IN THE
TENTH COURT OF APPEALS
No. 10-16-00169-CR
BILLY JOE BOOKER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 413th District Court
Johnson County, Texas
Trial Court No. F48257
MEMORANDUM OPINION
The jury convicted Billy Joe Booker of the offense of driving while intoxicated 3 rd
offense or more, found the enhancement paragraphs to be true, and assessed punishment
at 99 years confinement. We affirm.
Directed Verdict
In the first issue, Appellant argues that the trial court erred in denying his motion
for directed verdict. We review an issue complaining about a trial court's failure to grant
a motion for directed verdict as a challenge to the sufficiency of the evidence. See Williams
v. State, 937 S.W.2d 479, 482 (Tex.Crim.App.1996). The Court of Criminal Appeals has
expressed our standard of review of a sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point directly
and independently to the guilt of the appellant, as long as the cumulative
force of all the incriminating circumstances is sufficient to support the
conviction." Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert den’d, 132 S.Ct. 2712, 183
L.Ed.2d 71 (2012).
The Court of Criminal Appeals has also explained that our review of "all of the
evidence" includes evidence that was properly and improperly admitted. Conner v. State,
67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,
326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence
are treated equally: "Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
Booker v. State Page 2
establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well
established that the factfinder is entitled to judge the credibility of witnesses and can
choose to believe all, some, or none of the testimony presented by the parties. Chambers
v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
On January 31, 2014, Nicole Stokley and Porsha Gaut observed Appellant slumped
over the steering wheel of his vehicle at an intersection. Gaut got out of the vehicle and
knocked on Appellant’s window, and Stokley honked the horn on her vehicle. Appellant
then began to drive forward, and Stokley followed behind Appellant. Appellant hit a
pole and a retaining wall with his vehicle. Gaut and Stokley both observed Appellant
driving the vehicle, and there were no other passengers in the vehicle. Gaut called 9-1-1,
and officers from the Cleburne Police Department responded to the call.
Officer Craig Huskey initiated the traffic stop of Appellant’s vehicle, and he
observed damage to Appellant’s vehicle. Officer Huskey testified that Appellant smelled
of alcohol and had slurred speech and glassy eyes. Officer Carmack arrived at the scene
and had appellant perform three field sobriety tests. Officer Carmack testified that
Appellant exhibited six out of six clues for intoxication on the HGN test, five out of eight
clues on the walk-and-turn-test, and three out of four clues on the one-legged stand test.
Appellant told the officers that he consumed six beers and that he was intoxicated.
A person commits an offense if the person is intoxicated while operating a motor
vehicle in a public place. TEX. PENAL CODE ANN. 49.04 (a) (West Supp. 2016). Intoxicated
Booker v. State Page 3
means not having the normal use of mental or physical faculties by reason of the
introduction of alcohol into the body. TEX. PENAL CODE ANN. 49.01 (2) (A) (West 2011).
The jury heard evidence that Appellant was the driver of the vehicle and that he
was driving in a reckless manner striking a pole and a retaining wall. Appellant smelled
of alcohol, had slurred speech, and glassy eyes. Appellant failed three field sobriety tests
designed to indicate the loss of a person’s mental or physical faculties. We find that the
evidence is sufficient to support Appellant’s conviction for driving while intoxicated. We
overrule the first issue.
Search Warrant
In the second issue and third issues, Appellant argues that the trial court erred in
admitting into evidence both the affidavit used to obtain the search warrant and the
search warrant. Officer Carmack prepared an affidavit to obtain Appellant’s blood
sample. The affidavit had pre-printed boxes for the officer to check. Officer Carmack
checked the box indicating that he observed Appellant driving a motor vehicle and that
he initiated a traffic stop. During trial, Officer Carmack testified that the affidavit
contained an error because he checked the wrong box on the affidavit. Officer Carmack
clarified that he did not observe Appellant driving and that Officer Huskey initiated the
traffic stop. Appellant objected to the admission of the affidavit and the search warrant
into evidence. After a hearing, the trial court admitted the affidavit and search warrant,
but excluded the results of the blood test.
Booker v. State Page 4
Appellant argues that the trial court erred in admitting the affidavit because it
contained false statements and also because it contained conclusory statements that
lacked specificity to support the issuance of the warrant. In determining whether a trial
court erred in admitting evidence, the standard for review is abuse of discretion.
McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005). A trial court abuses its
discretion when its decision is so clearly wrong as to lie outside that zone within which
reasonable persons might disagree. Id.
