Mata v. State

75 S.W.3d 499, 2002 Tex. App. LEXIS 611, 2002 WL 113951

• Court: Court of Appeals of Texas
• Decided: January 30, 2002
• Docket: 04-94-00099-CR
• Status: Published

Opinions

Opinion by

CATHERINE STONE, Justice.

This appeal is on remand from the Court of Criminal Appeals. Raul Mata (“Mata”) is appealing his conviction of misdemeanor driving while intoxicated. We originally affirmed the trial court’s judgment, concluding that the testimony of George McDougall regarding the range of Mata’s blood alcohol concentration was scientifically reliable. See Mata v. State, 13 S.W.3d 1 (Tex.App.-San Antonio 1999), rev’d, 46 S.W.Sd 902 (Tex.Crim.App.2001). The Court of Criminal Appeals granted Mata’s petition for discretionary review to decide whether McDougall’s testimony was sufficiently reliable to be admissible. Mata v. State, 46 S.W.3d 902, 907 (Tex. Crim.App.2001). The Court of Criminal Appeals held that the trial court abused its discretion in admitting that part of McDougall’s testimony pertaining to the extrapolation of Mata’s blood alcohol content. See id. at 917. The Court of Criminal Appeals remanded the cause to this court “for a determination of harm under Appellate Rule 44.2.” Id. Accordingly, the only issue to be addressed on remand is whether the admission of McDougall’s testimony was harmful error. Because we conclude that the admission of McDou-gall’s testimony was harmless, we affirm the trial court’s judgment.

Discussion

Rule 44.2(b) sets forth the standard for determining whether error is harmful in the criminal context. See Tex. R. App. P. 44.2(b). Under that standard, we disregard any error that does not affect substantial rights. See id.

In addressing the issue of harm in the DWI context, we do not write on a clean slate. This court first addressed the harmless error analysis in Hartman v. State, 2 S.W.3d 490, 494 (Tex.App.-San Antonio 1999, pet. ref d). In that case, we noted, “because the jury was charged under both definitions of intoxication, and given the arresting officer’s testimony as to Hartman’s apparent intoxication at the time he was stopped, we find Hartman did not show he was harmed by the admission of McDougall’s testimony.” Id.

The reasoning in support of Hartman is based on the State’s ability to plead alternative means or theories of an offense. When alternative theories of committing the same offense are submitted to the jury disjunctively, the jury properly returns a general verdict if there is sufficient evidence to support a conviction under any of the theories alleged. See, e.g., Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim.App.1999); Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991); Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim.App.1982). A general verdict is acceptable because neither the federal nor the state constitution requires a jury to reach a unanimous agreement on alternative factual theories offered by the State to support a conviction. Kitchens, 823 S.W.2d at 258; Price v. State, 59 S.W.3d 297, 300 (Tex.App.-Fort Worth 2001, no pet. h.).

Even in cases in which this court has held that the two means of committing the offense of driving while intoxicated should be submitted with separate instructions and verdict forms, we have refused to find error where the evidence is sufficient to support a finding of guilt under one of the theories. See Reidweg v. State, 981 S.W.2d 399, 404-05 (Tex. App.-San Antonio 1998, pet. denied); Ray v. State, 749 S.W.2d 939, 944 (Tex.App.-San Antonio 1988), overruled sub silentio on other grounds, Atkinson v. State, 923 S.W.2d 21, 23 (Tex.Crim.App.1996). We recognized the danger of a single verdict form in that the appellant “might have been convicted by a non-unanimous verdict, that is some of the jurors might have found that he committed the offense of driving while intoxicated by the loss of his facilities, and some might have found that he committed the offense of driving while intoxicated because his blood alcohol concentration was above the legal limit.” Ray, 749 S.W.2d at 944. Nevertheless, in view of the existing precedent, we found the error did not require reversal because the evidence was sufficient to support the finding of guilt under one of the available theories. Reidweg, 981 S.W.2d at 405; Ray, 749 S.W.2d at 944.

In this case, the arresting officer testified that he stopped Mata after Mata failed to dim his headlights in response to the officer flashing his lights to notify Mata about the traffic violation. When the officer approached Mata to request his driver’s license, the officer noted that Mata’s breath smelled of alcohol. The officer stated that he found indications of intoxication based on an HGN test and other field sobriety tests. The officer also stated that Mata’s speech was slurred. In addition to the arresting officer’s testimony, the officer who administered the intoxi-lyzer testified that Mata’s speech was slurred, Mata fell when he attempted to stand, and Mata was staggering and swaying as he walked to the room to take the test. Mata testified that he had been celebrating his birthday and had been drinking all day. He also testified that he had eaten during the day. Specifically, Mata testified that he drank 5-7 beers and 2-3 shots of tequila in an 8 hour period.

Although trial counsel vigorously cross-examined each of the officers, the jury could have found both officers’ testimony credible. See Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981) (jury free to accept or reject all or any part of the testimony of any witness). The evidence is sufficient to support a finding of guilt under the theory that Mata did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol into the body.

Conclusion

The jury was charged under both definitions of intoxication, and the evidence is sufficient to support a finding of guilt under the theory that Mata did not have the normal use of his mental or physical faculties by reason of introduction of alcohol into the body. Therefore, the admission of MeDougall’s testimony was harmless, and the trial court’s judgment is affirmed.