Mino Turnbow v. State

• Court: Court of Appeals of Texas
• Decided: November 10, 2010
• Docket: 02-09-00438-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-09-00438-CR

MINO TURNBOW APPELLANT

V.

THE STATE OF TEXAS STATE

------------

FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

MEMORANDUM OPINION1 ----------

Appellant Mino Turnbow appeals his conviction for felony driving while

intoxicated (DWI). We affirm.

On a Saturday night, Lake Dallas Police Officer William Soye pulled over a

white pickup truck for the traffic offense of turning without signaling. Officer Soye

approached the truck as Appellant exited its driver’s side and stepped into a mud

puddle. When the officer asked Appellant for his driver’s license and proof of

1 See Tex. R. App. P. 47.4. insurance, Appellant, leaning against the truck and smelling strongly of an

alcoholic beverage, produced an expired license and a paper invoice. The officer

pointed out that Appellant had handed him an invoice instead of proof of

insurance, and he asked if Appellant was okay. Appellant replied that he was not

okay, that he had been out with friends. The officer asked again for proof of

insurance, to which Appellant replied, ―I know I’ve been drinking, but I’ve been

out with some friends.‖

Suspecting that Appellant was intoxicated, Officer Soye administered the

horizontal gaze nystagmus test (HGN). Appellant exhibited five out of six clues

of intoxication on the HGN. The officer then had Appellant attempt the walk-and-

turn test. On that test, Appellant displayed eight out of eight clues of intoxication.

Because Appellant seemed unsteady on his feet––he had swayed during the

HGN and had stumbled on the walk and turn––Officer Soye did not have him

attempt the one-leg stand, fearing that it would be unsafe to do so. Instead, he

asked Appellant to recite the alphabet from ―E‖ to ―X.‖ Appellant started with the

letter ―A‖ and continued to the letter ―Z.‖ Finally, Officer Soye had Appellant

perform the ―Romberg test,‖ an exercise that involves touching the thumb to each

finger in sequence. Appellant was unable to perform this test according to the

officer’s instructions.

Officer Soye concluded that Appellant had lost the normal use of his

mental or physical capabilities due to having consumed alcohol, and he arrested

him for DWI.

2 During the book-in process at the jail, Officer Soye learned from dispatch

that Appellant had prior DWI convictions, which raised the instant offense to a

felony. He asked Appellant to submit a breath sample for testing, but Appellant

refused. At that point, Officer Soye decided to get a warrant for a sample of

Appellant’s blood.

After obtaining the warrant, Officer Soye drove Appellant to Denton

Regional Medical Center, where phlebotomist Tara Okeola withdrew a sample of

Appellant’s blood for analysis. The sample was later forwarded to the

Department of Public Safety Crime Lab in Garland, where chemist Andrew

Macey measured its alcohol concentration at 0.26 grains of alcohol per 100

milliliters of blood––more than three times the legal limit.

A grand jury indicted Appellant for felony DWI. Ten days before trial,

Appellant requested technical documentation related to the DPS lab’s analysis of

his blood specimen. Six days before trial, the State responded by providing

Appellant with approximately 280 pages of documents. On the day of trial,

Appellant filed a written, unsworn motion for continuance asking for thirty more

days to review the documents and to hire an expert to assist him. The trial court

denied the motion for continuance; the trial went forward; the jury convicted and

assessed punishment at thirty-eight years’ confinement; and the trial court

sentenced Appellant accordingly.

3 0Motion for Continuance

In his first issue, Appellant contends that the trial court abused its

discretion by denying his motion for continuance filed on the day of trial. Ten

days before trial, Appellant had requested discovery documents that the State

supplied within four days of the request. On the day of trial, Appellant filed a

written, but unsworn motion for continuance asking for a month to review the

documents and to hire an expert to assist his review.

The Texas Code of Criminal Procedure provides that all motions for

continuance must be sworn to by a person having personal knowledge of the

facts relied on for the continuance. Tex. Code Crim. Proc. Ann. art. 29.08

(Vernon 2009); Dewberry v. State, 4 S.W.3d 735, 755–56 (Tex. Crim. App.

1999), cert. denied, 529 U.S. 1131 (2000); see Montoya v. State, 810 S.W.2d

160, 176 (Tex. Crim. App.), cert. denied, 502 U.S. 961 (1991). Because

Appellant’s motion for continuance is unsworn, the trial court did not abuse its

discretion by denying it. We overrule Appellant’s first issue.

