Gerard Jay TOLLETT, Appellant v. The STATE of Texas, Appellee.
No. 14-12-01037-CR.
Court of Appeals of Texas, Houston (14th Dist.).
Feb. 4, 2014.
Rehearing and Rehearing En Banc Overruled March 6, 2014.
427 S.W.3d 514
Donald W. Rogers, Jr., Houston, for the State.
Panel consists of Justices CHRISTOPHER, BROWN, and DONOVAN.
OPINION
JOHN DONOVAN, Justice.
In five issues, appellant challenges his conviction of driving while intoxicated. We affirm.
I. BACKGROUND
During the late evening of March 4, 2012, Gabriel Hernandez, a police officer with the Nassau Bay Police Department, was off-duty and driving his personal vehicle in Webster, a city adjacent to Nassau Bay. At the same time, Glen Sharp, also a police officer with the Nassau Bay Police Department, was driving his patrol car at a different location and speaking with Officer Hernandez via cellular phone. Officer Hernandez planned to meet Officer Sharp at a restaurant parking lot in order to hand him some paperwork.
While the men spoke on the phone, Officer Hernandez observed someone later identified as appellant drive a truck out of a parking lot onto a curb and then nearly run into another vehicle. Officer Hernandez advised Officer Sharp that the driver of the truck might be intoxicated. Officer
Eventually, Officer Sharp arrived at Officer Hernandez‘s and appellant‘s location. Officer Sharp pulled behind appellant‘s truck and activated his patrol car‘s emergency lights. At this point, Officer Hernandez stopped following the truck and was not further involved in the incident. On cross-examination, Officer Hernandez initially testified that he filed a report regarding the incident four days after it occurred, but when shown his actual report, admitted he filed it seven days after the incident.
Officer Sharp testified that, after he pulled behind appellant‘s truck and activated his emergency lights, appellant continued to drive for approximately forty seconds before pulling into the driveway of his house. Officer Sharp testified he did not observe appellant violate any traffic rules during this period. Once appellant parked in his driveway, he remotely opened his garage door and exited the truck. Officer Sharp testified that it is unusual for a person who has been pulled over to exit his vehicle. Officer Sharp asked appellant several times if he would perform field sobriety tests, but appellant refused. Officer Sharp testified appellant staggered, repeatedly asked to call his daughter, had a strong odor of alcohol, and slurred his speech. Officer Sharp also noticed an open wound on appellant‘s arm, which was bleeding though his shirt; appellant indicated that he had a “staph infection.” Officer Sharp determined appellant was intoxicated and transferred him to the police station.
Officer Sharp‘s patrol car had a video camera which recorded him stopping and questioning appellant. The video is strong evidence of appellant‘s intoxication because it shows the following events:
- Appellant exited his vehicle in his driveway and immediately asked about calling his daughter, a request he repeated several times. Officers had to twice order appellant to refrain from making a phone call.
- Appellant‘s interaction with the officers, particularly his manner of speech, indicated that he was intoxicated. Appellant appears to have had difficulty standing and moving normally, and eventually sat on his truck bumper without being asked to do so. He moved very close to Officer Sharp on two occasions, necessitating Officer Sharp to order appellant to “back up.” Appellant also childishly accused Officer Sharp of being “mean” and “not nice.”
- Appellant refused to participate in field sobriety tests and repeatedly stated that he was at his house, apparently implying that he should not be subject to police interference because he was at his own house.
- Appellant denied having consumed any alcohol but abrasively stated at one point, “I‘ve been drinking, so what?”
- When Officer Sharp handcuffed appellant, he had to forcibly remove the phone from appellant‘s hand. Appellant also grabbed and held onto Officer Sharp‘s hand.
- Appellant made several threatening statements, saying he knows police chiefs and works for the mayor.
- While officers adjusted appellant‘s handcuffs and his face was pointed toward the camera, he made several bizarre facial expressions and seemed to talk to himself.
The State charged appellant with misdemeanor driving while intoxicated for operating a motor vehicle in a public place while intoxicated, meaning he did not have the normal use of his mental or physical faculties by reason of introduction of alcohol into his body. See
II. EVIDENTIARY ISSUES
In his first through fourth issues, appellant contends the trial court made several erroneous evidentiary rulings.
A. Standard of Review
We review a trial court‘s evidentiary ruling for an abuse of discretion. See Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We will not disturb the ruling if it is within the zone of reasonable disagreement. See Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). Instead, we will uphold the ruling if it is reasonably supported by the record and correct on any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
If we determine the trial court‘s evidentiary ruling was nonconstitutional error, we review the ruling for harm under
In assessing the likelihood that a jury‘s decision was adversely affected by the error, we consider everything in the record, including any testimony or physical evidence admitted, the nature of the evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also consider statements made during voir dire, jury instructions, the State‘s theory, any defensive theories, closing argument, and whether the State emphasized the error. Id. at 355-56.
