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NUMBER 13-03-604-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
SHAHZAD JAMES AHMED, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the County Court at Law No. 2
of Galveston County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Yañez, and Garza
Memorandum Opinion by Justice Yañez
On November 15, 2001, appellant, Shahzad Ahmed, was indicted on one count of driving while intoxicated.[1] After a jury trial, appellant was found guilty and the jury assessed punishment at ninety days= confinement in county jail and a fine of $400.
In three issues, appellant contends (1) the evidence is factually insufficient to support his conviction, (2) the trial court erred in its rulings on the admissibility of various evidence, and (3) the trial court submitted an improper charge to the jury. We affirm.
The record contains the trial court=s certification that this is not a plea-bargain case and the defendant has the right of appeal.[2] As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court=s decision and the basic reasons for it.[3]
Factual Sufficiency
In appellant=s first issue, he claims the evidence is factually insufficient to support his conviction for driving while intoxicated.[4] In particular, he challenges the factual sufficiency of the evidence establishing that he was intoxicated.
When reviewing the factual sufficiency of the evidence, we review all of the evidence, but not in the light most favorable to the prosecution.[5] We must determine whether a neutral review of the evidence, both for and against the finding, demonstrates that a rational jury could find guilt beyond a reasonable doubt.[6] Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilty beyond a reasonable doubt.[7] Evidence is also factually insufficient when contrary evidence is so strong that the beyond‑a‑reasonable‑doubt burden of proof could not have been met.[8] The jury is the sole judge of the weight and credibility of witness testimony.[9] Our evaluation may not intrude upon the fact‑finder's role as the sole judge of the weight and credibility accorded any witness's testimony.[10] The fact‑finder alone determines what weight to place on contradictory testimonial evidence, as it depends on the fact‑finder's evaluation of credibility and demeanor.[11]
Sufficiency of the evidence is measured against the elements of the offense as defined in a hypothetically correct jury charge.[12] Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.[13]
Section 49.04 of the Texas Penal Code provides that a person commits the offense of driving while intoxicated if that person is intoxicated while operating a motor vehicle in a public place.[14] A person is deemed intoxicated when the person lacks the normal use of mental or physical faculties by reason of the introduction of alcohol, among other substances, into his body.[15]
Deputy William Settegast testified that he observed appellant operating a motor vehicle on a public beach. Settegast stated that he stopped appellant because he was Adoing donuts@ and driving recklessly on the beach. According to Settegast, during the stop he observed signs of intoxication in appellant's demeanor and appearance and testified that appellant admitted that he had been drinking. Deputy Jeff McKinney, who arrived at the scene shortly after the stop, testified that he detected alcohol on appellant=s breath, noticed that appellant=s eyes were red and glassy, and claimed appellant was unsteady on his feet. He further stated that appellant failed three sobriety tests. McKinney testified that because of appellant=s intoxication, he was placed under arrest and transported to the sheriff=s station. At the station, appellant was provided with the required statutory warnings and subsequently refused to submit to a breathalyzer test.
In contrast, appellant testified that he was not Adoing donuts@ or driving recklessly. According to appellant, on the day in question, it was windy, and as a result, he was in the process of moving his vehicle into a position that would prevent the wind from blowing on a barbeque pit he and his friends had set up. He admitted that he had consumed approximately five beers over a six-hour period. However, he maintained that he was not intoxicated. Appellant claimed his eyes were bloodshot because of smoke created by the barbeque pit and blowing sand. According to appellant, his performance on the sobriety tests was less than perfect because he was wearing flip-flops, and he had a pinched nerve in his leg, which prevented him from standing up straight and caused him to wobble while he walked. He also testified that he performed poorly because he needed to use the restroom, was nervous, and had trouble concentrating.
Three of appellant=s friends testified that appellant had consumed about four beers over approximately a six hour period. However, all three testified that appellant did not appear to be intoxicated. They also claimed appellant was not driving recklessly. According to their testimony, appellant was in the process of moving his car when an officer approached, handcuffed appellant, and accused him of being intoxicated.