Blood Test Results

In his next two issues, Appellant challenges the trial court’s denial of his

motions to suppress evidence of the blood test results. First, he claims that the

results should have been suppressed because the blood-draw warrant was

defective in that its supporting affidavit did not provide a substantial basis for the

magistrate to find probable cause.

4 Sufficiency of the Warrant Affidavit

When the government draws a blood specimen to determine a suspect’s

blood alcohol concentration, it performs a ―search‖ under the Fourth Amendment.

See Schmerber v. California, 384 U.S. 757, 770 (1966); Beeman v. State, 86

S.W.3d 613, 616 (Tex. Crim. App. 2002). A warrant satisfies the Fourth

Amendment so long as its supporting affidavit provides the issuing magistrate

with a substantial basis for finding probable cause. Illinois v. Gates, 462 U.S.

213, 238–39 (1983). An affidavit for a search warrant provides the magistrate

with a substantial basis for finding probable cause when it recites facts and

circumstances known by the officer from a trustworthy source that would justify a

person of reasonable caution in the belief that a crime has been committed and

that evidence of the crime may presently be located in the place to be searched

at the time the warrant is issued. See Cassias v. State, 719 S.W.2d 585, 587

(Tex. Crim. App. 1986); Ferguson v. State, 573 S.W.2d 516, 520 (Tex. Crim.

App. 1978), cert. denied, 442 U.S. 934 (1979). In assessing the sufficiency of a

search warrant affidavit, we limit our review to the four corners of the affidavit.

Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App.), cert. denied, 543 U.S.

944 (2004); Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992), cert.

denied, 507 U.S. 921 (1993). We interpret the affidavit in a commonsense and

realistic manner, recognizing that the magistrate was permitted to draw

reasonable inferences. Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App.

5 2006); Hankins, 132 S.W.3d at 388; see Rodriguez v. State, 232 S.W.3d 55, 61–

64 (Tex. Crim. App. 2007).

The affidavit in this case states:

On Saturday 12/27/08 at approximately 2235 hours, I Officer Soye #249, observed a white Chevy pickup . . . fail to signal when turning off E Hundley Dr on to Gotcher. . . . After my light came on I observed the vehicle swerve, slow down[,] stop[,] and then pull ahead again to another location farther down Gotcher. I made contact with the driver, identified by TX DL . . . [as Appellant] . . . . While talking to [Appellant] I could smell a strong odor of an alcoholic beverage emitting for [sic] his breath and/or person. I asked him if [he] was drinking and he said ―Yes I had three or four beers at the American Legion.[‖] I performed the Standardized Field Sobriety Test’s. [sic] I observed 5 out of 6 clues in [HGN]. I performed the Nine Step Walk and Turn and I observed 8 out of 8 clues. I attempted to perform the One Leg Stand but was unable to due to his unstableness. I performed the ABC’s and he could not recite from letter E to X. I performed the finger count and he could not perform. I read the DIC 24 to [Appellant] and he refused to provide a specimen. I determined [Appellant] was operating a motor vehicle in a public place while intoxicated.

Appellant contends that nothing within the four corners of the affidavit

established that he might have been intoxicated. Read in a commonsense and

realistic manner, however, the officer’s observations reported in the affidavit––

Appellant’s truck’s swerving, strong odor of alcohol on his breath, admission that

he had consumed ―three or four beers,‖ performance on the field sobriety tests,

and refusal to submit to breath testing––would lead a person of reasonable

caution to infer that Appellant had been driving while intoxicated and that his

blood would contain evidence to that effect. See Davis, 202 S.W.3d at 154;

Cassias, 719 S.W.2d at 587; Tex. Dep’t of Pub. Safety v. Cortinas, 996 S.W.2d

6 885, 888–89 (Tex. App.—Houston [14th Dist.] 1998, no pet.). We hold,

therefore, that the affidavit provided the magistrate with a substantial basis for

finding probable cause and that the trial court did not err by denying Appellant’s

motion to suppress on the ground that the warrant was defective. See Gates,

462 U.S. at 238, 103 S. Ct. at 2332; Cortinas, 996 S.W.2d at 888–89.

Accordingly, we overrule Appellant’s second issue.

