Woodall, David

Opinion

Death Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOs. PD-0453-07, PD-0454-07, PD-0455-07, PD-0456-07, PD-0457-07,

PD-0458-07, PD-0459-07, PD-0460-07

TERRY M. HOLMES, DAVID WOODALL, GABRIEL J. WILLIAMS, GABRIEL CONTRERAS, JR., APRIL HARLOW, ALFONSO R. RODRIGUEZ, MICHAEL BRICE, WALTER WIDNER, JR., Appellants

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SIXTH COURT OF APPEALS

HARRISON COUNTY

MEYERS, J., joined by Keller, P.J, and Keasler and Hervey, J.J.

DISSENT TO DENIAL OF STATE'S SECOND MOTION FOR REHEARING

I authored the opinion on the State's first motion for rehearing. I now believe that opinion, as well as the Court's opinion on original submission should be withdrawn because neither opinion addressed the issue raised all along by the State in its petition for discretionary review and its rehearing motions--whether these cases were cognizable for a review by the court of appeals ⁽¹⁾--and both opinions fail to address the State's repeated claim that this case is like McGlynn v. State, 704 S.W.2d 18 (Tex. Crim. App. 1982)(opinion on reh'g).

A blueprint for addressing the cognizability question was laid out by this Court in

Gonzales v. State, 966 S.W.2d 521 (Tex. Crim. App. 1998). The test set out in Gonzales is based upon the two cases relied upon by the parties before us now: McGlynn and Kraft v. State, 762 S.W.2d 612 (Tex. Crim. App. 1988). The State has contended all along that this case is like McGlynn; appellant has argued that this case is like Kraft. Before discussing Gonzales, therefore, it makes sense to first discuss McGlynn and Kraft.

Both cases involved a defendant's appeal, in a negotiated plea case, from the trial court's denial of a pretrial motion to suppress evidence. McGlynn involved an alleged Fourth Amendment violation, while Kraft concerned an alleged Fifth Amendment violation. In McGlynn, the defendant was arrested for aggravated assault and later charged with possession of a controlled substance, methylphenidate. 704 S.W.2d at 19. She filed a pretrial motion to suppress evidence of "a quantity of a substance alleged to be methylphenidate" which was seized from her purse incident to her arrest. At the hearing on the motion, the arresting officer conceded that he could not tell whether the pills he seized were controlled substances. The trial court denied the motion, and the defendant pled guilty. The issue before this Court was "what must the record show about the 'evidence' the trial court found was admissible, but which was not actually admitted, in order for an appellate court to exercise its jurisdiction" to address the validity of the search and seizure. ⁽²⁾ Id. at 19-20. While the officer suspected that the pills were contraband, there were multiple kinds of pills and he had "no idea" what kind he was looking at when he seized the bottle. This record simply did "not show that anything the officer seized was methylphenidate, much more that it was the same methylphenidate, to which [the defendant] pleaded guilty of possessing." The Court noted that without some demonstration in the record as to the substance seized, the issue became an academic exercise in determining whether the seizure was violative of either constitution. Under the Exclusionary Rule, however, "'the issue is not the abstract propriety of the police conduct, but the admissibility against [the defendant] of the evidence uncovered by the search and seizure.'" Id. (quoting Terry v. Ohio, 392 U.S. 1 (1968)). Thus, the Court held that "unless and until we are confident about what fruits of a search have somehow been used, the Court need not decide whether the search was constitutionally permissible." Id. at 21.

In Kraft, the defendant pled nolo contendere to misdemeanor DWI and appealed the trial court's denial of his pretrial motion to suppress the audio portion of his DWI videotape, in which he was interrogated without counsel. 762 S.W.2d at 613. Relying on McGlynn, the State contended that the tape was essentially exculpatory and therefore it would not have sought to "use" that evidence against the defendant in any event. This Court agreed at the outset that the principles in McGlynn would rationally apply in the context of a motion to suppress based on alleged Fifth Amendment violations. The Court noted that, unlike McGlynn, the record in Kraft revealed the "fruits" that were allegedly "used" against the defendant. The videotape was admitted into the record. Thus, the issue presented in Kraft was one that was never reached in McGlynn: whether the fruits had "somehow been used." Id. at 614. Although the tape was not inculpatory because it did not establish intoxication, the Court nonetheless held it had been "used" by the State as leverage in the plea bargain. ⁽³⁾ Thus, the Court held the "fruits" at issue in Kraft were indeed "somehow . . . used" against the defendant.

