OPINION
A jury convicted David Ray Pointe of driving with a child passenger while intoxicated and sentenced Pointe to ten years in prison. In eight appellate issues, Pointe challenges the denial of his request for the appointment of an expert, the sufficiency
Factual Background
Deputy Frank Carpenter responded to the nighttime scene of a two-vehicle collision involving Pointe and Margaret Richter. Carpenter testified that Pointe told him that Richter turned in front of his vehicle and he could not stop. Pointe’s ten-year-old son was in the vehicle with Pointe. Ethan Sonnier saw the collision and testified that Richter was preparing to turn, Richter pulled out in front of Pointe’s vehicle, and Pointe’s vehicle “hammered” Richter’s vehicle. Deborah Kay Foster, Richter’s daughter, quickly arrived at the scene. Foster testified that Richter was crying and upset. Richter asked, “Where did they come from?” and told Foster she did not see anything, did not know who hit her, “never saw anybody,” and “didn’t see any lights coming at [her].” Carpenter believed that Richter caused the accident and he issued a citation to Richter for failure to yield the right of way.
Carpenter smelled an odor of alcohol coming from Pointe’s vehicle, found alcohol and bottles of alcohol in the vehicle, and found a piece of broken beer bottle on the road in close proximity to the vehicle. Robert Edward Pointe, Pointe’s brother, testified that they planned to watch a basketball game and drink the night of the accident, so he was not surprised that Pointe had alcohol in his vehicle. Carpenter testified that the beer bottles in Pointe’s vehicle could have broken on impact. Pointe initially told Carpenter that he had previously consumed three beers, but later stated he drank four beers. When interacting with Pointe, Carpenter did not observe slurred speech or staggering, and he testified that Pointe was able to answer his questions. Robert, who came to the scene, testified that Pointe was “pretty coherent” and said he was “hurting[.]” Based on Pointe’s statements that he had consumed beer and the smell of alcohol coming from Pointe’s vehicle, Carpenter felt that Pointe was possibly intoxicated. Because he is not certified to administer field sobriety tests, Carpenter consulted Texas State Trooper Philip Brady.
Brady testified that Pointe had glassy and bloodshot eyes, slurred speech, and smelled of alcohol. He administered the horizontal gaze nystagmus test (“HGN”) and observed six clues of intoxication. He saw no signs of head trauma. He admitted that the environment was not ideal for administering this test and that he did not perform the test according to the prescribed and standardized manner. Brady also administered the walk-and-turn test, but Pointe lost his balance and failed to maintain the starting position. Pointe told Brady that he was not going to perform the test because he was hurting and needed an ambulance.
During the ambulance ride to the hospital, Foster heard Pointe tell the ambulance attendant that he drank two or three beers. Brady testified that, according to Pointe’s medical records, he drank five or six beers. At the scene, Pointe told Brady he drank about four beers. Brady testified that intoxicated drivers are not accurate or consistent regarding the number of alcoholic beverages they have consumed. The record indicates that Pointe claimed to have consumed the beers within hours before the accident, the most recent of which he consumed forty-five minutes before the accident. Robert testified that he would be' surprised if Pointe drank five or six beers and then drove his vehicle with his son inside, but would not be surprised if he
Carpenter testified that Pointe refused his request for a blood specimen. Brady testified that Pointe refused to provide a urine sample to hospital personnel, stating that he did not see any blood in his urine and did not need to provide a sample. Brady testified that Pointe likewise refused to allow medical personnel to draw blood for evaluation.
Based on Pointe’s appearance, manner of speech, statements regarding the number of beers he drank, smell of alcohol, and performance on the HGN test, Brady concluded that Pointe “did not have reasonable use of his mental or physical faculties due to intoxicating substance.” He maintained this opinion even after learning that hospital personnel diagnosed Pointe with a concussion. Carpenter could not testify that Pointe had been drinking while driving, but he testified that a motor vehicle is capable of causing serious bodily injury or death.
Sufficiency of the Evidence
In issues three and seven, Pointe contends that the evidence is insufficient to support his conviction for driving with a child passenger while intoxicated and to support the jury’s deadly weapon finding. We address these issues first because, if sustained, they would afford Pointe the greatest relief.
The “Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.” Brooks v. State,
A person commits an offense when the person is intoxicated while operating a motor vehicle in a public place and that vehicle contains a passenger who is younger than fifteen years of age. Tex. Penal Code Ann. § 49.045(a) (West 2011). A person is intoxicated when he does not have the normal use of mental or physical faculties by reason of the introduction of alcohol into the body. Id. § 49.01(2)(A) (West 2011). A deadly weapon includes anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Id. § 1.07(a)(17)(B) (West Supp. 2011).
