




02-08-117-CR REMAND





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-08-00117-CR
 
 



Mark Derichsweiler


 


APPELLANT




 
V.
 




The State of Texas


 


STATE



 
 
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FROM THE 362nd
District Court OF Denton COUNTY
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OPINION
ON REMAND
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I.  Introduction
          Appellant
Mark Derichsweiler perfected an appeal of his conviction and forty-seven-year
sentence for felony driving while intoxicated (DWI).  In our prior opinion in
this case, we sustained Derichsweiler’s first point, in which he argued that the
trial court erred by denying his motion to suppress because the arresting officer
lacked reasonable suspicion to stop him.  See Derichsweiler v. State, 301
S.W.3d 803, 812­–13 (Tex. App.—Fort Worth 2009), rev’d, 348 S.W.3d 906
(Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 150 (2011).  However,
the court of criminal appeals reversed our decision and remanded the case for
us to consider Derichsweiler’s remaining points that we did not address in our
original opinion.  See Derichsweiler, 348 S.W.3d at 917–18.  For the
reasons stated below, we overrule those points and affirm the trial court’s
judgment.
II.  Factual
and Procedural Background
A
grand jury indicted Derichsweiler for felony DWI.  The indictment alleged two
prior DWI convictions and two enhancement convictions. After a hearing on
Derichsweiler’s motion to suppress, the trial court denied the motion.
The
case was tried to a jury.  At trial, the arresting officer, Lewisville Police Officer
Wardel Carraby testified that when he approached Derichsweiler’s car, he
smelled a strong odor of alcoholic beverages coming from the vehicle and began
to investigate a possible DWI.  Officer Carraby testified that he attempted to
administer field sobriety tests on Derichsweiler and that Derichsweiler Ajust
stood there and looked at [Officer Carraby] as if he was confused.@  Officer
Carraby testified that he arrested Derichsweiler for DWI, obtained a warrant to
have Derichsweiler=s blood drawn, and drove
Derichsweiler to the hospital, where phlebotomist Amy Alderman drew his blood.  Alderman
testified that she drew Derichsweiler=s
blood and sealed the blood vials.
The
State called Angela Springfield, the chief toxicologist with the Tarrant County
Medical Examiner=s Office.  On voir dire
outside the jury=s presence, Derichsweiler established
that Springfield did not personally conduct the blood exam analysis in this
case.  Derichsweiler objected to her testimony Aunder
Coit . . . unless she actually conducted the test,@ and
the trial court overruled the objection.  Derichsweiler also objected to
Springfield=s retrograde extrapolation testimony,
and the trial court overruled that objection as well.  Before the jury,
Springfield testified that Derichsweiler=s
blood alcohol level when his blood was drawn was .09.  Applying retrograde
extrapolation, she testified that Derichsweiler=s
blood alcohol level would have been around .15 to .19 when he was driving, or
about two to two and a half times the legal limit. 
The
jury found Derichsweiler guilty of DWI, found the sentencing enhancement
allegations true, and assessed punishment of forty-seven years in prison.  The
trial court sentenced him accordingly.
III.  Admission
of Toxicologist=s Testimony and
Toxicology Report
In
his second point, Derichsweiler argues that the trial court erred by allowing
Dr. Springfield, the toxicologist, to testify concerning the results of her
office=s
toxicology test because she did not personally conduct the test.  Derichsweiler
argues that her testimony about the report was inadmissible hearsay and that it
violated his right to confrontation. 
A.  Hearsay: 
Assuming Error, It Was Harmless
When
the State offered Dr. Springfield=s
testimony, Derichsweiler made the following objection:
[DEFENSE COUNSEL]:
Your Honor, we would object under Coit that she didn=t perform these
tests; and, therefore, they=re not admissible.
THE COURT: I
understand your objection.  It=s overruled.
On
appeal, Derichsweiler argues that although trial counsel said ACoit,@ he
was referring to the well-known case Cole v. State, 839 S.W.2d 798 (Tex.
Crim. App. 1990), in which the court of criminal appeals held that the report
of a nontestifying Texas Department of Public Safety (DPS) chemist was
inadmissible hearsay to which the hearsay exceptions of rule 803(8)(B) and
803(6) did not apply.[1]
Rule
of evidence 803(8)(B) provides that records of public offices are not hearsay
when they set forth “matters observed pursuant to duty imposed by law as to
which matters there was a duty to report, excluding in criminal cases matters observed
by police officers and other law enforcement personnel.”  Tex. R. Evid.
803(8)(B).  The Cole court held that the DPS chemist was Alaw
enforcement personnel@; thus, his report did not
fall within rule 803(8)(B)=s hearsay exception.  839
S.W.2d at 809–10.  In reaching its conclusion, the court employed a two-prong
test, asking (1) whether the reports were objective, routine, scientific
determinations of an unambiguous factual nature prepared by officials with no
inherent motivation to distort the results and (2) whether the relevant tests
were conducted in an adversarial context.  See id. at 808–09.
In Garcia
v. State, the court of criminal appeals held that unlike the DPS chemist in
Cole, Aas a general rule, medical examiners are
not considered >other law enforcement
personnel= under rule 803(8)(B) as far as their