Phlebotomist

Next, Appellant contends that the trial court erred by not suppressing the

blood test results because the phlebotomist did not possess a license by the

State of Texas to draw blood. In short, he argues in his third issue that the

phlebotomist was not qualified because she was not certified.

We know of no authority for excluding from evidence the results of

analyses performed on blood specimens drawn by phlebotomists who do not

possess licenses issued by the State. Appellant notes that his trial counsel cited

our opinion in State v. Johnston, 305 S.W.3d 746 (Tex. App.—Fort Worth, 2009,

pet. granted), for such a proposition, but Johnston does not support Appellant’s

contention; moreover, Appellant does not argue with any force that it does.

What we did observe in Johnston was that the Fourth Amendment requires

that once the police obtain a valid warrant for blood, the subsequent search must

be reasonable. Id. at 752 (citing Beeman, 86 S.W.3d at 615–16). We review de

novo whether a blood draw was reasonable by examining the totality of the

7 circumstances. Id. at 753 (citing Kothe v. State, 152 S.W.3d 54, 62–63 (Tex.

Crim. App. 2004)).

Our review of the totality of the circumstances as set out in the record

shows that the blood draw in this case was reasonable. Appellant was taken to a

sanitary room in a hospital, where a phlebotomist, who had been employed as

such by the hospital for four years, had sixteen years’ experience, and had

performed over 50,000 blood draws, sterilized Appellant’s arm with soap and

water, and collected a sample of his blood into a sealed blood sample kit

provided by the officer. Because we see nothing in the record to suggest that the

blood draw under these circumstances was unreasonable, the trial court did not

err by denying Appellant’s motion to suppress on the grounds that the

phlebotomist was not properly certified. See State v. Bingham, 921 S.W.2d 494,

496 (Tex. App.—Waco 1996, pet. ref’d). Accordingly, we overrule Appellant’s

third issue.

Evidence Sufficiency

Appellant’s fourth and fifth issues are challenges to the legal and factual

sufficiency of the evidence to support his conviction. Because the court of

criminal appeals has recently overruled Clewis, we review Appellant’s sufficiency

of the evidence claims under the standard set out in Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); see Brooks v. State, No. PD-0210-09,

2010 WL 3894613, at *1 (Tex. Crim. App. Oct. 6, 2010).

8 Prior DWI Conviction

In issue four, Appellant claims that the State failed to prove one of the two

prior DWI convictions it had alleged to raise the offense to a felony. Specifically,

he contends that one of these priors was not proven beyond a reasonable doubt

because the judgment from that case did not have Appellant’s fingerprint on it.

To establish that a defendant has been convicted of a prior offense, the

State must prove beyond a reasonable doubt that (1) a prior conviction exists,

and (2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d

919, 921 (Tex. Crim. App. 2007); Paschall v. State, 285 S.W.3d 166, 174 (Tex.

App.—Fort Worth, 2009, pet. ref’d). No specific document or mode of proof is

required to prove these two elements. Flowers, 220 S.W.3d at 921. There is no

―best evidence‖ rule in Texas that requires that the fact of a prior conviction be

proven with any document, much less any specific document. Id. While

evidence of a certified copy of a final judgment and sentence may be a preferred

and convenient means, the State may prove both of these elements in a number

of different ways, including (1) the defendant’s admission or stipulation, (2)

testimony by a person who was present when the person was convicted of the

specified crime and can identify the defendant as that person, or (3) documentary

proof (such as a judgment) that contains sufficient information to establish both

the existence of a prior conviction and the defendant’s identity as the person

convicted. Id. at 921–22 (citations omitted).

9 Ordinarily, the proof that is adduced to establish that the defendant on trial

is one and the same person that is named in an alleged prior criminal conviction

or convictions closely resembles a jigsaw puzzle. Human v. State, 749 S.W.2d

832, 835–36 (Tex. Crim. App. 1988) (op. on reh’g). The pieces standing alone

usually have little meaning. Id. at 836. However, when the pieces are fitted

together, they usually form the picture of the person with the alleged prior

conviction or convictions. Id.

