ACCEPTED
03-14-00483-CR
5033338
THIRD COURT OF APPEALS
AUSTIN, TEXAS
April 27, 2015
April 27, 2015
4/27/2015 12:00:00 AM
JEFFREY D. KYLE
CLERK
No. 03-14-00483-CR
_______________________________________________________________
IN THE COURT OF APPEALS FOR THE
THIRD DISTRICT OF TEXAS
AUSTIN
_______________________________________________________________
Terry Lynn Stevens
Appellant
v.
The State of Texas
Appellee
BRIEF OF APPELLANT
TERRY LYNN STEVENS
_______________________________________________________________
TRACY D. CLUCK
Texas Bar No. 00787254
1450 West Highway 290, #855
Dripping Springs, TX 78620
Telephone: 512-264-9997
E-Fax: 509-355-1867
tracy@tracyclucklawyer.com
ATTORNEY FOR APPELLANT
TERRY LYNN STEVENS
ORAL ARGUMENT REQUESTED
1
IDENTITY OF PARTIES AND COUNSEL
The following is a list of all parties to this appeal and the names and
addresses of those parties’ counsel:
APPELLANT/DEFENDANT COUNSEL FOR APPELLANT
Terry Lynn Stevens Tracy D. Cluck
1450 West Highway 290, #855
Dripping Springs, TX 78620
tracy@tracyclucklawyer.com
APPELLEE/STATE COUNSEL FOR APPELLEE/STATE
State of Texas, District Attorney’s Wiley B. McAfee, D.A.
Office of the 424th & 33rd Gary Bunyard, Asst. D.A.
Judicial District g.bunyard@co.llano.tx.us
Trial Court: The Honorable Dan Mills
424th Judicial District Court Judge
Burnet County, Texas
2
TABLE OF CONTENTS
IDENTITY OF PARTIES AND
COUNSEL……………………………………………………..............2
TABLE OF
CONTENTS……………………………………………………………3
TABLE OF
AUTHORITIES………………………………………………………..5
ISSUES
PRESENTED……………………………………………………..........8
STATEMENT OF
FACTS…………………………………………………………………9
STATEMENT OF THE CASE……………………………………….12
SUMMARY OF THE
ARGUMENT…………………………………………………………12
ARGUMENT…………………………………………………………14
I. The trial court erred by overruling Appellant’s motion to
suppress blood evidence results based on deficiencies in
the blood-draw warrant………………………………….14
A. Standard of Review………………………………14
B. Argument………………………………………...15
II. The evidence with respect to the Driving While Intoxicated
element of “operation” was insufficient to support a
finding of guilt by the jury………………………………20
A. Standard of Review………………………………20
B. Argument…………………………………………20
3
III. The trial court erred by allowing into evidence tapes of
Appellant’s phone conversations from jail without
conducting a balancing test in light of Appellant’s Rule
403 objection……………………………………………25
A. Standard of Review………………………………25
B. Argument…………………………………………25
CONCLUSION AND PRAYER……………………………………..28
CERTIFICATE OF SERVICE……………………………………….29
CERTIFICATE OF WORD COUNT………………………………..29
4
TABLE OF AUTHORITIES
CASES Page
Clayton v. State, 235 S.W.3d 772
(Tex.Crim.App. 2007)……………………………….20
Crider v. State, 352 S.W.3d 704
(Tex.Crim.App. 2011)……………………………….18
Denton v. State, 911 S.W.2d 388
(Tex.Crim.App. 1995)……………………………….21
Dornbusch v. State, 262 S.W.3d 432
(Tex.App.—Fort Worth 2008, no pet.)………………21
Farhat v. State, 337 S.W.3d 302
(Tex.App.—Fort Worth 2011, pet. ref’d)……………16
Gigliobianco v. State, 210 S.W.3d 637
(Tex.Crim.App. 2006)……………………………..26,27
Gunter v. State, 327 S.W.3d 797
(Tex.App.—Fort Worth 2010, no pet.)……………20,21
Guzman v. State, 955 S.W.2d 85
(Tex.Crim.App. 1997)……………………………….14
Illinois v. Gates, 462 U.S. 213 (1983)……………………....17
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,
61 L.Ed.2d 560 (1979)………………………………..20
Lassaint v. State, 79 S.W.3d 736
(Tex.App.—Corpus Christi 2002, no pet.)……………20
