MODIFY and AFFIRM; and Opinion Filed May 20, 2015.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00908-CR
VALENTIN SANCHEZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2 Kaufman County, Texas Trial Court Cause No. 31940-CC2
MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Whitehill Opinion by Justice Lang-Miers Appellant Valentin Sanchez appeals from his conviction for felony driving while
intoxicated. He raises eight issues on appeal: (1) the evidence is insufficient to show that he was
the driver of the vehicle at the time of the accident; (2) the trial court erred by admitting the 911
recording and the video from the patrol car; (3) he was denied his right to confrontation; (4) the
trial court erred by allowing the State’s expert to testify to matters outside his expertise; (5) the
trial court erred by admitting statements he made before he was given Miranda warnings; (6) the
trial court erred by overruling his Batson challenge; (7) the trial court erred by allowing the State
to ask leading questions; and (8) the trial court abused its discretion by allowing the State to refer
to hearsay during its opening statement. We modify the trial court’s judgment and affirm as
modified. Because the issues are settled, we issue this memorandum opinion. TEX. R. APP. P.
47.4. BACKGROUND
Appellant drove his pickup truck into the back of Kenrick Armstrong’s vehicle as
Armstrong was stopped at a traffic light in Terrell. Appellant was unable to produce
identification or insurance, and neither he nor Armstrong had a mobile phone to call police.
Appellant agreed to follow Armstrong to a friend’s house so Armstrong could borrow a mobile
phone to call his mom. It is unclear what happened after they arrived at Armstrong’s friend’s
house, but Armstrong ended up following the truck, now being driven by a female who was with
appellant. While Armstrong was following the truck, he called 911 on his friend’s phone. He
told the 911 call taker that he was “just involved in an accident,” they had left the scene to get a
phone to call his mom, he was unable to get any identification or insurance information from the
driver who hit him, and the person did not appear to be stopping. Armstrong described his
location to 911 and officers were dispatched to find them. The officers found the vehicles while
Armstrong was still talking to 911. The officers turned on their emergency lights, and the female
driving appellant’s truck and Armstrong pulled over to the shoulder of the road.
One of the police officers parked behind appellant’s truck and the other officer parked
behind Armstrong’s car. The police car video cameras recorded the interactions between the
officers and appellant, the female driver, and Armstrong. Appellant immediately exited from the
passenger side of the truck. One of the officers told appellant to come to the back of the truck
and sit on the hood of his patrol car. The other officer approached the female driver of the truck
and told her to walk to the back of the truck. One of the officers said to the female, “Did you just
hit somebody?” The female said, “No, he was the one . . .” and pointed at appellant. She told
the officers that appellant “was the one that hit the car.” Appellant agreed with her. Both
officers, almost simultaneously, asked appellant, “You were driving?” And appellant looked at
one officer, and then the other, nodding his head up and down the entire time. Armstrong also
–2– told one of the officers that appellant was driving when the accident occurred, and that he saw
appellant and the female switch places in the truck.
The officers ran a check on the female and arrested her for an outstanding warrant.
Appellant told the officers he had about a “six-pack” and, after failing or refusing to perform
field sobriety tests, was arrested for driving while intoxicated. He voluntarily consented to a
blood draw, which revealed a blood alcohol level of .232.
The State’s evidence included the 911 recording and the videos from the cameras in the
patrol cars. Appellant stipulated to two prior convictions for driving while intoxicated. The jury
found appellant guilty, and appellant elected the court to assess punishment. The court sentenced
appellant to four years’ incarceration, suspended the imposition of the sentence and placed
appellant on community supervision for four years, ordered him to pay a $1,000 fine, and
ordered him, among other things, to serve 180 days in jail as a condition of community
supervision.
ISSUE ONE SUFFICIENCY OF THE EVIDENCE
In issue one, appellant argues that the evidence is insufficient to show he was the driver
of the vehicle at the time of the accident and the State did not prove a “temporal link” between
his intoxication and driving to support the conviction.
Standard of Review and Applicable Law
When an appellant challenges the sufficiency of the evidence to support a conviction, we
review all the evidence in the light most favorable to the verdict to determine whether any
rational trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). Evidence is sufficient if
“the inferences necessary to establish guilt are reasonable based upon the cumulative force of all
the evidence when considered in the light most favorable to the verdict.” Id. If the evidence is –3– conflicting, we “‘presume that the factfinder resolved the conflicts in favor of the prosecution’
and defer to that determination.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 326 (1979)).
This standard is the same for both direct and circumstantial evidence. Kuciemba v. State, 310
S.W.3d 460, 462 (Tex. Crim. App. 2010).
