Affirmed and Memorandum Opinion filed October 5, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00857-CR
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ELAINE MARIE BARTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 3
Fort Bend County, Texas
Trial Court Cause No. 100083
M E M O R A N D U M O P I N I O N
The jury convicted appellant of driving while intoxicated and in possession of an open container of an alcoholic beverage. The trial court assessed punishment at 180 days’ confinement in the Fort Bend County Jail, probated for a period of two years; three days’ confinement, not probated; thirty-six hours of community service; attendance of DWI education and victim impact courses; and a fine of $200 plus court costs. In four points of error, appellant contends (1) the evidence that she was in possession of an open container of an alcoholic beverage is legally insufficient, (2) the State’s final argument improperly shifted the burden of production of evidence, (3) the trial court abused its discretion by sending the jury an Allen charge, and (4) the trial court abused its discretion by allowing expert testimony from an unqualified witness. We affirm.
FACTUAL BACKGROUND
On June 29, 2002, appellant was driving with her daughter on F.M. 1640. Corporal Victor Garcia of the Richmond Police Department pulled her over because he noticed that one of her car’s headlights was out.
During the stop, Corporal Garcia detected an odor of alcohol, and appellant testified that she had consumed four beers. Corporal Garcia gave appellant three field sobriety tests, each of which she failed. Corporal Garcia also found an open can of beer under the front passenger seat. Appellant was taken to the Fort Bend County jail where she refused to take a breath test or give a blood specimen.
ANALYSIS
I. Legal Sufficiency.
In her first point of error, appellant contends the evidence that the can of beer was in her immediate possession is legally insufficient.
In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443 U.S. 307 (1979)); Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). The issue on appeal is not whether we, as a court, believe the State’s evidence or believe that appellant’s evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991); see also Swearingen v. State, 101 S.W.3d 89, 94 (Tex. Crim. App. 2003).
For an open container finding to be supported, the State must prove “that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person’s immediate possession.” Tex. Penal Code § 49.04(c). The State is not required to prove that the person actually held the container while driving. Troff v. State, 882 S.W.2d 905, 909 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Proof that the container was within the person’s reach will suffice. Id.; see also Griffin v. State, 850 S.W.2d 246, 253 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d).
Corporal Garcia testified that the can of beer was on the floor board under the front passenger seat. Based on this testimony, the jury could have rationally concluded the can was within appellant’s reach and therefore within her immediate possession. Further, Corporal Garcia testified that the can was in appellant’s immediate possession. We overrule appellant’s first point of error.
II. Closing Arguments.
In her second point of error, appellant contends the State’s final argument improperly shifted the burden of proof to her. Specifically, appellant argues that she was required to produce evidence of her innocence because the State commented on appellant’s failure to subpoena her daughter or another officer who was at the scene of the arrest.
“[T]he prosecutor may comment on the defendant’s failure to produce witnesses and evidence so long as the remark does not fault the defendant for exercising [her] right not to testify.” Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000); see also Jarnigan v. State, 57 S.W.3d 76, 94 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).
Because the State’s final argument did not fault appellant for exercising her right not to testify, it was not improper. We overrule appellant’s second point of error.
III. Allen Charge.
In her third point of error, appellant contends the trial court abused its discretion by sending the jury an Allen charge.[1] After deliberating for three hours, the jury sent the trial court a note asking, “We are having trouble agreeing. What do we do?” The trial court responded,
If this jury, after a reasonable length of time, finds itself unable to arrive at a unanimous verdict, it will be necessary for the Court to declare a mistrial and discharge the jury.
The information will still be pending and it is reasonable to assume that the case will be tried before another jury at some future time. Any such future jury will be impanelled in the same way this jury has been impaneled and will likely hear the same evidence which has been presented to this jury.
The questions to be determined by that jury will be the same as the questions confronting you, and there is no reason to hope that the next jury will find those questions any easier to decide than you have found them.
With this additional instruction, you are instructed to continue deliberations in an effort to arrive at a verdict which is acceptable to all members of the jury.
Appellant argues she was harmed because this charge coerced the jury to come to a decision, because otherwise another jury would be called in to make the decision.
This charge is effectively identical to the charge considered by the Court of Criminal Appeals in Arrevalo v. State, 489 S.W.2d 569 (Tex. Crim. App. 1973).[2] The Court held, “while the explanation as to procedure for a retrial in the event of a mistrial was unnecessary, we find nothing in it of a coercive nature.” Id. at 572.
Appellant does not cite any authority holding this charge is coercive, nor are we aware of any. To the contrary, courts have consistently held that this charge is not coercive. See, e.g., West v. State, 121 S.W.3d 95, 108–09 (Tex. App.—Fort Worth 2003, pet. ref’d); Willis v. State, 761 S.W.2d 434, 437–38 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d). We overrule appellant’s third point of error.
IV. Expert Testimony.
In her fourth point of error, appellant contends the trial court abused its discretion by allowing Corporal Garcia to testify concerning the Horizontal Gaze Nystagmus (“HGN”) test.
A ruling on a motion to suppress lies within the sound discretion of the trial court. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). At the hearing on the motion, the trial court serves as the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id.; Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Therefore, absent a clear showing of an abuse of discretion, we will not disturb the trial court’s ruling.
For testimony concerning a defendant’s performance on an HGN test to be admissible, the State must show that the testifying witness is an expert on the HGN test. Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994). This requirement is satisfied by proof that a police officer has received practitioner certification to apply the HGN test. Id. If the officer has not received practitioner certification, this requirement can still be met if the trial court determines that the officer is otherwise qualified as an expert based on knowledge, skill, experience, training, or education. See Singleton v. State, 91 S.W.3d 342, 348 (Tex. App.—Texarkana 2002, no pet.); Smith v. State, 65 S.W.3d 332, 344 (Tex. App.—Waco 2001, no pet.); Kerr v. State, 921 S.W.2d 498, 502 (Tex. App.—Fort Worth 1996, no pet.); see also Tex. R. Evid. 702.
At the time he performed the HGN test on appellant, Corporal Garcia had not yet received his certificate from the Texas Commission on Law Enforcement Officer Standards and Education (“TCLEOSE”). However, he had already completed the necessary training and had submitted the necessary tests to TCLEOSE. The certificate arrived approximately two months later, indicating that the tests had been completed successfully. Based on this evidence, the trial court would not have abused its discretion in determining that Corporal Garcia had received the necessary training to be considered an expert on the HGN test. We overrule appellant’s fourth point of error.
We affirm the judgment of the trial court.
/s/ Elizabeth Ray
Judge
Judgment rendered and Memorandum Opinion filed October 5, 2004.
Panel consists of Justices Edelman, Seymore, and Ray.[3]
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] A trial court sends an Allen charge to the jury in an attempt to break a deadlock. See Allen v. United States, 164 U.S. 492, 501 (1896). The charge informs the jurors that the consequence of a hung jury is a mistrial, that jurors at retrial would be faced with essentially the same decision, and encourages the jurors to try to resolve their differences without coercing one another. Torres v. State, 961 S.W.2d 391, 393 n.1 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d).
[2] The only difference was the use of the word “indictment” instead of “information” in the second paragraph. See Arrevalo, 489 S.W.2d at 571.
[3] The Honorable Elizabeth Ray, Judge of the 165th District Court of Harris County, sitting by assignment pursuant to Tex. Gov’t Code § 74.003(h) (Vernon Supp. 2004).