Martinez v. State, 327 S.W.3d 727
(Tex.Crim.App. 2010)…………………………………25
5
Martinez v. State, 348 S.W.3d 919
(Tex.Crim.App. 2011)………………………………..14
Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307,
143 L.Ed.2d 424 (1999)………………………………25
Montgomery v. State, 810 S.W.2d 372
(Tex.Crim.App. 1990)………………………….25,26,27
Mozon v. State, 991 S.W.2d 841
(Tex.Crim.App. 1999)…………………………….26,27
State v. Dixon, 206 S.W.3d 587
(Tex.Crim.App. 2006)………………………………..14
State v. Jordan, 342 S.W.3d 565
(Tex.Crim.App. 2011)……………………………..17,18
State v. Kelly, 204 S.W.3d 808
(Tex.Crim.App. 2006)……………………………...14,15
State v. McLain, 337 S.W.3d 268
(Tex.Crim.App. 2011)…………………………………17
State v. Robinson, 334 S.W.3d 776
(Tex.Crim.App. 2011)………………………………....14
Taylor v. State, 268 S.W.3d 571
(Tex.Crim.App. 2008)………………………………26,27
Tijerina v. State, 334 S.W.3d 825
(Tex.App.—Amarillo 2011, pet. ref’d)…………15,19,20
CONSTITUTIONS
U. S. Const.
am. IV………………………………………………...19
am. V………………………………………………….25
am. VI…………………………………………………25
am. XIV……………………………………………19,25
6
Tex. Const.
art. 1, sec. 9……………………………………………19
art. 1, sec. 10…………………………………………..25
art. 1, sec. 15…………………………………………..25
art. 1, sec. 19…………………………………………..25
STATUTES & RULES
Tex. Code Crim. Pro art. 18.01……..…………………….16,19
Tex. Penal Code §49.04(a)..……………………………9,11,12
Tex. Penal Code §49.09(b)…………………...13,16,20,21,23,24
Tex. R. App. P. 44.2(a)……………………………..20,25,26,28
Tex. R. Crim. Evid. R.403……………………………..13,26,27
7
ISSUES PRESENTED
1. Whether the trial court erred by denying Appellant’s motion to
suppress blood evidence results based on deficiencies in the
blood-draw warrant.
2. Whether the evidence with respect to the Driving While
Intoxicated element of “operation” was insufficient to support a
finding of guilt by the jury.
3. Whether the trial court erred by allowing into evidence tapes of
Appellant’s phone conversations from jail without conducting a
balancing test in light of Appellant’s Rule 403 objection.
8
TO THE HONORABLE COURT OF APPEALS:
Appellant Terry Lynn Stevens respectfully submits this his brief in
support of his appeal from the jury’s verdict of guilt and the sentence given
him by the jury. The parties will be referred to by name or by their
designation in the appeals court.
The Clerk’s Record will be cited by page number as “Tr.____ [page
#].” The Court Reporter’s Record will be cited by volume and page number
as “R—Vol. ___[volume #], pg.____[page number], and where necessary, L.
[#] [line number].
STATEMENT OF THE FACTS
Appellant was charged with Driving While Intoxicated, 3rd or more,
habitual. Tex. Penal Code §49.09(b). Tr. 4. This charge arose from events at
the entrance to an apartment complex in Burnet County, Texas on or about
May 9, 2013. R.—Vol. 3, pp. 29-47. On the evening in question, Socorro
McCrum, a resident of the apartment complex noticed two vehicles at the
gated entrance to the complex. Id. at 38-40. One of the vehicles, a white
pick-up truck, rolled backward into a fence. Id. Ms. McCrum went inside her
apartment and called police. Id. She did not give a description of the driver
because she could not see who was driving the white truck. Id. at 39, 41-42.
9
Ms. McCrum stayed inside her apartment until Ofc. Boucher of the Marble
Falls P.D. arrived five minutes later. Id. at 41, 43-44, 50. During this time
she did not observe the pick-up or its occupants. Id.
