OPINION
JACKSON B. SMITH, Jr., Justice (Retired).
A jury found appellant, Naphtlit Joel Herrerra, guilty of driving while intoxicated, second offense. The trial court assessed punishment at 180 days in jail, probated for two years and a fine of $2,000, with $500 probated.
Appellant contends the trial court erred in overruling his objections to (1) the prosecutor’s closing argument, which misstated tile law regarding the proof required, as set forth in the jury charge and (2) the State’s introduction of irrelevant prejudicial evidence. We affirm.
Court’s Charge and Closing Argument
In his first point of error, appellant contends the trial court erred in overruling his objection to the State’s closing argument because the argument was contrary to the charge of the court.
Appellant was charged by information with the offense of driving while intoxicated, second offense. The information charged appellant with the offense in the disjunctive, that is “by not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body.” (Emphasis added). The application paragraph of the court’s charge required that appellant be found to be intoxicated “by not having the normal use of his mental and physical faculties by reason of the introduction of alcohol into his body.” (Emphasis added). During the reading of the information to the jury, the State included the word “or” between the words mental and physical when referring to appellant’s loss of faculties, rather than “and” as stated in the court’s charge. In final argument, the State argued that the jury could find appellant lost either his mental or physical faculties. Appellant objected that the charge required a finding of mental and physical faculties; but, the trial court overruled the objection.
It is proper for an indictment to allege different ways of committing a single offense in the conjunctive, but to have the court’s charge to the jury state the different ways of commission in the disjunctive. Francis v. State, No. 1132-98, slip op. at 2, 1999 WL 993669 (Tex.Crim.App. Nov. 3, 1999); Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991). The prosecutors argument would have [415]*415been proper if our facts were the same as those in Francis and Kitchens. However, in this case, the indictment was in the disjunctive and the court’s charge in the conjunctive. The State apparently was not aware that the charge was in the conjunctive until appellant objected to its use of the disjunctive in the State’s closing argument.
Appellant’s objection was proper, and the court erroneously overruled his objection. The State concedes that its closing argument was contrary to the charge of the court and, therefore, error. However, the State contends the misstatement of the law was not constitutional error, and any harm should be analyzed under Texas Rule of Appellate Procedure 44.2(b). Appellant contends the proper harm analysis is one conducted according to Texas Rule of Appellate Procedure 44.2(a) because the error was of constitutional dimension, but alternatively argues that the error affected the substantial rights of appellant such as to constitute harm under a Rule 44.2(b) analysis.
At least two appellate courts have analyzed prosecutorial misstatements of law under Rule 44.2(b). Lee v. State, 971 S.W.2d 130 (Tex.App. — Houston [14th Dist.] 1998, pet. ref'd); Coggeshall v. State, 961 S.W.2d 639, 643 (Tex.App. — Fort Worth 1998, pet. ref'd) (stating “case law reveals that [federal] appellate courts have consistently held that improper prosecuto-rial comments and misstatements are not constitutional in nature, but can affect a defendant’s substantial rights”). We agree with these holdings and conclude that the State’s misstatement of the jury charge in this case was not constitutional in nature. Accordingly, we disregard the error unless the appellant’s substantial rights are affected. Tex.R.App. P. 44.2(b). “A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997).
To determine if the prosecutor’s misstatement of the law in his closing argument to the jury had a substantial and injurious effect or influence in determining the jury’s verdict, we look at all the evidence and the court’s charge, as well as the prosecutor’s misstatement. The State’s proof that appellant was driving while intoxicated was the testimony of one witness, Officer Fabyanic, who testified that appellant had a strong smell of alcohol about his person when appellant was in his stopped vehicle and when appellant exited his vehicle. The officer-stated that appellant failed both field sobriety tests. Officer Fabyanic also said that appellant’s eyes were rather glassy and bloodshot; his speech was “slurred and mush mouthed” and he was unstable on his feet. In the officer’s opinion, appellant had neither normal mental or physical faculties.
The Court’s charge defined “intoxication.” The material part of that definition applicable to this case states as follows:
Intoxication means not having the normal use of physical or mental faculties by reason of the introduction of alcohol. (Emphasis supplied).
The material part of the application paragraph in the court's charge states in relevant part as follows:
The said defendant was intoxicated by not having the normal use of his mental and physical faculties by reason of the introduction of alcohol. (Emphasis supplied).
Part of the closing paragraph of the charge to the jury states as follows:
You are the exclusive judges of the facts proved, of the credibility of the witnesses and the weight to be given their testimony, but the law you shall receive in these instructions and you must be governed thereby. (Emphasis supplied).