Although conflicting testimony was presented regarding whether appellant was intoxicated, after reviewing all of the evidence in a neutral light, while giving deference to the fact‑finder's role as the sole judge of the weight and credibility of testimony, we conclude a rational jury could have found appellant guilty beyond a reasonable doubt.[16] We find that the evidence contrary to the verdict is not strong enough that the beyond‑a‑reasonable‑doubt standard could not have been met.[17] Thus, the evidence is factually sufficient to support appellant=s conviction.[18] Appellant's first issue is overruled.
Admissibility of Evidence
In appellant=s second issue, he contends the trial court erred in two rulings regarding the admissibility of evidence. Specifically, appellant argues that the court erred because it (1) prohibited his trial counsel from cross-examining Settegast regarding prior inconsistent statements, and (2) admitted testimony of Settegast that was based on inadmissible hearsay.
The standard of review for a trial court's decision to admit or exclude evidence is abuse of discretion.[19] An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably, without reference to guiding rules or principles.[20] If the ruling was correct on any theory of law applicable to the case, in light of what was before the trial court at the time the ruling was made, then we must uphold the judgment.[21]
Regarding appellant=s first subissue, he argues the court erred because it limited cross-examination of Settegast with respect to prior inconsistent statements made at a pre-trial suppression hearing. In response, the State contends appellant failed to preserve error by failing to make an offer of proof and argues that error, if any, was harmless.
Under Texas Rule of Evidence 103, a party may not predicate error on a ruling that excludes evidence unless a substantial right of the party is affected, and the substance of the evidence was made known to the court by offer of proof or was apparent from the context of the questions counsel sought to ask.[22]
Prior to direct examination of Settegast, appellant=s counsel requested that the court allow her to impeach Settegast on cross-examination regarding any testimony that may arise that may potentially be inconsistent with any of his prior testimony at the suppression hearing. The court overruled counsel=s request and denied her an opportunity to make an offer of proof.
On appeal, appellant argues specifically that the court=s ruling improperly precluded impeachment of Settegast on three matters he subsequently testified to, which appellant contends were inconsistent with his prior suppression testimony: (1) the type of vehicle appellant drove on the day in question; (2) how appellant acted when initially approached; and (3) whether a barbeque pit was located in the area near where appellant was stopped. It is a basic tenet of appellate practice that error must be preserved at trial for purposes of appeal.[23] When evidence is excluded, the right to make an offer of proof or perfect a bill of exception is absolute.[24] To preserve error where a trial court excludes proffered evidence, the party offering that evidence must make a bill of exception or offer of proof.[25] Although an absolute right exists to make a bill of exception or offer of proof when evidence is excluded,[26] we need not discuss this right further because, as explained below, appellant=s counsel did not demonstrate with sufficient specificity why the proposed testimony was admissible prior to the trial court=s ruling.[27]
The record shows that at the time of her request, counsel was not aware of any inconsistent testimony. Specifically, she requested that the court allow her to impeach Athe officer [if] he gets on the stand and changes his story.@ Because Settegast had not yet testified, and because counsel was therefore not yet aware of any inconsistencies, counsel could not and did not provide the court with any reason regarding why such potential testimony was admissible, nor did counsel argue that the court=s ruling violated his state or federal rights.[28] Because appellant=s request was premature and not made with sufficient specificity, and because the substance of the evidence was not apparent from the context of appellant=s request, appellant has waived any error, and therefore, presents nothing for this Court to review.[29]
In his second subissue, appellant argues that the court erred in admitting certain testimony by Settegast because it was based on inadmissible hearsay.[30]
On cross-examination, appellant=s counsel asked Settegast if he remembered what type of car appellant was driving. Settegast stated, AI believe it was an Accord. I am looking at the [police] report and I believe it was like a Honda Accord possibly.@ Counsel then asked Settegast whether he had prepared the report. Settegast stated that he had not prepared the report and clarified that it had been prepared by McKinney. Counsel then asked Settegast six additional questions before requesting permission to approach the bench. After counsel approached, she raised a hearsay objection to the report. The court responded that she was untimely in pursuing her objection. Objections must be timely and specific in order to preserve error for appellate review.[31] Because counsel failed to raise a timely hearsay objection, this complaint is not preserved for appellate review.[32]
Having considered appellant=s arguments in this issue, we overrule appellant=s second issue.