Ofc. Boucher drove into the complex looking for the right gate. Id. at 50-
51. He noticed a white Ford truck parked in the lot but could not see who was
inside the truck. Id. at 51. He parked facing the front of the truck and
observed Appellant exit the driver’s side and stand next to the door. Id. at 54.
Ofc. Boucher did not observe any operation of the vehicle by Appellant nor
did Ms. McCrum. Id. at 80. After conducting field sobriety tests, Ofc.
Boucher arrested Appellant for the offense of Driving While Intoxicated and
began the process of obtaining a blood-draw warrant. Id. at 57, 73. Ofc.
Boucher submitted an affidavit seeking a blood draw warrant to Meadow
Lakes Judge Don Adams. R.—Vol. 3, p. 73. The affidavit did not contain
any facts regarding the operation of a motor vehicle, but rather only
conclusions. R.—Vol. 6, p. 104. A blood draw was obtained from Appellant
pursuant to the warrant. R.—Vol. 3, p. 73.
At trial, Appellant objected to the admission of blood test results and
moved to suppress them based in the deficiencies in the affidavit. R.—Vol. 3,
10
pp. 78-79. This was denied by the trial court and evidence of Appellant’s
blood alcohol level in excess of the statutory maximum of .08 was allowed
into evidence. Id. The jury was charged on both the loss of normal use and
blood alcohol of .08 or more as bases for finding guilt. Tr. 27.
Appellant’s phone calls at the Burnet County Jail were recorded. R.—Vol.
4, pp.12-17. During those phone calls he may have made certain admissions
(which are not in the record provided to appellate counsel) regarding the
operation of the vehicle (among other admissions). See R.—Vol. 4, pp.5-6.
Appellant objected to the admission of this evidence under Rule 403 of the
Texas Rules of Criminal Evidence, but this objection was overruled by the
trial court without conducting a balancing test. R.—Vol.4, pp. 5-7, 17-18.
Appellant did not testify at the guilt/innocence phase of his trial, but he did
testify at the punishment phase of his trial making admissions regarding the
operation of the motor vehicle and the enhancement paragraphs of the
indictment. R.—Vol. 5, pp. 45-66.
The jury found Appellant guilty of the offense of Driving While
Intoxicated, 3rd or more habitual, as set out in the indictment. Tex. Penal
Code §49.09(b); R.—Vol. 4, p. 49; Tr. 33. After a punishment trial, the jury
11
assessed a sentence of Life. R.—Vol. 5, p. 85; Tr. 42. This appeal follows.
Tr. 47-52.
STATEMENT OF THE CASE
Appellant was charged by indictment with one count of Driving While
Intoxicated 3rd or More. Tr. 4.; Tex. Pen. Code §49.09(b). The State alleged
three prior driving while intoxicated offenses, including two prior felony
driving while intoxicated offenses, in the indictment (habitual). Tr. 4.
After a jury trial, Appellant was convicted by the jury. R.—Vol. 4, p.
49; Tr. 33. The jury, after finding both prior felony enhancements “True”,
assessed the following punishment: Life in the Institutional Division of the
Texas Department of Criminal Justice. R.—Vol. 5, p. 85; Tr. 42. A judgment
of guilt was entered by the trial court consistent with the jury’s punishment
verdict. R.—Vol. 5, p.87; Tr. 45. This appeal follows. Tr. 47-49, 50, 52.
SUMMARY OF THE ARGUMENT
Appellant asserts three points of error. In his first point of error,
Appellant argues that the trial court erred by denying his motion to suppress
blood results based on deficiencies in the affidavit filed in support of the
12
blood-draw warrant. Appellant contends that the affidavit fails to set forth
sufficient facts for a magistrate to find that Appellant operated a motor vehicle
in a public place—an essential element of the crime of Driving While
Intoxicated. Tex. Penal Code §49.04(a). Therefore, Appellant’s conviction
should be reversed and he should be granted a new trial.
In his second point of error, Appellant argues that the evidence adduced
at trial was not sufficient to support the jury’s finding of guilt for the offense
of Driving While Intoxicated because there was not sufficient evidence to find
that Appellant operated a motor vehicle in a public place—an essential
element of the offense. Id. Appellant contends that neither of the state’s
witnesses provided testimony, either alone or in combination, from which a
reasonable inference could be made that Appellant operated a motor vehicle.