The trier of fact fits the pieces of the jigsaw puzzle together and weighs the

credibility of each piece. Flowers, 220 S.W.3d at 923. Regardless of the type of

evidentiary puzzle pieces the State offers to establish the existence of a prior

conviction and its link to a specific defendant, the trier of fact determines if these

pieces fit together sufficiently to complete the puzzle. Id. The trier of fact looks at

the totality of the evidence admitted to determine (1) whether there was a

previous conviction, and (2) whether the defendant was the person convicted. If

these two elements can be found beyond a reasonable doubt, then the various

pieces used to complete the puzzle are necessarily sufficient to prove a prior

conviction. Id.

In this case, the jury, as the trier of fact, had before it all the pieces of the

jigsaw puzzle needed to determine beyond a reasonable doubt that Appellant

had been previously convicted of DWI as alleged in the indictment. The

indictment alleged that Appellant had previously been convicted of DWI on June

21, 1989, in the County Court at Law Number One of Wichita County, Texas, in

10 cause number 07-1350-10419. State’s Exhibit 10 is a certified copy of a

judgment and order of probation in The State of Texas v. Mino Scott Turnbow,

cause number 07-1350-10419, from the County Court at Law Number One of

Wichita County. Although there is a place for a fingerprint on State’s Exhibit 10,

the State’s fingerprint expert, Denton County Sheriff’s Office Investigator Larry

Kish testified that the exhibit does not display an identifiable print.

Investigator Kish, however, also testified that, in the morning before that

day’s testimony, he personally took Appellant’s fingerprints in the courtroom on a

ten-print card which was admitted as State’s Exhibit 9. State’s Exhibit 11 is a

certified copy of a May 24, 1990 order modifying probation in cause number 07-

1350-10419, styled The State of Texas v. Mino Scott Turnbow, out of Wichita

County’s County Court at Law Number One. A fingerprint was displayed on

State’s Exhibit 11, which Investigator Kish identified as Appellant’s.

The trial court also admitted State’s Exhibit 13, a certified DPS driving

packet showing the driving record of ―Mino Scott Turnbow.‖ It references a DWI

conviction in Wichita County’s County Court at Law on June 21, 1989, with a

docket number ending in 10419. Included in State’s Exhibit 13 is a driver’s

license photograph which Investigator Kish identified as Appellant. In addition,

the jury could compare the photograph on State’s Exhibit 13 with Appellant who

was present in the courtroom during trial.

Viewed in the light most favorable to the verdict, we hold that the evidence

is sufficient to support the jury’s finding implied by their verdict that Appellant had

11 previously been convicted of DWI as alleged in the indictment. Accordingly, we

overrule Appellant’s fourth issue. See Flowers, 220 S.W.3d at 925.

Evidence of Intoxication

In issue five, Appellant contends that the evidence is insufficient to prove

that he was intoxicated while he was driving. Viewed in the light most favorable

to the verdict, the record shows that Officer Soye pulled Appellant over for a

traffic violation; that, after stepping in a mud puddle, Appellant leaned against his

pick-up truck for balance; that he smelled strongly of an alcoholic beverage; that

he admitted that he had been drinking; that he produced the wrong papers—an

invoice—when asked for proof of insurance; that, when asked if he was okay, he

said ―No, I’m not okay, I’ve been out with some friends;‖ that Officer Soye

observed five out of six clues of intoxication on the HGN; that Appellant displayed

all eight clues of intoxication on the walk-and-turn test; that he was too unsteady

for Officer Soye to consider it safe for him to perform the one-leg-stand test; that

he was unable to perform other tests; that he admitted that he was drunk; that he

refused a breath test; that Officer Soye believed that Appellant had lost the

normal use of his physical and mental faculties due to the introduction of alcohol;

and that Appellant’s blood tested positive for alcohol at a concentration over

three times the legal limit. In addition, the jury viewed the videotape taken of the

stop and the arrest. We hold that the evidence is sufficient for a rational jury to

find that Appellant was intoxicated while he was driving, and we overrule

Appellant’s fifth issue.

12 Enhancement

In issue six, Appellant complains that the judgment of the trial court

indicates on its face that Texas Penal Code § 12.42 enhancement is not

available. The record shows, however, that the trial court issued a judgment

nunc pro tunc remedying the error of which Appellant complains in this issue.

Accordingly, we overrule Appellant’s sixth issue as moot.

Conclusion

Having overruled all of Appellant’s issues, we affirm the judgment of the

trial court.

PER CURIAM

PANEL: GABRIEL, GARDNER, and WALKER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: November 10, 2010