A person commits the offense of driving while intoxicated if the person is intoxicated
while operating a motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a) (West
Supp. 2014). If it is shown that the person has two prior convictions for driving while
intoxicated, the primary offense is elevated to a third degree felony. Id. § 49.09(b)(2).
Analysis
When the police conducted the traffic stop, appellant was a passenger in the truck and the
female with him was in the driver’s seat. She told the police that appellant had been driving
earlier and was the one who hit Armstrong’s car. In the patrol car video, appellant can be heard
agreeing with her and can be seen nodding his head up and down in agreement. The officers also
testified that appellant admitted to driving at the time of the accident on many occasions during
their encounter.
Appellant also argues that there “must be a ‘temporal link’ between the defendant’s
intoxication and the defendant’s driving” and argues that because 911 was not called
immediately after the accident, there is no evidence of the amount of time that passed between
the accident and the time the police arrived. We disagree.
The 911 recording began at 7:50 p.m.; Armstrong immediately told the 911 call taker that
he was “just involved in an accident.” He explained to the call taker that someone had hit the
back of his car and he referred to the driver as “the guy that was drunk” and said the female with
the guy driving “said he had been drinking . . . .” Armstrong also told the 911 call taker that they
left the scene of the accident to go to Armstrong’s friend’s house to get a phone to call his mom.
–4– He told 911 “my friend lived around the corner.” The jury could have inferred from this
statement that it took only moments to arrive at the friend’s house.
Additionally, the State’s expert witness testified that in his opinion appellant was
intoxicated at the time he hit Armstrong’s vehicle. He based his opinion on the probability that a
person of appellant’s size who had a blood alcohol level of .232 at 9:20 p.m. could have had a
blood alcohol level under .08 a couple of hours before. He said the probability was “like
somebody winning the lottery.” He said the person would have had to drink “about eight beers,
nine beers, immediately . . . at the time of the stop or a minute before” and that it was “very
improbable.”
We conclude that the evidence was sufficient to establish that appellant operated the
vehicle and that there was a “temporal link” between his intoxication and operation of the
vehicle. See Kuciemba, 310 S.W.3d at 462. We resolve issue one against appellant.
ISSUES TWO AND FIVE ADMISSIBILITY OF 911 RECORDING AND PATROL CAR VIDEO
In issue two, appellant argues that the trial court erred by admitting the 911 recording and
the video from the patrol car because they contained hearsay and the declarants were unavailable
for cross-examination. In issue five, appellant argues that it was error to admit the video because
he was not given Miranda warnings.
Standard of Review
We review a trial court’s decision to admit or exclude evidence under an abuse of
discretion standard. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). We “must
uphold the trial court’s ruling if it is reasonably supported by the record and is correct under any
theory of law applicable to the case.” Id.
–5– 911 Recording
Appellant concedes in his appellate briefing that portions of the 911 recording were
admissible under the present-sense-impression exception to the hearsay rule. See TEX. R. EVID.
803(1). But he contends that the portion of the 911 recording “describing a minor accident
earlier when the appellant was the driver” does not fall within this exception to hearsay because
“[w]e have no idea how long after this alleged accident at the stop light that the other driver
made the 911 call.”
When an exhibit contains both admissible and inadmissible evidence, the objecting party
must specifically point out to the trial court the portion of the exhibit that the party contends is
inadmissible. Reyes v. State, 314 S.W.3d 74, 78 (Tex. App.—San Antonio 2010, no pet.) (citing
Whitaker v. State, 286 S.W.3d 355, 369 (Tex. Crim. App. 2009)). But here, appellant objected to
the entire 911 recording and did not specifically point out to the trial court only the objectionable
portion. Consequently, we conclude that the trial court did not abuse its discretion by admitting
the 911 recording. See id. We resolve this subpart of issue two against appellant.
Patrol Car Video
Appellant does not identify the specific statements on the video that he is complaining
about, but he argues that the female who was riding in the truck with him was not available at
trial for him to cross-examine, so we presume her statements are the subject of this issue on
appeal. Appellant argues that the video was not admissible under the present-sense-impression
exception to hearsay. We do not need to decide that issue, however, because at the time the State
offered this video into evidence, one of the police officers had already testified about what the
female said. And although appellant objected to the officer’s testimony, he does not complain on
appeal about the officer’s testimony. Consequently, we conclude that the trial court did not
abuse its discretion by admitting the video. See Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim.
–6– App. 1998) (even if admission of evidence improper, not reversible error if same facts were
admitted by other evidence not challenged). We resolve this subpart of issue two against
appellant.