Therefore, Appellant’s conviction should be reversed and he should be
granted a new trial.
In his final point of error, Appellant argues that the trial court, in the
face of a timely and specific objection, admitted extremely prejudicial
evidence without conducting a balancing test as required under Rule 403 of
the Texas Rules of Criminal Evidence. As a result, Appellant contends he
13
was deprived of due process and a fair trial. Therefore, his conviction should
be reversed and he should be granted a new trial.
ARGUMENT
I. The trial court erred by overruling Appellant’s motion to
suppress blood evidence results based on deficiencies in the
blood-draw warrant.
A. Standard of Review
“In review of a trial court’s ruling on a motion to suppress, an appellate
court must apply a standard of abuse of discretion and overturn the trial
court’s ruling only if it is outside the zone of reasonable disagreement.”
Martinez v. State, 348 S.W.3d 919, 922 (Tex.Crim.App. 2011)(citing State v.
Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006)). Appellate courts are to
apply a bifurcated standard of review, giving almost total deference to a trial
court’s determination of historic facts and mixed questions of law and fact that
rely upon the credibility of a witness, but applying a de novo standard of
review to pure questions of law and mixed questions that do not depend on
credibility determinations. Id. (citing Guzman v. State, 955 S.W.2d 85, 87-89
(Tex.Crim.App. 1997)). When reviewing a trial court’s ruling on a motion to
suppress, the appellate tribunal views the evidence in the light most favorable
to the ruling. State v. Robinson, 334 S.W.3d 776, 778 (Tex.Crim.App.
14
2011)(citing State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006)). An
appellate court, in reviewing the harm from a trial court’s erroneous denial of
a motion to suppress, evaluates “the entire record in a neutral, impartial, and
even-handed manner, not in the light most favorable to the prosecution” . . .
and must reverse the conviction unless, beyond a reasonable doubt, the error
did not contribute to the conviction. Tijerina v. State, 334 S.W.3d 825, 835
(Tex.App.—Amarillo 2011, pet. ref’d).
B. Argument
The trial court erred by denying Appellant’s motion to suppress blood test
results. At trial, Appellant contends that the affidavit supporting the warrant
to obtain his blood was deficient. R.—Vol. 3, p. 106-07; Vol. 6, p. 104-05.
At trial Appellant objected to the introduction of blood evidence and its
results. Id. The trial court heard this objection and supporting arguments
outside the presence of the jury and considered Appellant’s objection as a
motion to suppress, which it overruled based on the “totality of the
circumstances.” Id.
“No search warrant shall issue for any purpose in this state unless
sufficient facts are first presented to satisfy the issuing magistrate that
15
probable cause does in fact exist for its issuance.” Tex. Code Crim. Proc. art.
18.01(b). “A sworn affidavit setting forth substantial facts establishing
probable cause shall be filed in every instance in which a search warrant is
requested.” Id. The sworn affidavit must set forth “sufficient facts to
establish probable cause: (1) that a specific offense has been committed, (2)
that the specifically described property or items that are to be searched for or
seized constitute evidence of that offense or evidence that a particular person
committed that offense, and (3) that the property or items constituting
evidence to be searched for or seized are located at or on the particular person,
place or thing to be searched.” Id.
The affidavit supporting the issuance of a search warrant must contain
sufficient facts to establish probable cause that Appellant committed the
offense of driving while intoxicated and that evidence of intoxication would
be found in his blood. See Farhat v. State, 337 S.W.3d 302, 307 (Tex.App.—
Fort Worth 2011, pet. ref’d). The facts essential to a determination of
probable cause include whether Appellant was operating a motor vehicle in a
public place. See Tex. Penal Code §49.04(a).
16
Probable cause exists if, under the totality of the circumstances set forth in
the affidavit before magistrate, there is a “fair probability” that contraband or
evidence of a crime will be found in a particular place at the time the warrant
is issued. See Illinois v. Gates, 462 U.S. 213, 238 (1983); State v. Jordan, 342
S.W.3d 565 (Tex.Crim.App. 2011). “The magistrate may interpret the
affidavit in a non-technical, common-sense manner and may draw reasonable
inferences from the facts and circumstances contained within its four corners.”