The affidavit accurately described the field sobriety tests administered to
Appellant and noted the areas where Appellant was unable to successfully complete the
field sobriety tests. The affidavit describes in detail the reason Appellant failed each field
sobriety test. On the affidavit, Officer Carmack made a notation “see back” in the pre-
printed area. On the reverse side of the form, Officer Carmack gave a handwritten
narrative that described the events surrounding the arrest. In the narrative, Officer
Carmack notes that “officers” responded to a call of a vehicle crash and that “a traffic
stop was initiated” without identifying the specific officer. The narrative gave an
accurate account of the events surrounding the arrest. Officer Carmack testified at trial
without objection concerning the errors on the affidavit and corrected the inaccurate
information. Admitting the affidavit allowed the jurors to compare the affidavit with
Officer Carmack’s testimony and to judge the credibility of the officer’s testimony.
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We find that any error in admitting the affidavit and search warrant did not affect
Appellant’s substantial rights. TEX.R.APP.P. 44.2 (b). Appellant cross-examined Officer
Carmack about the incorrect information in the affidavit. The affidavit provided the
correct narrative on the details surrounding Appellant’s arrest and gave detailed
information about the field sobriety tests. The affidavit provided probable cause to issue
the search warrant. See TEX. CODE CRIM. PROC. art. 18.01 (b) (West Supp. 2016). The jury
heard evidence from other witnesses supporting the narrative contained in the affidavit.
The jury heard evidence that Appellant’s blood was drawn pursuant to the search
warrant; however, the results from the blood test were suppressed. We overrule the
second and third issues.
In the fourth issue, Appellant complains that the trial court erred in initially
denying his motion to suppress the blood test results. When reviewing a trial court's
ruling on a motion to suppress, we view the evidence in the light most favorable to the
trial court's ruling. State v. Robinson, 334 S.W.3d 776, 778 (Tex.Crim.App.2011); State v.
Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006). The trial judge is the sole trier of fact and
judge of the credibility of the witnesses and the weight to be given to their testimony.
Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App.2007). Therefore, we give almost total
deference to the trial court's rulings on (1) questions of historical fact, even if the trial
court's determination of those facts was not based on an evaluation of credibility and
demeanor; and (2) application-of-law-to-fact questions that turn on an evaluation of
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credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007). But
when application-of-law-to-fact questions do not turn on the credibility and demeanor of
the witnesses, such as the determination of reasonable suspicion, we review the trial
court's ruling on those questions de novo. Hereford v. State, 339 S.W.3d 111, 118
(Tex.Crim.App.2011); Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.2000).
The trial court held a hearing prior to trial on Appellant’s motion to suppress. At
that time, the trial court was not aware that the affidavit in support of the search warrant
contained an error. Officer Carmack testified at the hearing on the motion to suppress
that he observed Appellant at the scene and that appellant smelled of alcohol, had glassy,
bloodshot eyes, and slurred speech. Officer Carmack stated that he administered the field
sobriety tests and detailed Appellant’s performance on the tests. Officer Carmack
prepared the affidavit in support of the search warrant, and the affidavit further provided
details of the incident and specifically stated how Appellant failed the field sobriety tests.
When the trial court is determining probable cause to support the issuance of a
search warrant, there are no credibility determinations, rather the trial court is
constrained to the four corners of the affidavit. State v. McLain, 337 S.W.3d 268, 271
(Tex.Crim.App. 2011). The magistrate had a substantial basis for concluding that
probable cause existed, and the trial court did not err in denying the motion to suppress
prior to trial. We overrule the fourth issue.
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Jury Panel
In the fifth issue, Appellant argues that the trial court erred in denying his motion
to strike the jury panel. In the sixth issue, Appellant argues that the trial court erred in
granting the State’s motion to strike venireperson 18 for cause. During voir dire, the State
asked the panel if everyone could sit in judgment of the Appellant. Venireperson 18
stated that because of her religious belief, she could not sit in judgment of another person.
Appellant’s counsel later questioned venireperson further, and she again stated that
because of her religious belief she could not judge another person and could not reach a
verdict. The State challenged venireperson 18 for cause. Appellant’s counsel did not
have any response or objection to the State’s challenge for cause, but requested that the
trial court strike the jury panel.
The record indicates that Appellant is African-American. Venireperson 18 was the
only African-American in the jury panel. Appellant argues that the trial court erred in
granting the challenge for cause for the only African-American member of the panel and
in refusing to strike the jury panel with no remaining African-Americans on the panel.
