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Opinion filed January 5, 2006
In The
Eleventh Court of Appeals
__________
No. 11-04-00299-CR
__________
ROLAND RAMIREZ DELGADO, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 106th District Court
Dawson County, Texas
Trial Court Cause No. 04-6234
O P I N I O N
Roland Ramirez Delgado appeals his conviction by a jury of the felony offense of driving and operating a motor vehicle in a public place while intoxicated after having previously been convicted twice of unlawfully driving or operating a motor vehicle in a public place while intoxicated. The jury also found that appellant had used a deadly weapon during the commission of the offense. The jury assessed his punishment at a term of life in the Texas Department of Criminal Justice, Institutional Division. We affirm.
Appellant presents two points of error. First, he asserts that the trial court erred in denying his motion to suppress an intoxilyzer result and a VHS tape of appellant=s vehicle stop and arrest. Second, he contends that the evidence is not legally or factually sufficient to support the jury=s finding that he used a deadly weapon during the commission of the offense.
At the pretrial motion to suppress, the State stipulated that there was no arrest warrant for appellant. The State offered a copy of the offense report by Trooper Ronald Mann, the officer that stopped and arrested appellant, to meet its burden of proof for a warrantless arrest. The trial court overruled defense counsel=s hearsay objection and request for Trooper Mann=s live testimony and admitted the police report. The police report details that on December 4, 2003, as Trooper Mann was leaving the Lamesa DPS office, he overheard a Lamesa Police Department radio dispatch that contained information regarding a possible intoxicated driver coming into Lamesa from Welch, Texas. The dispatch report was that the vehicle was swerving all over the road. The information described the vehicle to be a light tan, four-door, older model vehicle with a specific licence plate number. As Trooper Mann approached the location of the subject vehicle, he observed that a maroon Tahoe was following the swerving vehicle. Trooper Mann knew Dana Bennett. Bennett was the driver of the maroon vehicle and was the person who called the police. Trooper Mann saw Bennett point at the car in front of her. The vehicle to which she pointed was the four-door, older model, tan vehicle that he had heard described on the police radio. Trooper Mann followed the car and observed the car swerve within its lane. He stopped the vehicle; appellant was the driver. The police report was not offered at the trial on the merits.
After the trial court overrules a pretrial motion to suppress evidence, the defendant need not object to that same evidence at trial to preserve error on appeal. Dean v. State, 749 S.W.2d 80, 83 (Tex. Crim. App. 1988); Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986). When a defendant, however, affirmatively states during trial that there is Ano objection@ to the challenged evidence, error as to the admission of that evidence is waived on appeal. Dean, 749 S.W.2d at 83; Moraguez, 701 S.W.2d at 904; Gearing v. State, 685 S.W.2d 326, 329 (Tex. Crim. App. 1985), overruled on other grounds by Woods v. State, 956 S.W.2d 33, 36-38 (Tex. Crim. App. 1997); McGrew v. State, 523 S.W.2d 679 (Tex. Crim. App. 1975); Boykin v. State, 504 S.W.2d 855, 857 (Tex. Crim. App. 1974). The defense counsel at trial specifically stated he had no objection to the admission of the videotape and the intoxilyzer result and, thus, waived complaint of error in the motion to suppress. Appellant=s first point of error is overruled.
In his second point of error, appellant asserts that there is legally and factually insufficient evidence to support the finding that appellant used or intended to use his motor vehicle as a deadly weapon. In reviewing the legal sufficiency of the evidence, an appellate court considers all of the evidence in the record in the light most favorable to the trial court=s verdict and determines whether, based upon that evidence and all reasonable inferences therefrom, any rational trier of fact could have found that appellant was guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004); Ross v. State, 133 S.W.3d 618 (Tex. Crim. App. 2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).
Tex. Penal Code Ann. ' 1.07(a)(17)(B) (Vernon Supp. 2005) defines deadly weapon as Aanything that in the manner of its use or intended use is capable of causing death or serious bodily injury.@ An automobile can be a deadly weapon if it is driven so as to endanger lives. Tyra v. State, 897 S.W.2d 796 (Tex. Crim. App. 1995). The evidence must demonstrate that the deadly weapon was used or exhibited Aduring the transaction from which@ the felony conviction was obtained. Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003). The evidence must support more than just a hypothetical for danger. There must be evidence that others were actually in danger. Id.; Mann v. State, 13 S.W.3d 89 (Tex. App.CAustin 2000), aff=d, 58 S.W.3d 132 (Tex. Crim. App. 2001). In this case, the evidence supports the finding that others were in danger at the time appellant was operating the vehicle.
Bennett testified that she was driving behind appellant on her way back from picking up her two daughters and two other girls from school. She attempted to pass appellant but stayed behind him after she saw appellant=s car drift into the northbound lane. Bennett testified that, as she continued to follow appellant, his car drifted into that lane of traffic two more times. The third time, appellant caused an oncoming vehicle to swerve away. She called the police immediately after seeing the vehicle swerve to avoid an accident with appellant.
Trooper Mann testified that he heard the complaint about appellant=s erratic driving over the radio dispatch and headed to the location of the car. Trooper Mann pulled behind appellant=s southbound vehicle when he saw Bennett pointing to appellant=s car in front of her. Trooper Mann stopped appellant after observing appellant=s car swerving within his lane and identified the driver as appellant. Trooper Mann immediately noticed that appellant had a hard time standing without losing his balance, that appellant struggled to find his identification, that he slurred his speech, and that he smelled of alcohol. Trooper Mann administered sobriety tests to appellant which showed appellant to be intoxicated and unable to follow the directions. Trooper Mann finally gave appellant a portable test which showed appellant had consumed alcohol.
Once arrested and taken to jail, appellant consented to take a breath test which showed his blood alcohol to be .212 and .215, well over twice the legal limit of .08. During an inventory of the car, the officer found an unopened twelve-pack of Keystone Light beer and Aa yellow cup of liquid.@ Trooper Mann testified that he had extensive experience with accidents involving intoxicated drivers and that the vehicle was capable of causing death or serious bodily injury given the intoxicated state of appellant.
The stop occurred around 4:00 p.m. on a weekday afternoon in front of a middle school just after school let out at 3:30 p.m. The videotape of the stop showed that the stop occurred in a school zone with numerous cars and school buses driving both southbound and northbound on the street and that one child walked through the area of the stop. After reviewing all the evidence, we find the evidence both legally and factually sufficient to support the jury=s finding that appellant used the vehicle in such a manner that it was capable of causing death or serious bodily injury. Appellant=s second point of error is overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
January 5, 2006
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J., and
McCall, J., and McCloud, S.J.[1]
[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.