Improper Jury Charge
In appellant=s third issue, he contends the trial court erred by submitting an improper jury charge regarding the legality of the initial stop.
Our review of a jury charge for error is a two‑step process.[33] First, we must determine if there is error in the charge.[34] If so, we must determine whether sufficient harm resulted from the error to require reversal.[35] The standard of review differs depending on whether the appellant made a timely objection at trial.[36] If the error in the charge was the subject of a timely objection, reversal is required if there is some harm to the defendant as a result of the error.[37] If no proper objection was made at trial, reversal is required only if the error is so egregious that the defendant was denied a fair and impartial trial.[38] The degree of harm is determined in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.[39]
Appellant objected at trial to the submitted jury charge and argues on appeal that the following charge should have been submitted:
You are further instructed that an officer is permitted, however, to make a temporary investigative detention of a motorist if the officer has a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, that the person detained is connected with such activity, and that there is some indication that the activity is related to a crime or criminal offense.
Now bearing in mind these instructions, if you find from the evidence that, on the occasion in question, Deputy Settegast did not have a reasonable suspicion to believe that the Defendant . . . was driving recklessly immediately preceding the Defendant=s stop and detention by the officer, or if you have a reasonable doubt thereof, you will disregard any and all evidence obtained as a result of the Defendant=s detention by the officer and you will not consider such evidence for any purpose whatsoever. Further, since you will have no further evidence to consider, you shall return a verdict of >Not Guilty.=
The actual charge submitted to the jury stated, in relevant part:
You are instructed that under our law no evidence obtained or derived by an officer or other person as a result of an unlawful stop and detention shall be admissible in evidence against such accused. An officer is permitted, however, to make a temporary investigative detention of a motorist if the officer has a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, that the person detained is connected with such activity, and that there is some indication that the activity is related to crime or a criminal offense.
Now bearing in mind these instructions, if you find from the evidence that on the occasion in question the defendant . . . was not driving his vehicle in a reckless manner, immediately proceeding [sic] his stop and detention by the police officer involved herein, or you have a reasonable doubt thereof, then such stopping of the accused would be illegal, and if you find the facts so to be, or if you have a reasonable doubt thereof, you will disregard the testimony of the officer relative to his stopping the defendant and his conclusions drawn as a result thereof and you will not consider such evidence for any purpose whatsoever. Further since you will have no further evidence to consider you shall return a verdict of not guilty.
Appellant claims the charge submitted improperly instructed the jury to consider in its determination of whether the initial stop was illegal, additional evidence discovered after the stop. Appellant further argues that the application paragraph of the jury=s charge improperly asked the jury to determine whether appellant was driving recklessly based on the totality of the evidence adduced at trial. We disagree.
A defendant is entitled to a jury instruction under article 38.23(a) of the code of criminal procedure when a fact issue exists regarding the basis for an officer's seizure of evidence.[40] When a fact issue is raised, regardless of the level it rises to, the trial court is statutorily bound to submit an instruction to the jury.[41]
Here, the charge submitted was appropriate as the application paragraph instructed the jury that if it believed the initial stop for reckless driving was illegal, then it was required to disregard Settegast=s testimony and conclusions.[42] The application paragraph further instructed the jury that if it determined the stop was illegal, then no other evidence would be left to consider, thereby requiring a verdict of not guilty.[43] After reviewing the charge, we conclude the court did not err in its submission of the charge at issue because it complied with article 38.23(a) and was not so misleading or confusing so as to preclude the jury from determining the defendant's guilt in light of the evidence and the law.[44] Appellant=s third issue is overruled.
Because we have overruled appellant=s three issues, we affirm the judgment of the trial court.
_______________________
LINDA REYNA YAÑEZ,
Justice
Do not publish.