Pointe contends that the evidence is insufficient to support a finding that he was intoxicated on the night of the collision. The video recording of Pointe’s HGN test was admitted into evidence for the jury’s review, giving the jury an opportunity to observe Pointe’s actions. The jury heard testimony that Richter caused the collision, Robert did not believe Pointe would drink and drive with his son inside his vehicle, Pointe was going to Robert’s home to drink and watch basketball, Car
As sole judge of the weight and credibility of the evidence, the jury bore the burden of determining what to believe. See Hooper,
When evaluating the deadly weapon issue in a DWI case, we consider (1) the manner in which the defendant used the motor vehicle during the felony; and (2) whether, during the felony, the motor vehicle was capable of causing death or serious bodily injury. Sierra v. State,
As previously discussed, the record contains sufficient evidence by which the jury could conclude that Pointe was intoxicated. The State contends that the jury could infer from Richter’s statements at the scene of the collision and Sonnier’s failure to mention seeing Pointe’s vehicle before the accident that Pointe was driving recklessly by speeding or failing to use his headlights. However, the jury heard testimony that Richter pulled out in front of Pointe’s moving vehicle and was at fault for causing the accident. The record contains no other evidence to support an inference that Pointe was driving recklessly. While a jury may draw multiple reasonable inferences from the evidence, it cannot draw conclusions based on speculation. Hooper,
Request for Appointment of an Expert
In issue one, Pointe contends that the trial court erred by denying his request for appointment of an expert. “[D]ue process requires access to the raw materials integral to the building of an effective defense.” Rey v. State,
Pointe filed a pre-trial motion for appointment of an expert, in which he alleged that testimony from a field sobriety expert was required to rebut opinions that would be offered by the State. At the pre-trial hearing, defense counsel expressed his belief that the State planned to call Trooper Brady to testify regarding Pointe’s performance on field sobriety tests. Counsel stated that he had previously used an expert, whose name he believed to be “Platt,” and that Platt charged a $1,500 flat rate two years ago, but may charge up to $2,000 now. Counsel explained that Platt would testify that the HGN test should not be performed on a person suffering from a concussion. According to counsel, Platt has trained officers in Texas regarding the performance of the HGN test.
Alternatively, defense counsel requested appointment of a medical expert to testify that a concussion causes nystagmus. Counsel stated that he is certified to perform the HGN test and he explained, “There can be damage to the vestibular part of the ear that can cause a nystagmus in relation to a concussion.” The trial court asked whether literature is available regarding the HGN test and defense counsel responded affirmatively. The State mentioned the Standardized Field Sobriety Test Manual, but defense counsel explained that the manual does not discuss “concussions, per se[,]” but says that officers check for pupil dilation to determine whether the person has brain damage. Defense counsel complained that he had provided the State with articles for Brady’s review, but the State had refused to provide these materials to Brady. The trial court determined that literature was available and denied Pointe’s motion.
“The private interest in the accuracy of a criminal proceeding that places an individual’s life or liberty at risk is almost uniquely compelling.” Ake,
Regarding the third factor, to which we give the most weight, Pointe was required to show that the requested expert could provide assistance that was likely to be a significant factor at trial. See Jimenez,
In support of his motion, Pointe offered defense counsel’s undeveloped assertions that an expert was necessary. See Jimenez,
Evidentiary Issues
In issues two, four, five, and six, Pointe raises evidentiary challenges regarding the trial court’s admission of evidence. We review the trial court’s decision to admit evidence for abuse of discretion. Martinez v. State,
In issues two and four, Pointe challenges the trial court’s decision to allow Brady to testify regarding the issue of intoxication. He complains that Brady’s method and technique used to administer and interpret the field sobriety tests is flawed. Pointe argues that Brady (1) failed to perform a full battery of field sobriety tests; (2) did not understand the subject matter of the HGN test; and (3) did not administer the HGN test properly or in an appropriate environment. He further contends that Brady should not have been allowed to testify about an article that Pointe con
Brady testified that the latest piece of literature he had read indicated that the HGN test was accurate at seventy-seven percent when four out of six clues of intoxication were present. When asked whether this meant that the test was flawed twenty-three percent of the time, Brady responded:
I don’t know if that can be said, but the data that was originally generated, which was, I think, back in 1976, consisted of laboratory conditions. I haven’t read the actual — the actual study, and I’m not sure how it scored statistically.