Jordan, 342 S.W.3d at 369. However, there must be a substantial basis for
concluding that probable cause existed for an appellate court to uphold the
magistrate’s probable cause determination. State v. McLain, 337 S.W.3d 268,
271 (Tex.Crim.App. 2011).
In the case at bar, the affidavit supporting the blood-draw warrant is
merely conclusory with respect to the essential fact of operation of a motor
vehicle in a public place. The affiant, in a conclusory statement, claims that
he has a “belief” that Appellant was operating a motor vehicle in a public
place. R.—Vol. 6, p. 104. However, the affidavit does not contain any facts,
from personal observation or from the statements of others to the affiant, to
support that belief. Nor are there any facts from which a reasonable inference
can be drawn that Appellant, Terry Lynn Stevens, was in fact “operating” a
17
motor vehicle in a public place or any other place. Id. The affiant states that
he “made contact” with Appellant based on a dispatch call to “92 Gateway
North” regarding a vehicle stopped at the entry gate that rolled backwards into
a fence. Id. These are the only facts contained in the affidavit with respect to
the essential fact determination made by the magistrate regarding whether
Appellant was operating a motor vehicle in a public place. Id. There are no
facts to support whether the vehicle in question was in a public rather than
private drive, no facts to support whether Appellant was “operating” the
vehicle in question (or in any manner connected to this or any other motor
vehicle), and no facts to establish when exactly the incident in question
happened. Id. The affiant, from the facts in the affidavit, could have been
dispatched to take a report about an incident that happened at some point
much earlier in time. This is an important issue in itself since there is a
temporal element in blood-draw warrants as well—whether there is a
likelihood that evidence of intoxication can be found in the blood at all at the
time it is to be drawn is another essential fact that the magistrate must
determine from the affidavit before a warrant may be issued. See Crider v.
State, 352 S.W.3d 704, 709-12 (Tex.Crim.App. 2011); Jordan, 342 S.W.3d at
571-72 (Tex.Crim.App. 2011). The affidavit is insufficient in this respect as
well.
18
Affiant asserts no personal observations or statement from witnesses that
anyone ever saw Appellant operate a motor vehicle in a public place. Affiant
makes states no facts from which it can be inferred that Appellant was
operating a vehicle, or that a vehicle had been operated at all by anyone, much
less that Appellant was operating a motor vehicle in a public place.
Reasonable inferences cannot be drawn by a magistrate regarding the essential
elements of the offense of driving while intoxicated from the absence of facts
in an affidavit regardless of the conclusory statements by a police officer or
the apparent intoxication of Appellant when the officer made contact with
him. U. S. Const. am. IV, XIV; Tex. Const. art. 1, sec. 9; Tex. Code Crim.
Pro. 18.01.
Appellant’s motion to suppress evidence should have been granted by the
trial court and the failure to do so was error. The unlawfully obtained
evidence, which was admitted at trial over the objections of Appellant, was
powerful, persuasive evidence of guilt based on having an alcohol
concentration of .08 or more. Since the jury was charged with finding guilt
per se if Appellants blood alcohol level was .08 or higher, it follows that it
contributed substantially in the juror’s deliberations in arriving at their verdict
Tr. 27. Therefore, this court should reverse Appellant’s conviction. See
19
Tijerena v. State, 334 S.W.3d 825, 835 (Tex.App.—Amarillo 2011, pet.
ref’d); Tex. R. App. Pro 44.2(a).
II. The evidence with respect to the Driving While
Intoxicated element of “operation” was insufficient to
support a finding of guilt by the jury.
A. Standard of Review
In determining the legal sufficiency of the evidence, the appellate court
must inquire as to “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Lassaint v. State,
79 S.W.3d 736 (Tex.App.—Corpus Christi 2002, no pet.)(citing Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); Clayton
v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007); Gunter v. State, 327
S.W.3d 797, 799 (Tex.App.—Fort Worth 2010, no pet.).
