluded that a prior felony DWI conviction may be employed as a general enhancement allegation under section 12.42 of the Penal Code so long as the same prior DWI conviction is not also employed to elevate the current offense to a felony DWI under section 49.09 of the Penal Code. See Maibauer v. State, 968 S.W.2d 502, 504-05 (Tex. App.—Waco 1998, pet. ref’d). Therefore, we overrule Vaccaro’s fourth issue.
Videotape
Vaccaro contends in his fifth issue that his right to due process was violated when the court permitted the jury to view a videotape in its entirety during deliberations even though only selected portions of the videotape had been admitted in evidence.
Vaccaro offered the videotape in question as Defendant’s Exhibit No. 1 during his cross-examination of the deputy who participated in his arrest. Vaccaro did not offer a redacted version or request a limiting instruction, and the court admitted the exhibit without limitation. After the videotape was cued to the correct spot, the parties stated on the record that only certain portions of it were relevant and admissible. Vaccaro played a brief segment of the video to demonstrate that the deputy determined in only two minutes that he was intoxicated.
The State later played a portion of the videotape while questioning the trooper. The segment played at this juncture depicted the officers’ initial encounter with Vaccaro, his arrest, and the search of his pickup which resulted in the discovery of the opened and unopened beer cans. The State then offered the videotape in evidence, but the court responded that it had already been admitted.
After deliberations began, the bailiff reported to the court that the jurors “want[ed] to see the exhibits, including the video.” With the parties present in the courtroom, the court instructed the bailiff, “They want the exhibits, let’s let them have them.” Vaccaro did not object to delivering the videotape and other exhibits to the jurors.
After conviction, Vaccaro filed a motion for new trial in which he argued that the jury impermissibly viewed the entirety of the videotape even though the parties intended to offer only selected portions in evidence. Vaccaro’s trial counsel testified that while the jury was deliberating he overheard the jury viewing other portions of the videotape in which the trooper referred to the results of Vaccaro’s portable breath test. Counsel conceded on cross-examination, however, that he did not object when he heard this nor did he object or request a limiting instruction when the jury initially asked for the exhibits and the bailiff delivered the videotape and the other exhibits to the jury room.
Because the videotape was admitted without limitation, even though the parties agreed on the record that some of the matters depicted therein were inadmissible, Vaccaro is estopped to complain about the admission of the videotape in evidence. See Willover v. State, 70 S.W.3d 841, 846 (Tex. Crim. App. 2002). And because the videotape was admitted without limitation, Vaccaro is estopped to complain that the jury reviewed the entirety of the videotape.
In Willover, the defendant sought to introduce a videotape in evidence for impeachment purposes, but the trial court refused to admit the evidence because portions of it were inadmissible and the court had no means to edit the inadmissible portions. See id. The Court of Criminal Appeals held that the trial court did not abuse its discretion by excluding the evidence because the defendant failed to segregate and offer only the admissible portions. Id. at 846-47. As the Court explained:
The trial court need never sort through challenged evidence in order to segregate the admissible from the excludable, nor is the trial court required to admit only the former part or exclude only the latter part. If evidence is offered and challenged which contains some of each, the trial court may safely admit it all or exclude it all, and the losing party, no matter who he is, will be made to suffer on appeal the consequences of his insufficiently specific offer or objection.
Id. at 847 (quoting Jones v. State, 843 S.W.2d 487, 492 (Tex. Crim. App. 1992)).
Vaccaro’s case presents a procedural scenario opposite that presented in Willover, yet with the same result. Vaccaro offered a videotape containing admissible and inadmissible matters rather than offering a redacted version of the videotape. The court admitted the evidence without limitation, and Vaccaro did not request a limiting instruction when the evidence was admitted. Cf. Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001) (“If a limiting instruction is to be given, it must be given when the evidence is admitted to be effective.”). “If evidence is offered and challenged which contains [admissible and inadmissible evidence], the trial court may safely admit it all or exclude it all, and the losing party, no matter who he is, will be made to suffer on appeal the consequences.” Willover, 70 S.W.3d at 847 (quoting Jones, 843 S.W.2d at 492).
Thus, we overrule Vaccaro’s fifth issue.