At this juncture, defense counsel objected, “If he hasn’t read the study and doesn’t know the science behind what this particular 77 percent — whether it’s right or wrong, then I would object to him testifying to that because he has no personal knowledge.” The trial court overruled the objection. Brady proceeded to testify that researchers determined the HGN test to be seventy-seven percent accurate, and he explained how he administers the HGN test. When the State sought to admit into evidence a video recording of Pointe’s HGN test, defense counsel objected and asked to take Brady on voir dire regarding “his expertise with the actual bouncing of the eyes and other causes[,]” but the trial court denied this request. Brady subsequently testified that he did not know the science behind the HGN test. Defense counsel moved for a directed verdict on grounds that the basis for Brady’s opinion on intoxication arose out of the “inaccurate” HGN test. The trial court denied this motion.
Assuming, without deciding, that the trial court abused its discretion by admitting the complained-of testimony, we cannot say that Pointe’s substantial rights were affected. See Tex.R. Evid. 103(a); see also Tex.R.App. P. 44.2(b). During closing arguments, the State discussed Brady’s testimony regarding the HGN test and admitted the testing was not administered perfectly, but urged the jury to focus on Pointe’s conduct. Defense counsel told the jury that Brady “screwed up the tests” and explained his reasons for discounting the State’s evidence of intoxication, including Brady’s testimony regarding the HGN test. The trial court instructed the jury on the definition of “intoxicated” and instructed the jury that it could only convict Pointe if it found him guilty beyond a reasonable doubt of driving with a child passenger while intoxicated. Additionally, the variations in Brady’s administration of the HGN test did not render his testimony inadmissible or unreliable, but affected the weight to be given to his testimony. See Plouff v. State,
In issue five, Pointe argues that Carpenter was not qualified to testify regarding the issue of intoxication. Carpenter testified that he has received no specialized training regarding the detection of intoxication or administration of field sobriety tests and is not certified to administer field sobriety tests, but that specialized training was not required to determine whether a person is intoxicated. When the State asked Carpenter if he determined whether Pointe was intoxicated, defense counsel objected on grounds that
Police officers are not precluded from providing lay testimony regarding events which they have personally observed. Osbourn v. State,
In issue six, Pointe complains about the admission of Foster’s testimony regarding statements made by Richter at the scene of the collision. During Foster’s testimony, defense counsel objected, on hearsay grounds, to testimony regarding what Richter said to Foster. The State argued that the testimony was admissible as a present sense impression and excited utterance. The trial court overruled the objection. Foster subsequently testified to Richter’s statements at the scene of the collision. Pointe complains that the State failed to lay a predicate for the hearsay exceptions on which it relied.
Hearsay, a declarant’s out-of-court statement offered in evidence to prove the truth of the matter asserted, is inadmissible. Tex.R. Evid. 801(d); Tex.R. Evid. 802. Exceptions to the hearsay rule include a present sense impression and an excited utterance. Tex.R. Evid. 803(1), (2). An excited utterance is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex.R. Evid. 803(2). This exception is based on the assumption that, at the time of the statement, the declarant is not capable of the kind of reflection that would enable him to fabricate information. Apolinar v. State,
The record indicates that Richter made the complained-of statements shortly after the collision occurred. Richter was still in her wrecked vehicle when Foster arrived at the scene shortly after the collision. Richter was in her seventies at the time and had been involved in a major collision that involved significant damage and injury. The record does not indicate that Richter’s statements were made in response to a question. Nor do we construe Richter’s statements as self-serving. The statements were made to her daughter, not to the law enforcement officers who determined Richter caused the accident. The trial court could reasonably conclude that Richter was still dominated by the emotions, excitement, fear, or pain of the collision at the time she made the complained-of statements. See id. at 186-87. The trial court did not abuse its discretion by admitting Foster’s testimony pursuant to the excited utterance exception to the hearsay rule. For this reason, we need not address whether the testimony was admissible as a present sense impression. See Tex.RApp. P. 47.1. We overrule issue six.
Clerical Errors
In issue eight, Pointe contends that the trial court’s judgment contains clerical er
Conclusion
In summary, we modify the judgment to remove “2nd Degree Felony” from that section of the judgment entitled “Degree of Offense[]” and substitute “State jail Felony” in its place. We modify those sections of the judgment entitled “Plea to 1st Enhancement Paragraph[,]” “Plea to 2nd Enhancement/Habitual Paragraph[,]” “Findings on 1st Enhancement Para-graphic,]” and “Findings on 2nd Enhanee-menl/Habitual Paragraph” by deleting “N/ A” from each section and substituting “True” in its place. Finally, we modify the judgment to delete the deadly weapon finding. We affirm the judgment as modified. See Tex.R.App. P. 43.2(b).
AFFIRMED AS MODIFIED.
Notes
. Because the amendments to section 1.07 are not material to this case, we cite to the current version of the statute.