In issue five, appellant argues that it was error to admit the patrol car video because any
statements he made during the police encounter were a violation of his “right to avoid self-
incrimination” and the police questioned him without giving him any Miranda warnings. See
Miranda v. Arizona, 384 U.S. 436, 444–45, 467–68 (1966). He contends that “[a]udio tracks
from DWI videotapes should be suppressed when the police conduct expressly or by implication
calls for a testimonial response not normally incident to arrest.” He also complains about the
officers’ failure to provide a Spanish-speaking officer when they questioned him and that the
officers “intentionally took advantage of the appellant’s intoxication, lack of education, and poor
understanding of English to extract a statement that could be used as evidence of an essential
element.”
Appellant does not identify any particular questions or statements on the video about
which he complains, and he does not cite the record showing he made these complaints to the
trial court, filed a motion to suppress, or requested a jury instruction under article 38.23. See
TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005) (statute authorizing jury instruction
regarding evidence that may have been obtained in violation of the law). Consequently, we
conclude that appellant has not shown that the trial court abused its discretion. We resolve issue
five against appellant.
ISSUE THREE DENIAL OF RIGHT TO CONFRONT WITNESSES
In issue three, appellant argues that he was denied his Sixth Amendment right to confront
his accusers. He does not refer specifically to a particular accuser, but he cites the police
officer’s testimony about statements made by the female who was in the truck with him and by –7– Armstrong, the person whose car he hit. It is undisputed that the female was not present for trial
because she could not be located and that Armstrong had passed away before trial due to an
unrelated medical condition.
The record shows that the trial court allowed the officer to testify about the statements the
female made at the scene under the excited-utterance exception to the hearsay rule. TEX. R.
EVID. 803(2). Under this exception, whether the declarant is available to testify at trial is
immaterial. Id. Appellant does not explain on appeal why the trial court’s ruling was erroneous
or how the ruling denied him the right to confront this witness.
With regard to appellant’s complaint about statements made by Armstrong, the record
shows that the State asked the officer whether “he received any corroborating information in his
investigation that led him to determine that [appellant] had been the driver” at the time of the
accident. Appellant objected on confrontation grounds, and the State argued that the evidence
was not “offered for the truth, but for another purpose, for the officer’s notice.” Appellant does
not explain why the trial court’s ruling was erroneous in light of the State’s proffer. Even if it
was error to admit this testimony, however, it was harmless because other evidence, including
appellant’s own admissions, showed he was driving the truck at the time of the accident.
We resolve issue three against appellant.
ISSUE FOUR ADMISSIBILITY OF EXPERT OPINION
In issue four, appellant argues that the trial court abused its discretion by allowing the
State’s expert witness to testify outside the scope of his expertise. The State asked the expert, a
forensic scientist employed by the Texas Department of Public Safety in the Garland Crime
Laboratory, “How quickly does the human body absorb alcohol?” Appellant objected that the
question called for an opinion for which the witness had not been qualified to answer. Prior to
offering the expert’s opinion, however, the State asked the witness about his training in the area –8– of “physical effects of alcohol upon a human body[.]” The witness testified that he underwent
training involving “heavy reading of journal articles about the effects of alcohol on the body,”
attended conferences and seminars throughout his 16 years at DPS concerning “the effects of
alcohol on the body,” and attended a “week-long course just on the pharmacology and
toxicology of alcohol in blood” at Indiana University.
Although appellant cites authority explaining the factors a trial court must consider
before admitting expert testimony, he does not apply that authority to the specific facts of this
case. See Vela v. State, 209 S.W.3d 128, 130–31 (Tex. Crim. App. 2006). And he does not
explain why the foundation laid by the State was inadequate to show that the witness had
expertise about the effects of alcohol on the body. We conclude that the trial court did not abuse
its discretion by admitting the expert’s opinion. We resolve issue four against appellant.
ISSUE SIX BATSON CHALLENGE
In issue six, appellant argues that the trial court “failed to uphold [his] right to a fair jury
by allowing the prosecutor to strike all potential Hispanic jurors[.]” Appellant states that he
raised a Batson challenge below and the State responded that “there were Hispanics on the voire
[sic] dire panel they did not use preemptory challenges on.” See Batson v. Kentucky, 476 U.S.
79, 94–98 (1986). On appeal, appellant contends that those Hispanic jurors “were so far back
that they were not in the legitimate ‘strike zone.’” But he does not identify any particular jurors
about which he complains, he does not cite to the record where the trial court heard his Batson
challenge, and he does not provide any analysis of the factors we must consider in analyzing a
Batson complaint on appeal. Consequently, we resolve issue six against appellant.
