ACCEPTED
01-14-00837-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/30/2015 3:16:50 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-00837-CR
FILED IN
1st COURT OF APPEALS
In the HOUSTON, TEXAS
Court of Appeals 9/30/2015 3:16:50 PM
For the CHRISTOPHER A. PRINE
Clerk
First District of Texas
At Houston
♦
No. 1944593
In County Criminal Court at Law 13
Of Harris County, Texas
♦
Brent Alan Dalton
Appellant
v.
The State of Texas
Appellee
♦
State’s Appellate Brief
♦
Devon Anderson Clinton A. Morgan
District Attorney Assistant District Attorney
Harris County, Texas Harris County, Texas
State Bar No. 24071454
Gilbert G. Sawtelle, IV morgan_clinton@dao.hctx.net
Rehana L. Vohra
1201 Franklin St., Suite 600
Assistant District Attorneys
Houston, Texas 77002
Harris County, Texas
Telephone: 713.755.5826
Oral Argument Not Requested
Statement Regarding Oral Argument
The appellant requests oral argument because he believes “this
case presents an important question about whether there is legally
sufficient evidence for any rational trier of fact to find the essential
elements of DWI beyond a reasonable doubt where there is an
insufficient temporal link to prove Appellant was intoxicated while
operating a motor vehicle.” But the answer to that question is obvious —
if the evidence is insufficient, the evidence is insufficient.
The question presented in this case is whether the evidence of a
“temporal link” is insufficient. Because there are no disputed questions
of admissibility or legal interpretation, this is a fact-specific inquiry that
will be entirely controlled by the record. Oral argument is unlikely to
assist this Court’s review of the record. Accordingly, the State does not
request oral argument.
i
Identification of the Parties
Counsel for the State:
Devon Anderson
District Attorney of Harris County
Gilbert G. Sawtelle, IV & Rehana L. Vohra
— Assistant District Attorneys at trial
Clinton A. Morgan
Assistant District Attorney on appeal
Appellant:
Brent Alan Dalton
Counsel for the Appellant:
Brock A. White
— Counsel at trial
Carmen Roe
— Counsel on appeal
Trial Judge:
Don Smyth
Presiding judge
ii
Table of Contents
Statement Regarding Oral Argument ................................................. i
Identification of the Parties .............................................................. ii
Table of Contents ................................................................................ iii
Index of Authorities ............................................................................ iv
Statement of the Case .......................................................................... 1
Statement of Facts ................................................................................ 1
Reply to the Appellant’s Sole Point of Error ................................... 3
There is sufficient evidence to show that the appellant was intoxicated
at the time he was driving. ....................................................................................... 3
The appellant raises several ancillary matters that should have no
effect on this Court’s decision in this case. ........................................................ 6
Conclusion ............................................................................................. 9
Certificate of Compliance and Service ........................................... 10
iii
Index of Authorities
Cases
Clayton v. State
235 S.W.3d 772 (Tex. Crim. App. 2007) .............................................................. 4
Kirsch v. State
276 S.W.3d 579 (Tex. App.—
Houston [1st Dist.] 2008), aff'd, 306 S.W.3d 738 (Tex. Crim. App.
2010) ............................................................................................................................ 5, 8
Merritt v. State
368 S.W.3d 516 (Tex. Crim. App. 2012) .............................................................. 4
Murray v. State
457 S.W.3d 446 (Tex. Crim. App. 2015) .............................................................. 7
Navarette v. California
134 S. Ct. 1683 (2014) ............................................................................................... 7
Wyatt v. State
23 S.W.3d 18 (Tex. Crim. App. 2000).................................................................... 4
iv
Statement of the Case
The appellant was charged with driving while intoxicated. (CR 7).
The information alleged a prior felony conviction. (CR 7). The appellant
pleaded not guilty, but a jury found him guilty as charged. (CR 112).
Without making a finding on the enhancement paragraph, the trial court
assessed punishment at 60 days’ confinement in the county jail. (CR
112). The appellant filed a timely notice of appeal and the trial court
certified his right of appeal. (CR 115, 117).