B. Argument
The evidence at trial with respect to the Driving While Intoxicated element
of “operation” was insufficient to support the jury’s finding of guilt. Tex.
Penal Code §49.04(a). A person commits the offense of Driving While
20
Intoxicated when he or she “is intoxicated while operating a motor vehicle in
a public place.” Id.; Gunter, 327 S.W.3d at 800. The penal code does not
define the term “operating.” See id.; Gunter, 327 S.W.3d at 800 (citing
Denton v. State, 911 S.W.2d 388, 389 (Tex.Crim.App. 1995). “’However, the
Court of Criminal Appeals has held that, to find operation of a motor vehicle,
the ‘totality of the circumstances must demonstrate that the defendant took
action to affect the functioning of his vehicle that would enable the vehicle’s
use.’” Id. (citing Dornbusch v. State, 262 S.W.3d 432, 436 (Tex.App.—Fort
Worth 2008, no pet.))(quoting Denton, 911 S.W.2d at 390). Therefore, “any
action that is more than mere preparation toward operating the vehicle”
qualifies as “operating” for purposes of the Driving While Intoxicated statute.
Gunter at 800 (quoting Dornbush at 436).
In the case at bar, the state called two witnesses to establish that Appellant
was operating a motor vehicle in a public place while intoxicated: McCrum
and Ofc. Boucher. McCrum is the complaining witness who called police
regarding a suspicious vehicle at her apartment complex gate. R.—Vol. 3, p.
38-46. Ofc. Boucher is the police officer who responded to that call from
dispatch. R.Vol.—3, p. 47-103. According to McCrum, she observed a
“white truck” outside her apartment complex gate that rolled backwards into a
21
fence. R.—Vol. 3, p. 39. She testified that she “could not see the people in
the vehicles.” Id. at 39, L. 1-2. McCrum described the vehicle to the 911
dispatcher only as a “white truck” with no other identifiers, such as make,
model, year, license plate number, or identifying marks or damage. Id. at 39,
43.
After initially observing the vehicle, McCrum testified that she went into
her apartment to call the police and did not go back outside until sometime
after the police arrived. Id. at 41, 43-44. She testified that she could not
recognize the driver and could not see well enough to identify a person
operating the vehicle. Id. at 41-42. McCrum also testified that she did not,
and could not, identify the driver to the 911 operator because she could not
see who was driving the vehicle. Id. at 41-42. Moreover, the vehicle was out
of her sight for three to five minutes before the police arrived and she went
back outside1. Id. at 43-44. Therefore, the state failed to establish through
Witness McCrum that Appellant was operating a motor vehicle in a public
1
Ofc. Boucher testified that he arrived on scene five minutes after he was dispatched. R.—
Vol. 3, p. 50.
2
The state did not offer any evidence or elicit any testimony regarding exactly what
dispatch told Ofc. Boucher. The best evidence of this is probably the affidavit of Ofc.
Boucher in support of the request for a blood-draw warrant—which makes no mention of
any communication regarding operation of a motor vehicle by Appellant. It is of no
moment in the case at bar though since this would only go to probable cause to arrest and
not the sufficiency of the evidence to support a conviction. Moreover, Witness McCrum
testified that she did not tell the 911 dispatcher that Appellant was operating the vehicle in
22
place. Moreover, the state failed to establish, through the testimony of
Witness McCrum, facts from which it could be reasonably inferred that
Appellant operated a motor vehicle in a public place—an essential element of
the crime of Driving While Intoxicated. Tex. Penal Code §49.04(a).
Ofc. Boucher testified at trial that upon arrival at the apartment complex he
saw a white Ford truck parked in the front lot. R.—Vol.3, p. 50. However, he
could see if anyone was in the vehicle. Id. at 51. After driving into the
complex to see which gate was at issue, he parked facing the front of the only
white truck he saw. Id. Ofc. Boucher testified that he parked his vehicle and
observed Appellant exit a white Ford truck and stand next to the driver’s door.
Id. at 54. However, Ofc. Boucher testified that he never saw Apellant drive
the vehicle, that at the time he made contact Appellant was not in operation of
the vehicle, that he did not see Appellant use his car keys, that he did not see
Appellant operate the gear shift of the vehicle, and that he did not see the
vehicle move. Id. at 80. Ofc. Boucher further testified that at the time he
made contact with Appellant the vehicle was on private property and parked.