We review a trial court's ruling on a challenge for cause with considerable
deference because the trial judge is in the best position to evaluate a veniremember's
demeanor and responses. Gardner v. State, 306 S.W.3d 274, 295-296 (Tex.Crim.App. 2009).
A trial judge's ruling on a challenge for cause may be reversed only for a clear abuse of
discretion. Gardner v. State, 306 S.W.3d at 296. A veniremember is challengeable for cause
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if he has a bias or prejudice against the defendant or against the law upon which either
the State or the defense is entitled to rely. TEX. CODE CRIM. PROC. art. 35.16(a)(9) (West
2006); Gardner v. State, 306 S.W.3d at 295. The test is whether the bias or prejudice would
substantially impair the prospective juror's ability to carry out his oath and instructions
in accordance with the law. Gardner v. State, 306 S.W.3d at 295.
Venireperson 18 stated that she could not sit in judgment of Appellant and that
she could not reach a verdict. The trial court did not err in granting the State’s challenge
for cause of venireperson 18. Moreover, Appellant did not object to the challenge for
cause, and therefore, waived the complaint for review. TEX.R.APP.P. 33.1 (a). We
overrule the sixth issue.
The court shall hear and determine a challenge to the array before interrogating
those summoned as to their qualifications. TEX. CODE CRIM. PROC. art. 35.06 (West 2006).
Article 35.07 provides:
Each party may challenge the array only on the ground that the
officer summoning the jury has wilfully summoned jurors with a view to
securing a conviction or an acquittal. All such challenges must be in writing
setting forth distinctly the grounds of such challenge. When made by the
defendant, it must be supported by his affidavit or the affidavit of any
credible person. When such challenge is made, the judge shall hear
evidence and decide without delay whether or not the challenge shall be
sustained.
TEX. CODE CRIM. PROC. art. 35.07 (West 2006). Appellant did not challenge the array
before voir dire began, and he did not challenge the array in writing supported by an
affidavit.
Booker v. State Page 9
Under Batson1, a defendant may be entitled to "a new array" if he can demonstrate,
by a preponderance of the evidence, that the prosecutor indulged in purposeful
discrimination against a member of a constitutionally protected class in exercising his
peremptory challenges during jury selection. Blackman v. State, 414 S.W.3d 757, 764
(Tex.Crim.App. 2013). Appellant has not shown that the State was discriminatory in
exercising his peremptory challenges. The trial court did not err in denying Appellant’s
request to strike the jury panel. We overrule the fifth issue.
Admission of Evidence
In the seventh issue, Appellant complains that the trial court erred in admitting
his statement to police during the traffic stop. Appellant was convicted by the jury, but
that jury was unable to reach a verdict on punishment. The trial court declared a mistrial
during the punishment phase, and a new jury was empaneled approximately eighteen
months later to determine punishment. During the second hearing on punishment,
Officer Husky testified that Appellant told him he was not driving the vehicle at the time
of the crash because he was under the influence.
During cross-examination, Officer Huskey stated that there was no recording of
the traffic stop available. Officer Huskey further stated that because of the age of the case,
he was unsure and unable to recall why there was no video available of the traffic stop.
Appellant requested the trial court to strike the testimony of Officer Huskey concerning
1 Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986).
Booker v. State Page 10
any statements made by Appellant and instruct the jury to disregard those statements.
Appellant argues on appeal that the trial court erred in admitting the testimony
concerning Appellant’s statements because the State suppressed the videos of the
conversation between him and the police officers.
In determining whether a trial court erred in admitting evidence, the standard for
review is abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App.
2005). A trial court abuses its discretion when its decision is so clearly wrong as to lie
outside that zone within which reasonable persons might disagree. Id.
Appellant requested that the trial court strike the testimony of Officer Husky, but
did not request that the trial court hold a hearing to determine whether there had been a
spoliation of the evidence or whether there had been an intentional, or negligent,
withholding of evidence, or a destruction of the evidence that is favorable to the defense.
Jackson v. State, 495 S.W.3d 398, 419 (Tex.App.-Houston [14th Dist.] 2016, pet. ref’d).
Appellant did not preserve his complaint for review. Id. Moreover, Appellant did not
show that (1) any video of the traffic stop existed; (2) the State in fact destroyed or
withheld any videos of the traffic stop; (3) the videos contained "material exculpatory
evidence"; or (4) if they were not material, that they were destroyed in bad faith. See
Jackson v. State, 495 S.W.3d at 419. We overrule the seventh issue.
Conclusion
We affirm the trial court’s judgment.
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AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed February 15, 2017
Do not publish
[CR PM]
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