The principles from McGlynn and Kraft were fashioned into a two-step inquiry

by the Court in Gonzales v. State, 966 S.W.2d 521 (Tex. Crim. App. 1998). Gonzales was charged with DWI and pled no contest after his pretrial motions to suppress evidence, which included his blood test results, were denied. This Court granted review to decide whether the Court of Appeals erred in holding that it need not address whether a blood test was taken in violation of Gonzales's rights because the results of the test were never admitted into evidence. The Court established a two-step inquiry which "appellate courts must use . . . when deciding whether to address the merits of a claim regarding the trial court's denial of a pretrial motion to suppress evidence prior to a guilty plea": ⁽⁴⁾

First, the appellate court must identify "the fruits" that the trial court held would not be suppressed. McGlynn, 704 S.W.2d at 21. Second, the appellate court must determine that these fruits have "somehow been used" by the State. Kraft, 762 S.W.2d at 613-14. If it is not clear from the testimony and exhibits what "the fruits" are, then the appellate court need not address the merits of the claim. Likewise, if the fruits have not "somehow been used" by the State, then the appellate court need not address the merits of the claim.

Id. at 524. ⁽⁵⁾

Gonzales, Kraft and McGlynn, all involved appeals from a ruling on a pretrial motion to suppress evidence. This case involves appeals from rulings on pretrial motions to cross-examine a State's witness. The critical similarity is that they all involve a ruling on a pretrial motion which was appealed under Rule 25.2(a)(2), or a former version of that Rule. I see no reason why the same cognizability standard which applies to a plea-bargaining defendant who appeals a ruling on a pretrial motion to suppress, would not apply to a plea-bargaining defendant who appeals a ruling on a pretrial motion to cross-examine a witness. I believe Gonzales applies here.

Before applying Gonzales to this case, a brief review of the facts is in order. This case is a consolidation of eight DWI cases in which the State alleged both theories of intoxication (per se and loss of faculties) in each case. In seven of the cases (the "seven companion cases"), the defendants pled guilty immediately after denial of their pretrial motions to cross-examine the State's expert regarding the science underlying the Intoxilyzer 5000. Woodall's case went to trial and State Trooper Redden testified about the operation of the intoxilyzer. However, Woodall's intoxilyzer results were not admitted into evidence because his objection to them was sustained. Redden was not allowed to testify to appellant's results. Woodall pled guilty after Redden testified.

Analyzing the State's claim under Gonzales, the first task is to identify the "fruits." In the case of a motion to suppress evidence, the "fruit" is generally physical evidence (e.g., drugs, a weapon, stolen property) or at least clearly identifiable evidence (e.g., a written statement) that the defendant wanted suppressed. It bears repeating here that the instant cases did not involve typical motions to suppress with clearly identifiable evidence. These cases did not involve motions to suppress at all. Rather, these cases concerned pretrial motions to allow cross-examination of a State's witness during trial.

The character of testimony, and especially proposed cross-examination, is more elusive than physical evidence because its nature depends in large part upon its context and the manner in which the trial might unfold. The Supreme Court has commented on the difficulties associated with assessing a pretrial ruling related to testimony or evidence that has not been presented in the context of a trial that has played out. In Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that a trial court's overruling of a motion in limine which sought to preclude the government from using a prior conviction to impeach the defendant if he testified, was not reviewable unless the defendant testifies because it was too fraught with speculation. Indeed, the Court noted that in order to assess the trial court's ruling, the reviewing court would have had to speculate about the precise nature of the defendant's testimony, whether the trial court's ruling would have remained the same or would have changed as the case unfolded, whether the government would have sought to impeach the defendant with the prior conviction, whether the accused would have testified in any event, and whether any resulting error in permitting impeachment would have been harmless. Id. at 41-42; see also Jackson v. State, 992 S.W.2d 469, 479 (Tex. Crim. App. 1999)(discussing Luce).

No less speculation would have to occur here in order for a reviewing court to attempt to assess the trial court's ruling regarding the proposed cross-examination. In the seven companion cases, the general content of the proposed cross-examination was outlined by all seven appellants in their written motions to cross-examine, as pertaining to eight "areas of concern about the internal working of the Intoxilyzer 5000." In order to give context or relevance to this proposed line of questioning, however, the reviewing court would have to assume that the State would have decided to call an expert, that the expert would have testified to the appellants' breath test results, that such testimony would have been held admissible, and that the appellants' breath test results would in fact have been incriminating. ⁽⁶⁾ And none of this speculation even approaches whether any impeachment of the expert might have been harmless. The reviewing court has no way of knowing how the expert would have responded to the cross-examination. In Woodall's case, while we don't know the precise content of the proposed cross-examination, we know more about its context and relevance in relation to the case because the State did call its expert, Dennis Redden, to testify, and he did testify about the Intoxilyzer 5000. However, Redden did not testify to Woodall's breath test results; therefore, we can actually conclude that any cross-examination regarding the Intoxilyzer 5000 would have been irrelevant, at least at that point, given that Woodall's breath test results were not admitted. It's possible the State would have focused on a theory of intoxication by loss of faculties if the trial had continued. ⁽⁷⁾ Indeed, it's possible that the evidence was strong enough in any of the eight cases for the State to choose to proceed on a theory of intoxication by loss of faculties. We simply don't know.