It is essential under our system of law that a jury follow a court’s instructions. Otherwise, our system fails. Thus, absent evidence to the contrary, a jury is [416]*416presumed to follow the instructions set forth in the court’s charge. Hutch v. State, 922 S.W.2d 166, 172 (Tex.Crim.App.1996). However, such presumption can be rebutted. Rose v. State, 752 S.W.2d 529, 554 (Tex.Crim.App.1987); Cobarrubio v. State, 675 S.W.2d 749, 752 (Tex.Crim.App.1983).
Applying these rules to the State’s closing argument to the jury, we see that the State’s use of the term “or” rather than the term “and” in describing the State’s burden of proof on mental and physical faculties was correct in one respect and incorrect in another. The State’s argument was correct when applied to the definition of intoxication but incorrect when applied to the application paragraph in the court’s charge.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
JACKSON B. SMITH, Jr., Justice (Retired).
A jury found appellant, Naphtlit Joel Herrerra, guilty of driving while intoxicated, second offense. The trial court assessed punishment at 180 days in jail, probated for two years and a fine of $2,000, with $500 probated.
Appellant contends the trial court erred in overruling his objections to (1) the prosecutor’s closing argument, which misstated tile law regarding the proof required, as set forth in the jury charge and (2) the State’s introduction of irrelevant prejudicial evidence. We affirm.
Court’s Charge and Closing Argument
In his first point of error, appellant contends the trial court erred in overruling his objection to the State’s closing argument because the argument was contrary to the charge of the court.
Appellant was charged by information with the offense of driving while intoxicated, second offense. The information charged appellant with the offense in the disjunctive, that is “by not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body.” (Emphasis added). The application paragraph of the court’s charge required that appellant be found to be intoxicated “by not having the normal use of his mental and physical faculties by reason of the introduction of alcohol into his body.” (Emphasis added). During the reading of the information to the jury, the State included the word “or” between the words mental and physical when referring to appellant’s loss of faculties, rather than “and” as stated in the court’s charge. In final argument, the State argued that the jury could find appellant lost either his mental or physical faculties. Appellant objected that the charge required a finding of mental and physical faculties; but, the trial court overruled the objection.
It is proper for an indictment to allege different ways of committing a single offense in the conjunctive, but to have the court’s charge to the jury state the different ways of commission in the disjunctive. Francis v. State, No. 1132-98, slip op. at 2, 1999 WL 993669 (Tex.Crim.App. Nov. 3, 1999); Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991). The prosecutors argument would have [415]*415been proper if our facts were the same as those in Francis and Kitchens. However, in this case, the indictment was in the disjunctive and the court’s charge in the conjunctive. The State apparently was not aware that the charge was in the conjunctive until appellant objected to its use of the disjunctive in the State’s closing argument.
Appellant’s objection was proper, and the court erroneously overruled his objection. The State concedes that its closing argument was contrary to the charge of the court and, therefore, error. However, the State contends the misstatement of the law was not constitutional error, and any harm should be analyzed under Texas Rule of Appellate Procedure 44.2(b). Appellant contends the proper harm analysis is one conducted according to Texas Rule of Appellate Procedure 44.2(a) because the error was of constitutional dimension, but alternatively argues that the error affected the substantial rights of appellant such as to constitute harm under a Rule 44.2(b) analysis.
At least two appellate courts have analyzed prosecutorial misstatements of law under Rule 44.2(b). Lee v. State, 971 S.W.2d 130 (Tex.App. — Houston [14th Dist.] 1998, pet. ref'd); Coggeshall v. State, 961 S.W.2d 639, 643 (Tex.App. — Fort Worth 1998, pet. ref'd) (stating “case law reveals that [federal] appellate courts have consistently held that improper prosecuto-rial comments and misstatements are not constitutional in nature, but can affect a defendant’s substantial rights”). We agree with these holdings and conclude that the State’s misstatement of the jury charge in this case was not constitutional in nature. Accordingly, we disregard the error unless the appellant’s substantial rights are affected. Tex.R.App. P. 44.2(b). “A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997).
To determine if the prosecutor’s misstatement of the law in his closing argument to the jury had a substantial and injurious effect or influence in determining the jury’s verdict, we look at all the evidence and the court’s charge, as well as the prosecutor’s misstatement. The State’s proof that appellant was driving while intoxicated was the testimony of one witness, Officer Fabyanic, who testified that appellant had a strong smell of alcohol about his person when appellant was in his stopped vehicle and when appellant exited his vehicle. The officer-stated that appellant failed both field sobriety tests. Officer Fabyanic also said that appellant’s eyes were rather glassy and bloodshot; his speech was “slurred and mush mouthed” and he was unstable on his feet. In the officer’s opinion, appellant had neither normal mental or physical faculties.
The Court’s charge defined “intoxication.” The material part of that definition applicable to this case states as follows:
Intoxication means not having the normal use of physical or mental faculties by reason of the introduction of alcohol. (Emphasis supplied).