Statement of Facts
Deputy Constable Patrick Magee was dispatched in response to a
911 call that a Chevrolet Silverado was driving into oncoming lanes of
traffic and had run another driver off the road. (3 RR 16). Magee saw a
vehicle matching the description from dispatch and followed it into an
HEB parking lot. (3 RR 17). Upon confirming that the license plates
matched the ones given out by dispatch, Magee activated his emergency
lights to stop the vehicle. (3 RR 22).
Instead of stopping, the Silverado slowly drove away. (3 RR 22-
23). Magee used his loudspeaker to tell the driver to stop; the Silverado
stopped momentarily, but then slowly drove away again. (3 RR 23).
1
Magee followed the Silverado until it stopped a second time. (3 RR 24).
He used his loudspeaker to tell the driver to stay in the vehicle and roll
his window down. (3 RR 24).
The driver — the appellant — put the vehicle into park, and then
immediately got out of the vehicle and charged toward Magee. (3 RR
26). The appellant approached Magee in a staggering but aggressive
manner. (3 RR 73). Another Deputy Constable, Lasonya King, had
arrived on the scene and grabbed the appellant as he approached
Magee. (3 RR 73-74).
As soon as King grabbed the appellant, she noticed that he had
bloodshot eyes and slurred speech. (3 RR 73-74). King had to hold him
up because he seemed too unsteady to stand on his own. (3 RR 74).
Though he had problems speaking, the appellant explained that he was
being treated by a doctor and was on hydrocodone. (3 RR 76). The
appellant was taken to the Houston Police Department’s central station
for a DWI investigation. (3 RR 79).
At the station, the appellant told officers that he was, in fact, on
several prescription drugs. (3 RR 27-29). The appellant said that he took
the drugs fifteen minutes prior to driving. (4 RR 75). Houston Police
Officer David Ciers conducted a drug recognition examination and
2
concluded that the appellant had lost the normal use of his mental and
physical faculties due to the ingestion of a central nervous depressant.
(4 RR 79).
The appellant initially consented to give a blood sample, but after
spending a while at the hospital he revoked his consent. (4 RR90, 92).
Police then obtained a search warrant for the appellant’s blood. (State’s
Ex. 6). When an officer told the appellant that they had a warrant for his
blood, the appellant “fell on the floor and said he’s having a seizure.” (4
RR 183). The appellant was taken to the hospital to be evaluated, but the
doctor concluded that he was just dehydrated. (5 RR 7). While at the
hospital, a sample of the appellant’s blood was taken; an analysis of the
blood showed the presence of four prescription drugs that worked as
central nervous depressants, as well as marihuana. (5 RR 43-47).
Reply to the Appellant’s Sole Point of Error
There is sufficient evidence to show that the appellant was
intoxicated at the time he was driving.
The appellant’s only claim of error is that the evidence is
insufficient to prove that he was intoxicated while operating a motor
vehicle. (Appellant’s Brief at 16-20). However, the appellant’s argument
3
consists mostly of reurging factual claims that were rejected by the jury.
Viewed in the appropriate light, the evidence is sufficient to support the
verdict.
When reviewing the sufficiency of the evidence, this Court
considers all of the evidence in the light most favorable to the verdict to
determine whether, based on that evidence and the reasonable
inferences therefrom, a jury was rationally justified in finding guilt
beyond a reasonable doubt. Merritt v. State, 368 S.W.3d 516, 525 (Tex.
Crim. App. 2012). Because the Texas legal system assigns to the
factfinder at trial the duty of resolving conflicting testimony, an
appellate court conducting sufficiency review must defer to the jury’s
credibility determinations. See Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007). The jury may choose to believe some testimony
and disbelieve other testimony. Wyatt v. State, 23 S.W.3d 18, 30 (Tex.
Crim. App. 2000). When the record supports conflicting inferences, this
Court presumes that the jury resolved the conflicts in favor of the
verdict, and will defer to that determination. Thomas v. State, 444 S.W.3d
4, 8 (Tex. Crim. App. 2014).
In this case, deputies Magee and King testified to the appellant’s
condition at the time he stopped driving and got out of his pickup truck:
4
• The appellant kept slow rolling after Magee activated his
emergency lights, and then refused to follow commands
when he exited his truck. (3 RR 22-27). The appellant
continued to be uncooperative after police detained him. (3
RR 123); see Kirsch v. State, 276 S.W.3d 579, 585 (Tex.