Tex. R. App. P. 47.2(b)
Memorandum Opinion delivered and
filed this the 31st day of August, 2005.
[1] See Tex. Pen. Code Ann. ' 49.04(a) (Vernon 2003).
[2] See Tex. R. App. P. 25.2(a)(2).
[3] See Tex. R. App. P. 47.4.
[4] See Tex. Pen. Code Ann. ' 49.04(a) (Vernon 2003).
[5] See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997).
[6] See Zuniga v. State, 2004 Tex. Crim. App. LEXIS 2014, No. 539-02, at *7 (Tex. Crim. App. Apr. 21, 2004) (designated for publication).
[7] See id.
[8] See id.
[9] See Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000).
[10] See Cain, 958 S.W.2d at 408.
[11] See id. at 408‑09.
[12] See Wheaton v. State, 129 S.W.3d 267, 271-72 (Tex. App.BCorpus Christi 2004, no pet.).
[13] See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
[14] See Tex. Pen. Code Ann. ' 49.04(a) (Vernon 2003).
[15] See id. ' 49.01(2)(A).
[16] See Zuniga, 2004 Tex. Crim. App. LEXIS 2014, at *7; Cain, 958 S.W.2d at 407-09.
[17] See Zuniga, 2004 Tex. Crim. App. LEXIS 2014, at *7.
[18] See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).
[19] See Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998).
[20] See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
[21] See State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Romero v. State, 800 S.W.2d 539, 543‑44 (Tex. Crim. App. 1990).
[22] See Tex. R. Evid. 103(a).
[23] See Spence v. State, 758 S.W.2d 597, 599 (Tex. Crim. App.1988) (citing Tex. R. Evid. 103).
[24] See id.
[25] See Tex. R. Evid. 103(a).
[26] See Spence, 758 S.W.2d at 599.
[27] See Tex. R. Evid. 103(a); Tex. R. App. P. 33.1.
[28] See Tex. R. Evid. 103(a); Tex. R. App. P. 33.1; Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998); Stewart v. State, 686 S.W.2d 118, 122 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 866 (1985); Jenkins v. State, 948 S.W.2d 769, 775 (Tex. App.BSan Antonio 1997, pet. ref=d).
[29] See Tex. R. Evid. 103(a); Tex. R. App. P. 33.1; Warner, 969 S.W.2d at 2; Stewart, 686 S.W.2d at 122; Jenkins, 948 S.W.2d at 775.
[30] We note that appellant raises an additional argument: that the court improperly failed to strike Settegast=s testimony. However, appellant has failed to provide citation to the record demonstrating that counsel actually presented a timely and specific request to the trial court to strike the complained-of testimony. See Tex. R. App. P. 33.1, 38.1(h). Appellant has also failed to provide citation to appropriate legal authority in support of his argument regarding the court=s alleged failure to strike the testimony. We decline to construct appellant=s argument for him. See Tex. R. App. P. 33.1, 38.1(h).
[31] See Tex R. App. P. 33.1.
[32] See id.
[33] See Ochoa v. State, 119 S.W.3d 825, 828‑29 (Tex. App.BSan Antonio 2003, no pet.).
[34] See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); Ochoa, 119 S.W.3d at 828.
[35] See Ochoa, 119 S.W.3d at 828.
[36] See Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004).
[37] See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on rh=g).
[38] See Ovalle, 13 S.W.3d at 786; Almanza, 686 S.W.2d at 171.
[39] See Almanza, 686 S.W.2d at 171.
[40] See Davy v. State, 67 S.W.3d 382, 388 (Tex. App.BWaco 2001, no pet.) (citing Pierce v. State, 32 S.W.3d 247, 251(Tex. Crim. App. 2000)).
[41] See Jordan v. State, 562 S.W.2d 472, 473 (Tex. Crim. App. 1978); Reece v. State, 878 S.W.2d 320, 324 (Tex. App.BHouston [1st Dist.] 1994, no pet.).
[42] See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).
[43] See id.
[44] See id.; Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996).