B. Texas Rule of Evidence 608
In his first and second issues, appellant contends the trial court erred by refusing to allow him to impeach Officer Hernandez
(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness; and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.
1. Rule 608(b): specific instances of conduct
In his first issue, appellant contends the trial court erred by precluding him from cross-examining Officer Hernandez regarding his 2006 termination from the Dickinson Police Department. A bill of exceptions revealed the department terminated Officer Hernandez because he failed to file a mandatory “use of force” form after his gun accidentally discharged during an incident and then intentionally withheld information about this accidental discharge when testifying during a trial. The bill of exceptions also included a termination letter from the department indicating that Officer Hernandez was terminated for the following reason:
Despite direct questioning on the topic, you intentionally withheld information regarding the fact that your weapon discharged during the traffic stop of [the defendant in that case.] You later recanted this sworn testimony, admitting that your weapon had accidentally discharged during the stop. This activity is in violation of Department policy and procedures as listed below: [listing several sections.]
Officer Hernandez was not charged with perjury for falsely testifying.
The State objected to admission of this evidence, citing
In support of his argument, appellant cites caselaw providing that evidence prohibited by Rule 608 must nonetheless sometimes be admitted pursuant to the Confrontation Clause. See Lopez v. State, 18 S.W.3d 220, 225 (Tex. Crim. App. 2000) (“[T]he Confrontation Clause occasionally may require the admissibility of evidence that the Rules of Evidence would exclude.“)2. Generally, the right to present evidence and to cross-examine witnesses under the Confrontation Clause does not conflict with the corresponding rights under state evidentiary rules.
Appellant argues that, because Officer Sharp testified he did not see appellant commit any traffic infractions, Officer Sharp‘s traffic stop of appellant was based solely on Officer Hernandez‘s observations of appellant‘s driving. Thus, according to appellant, all evidence supporting a finding that Officer Sharp had reasonable suspicion3 for stopping appellant hinged on Officer Hernandez‘s credibility. Appellant contends Officer Hernandez‘s credibility was called into question when, during cross-examination, he looked at his police report pertaining to the underlying incident and admitted he filed it seven days after the incident, contrary to three days he stated earlier on cross-examination.4
We disagree that the trial court denied appellant his constitutional right to cross-examine Officer Hernandez regarding his 2006 termination. First, we reject appellant‘s contention that such cross-examination was constitutionally required. Evidence that, during a hearing six years ago, Officer Hernandez intentionally withheld testimony about his failing to report a weapon discharge would not have achieved appellant‘s specific goal of proving Officer Hernandez lied about appellant‘s reckless driving. Officer Hernandez‘s decision to withhold this information has nothing in common with whether he fabricated his testimony that appellant drove recklessly. See Lopez, 18 S.W.3d at 225-26 (concluding Confrontation Clause did not trump Rule 608 and require admission of evidence that complainant previously falsely accused his mother of physical abuse, in part because physical abuse had “almost nothing in common” with complainant‘s allegation of sexual abuse against defendant). Appellant‘s purpose for presenting this evidence was general character assassination, which Rule 608(b) prohibits. See Hammer, 296 S.W.3d at 563 (“Our state evidentiary rules frown on unnecessary character assassination.“).5 Moreover, ap
Second, we reject appellant‘s contention that cross-examining Officer Hernandez about his termination was necessary because such evidence was relevant to whether Officer Sharp had reasonable suspicion to stop appellant. An investigative detention requires a police officer to have at least a reasonable suspicion of criminal activity. See Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997). An officer has reasonable suspicion permitting him legally to initiate a traffic stop if he has a reasonable basis for suspecting a person has committed a traffic offense. Vasquez v. State, 324 S.W.3d 912, 919 (Tex. App.—Houston [14th Dist.] 2010, pet. ref‘d). As we discuss more in depth below, if there had been a genuine dispute of material fact essential to deciding whether appellant‘s detention was lawful—meaning evidence obtained as a result of the detention was inadmissible—the trial court would have been required to submit an
Contrary to appellant‘s position, his traffic stop did not involve the situation in which police officers made the stop based on information supplied by a lay informant, necessitating evidence of the informant‘s reliability. See LeCourias v. State, 341 S.W.3d 483, 488 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (“[I]nformation provided to police from an identifiable citizen-informant, who may be held to account for the accuracy and veracity of the report, may be regarded as reliable.“). Officer Sharp stopped appellant as part of a coordinated police effort involving Officer Hernandez. “[T]he detaining officer need not be personally aware of every fact that objectively supports a reasonable suspicion to detain; rather, the cumulative information known to the cooperating officers at the time of the stop is to be considered in determining whether reasonable suspicion exists.” Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011) (citations omitted); see also Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987) (“Viewing the collective knowledge of the police officers involved in the investigation and surveillance of the appellant, we find that the officers had a reasonable suspicion that a crime had been committed, which would have justified a brief investigatory detention.“). Moreover, the fact that Officer Hernandez was off-duty when he first observed appellant does not mean he was a lay informant instead of a cooperating officer. See Polk v. State, 337 S.W.3d 286, 288 (Tex. App.—Eastland 2010, pet. ref‘d) (determining that, when off-duty police officer observes and responds to crime, he is then on-duty).