Notice of Deadly-Weapon Issue
Vaccaro contends in his sixth issue that his right to due process was violated when the court submitted a deadly-weapon question in the charge because the State did not give adequate notice of its intent to seek a deadly-weapon finding.
A defendant has a right to notice of the State’s intent to seek a deadly-weapon finding. Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005). This right is “firmly rooted in fundamental precepts of due process and due course of law.” Villescas v. State, 189 S.W.3d 290, 293 (Tex. Crim. App. 2006) (quoting Ex parte Patterson, 740 S.W.2d 766, 774 n.7 (Tex. Crim. App. 1987)).
Here, the indictment presented by the grand jury did not contain a deadly-weapon allegation. The State filed a motion to amend the indictment to include a deadly-weapon allegation and to add enhancement allegations on September 7, 2004. The court heard the State’s motion in a pretrial hearing on September 29. Vaccaro objected to only the proposed enhancement allegations. The court granted the State’s motion to amend, although the court did not interlineate the proposed amendments at that time. Voir dire was conducted on October 15, and the trial on the merits started three days later.
Vaccaro had at least two weeks’ notice of the State’s intent to seek a deadly weapon finding. Thus, his right to due process was not violated by the timing of the State’s notice. See Williams v. State, 172 S.W.3d 730, 737 (Tex. App.—Fort Worth 2005, pet. ref’d) (8 days’ notice of intent to enhance punishment adequate); Richardson v. State, 170 S.W.3d 855, 857 (Tex. App.—Texarkana 2005, pet. ref’d) (11 days’ notice adequate); Hackett v. State, 160 S.W.3d 588, 591 (Tex. App.—Waco 2005, pet. ref’d) (minimum of 10 days’ notice required for enhancement allegations), disavowed sub silentio by Villescas, 189 S.W.3d at 294.[2] Accordingly, we overrule Vaccaro’s sixth issue.
Ineffective Assistance
Vaccaro contends in his seventh issue that he received ineffective assistance of counsel. We begin with a “strong presumption” that counsel provided reasonably professional assistance, and Vaccaro bears the burden of overcoming this presumption. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Generally, the appellate record is insufficient to satisfy this burden. Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004). If nothing in the record reveals the reason for the act or omission which is the basis of an ineffective assistance complaint, we may not speculate on that reason. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Jones v. State, 170 S.W.3d 772, 775 (Tex. App.—Waco 2005, pet. ref’d); Hajjar v. State, 176 S.W.3d 554, 567 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).
Vaccaro did not raise this issue in a motion for new trial. Without a record elucidating the reasons for counsel’s acts and omissions, Vaccaro has failed to overcome the “strong presumption” that counsel provided reasonably professional assistance. See Andrews, 159 S.W.3d at 101; Jones, 170 S.W.3d at 776-77; Hajjar, 176 S.W.3d at 567. Thus, we overrule Vaccaro’s seventh issue.
We affirm the judgment.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray concurring)
Affirmed
Opinion delivered and filed May 2, 2007
Do not publish
[CRPM]
[1] The first two issues (legal and factual sufficiency) are presented in an appellant’s brief filed by counsel whom Vaccaro retained about six months after trial and who represented Vaccaro for about four months. The remaining five issues are presented in a pro se appellant’s brief Vaccaro filed during a period of about one year when he was not represented by counsel. After that, Vaccaro retained other counsel who filed a supplemental brief providing additional argument and authority with regard to the videotape issue. The State has filed briefs in response to each of the briefs filed on Vaccaro’s behalf. We have renumbered the issues presented in Vaccaro’s pro se brief to supplement the issues presented in the brief filed by his former counsel.
[2] In Hackett, a majority of this Court held that a defendant is entitled to a minimum of ten days’ notice of the State’s intent to seek enhancement-of-punishment findings. Hackett v. State, 160 S.W.3d 588, 591 (Tex. App.—Waco 2005, pet. ref’d). In Villescas, the Court of Criminal Appeals “disavow[ed] the [El Paso] court’s attachment of special significance to the time period of ten days.” Villescas v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006). Thus, less than ten days’ notice may be sufficient depending on the circumstances of the case.