On this record, the precise nature of the barred cross-examination in the context of these cases is unknown. See Gonzales; cf. Luce, 469 U.S. at 41. Because "it is not clear from the testimony and exhibits what 'the fruits' are," the court of appeals erred to address the merits of appellants' claims. See Gonzales; McGlynn. Given that the "fruits" cannot be identified, the question of whether those fruits have "somehow been used" by the State is not reached. See McGlynn. I would hold the issue was not cognizable for appeal. Id.

Because I believe the Court's previous opinions have not adequately addressed the State's claims, and that this would make a difference to the ultimate outcome in these cases as demonstrated in this opinion, I dissent to the Court's denial of the rehearing motion.

DELIVERED SEPTEMBER 15, 2010

PUBLISH

1.

In its second opinion on rehearing, the Court did address whether "the trial court's ruling" was "used" against appellants, but that discussion was part of a harm analysis conducted under 44.2(a); it was not an analysis of cognizability.

2.

Certainly, we have held that "a defendant is not required to have the evidence which he sought to suppress admitted in order for the court of appeals to address the merits of an appeal challenging denial of a pretrial motion to suppress." Gonzales, 966 S.W.2d at 524 (citing Kraft; McKenna). But there must be something in the record on which the appellate court can make an assessment of the matter:

[T]he appellate record will not contain a transcription of the notes of the court reporter reflecting evidence adduced at trial-only a record of testimony and, perhaps, exhibits prior elicited at the hearing on a pretrial motion to suppress, as in the case at bar. Accordingly, it is the record of germane testimony and exhibits, if any, perfected for and brought forward on appeal which will inform an appellate determination of the matter raised by written motion prior to trial-even though that record had not been admitted in some fashion as evidence at the guilty plea.

McGlynn, 704 S.W.2d.at 20 (emphasis in original).

3.

The Court explained how the tape, although not inculpatory, was "used" in obtaining the appellant's plea:

In contesting appellant's motion to suppress and obtaining a ruling that the videotape was admissible in its entirety, the State preserved the option to "use" appellant's statement as part or all of its evidence going to establish the above elements in a full-blown trial. This ruling undoubtedly contributed in some measure to the State's leverage in the plea bargaining process; the more relevant evidence appellant knows could be marshalled against him, the more preferable would appear his option to relinquish constitutional rights of trial and confrontation in exchange for a favorable punishment recommendation. Thus, we may presume that at least to some extent the State has "used" the contested evidence to obtain appellant's plea.

Kraft, 762 S.W.2d at 614. The Court held that "so long as it may be concluded that particular evidence the accused maintains should have been suppressed pursuant to a motion raising Fourth or Fifth Amendment violations would in any measure inculpate the accused, that evidence has been 'used' against him in securing his misdemeanor conviction, and hence, the appellate court should entertain the merits of his appeal." Id. at 615.

4.

While this Court has not had another occasion to apply the test it established in Gonzales, it is routinely applied by the courts of appeals. See, e.g., Miles v. State, 194 S.W.3d 523, 526 n.2 (Tex. App.-Houston [1^st Dist.] 2006), aff'd, 241 S.W3d 28 (Tex. Crim. App. 2007); Brennan v. State, 140 S.W.3d 779, 781 (Tex. App.-Houston [14^th Dist.] 2004, pet. ref'd); Hughes v. State, 7 S.W.3d 880, 882-83 (Tex. App.-Amarillo 1999).

5.

The Court remanded to the court of appeals to address the two questions. On remand, the court of appeals held that it could not identify from the record the "fruits" of the alleged unlawful search and seizure. Gonzales v. State, 977 S.W.2d 189, 191 (Tex. App.-Austin 1989, pet. ref'd). Although the testifying DPS trooper stated that he took the defendant's blood specimen to the DPS lab, the record does not show that it was analyzed or what the results were. Id. at 190. The defendant pointed to the State's allegations that he had an alcohol concentration of "0.10 or more," but the court declined to consider allegations in a charging instrument as evidence. Because it could not identify the "fruits," the court was unable to determine that the alleged "fruits" had "somehow been used" by the State. Id. at 191.

6.

Indeed, in holding that the accuracy and reliability of the intoxilyzer machine was a matter relevant to an issue in the case (such that barring related cross-examination was a violation of the right to present a defense), the court of appeals apparently made all of these critical presumptions, at least in the seven companion cases - that appellants' breath test results were all admissible, that they were all incriminatory, and that the State would have called an expert who would have testified to the test results. It would have been necessary to make such presumptions because it is the admission of breath test results as incriminating evidence that gives the intoxilyzer machine relevance to the case.

7.

There was evidence to support such theory. Redden testified that he pulled Woodall's vehicle over after observing it swerving and weaving, that he smelled alcohol on Woodall's breath, and that Woodall had red, watery eyes. Redden further testified that he conducted field sobriety tests at the scene and again at the jail, and Woodall performed poorly. The State also played videotapes of the sobriety tests for the jury.