Donna Jean Dill A/K/A Donna Zill v. State
355 S.W.3d 778
| Tex. App. | 2011Background
- Appellant Donna J. Zill was stopped around 2:30 a.m. after radar showed 77 mph in a 50 mph zone in Galveston County.
- Trooper Petrillo smelled a strong odor of alcohol and observed glassy eyes and slurred speech.
- Appellant admitted drinking at the San Leon Beach Pub and performed field sobriety tests showing intoxication indicators.
- HGN test yielded six clues of intoxication; vertical nystagmus was not observed.
- Appellant refused to submit to a breath or blood test; she had prior head injuries raised as alternative explanations.
- Video of the stop showed the events; trial included medical records from a 1987 head injury and testimony from a pub manager and appellant herself.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence to show intoxication | Zill | The State | Evidence sufficient to convict |
| Admission of VGN testimony without gatekeeper hearing | Zill | The State | Not preserved; no plain error; admission affirmed |
| Ineffective assistance for not objecting to VGN or requesting gatekeeper hearing | Zill | The State | No ineffective assistance; trial strategy reasonable |
Key Cases Cited
- Cotton v. State, 686 S.W.2d 140 (Tex. Crim. App. 1985) ( Investigative evidence of intoxication admissible)
- Kirsch v. State, 306 S.W.3d 738 (Tex. Crim. App. 2010) (other indicators of intoxication include various signs)
- Annis v. State, 578 S.W.2d 406 (Tex. Crim. App. 1979) (police officer testimony as probative evidence of intoxication)
- Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002) (fundamental rights may be raised on appeal; error preservation rule generally applies)
- Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) (rights waivable or systemic requirements may be raised post-trial)
- Quinney v. State, 99 S.W.3d 853 (Tex. App.—Houston [14th Dist.] 2003) (admission of VGN without reliability showing may be harmless error)
- Stovall v. State, 140 S.W.3d 712 (Tex. App.—Tyler 2004) (requires reliability evidence or gatekeeper concerns for VGN)
- Russell v. State, 290 S.W.3d 387 (Tex. App.—Beaumont 2009) (breath test refusal considered as evidence of intoxication)
- Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (Jackson v. Virginia standard for sufficiency of evidence)