During an offer of proof, Officer Sharp testified that he worked for the Dickinson Police Department around the same time as Officer Hernandez but left the department before Officer Hernandez was terminated. Officer Sharp further testified he does not know why Officer Hernandez was
2. Rule 608(a): opinion and reputation testimony
In his second issue, appellant contends the trial court violated
As noted above, “The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but ... the evidence may refer only to character for truthfulness or untruthfulness.”
Further, even if the trial court‘s exclusion of Chief Morales‘s opinion/reputation testimony were constitutional error under the Confrontation Clause, such error was harmless. Constitutional error requires reversal unless the reviewing court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.
We hold beyond a reasonable doubt that any constitutional error did not contribute to appellant‘s conviction. Even if Officer Morales‘s opinion/reputation testimony would have caused the jury to question Officer Hernandez‘s credibility, the police video is overwhelming evidence supporting a finding that appellant was intoxicated. We overrule appellant‘s second issue.8
C. EMT‘s Medical Report
In his third issue, appellant contends the trial court erred by excluding the EMT‘s medical report regarding his treatment of appellant at the police station. We hold that, because the EMT testified about the substance of the excluded report (specifically, that he gave appellant a perfect score on the Glasgow coma scale, appellant denied having consumed alcohol, and appellant was cooperative), any error stemming from the trial court‘s exclusion of the report was rendered harmless. See Khoshayand v. State, 179 S.W.3d 779, 784 (Tex. App.—Dallas 2005, no pet.) (“Any error in excluding evidence is harmless if the same evidence is subsequently admitted without objection.“). Thus, we overrule appellant‘s third issue.
D. Appellant‘s Voice Exemplar
In his fourth issue, appellant contends the trial court erred by refusing to allow appellant to provide a voice exemplar to the jury without waiving his constitutional right not to testify. Officer Sharp testified that he believed appellant was intoxicated in part because appellant slurred his speech. Appellant wanted to provide the exemplar to show that he always slurred his speech. Appellant argued the exemplar was admissible under
At trial, appellant did not argue that the trial court‘s refusal to allow the exemplar was constitutional error. Thus, he has waived this contention. See Linney v. State, 401 S.W.3d 764, 772-73 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (providing defendant preserves constitutional error by making timely, specific objection). Additionally, even if the trial court committed nonconstitutional error by disallowing the exemplar, such error was harmless because the video provided strong evidence that appellant was intoxicated aside from his slurred speech. See
III. JURY CHARGE
In his fifth and final issue, appellant contends the trial court erred by refusing to include an
As discussed above,
Appellant argues he was entitled to an
We conclude Officer Sharp‘s testimony that he did not observe appellant commit any traffic violations is not affirmative evidence that Officer Hernandez lied about appellant committing traffic violations prior to the time Officer Sharp arrived. See Madden, 242 S.W.3d at 513-14 (“There must be some affirmative evidence of ‘did not speed’ in the record before there is a disputed fact issue” on whether officer had probable cause to stop defendant for speeding). Officer Hernandez testified he observed appellant commit infractions by driving onto curbs and almost striking other vehicles as he exited parking lots and also by driving on the wrong side of the road for “a short distance.” Officer Sharp was not present at that time. Officer Sharp testified that, after he arrived at appellant‘s location, he followed appellant for approximately forty seconds but did not observe him commit any traffic violations. Officer Sharp agreed appellant “drove normally into the neighborhood” even with a “blinding” police spotlight reflecting in his mirrors. Nevertheless, unlike Officer Hernandez, Officer Sharp did not observe appellant exit a parking lot. Officer Sharp also testified that, after activating his emergency lights, appellant failed to stop immediately but continued to his house, where he parked in the driveway and opened his garage door. This testimony is corroborated by the video, which reflects appellant had an opportunity to turn right onto another street and stop his car but instead drove for almost forty seconds to his house where he opened his garage and exited the truck.
We affirm the trial court‘s judgment.
JOHN DONOVAN
Justice
Notes
For example, the defense may not ask the witness: Didn‘t you cheat on your income tax last year? Didn‘t you lie on Tuesday about having an affair with your boss? Didn‘t you steal five dollars from the church collection plate last week and then lie to the priest about it? While all of those questions attack the witness‘s general character for truthfulness, that mode of impeachment is specifically barred by Rule 608(b).
Hammer, 296 S.W.3d at 563.