–9– ISSUE SEVEN ADMISSIBILITY OF LEADING QUESTIONS
In issue seven, appellant complains that the trial court allowed the prosecutor to ask
“numerous leading questions of key witnesses” during its direct examination of witnesses,
specifically two “veteran law enforcement officers trained to testify in court,” even though the
State had not asked for permission to treat the witnesses as hostile. Appellant cites one record
reference in which the State was questioning the police officer about the female’s demeanor and
emotional state as she exited the truck:
Q. Was her voice quiet or was it –
[DEFENSE ATTORNEY]: Objection to leading the witness, Judge.
THE COURT: Overrule. Overrule.
Q. [STATE’S ATTORNEY] Was her voice quiet or elevated?
Appellant argues that the trial court overruled his objection “with no explanation and no
questions of the prosecutor.” He contends that the “questions amounted to the prosecutor
testifying to get around the rules of evidence on hearsay and the confrontation clause of the
United States Constitution.” We disagree.
The only question cited by appellant on appeal was an incomplete question, making his
objection premature. Once the State completed the question, it was clear that the question was
not leading because it did not suggest an answer or put words in the witness’s mouth. See
Newsome v. State, 829 S.W.2d 260, 269 (Tex. App.—Dallas 1992, pet. ref’d) (leading question
is one that “suggests which answer . . . is desired, or when it puts into the witness’s mouth words
to be echoed back”). We conclude that the trial court did not abuse its discretion by overruling
appellant’s objection to this question. We resolve issue seven against appellant.
–10– ISSUE EIGHT PROSECUTOR’S OPENING STATEMENT
In issue eight, appellant argues that the trial court abused its discretion by allowing the
State to refer to hearsay during its opening statement:
What the evidence will show is that a young man named Kenrick Armstrong is stopped in his vehicle at a red light at 205 and West Moore Avenue outside of the Wal-Mart in Terrell when all of a sudden, he’s rear-ended by the defendant in the defendant’s pickup truck. And the evidence will show that after that crash, that Mr. Armstrong and the defendant began to speak on the side of the road. The evidence will show that –
Appellant objected to “statements about what witnesses may or may not have spoken,
Judge, as hearsay.” The trial court overruled the objection, stating, “I’ll just repeat my
instruction. This is not evidence. It’s just an outline to help the jury understand what they
expect to prove.”
Appellant contends on appeal that it was error to overrule his objection because the
hearsay statements were never admitted during the trial. But “[a] preliminary statement of what
the State expects to be proved is proper,” even if the State does not later introduce evidence to
support it. Marini v. State, 593 S.W.2d 709, 715 (Tex. Crim. App. [Panel Op.] 1980); TEX.
CODE CRIM. PROC. ANN. art. 36.01(a)(3) (West 2007). Consequently, we conclude that the trial
court did not abuse its discretion by overruling appellant’s objection. We resolve issue eight
against appellant.
CLERICAL ERRORS IN JUDGMENT
The judgment in this case spells appellant’s first name “Valetin.” The indictment and
other significant documents in this case spell appellant’s first name “Valentin.” Additionally, the
judgment reflects that appellant pleaded true to one enhancement paragraph and that there was
no second paragraph. However, the indictment charged appellant with felony driving while
intoxicated, alleging two prior offenses for driving while intoxicated. Appellant signed a
–11– stipulation and judicial confession to both prior offenses, and the State offered the exhibit into
evidence during guilt-innocence without objection. The trial court instructed the jury that
appellant “has entered into a stipulation that it is true that he was legally convicted of two prior
driving while intoxicated offenses. Based on the stipulation, you are further instructed that this
offense is a felony.” The jury found appellant guilty “of the felony offense of Driving While
Intoxicated as charged in the indictment.”
We have the power to modify a judgment when we have the necessary information to do
so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993).
Accordingly, we modify the judgment to correct the spelling of appellant’s first name to
“Valentin,” and we modify the judgment to reflect that appellant pleaded “true” to a second
enhancement paragraph and that the second enhancement paragraph was found “true.”
CONCLUSION
We affirm the trial court’s judgment as modified.
/Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE
Do Not Publish TEX. R. APP. P. 47
140908F.U05
–12– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
VALENTIN SANCHEZ, Appellant On Appeal from the County Court at Law No. 2, Kaufman County, Texas No. 05-14-00908-CR V. Trial Court Cause No. 31940-CC2. Opinion delivered by Justice Lang-Miers, THE STATE OF TEXAS, Appellee Justices Francis and Whitehill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
The spelling of appellant Valentin Sanchez’s first name is changed to “Valentin.”
The “N/A” under “Plea to 2nd Enhancement/Habitual Paragraph” is changed to “True,” and the “N/A” under “Findings on 2nd Enhancement/Habitual Paragraph” is changed to “True.”
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 20th day of May, 2015.
–13–