App.—Houston [1st Dist.] 2008), aff'd, 306 S.W.3d 738 (Tex.
Crim. App. 2010) (refusal to follow commands can be sign of
intoxication).
• The appellant was unbalanced and staggered as he charged
toward Magee. (3 RR 27, 73).
• The appellant’s speech was slurred. (3 RR 84).
• The appellant had difficulty standing on his own. (3 RR 74).
• The appellant could not remember his wife’s name. (3 RR
123-24).
These clues of intoxication are similar to those observed hours
later when the appellant was at the police station. (See, e.g., 4 RR 64-66
(appellant failed balance-related sobriety tests), 156 (another officer
testifying to about appellant’s slurred speech hours after his arrest). The
observed clues, both at the scene and at the station, matched up with
testimony from Officer Ciers regarding the effects of central nervous
system depressants. (See 4 RR 79 (describing effects of central nervous
system depressants, such as slurred speech, sluggishness, and being
uncoordinated)).
5
The appellant told officers that he took the drugs prior to driving.
(3 RR 75).1 He exhibited fairly consistent symptoms of intoxication from
the time officers first encountered him all the way through the DWI
investigation. Viewing the evidence in the light most favorable to the
verdict, it is sufficient to show that the appellant was intoxicated while
operating a motor vehicle.
The appellant raises several ancillary matters that should have no
effect on this Court’s decision in this case.
Much of the appellant’s argument consists of assertions that are
unrelated to sufficiency review in this case. The appellant points out
that Magee observed the appellant driving for only a few seconds.
(Appellant’s Brief at 17). The appellant does not explicitly note the legal
significance of this observation. Even if Magee observed the appellant
driving for only 10 or 15 seconds, the appellant was driving at the time
Magee observed him, meaning, necessarily, that the appellant had been
driving for longer. Moreover, the DWI statute does not require any
particular period of observed driving; it does not actually require
officers to observe the defendant driving at all. See, e.g., Murray v. State,
1The appellant said that he took the drugs 15 minutes before driving, but the State
doubts that this was an accurate estimate. (See 4 RR 75). The appellant told Ciers
that he took the drugs at 5:00 pm, but the appellant was arrested at 4:30 pm. (4 RR
127).
6
457 S.W.3d 446, 449 (Tex. Crim. App. 2015) (evidence sufficient where
defendant found unconscious in parked vehicle with engine running).
In another part of his brief, the appellant seems to assert that
police violated the law when they stopped him based solely on the
report from the 911 caller. (Appellant’s Brief at 17). The appellant did
not complain at the trial court about the legality of his detention, thus
this part the appellant’s brief presents nothing for this Court’s review.
Moreover, the appellant’s legal assertion is incorrect. See Navarette v.
California, 134 S. Ct. 1683, 1688-89 (2014) (where anonymous 911
caller described make, model, and license plate of vehicle and stated
that the vehicle had run her off the road, the call was sufficiently reliable
to be the basis for a traffic stop).
Finally, the appellant spends part of his brief pointing out that his
symptoms were consistent with certain medical conditions. (Appellant’s
Brief at 18-19). That might be true, but the only evidence of the
appellant having any medical conditions that was admitted to the jury
were second-hand statements by police officers about what the
appellant had told them. The jury was free to disbelieve these unsworn,
self-serving statements. Moreover, the State is not required to
affirmatively disprove alternative hypotheses in order to prevail on
7
sufficiency review. See Kirsch, 276 S.W.3d at 585 (evidence that
defendant’s symptoms of intoxication could have been caused by a head
injury was irrelevant on sufficiency review). The appellant’s supposed
medical conditions should not factor into a sufficiency analysis.
8
Conclusion
The State respectfully submits that all things are regular and the
judgment of the trial court should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
713.755.5826
Texas Bar No. 24071454
9
Certificate of Compliance and Service
I certify that, according to Microsoft Word’s word counting
function, the portion of this brief for which Rule of Appellate Procedure
9.4(i)(1) requires a word count contains 1,468 words.
I also certify that I have requested that efile.txcourts.gov
electronically serve a copy of this brief to:
Carmen Roe
carmen@carmenroe.com
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
(713) 755-5826
Texas Bar No. 24071454
Date: September 30, 2015
10
Brent Alan Dalton v. State
Combined Opinion