NO. 12-05-00201-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JAMES REAGAN COOK, § APPEAL FROM THE SECOND
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § CHEROKEE COUNTY, TEXAS
MEMORANDUM OPINION
James Reagan Cook appeals his conviction for driving while intoxicated. In four issues, he contends that the trial court erred when it allowed the jury to hear that he had marihuana in his pocket when he was arrested and that he received ineffective assistance of counsel. We affirm.
Background
A police officer stopped Appellant as he drove through Jacksonville, Texas one evening. Appellant drew the officer’s attention when he failed to signal a turn at a stop sign before arriving at the corner. As the officer attempted to get behind Appellant, he observed Appellant’s vehicle nearly strike a parked vehicle and swerve into the oncoming lane. The officer turned on his emergency lights, and Appellant drove for about six hundred yards before stopping his vehicle. After talking with Appellant, the officer observed the following: Appellant’s eyes were bloodshot and glassy, he smelled of the odor of an alcoholic beverage, his speech was slurred, and he was unsteady on his feet. The officer administered field sobriety tests to Appellant including the horizontal and vertical gaze nystagmus tests. After participating in several tests, Appellant indicated, impolitely, that he would not be cooperating with any more tests. Appellant also refused to take a breath test. The officer arrested Appellant for the offense of driving while intoxicated. The officer found marihuana in Appellant’s pocket in a search incident to that arrest.
A Cherokee County grand jury indicted Appellant for the offense of driving while intoxicated. The indictment also alleged that he had two prior convictions for driving while intoxicated and a prior felony conviction. See Tex. Pen. Code Ann. §§ 49.09(b)(2), 12.42(a)(3) (Vernon 2005). The case was tried to a jury, and Appellant was found guilty. Appellant admitted that the enhancement allegation was true, and the jury assessed punishment at sixteen years of imprisonment. This appeal followed.
Admission of Evidence
In his first and second issues, Appellant argues that the trial court erred when it permitted the jury to hear that he had marihuana in his pocket when he was arrested. Appellant asserts that the evidence was irrelevant and that any probative value it had was outweighed by the unfairly prejudicial impact of the evidence.
Standard of Review
Questions of relevance are left largely to the trial court, relying on its own observations and experience, and will not be reversed absent an abuse of discretion. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)). Texas Rule of Evidence 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
Relevant evidence is admissible so long as its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence. Tex. R. Evid. 402, 403. A trial court is entitled to broad discretion in ruling on an objection that evidence is unfairly prejudicial. See Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003). In State v. Melcher, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005), the court of criminal appeals identified two significant rationales for this broad discretion. First, the language of Rule 403 implies that a determination under the rule is inherently discretionary with the trial court. Id. Second, the trial court is in a superior position to evaluate the impact of the evidence. Id.
We review de novo mixed questions of law and fact not involving an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Nevertheless, the abuse of discretion review is the proper standard for a trial court’s evidentiary ruling as these rulings generally do not involve mixed questions of law and fact. Mechler, 153 S.W.3d at 439. The test for whether the trial court abused its discretion is whether the action was arbitrary or unreasonable. Manning, 114 S.W.3d at 926. An abuse of discretion occurs when a ruling is outside the zone of reasonable disagreement. Id.
Analysis
We consider four principal factors in our analysis pursuant to Rule 403: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004); Montgomery, 810 S.W.2d at 389-90.
Probative Value
The first factor looks to the probative value of the evidence or how compellingly the evidence serves to make a fact of consequence more or less probable. Manning, 114 S.W.3d at 927. The fact of consequence is how it was that Appellant came to be intoxicated. The State had alleged that Appellant was intoxicated through the use of alcohol, a controlled substance, a drug or a dangerous drug, or a combination thereof, and this was part of their burden of proof. Marihuana has little common use other than to induce intoxication. Having marihuana in one’s pocket may not sustain an inference that the person is intoxicated, but it is probative of the issue of how a person came to be intoxicated. In addition, the arresting officer testified, without an objection, that Appellant’s eyes showed vertical nystagmus and that this was an indication of a high level of intoxication or a narcotic being present in Appellant’s system.
The fact that Appellant had marihuana in his pocket made it more likely that he had smoked marihuana and supported an inference that Appellant’s intoxication could be explained, at least in part, by the use of marihuana. The probative value of the evidence weighs in favor of admission.
Indelible Impression
The second factor asks whether the evidence has the potential to impress the jury in some irrational but indelible way. Mechler, 153 S.W.3d at 440-41. The focus must be on the quantum of “unfair” impression the evidence leaves. Id. at 440. Unfair prejudice refers only to the tendency of the evidence to tempt the jury to find guilt on grounds apart from the proof of the offense charged. Id.
Possession of a useable quantity of marihuana is a criminal offense, and some people may attach extremely negative associations to the possession of marihuana. On the other hand, it is a minor offense and certainly does not rank with the kind of evidence found to have a propensity to create indelible impressions. For example, the court of criminal appeals recently found that a photograph of an unborn and deceased child introduced at the trial of the person alleged to have killed the mother appealed to the jury’s “emotional side” and encouraged the jury to make a decision on an emotional basis. See Erazo, 144 S.W.3d at 494-95. A small bag of marihuana does not provoke that kind of a response. This factor weighs neutrally.
Time to Develop
The third factor looks to the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense. Mechler, 153 S.W.3d at 441. This evidence took an extremely short period of time to develop, and neither party devoted a significant part of their final summation to this issue. This factor weighs in favor of admission.