The material part of the application paragraph in the court's charge states in relevant part as follows:
The said defendant was intoxicated by not having the normal use of his mental and physical faculties by reason of the introduction of alcohol. (Emphasis supplied).
Part of the closing paragraph of the charge to the jury states as follows:
You are the exclusive judges of the facts proved, of the credibility of the witnesses and the weight to be given their testimony, but the law you shall receive in these instructions and you must be governed thereby. (Emphasis supplied).
It is essential under our system of law that a jury follow a court’s instructions. Otherwise, our system fails. Thus, absent evidence to the contrary, a jury is [416]*416presumed to follow the instructions set forth in the court’s charge. Hutch v. State, 922 S.W.2d 166, 172 (Tex.Crim.App.1996). However, such presumption can be rebutted. Rose v. State, 752 S.W.2d 529, 554 (Tex.Crim.App.1987); Cobarrubio v. State, 675 S.W.2d 749, 752 (Tex.Crim.App.1983).
Applying these rules to the State’s closing argument to the jury, we see that the State’s use of the term “or” rather than the term “and” in describing the State’s burden of proof on mental and physical faculties was correct in one respect and incorrect in another. The State’s argument was correct when applied to the definition of intoxication but incorrect when applied to the application paragraph in the court’s charge.
Although the prosecutor’s application paragraph argument was incorrect, it did not necessarily have a substantial and injurious effect in determining the jury’s verdict. In fact, the jury had before it evidence the State introduced which showed beyond a reasonable doubt that appellant was intoxicated as defined in the charge. There was also evidence that appellant, because of the ingestion of alcohol, had lost the use of both his normal physical and mental faculties. This latter evidence met squarely with the proof required of the State in the application paragraph of the charge.
We conclude that the jury did follow the court’s instructions and that the presumption that the jury will follow the instructions in the trial court’s charge is true in this case. Thus, we conclude that the State’s misstatement of the law in its closing argument to the jury did not have a substantial and injurious effect or influence in determining its verdict of guilt. Appellant’s point of error one is overruled.
Officer Fabyanic’s Testimony
In his second point of error, appellant contends the trial court erred by allowing Officer Fabyanic to testify that he remembered appellant’s arrest because he moved from his residence to avoid an “encounter” with appellant. He contends Fa-byanic’s testimony was not relevant and its probative value was substantially outweighed by the danger of unfair prejudice.1 We disagree.
At trial, appellant vigorously contested Officer Fabyanic’s ability to recall the events surrounding appellant’s arrest, which had occurred four years before trial. During redirect examination, the State responded by asking questions related to Officer Fabyanic’s memory and why he could recall the arrest so clearly four years later. Officer Fabyanic explained that appellant’s half-brother was his next door neighbor, and appellant’s sister was his landlady. To avoid “something happening to [his] residence or a chance encounter,” Officer Fabyanic moved his residence. Officer Fabyanic testified, “I don’t mean to imply that Mr. Herrerra would do anything, but I thought it was prudent on my part and safest to remove myself from any potential situation....” (Emphasis added). Appellant objected on the basis that the State was interjecting extraneous offense matters, that the testimony was hearsay and irrelevant, and that the prejudicial nature outweighed the probative value. The trial court overruled appellant’s objection, stating that appellant had made Officer Fabyanic’s memory an issue in the case.
Appellant asserts the trial court did not conduct a proper rule 403 balancing test. Tex.R. Evid. 403. However, it was not necessary for the trial court to conduct a formal hearing or even announce on the record that it had mentally conducted the rule 403 balancing test. Howland v. State, 966 S.W.2d 98, 103 (Tex.App — Houston [417]*417[1st Dist.] 1998, aff'd 990 S.W.2d 274 (Tex.Crim.App.1999). By overruling appellant’s objection, we may presume from the record before us that the trial court mentally conducted the balancing test and found the evidence more probative than prejudicial. Id.
Factors to be considered in determining whether the testimony’s proba-tiveness was outweighed by the potential for unfair prejudice include (1) the testimony’s inherent probative value, (2) its potential to impress the jury in some irrational but indelible way, (3) the amount of trial time the proponent needs to develop such testimony, and (4) the proponent’s need for the testimony. Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex.Crim.App.1990). There is a presumption that relevant evidence is more probative than prejudicial. Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App.1997).
Although Officer Fabyanic’s testimony may have been prejudicial to appellant, in that it implied some “encounter” could erupt between himself and appellant, it was essential to the State’s case to establish the officer’s credibility. We hold the trial court did not err in concluding that the probative value of this evidence outweighed any prejudicial effect it may have had.
Point of error two is overruled.
We affirm the judgment of the trial court.