Id. at 81. Moreover, he does not know if the vehicle was “on” prior to his
arrival on the scene. Id. at 98. Ofc. Boucher additionally testified that he did
not have any facts to support his belief that Appellant was operating a motor
23
vehicle in a public place other than Witness McCrum’s communications to the
911 dispatcher2. Id. at 101-02. He admitted at trial that he never spoke with
Witness McCrum and did not have any direct communications with her. Id.
Therefore, the state failed to establish through Ofc. Boucher that Appellant
was operating a motor vehicle in a public place. Moreover, the state failed to
establish, through the testimony of Ofc. Boucher, alone or in combination
with the testimony of Witness McCrum, facts from which it could be
reasonably inferred that Appellant operated a motor vehicle in a public
place—an essential element of the crime of Driving While Intoxicated. Tex.
Penal Code §49.04(a).
The evidence at trial is not sufficient such that a rational trier of fact could
find beyond a reasonable doubt that Appellant operated a motor vehicle in a
public place3. As such, the evidence was not sufficient to sustain a conviction
2
The state did not offer any evidence or elicit any testimony regarding exactly what
dispatch told Ofc. Boucher. The best evidence of this is probably the affidavit of Ofc.
Boucher in support of the request for a blood-draw warrant—which makes no mention of
any communication regarding operation of a motor vehicle by Appellant. It is of no
moment in the case at bar though since this would only go to probable cause to arrest and
not the sufficiency of the evidence to support a conviction. Moreover, Witness McCrum
testified that she did not tell the 911 dispatcher that Appellant was operating the vehicle in
question because she could not see. R.—Vol. 6, p. 104; R.Vol.—3, p. 41-42.
3
Appellant did not testify at the guilt/innocence phase of his trial. He did testify at the
punishment phase of the trial and admitted to operation of the vehicle on cross-
examination. However, it is a bifurcated trial process and admissions and other evidence
adduced at the punishment phase does not obviate the state’s burden of proving each and
24
in this case and Appellant’s conviction should be reversed. Tex. R. App. Pro
44.2(a).
III. The trial court erred by allowing into evidence tapes of
Appellant’s phone conversations from jail without
conducting a balancing test in light of Appellant’s Rule
403 objection.
A. Standard of Review
A trial court’s decision to admit or exclude evidence is reviewed under
an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391
(Tex.Crim.App. 1990); Martinez v. State, 327 S.W.3d 727 (Tex.Crim.App.
2010). The trial court’s decision is reversed only if it acts arbitrarily,
unreasonably, or without reference to any guiding rules or principles.
every element of its case at the guilt/innocence phase. If that were the rule, the state could
merely lay behind the log and use the relaxed and broader rules regarding what is
admissible and relevant to punishment to make cases where it otherwise could not meet its
burden. To do so would deprive criminal defendants of due process. U. S. Const. amend.
V, VI, XIV; Tex. Const. art. 1, sec. 10, 15, 19; cf. Mitchell v. United States, 526 U.S. 314,
119 S.Ct. 1307, 143 L.Ed.2d 424 (1999)(using punishment phase testimony by defendant to
establish facts necessary at guilt/innocence phase of trial undermines the vital principal that
criminal proceedings should rely on accusations proved by the government and not on
inquisitions conducted to enhance prosecutorial power).
Additionally, the state admitted into evidence, over defense objection, tapes of
conversations of Appellant from jail. The record indicates there may have been admissions
in these tapes. However, transcripts of the tapes were not admitted into evidence and are
not in the record. Additionally, the court reporter did not transcribe the tapes into the
Reporter’s Record. Presumably the actual tapes are in the possession of the court reporter,
but Appellate counsel does not know the contents of those tapes and does not have the
ability on the record provided to him to ascertain their contents. R.—Vol. 4, pp. 5-6, 18,
20, 21; R.—Vol. 6, pp. 54-55.