Need for the Evidence
The fourth factor focuses on the proponent’s need for the evidence and encompasses the issues of whether the proponent has other evidence establishing this fact and whether this fact is related to a disputed issue. Id. at 441-42. The State needed to prove the source of Appellant’s intoxication. The marihuana in Appellant’s pocket was the only evidence the State had that he was under the influence of marihuana. It was permissible to bring in evidence that Appellant had an intoxicant in his pocket to show how he became intoxicated. This factor weighs in favor of admission, if modestly.
Conclusion
The fact that Appellant had marihuana in his pocket was not the best possible evidence of how it was that he came to be intoxicated. Nevertheless, the potential for an irrational reaction to the material was low, and the State had alleged that he was intoxicated either by alcohol or a controlled substance or some combination. This case is similar to Manning. In Manning, the court of criminal appeals upheld the trial court’s decision to allow evidence that the defendant’s blood contained a metabolite of cocaine even though a witness testified that so little of the metabolite was present that the defendant would not have been feeling the effects of the cocaine. Manning, 114 S.W.3d at 923-24, 928. The court held that the presence of cocaine was an element of the offense, because it was alleged that the defendant had consumed a controlled substance. Id. at 927. The present case is different because there is not proof that the controlled substance was in Appellant’s system. Still, the source of Appellant’s impairment was an element of the offense. The fact that Appellant had a substance on his person that could have been a source of his impairment was, therefore, germane to the issue of the source of Appellant’s intoxication.
The trial court’s decision to allow the jury to hear that Appellant had a small bag of marihuana in his pocket is not outside the zone of reasonable disagreement. We overrule Appellant’s first and second issues.
Ineffective Assistance of Counsel
In his third and fourth issues, Appellant argues that he received ineffective assistance of counsel because his attorney did not object to the lack of an evidentiary foundation before the officer testified that Appellant exhibited both horizontal and vertical gaze nystagmus after he was arrested.
Standard of Review
To prevail on a claim of ineffective assistance of counsel, a defendant must prove that (1) his lawyer’s performance was deficient, i.e., that the lawyer made errors so serious that he was not functioning as the “counsel” guaranteed by the Sixth Amendment, and (2) the errors of counsel were so serious that there exists a reasonable probability that, but for counsel’s errors, the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).
When considering the issue of ineffective assistance of counsel, we begin with the strong presumption that counsel was effective, and we presume that sound strategy motivated counsel’s actions and decisions. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). An appellant has the burden of rebutting this presumption by presenting evidence illustrating why his trial counsel did what he did. See id. The record on appeal is generally not sufficient to show that counsel’s representation was so deficient as to meet the first part of the Strickland standard, because counsel’s decisions often involve facts that do not appear in the appellate record. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002); see also Rogers v. State, 183 S.W.3d 853, 868 (Tex. App.–Tyler 2005, no pet.).
After proving error, an appellant must affirmatively prove prejudice. See Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.–Texarkana 2000, pet. ref’d). To prove prejudice, an appellant must show that there is a reasonable probability that, but for his attorney’s errors, the jury would have had a reasonable doubt about his guilt. Id.
Applicable Law
The court of criminal appeals has concluded that the theory and technique underlying the horizontal gaze nystagmus test are reliable pursuant to Texas Rule of Evidence 702. See Emerson v. State, 880 S.W.2d 759, 768-69 (Tex. Crim. App. 1994). A similar determination has not been made for the vertical gaze nystagmus test. See Stovall v. State, 140 S.W.3d 712, 718 (Tex. App.–Tyler 2004, no pet.). Rule of Evidence 702 provides that “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” To assist the trier of fact, the basis of the testimony must meet three criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992).
Analysis
To argue successfully that trial counsel’s failure to object to evidence amounted to ineffective assistance, Appellant must show that the trial court would have committed error in overruling such an objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996). With respect to the horizontal gaze nystagmus evidence, this threshold is not met. The officer’s explanation of his training and experience could have been more thorough, but it is well established that horizontal gaze nystagmus testing is admissible. Emerson, 880 S.W.2d at 769. It is reasonable to conclude that a more thorough foundation would have been presented if there had been an objection.
With respect to vertical gaze nystagmus, in Stovall, 140 S.W.3d at 718, we concluded that it was novel scientific evidence that had not yet been evaluated and found to be scientifically reliable. That conclusion has not changed, but neither has the contrary proposition been established, that vertical gaze nystagmus evidence may never be received. Cf. Ross v. State, 133 S.W.3d 618, 625 (Tex. Crim. App. 2004) (Polygraph evidence is inadmissible for all purposes.). We decline to speculate that the State would not have been able to meet an objection to this evidence. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
Appellant has failed to prove that a timely objection would have prevented the admission of either the horizontal or vertical gaze nystagmus tests. Even if one or both of the tests could have been kept out of evidence, Appellant has not proven prejudice. The evidence in this case consisted of the officer’s testimony that Appellant was intoxicated, a videotape of Appellant taken shortly after the arrest, Appellant’s refusal of a breath test, and the officer’s testimony that Appellant nearly struck a parked vehicle. The gaze nystagmus tests merely supported the officer’s conclusion that Appellant appeared to be intoxicated. It is unlikely that the jury would disbelieve the officer’s assessment of Appellant’s level of intoxication, but convict him because the officer testified that Appellant’s eyeballs moved erratically as his gaze tracked the officer’s pen. Appellant has not proven that his attorney’s representation denied him the right to counsel or that there is a reasonable probability of a different result.
We overrule Appellant’s third and fourth issues.
Conclusion
The trial court did not err when it allowed the State to present evidence that Appellant had a bag of marihuana in his pocket when he was arrested for driving while intoxicated. Trial counsel did not provide ineffective assistance of counsel.
We affirm the judgment of the trial court.
SAM GRIFFITH
Justice
Opinion delivered June 14, 2006.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
(DO NOT PUBLISH)