25
Montgomery at 380. The trial court’s ruling is upheld if it is inside the bounds
of reasonable disagreement. Montgomery at 391. An abuse of discretion of
non-constitutional dimension “is reversible only when it has a substantial and
injurious effect or influence in determining the jury’s verdict.” Taylor v.
State, 268 S.W.3d 571, 592 (Tex.Crim.App. 2008). A conviction in such
cases should be overturned unless there is fair assurance from the record as a
whole that the error did not influence the jury or had but slight effect. Id.;
Tex. R. App. P. 44.2.
B. Argument
The trial court erred by allowing into evidence tapes of Appellant’s
phone conversations from jail without conducting a balancing test in light of
Appellant’s Rule 403 objection. Tex.R.Crim.Evid. “Once a Rule 403
objection is raised [as it was in this case] a trial court has no discretion as to
whether or not to engage in the balancing process.” Mozon v. State, 991
S.W.2d 841, 846 n.6 (Tex.Crim.App. 1999); see Gigliobianco v. State, 210
S.W.3d 637, 641-42 (Tex.Crim.App. 2006). In this case the Appellant made a
timely objection under Rule 403 to the offer of admission into evidence of
tapes of Appellant’s phone calls from jail. Tex.R.Crim.Evid.; R.—Vol. 4, pp.
5-6, 17. This objection was overruled by the trial court on the basis that the
26
tapes were relevant to the issue of whether Appellant was operating a vehicle
and were thus not cumulative. R.—Vol. 4, p. 6-7, 18. However, the trial
court did not conduct a balancing test under Rule 403 of the Texas Rules of
Evidence as it was required to do. Mozon, 991 S.W.2d at 846 n.6; see
Gigliobianco, 210 S.W.3d at 641-42. The extremely prejudicial nature of the
tapes is apparent from the record—the jury asked for the tapes and was given
them to play back in the jury room during deliberations. Tr. 32. Appellant
contends that the trial court was required to engage in a Rule 403 balancing
analysis in order to ensure due process and a fair trial, yet failed to do so
which was error. Tex.R.Cim.Evid.; Mozon at 846 n.6; Gigliobianco at 641-
42.
The failure of the trial court to conduct a Rule 403 balancing test
deprived Appellant of a fair trial and was an abuse of discretion. Tex. R.
Crim. Evid.; see id. Appellant contends, that by failing to conduct a Rule 403
balancing test, the trial court admitted the evidence without any guiding rules
or principles and abused its discretion. Id.; Tex. R. Crim. Evid.; see
Montgomery, 810 S.W.2d at 380. A conviction in such cases should be
overturned unless there is fair assurance from the record as a whole that the
error did not influence the jury or had but slight effect. Taylor, 268 S.W.3d at
27
592; Tex. R. App. P. 44.2. Appellant contends that the record does not give
fair assurance that this error did not influence the jury or have only a slight
effect. Therefore, his conviction should be overturned and he should be
granted a new trial. Tex. R. App. P. 44.2.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant Terry Lynn
Stevens, respectfully prays that this Court reverse his conviction, vacate his
sentence and remand this case to the trial court for a new trial. Appellant
further prays that the Court grant such other and further relief to which
Appellant is justly entitled.
Respectfully submitted,
/s/ Tracy D. Cluck
__________________________
TRACY D. CLUCK
Texas Bar No. 00787254
1450 West Highway 290, #855
Dripping Springs, TX 78620
Telephone: 512-264-9997
E-Fax: 509-355-1867
tracy@tracyclucklawyer.com
ATTORNEY FOR APPELLANT
TERRY LYNN STEVENS
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CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Brief of Appellant,
Terry Lynn Stevens, has been served on the attorney listed below by E-Serve
and e-mail, on April 25, 2015:
424th & 33rd District Attorney’s Office
Mr. Wiley B. McAfee, Dist. Atty.
Mr. Gary Bunyard, Asst. Dist. Atty.
g.bunyard@co.llano.tx.us
/s/ Tracy D. Cluck
_____________________
TRACY D. CLUCK
CERTIFICATE OF WORD COUNT
I certify that the pertinent portion of the brief for the Appellant, Terry
Lynn Stevens, is comprised of approximately 4782 words.
/s/ Tracy D. Cluck
TRACY D. CLUCK
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