duties relate to the preparation of autopsy reports.@ 
868 S.W.2d 337, 342 (Tex. Crim. App. 1993).  The court employed the two-prong Cole
test and concluded that while a medical examiner=s reports
may be used in a criminal prosecution, they are generally prepared by
officials with no motive to fabricate the results of the reports.  Id. 
The
court explained that “a medical examiner’s office is not, as a general rule,
such a uniquely litigious and prosecution-oriented environment as to create an
adversarial context.”  Id.
Here,
we need not decide whether rule 803(8)(B)’s hearsay exception for public
records applies to a medical examiner’s office when it prepares a toxicology
report because, even assuming the exception does not apply and that the trial
court abused its discretion in admitting the report or Dr. Springfield=s
testimony over Derichsweiler’s hearsay objection, any error was harmless.
Because
the erroneous admission of inadmissible hearsay is not constitutional error, we
apply rule 44.2(b) and disregard the error if it did not affect Derichsweiler=s
substantial rights.  Tex. R. App. P. 44.2(b); see Mosley v. State, 983
S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh=g), cert.
denied, 526 U.S. 1070 (1999); Moon v. State, 44 S.W.3d 589, 594
(Tex. App.—Fort Worth 2001, pet. ref’d).  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)
(citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239,
1253 (1946)).  Conversely, an error does not affect a substantial right if we
have Afair
assurance that the error did not influence the jury, or had but a slight
effect.@  Solomon
v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v. State,
967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
In
making this determination, we review the record as a whole, including any
testimony or physical evidence admitted for the jury=s
consideration, the nature of the evidence supporting the verdict, and the
character of the alleged error and how it might be considered in connection
with other evidence in the case.  Motilla v. State, 78 S.W.3d 352, 355
(Tex. Crim. App. 2002).  We may also consider the jury instructions, the State=s
theory and any defensive theories, whether the State emphasized the error,
closing arguments, and even voir dire, if applicable.  Id. at 355–56.
Derichsweiler
was charged with driving while intoxicated by not having the normal use of
mental or physical faculties (the impairment definition) or by having an
alcohol concentration of 0.08 or more (the per se definition).  See Tex.
Penal Code Ann. § 49.01(2) (West 2011) (defining intoxication); Stewart v.
State, 129 S.W.3d 93, 97 (Tex. Crim. App. 2004).  The State was required to
prove only one of these definitions of intoxication.  See Bagheri v. State,
119 S.W.3d 755, 762 (Tex. Crim. App. 2003).  The jury charge contained both
definitions, and the State relied on both definitions at trial.
Officer
Carraby testified that he smelled a strong odor of alcoholic beverages coming
from Derichsweiler’s vehicle; that Derichsweiler had a difficult time answering
simple questions such as where he was coming from, whether he had anything to
eat or drink, and whether he was taking medication; that Derichsweiler “just
stood there” and looked confused when Officer Carraby attempted to administer field
sobriety tests on him; that his speech was slurred and his eyes were heavy, red,
and glassy; that he told Officer Carraby that he could not safely drive home;
and that Officer Carraby saw a bag containing approximately four beer cans in
the back of Derichsweiler’s vehicle.  Officer Carraby testified that he was of
the opinion that Derichsweiler had lost the normal use of his mental and
physical faculties due to the introduction of alcohol into the body.  The jury
watched a videotape of the stop.  Derichsweiler’s girlfriend Mary Bowers
testified that she had viewed the videotape of Derichsweiler’s stop and that
she believed he was intoxicated; she further testified that he had told her
that he had consumed fifteen alcoholic drinks that day.
During
closing arguments, the State mentioned the breath test results but also said
that they were “just icing on the cake” because “[t]he videotape is enough. . .
.  You’ve all seen intoxicated people before, and that’s what you see on [the
videotape].”
We
conclude that, in the context of the entire case against Derichsweiler, any error
in admitting, over Derichsweiler’s hearsay objection, the toxicology report or
Dr. Springfield=s testimony regarding it did
not have a substantial or injurious effect on the jury=s
verdict and did not affect Derichsweiler=s
substantial rights.  See King, 953 S.W.2d at 271.  Thus, even assuming
error, we disregard  it.  See Tex. R. App. P. 44.2(b).  We overrule this
portion of of Derichsweiler’s second point. 
B. 
Confrontation Clause:  Objection Not Preserved
In
the last paragraph of his second point, Derichsweiler argues that if ADr.
Springfield didn’t perform the tests, then the person who did was not subject
to cross[-]examination@ in violation of the
Confrontation Clause under Crawford v. Washington, 541 U.S. 36, 124 S.
Ct. 1354 (2004).  Derichsweiler=s trial objection mentioned
neither the Confrontation Clause nor Crawford, and we cannot infer a
Confrontation Clause complaint from his ACoit@
objection at trial.  We therefore hold that Derichsweiler failed to preserve
this complaint for our review.  See Tex. R. App. P. 33.1(a)(1);
Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009); Reyna v.
State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005).  We overrule the
remainder of Derichsweiler’s second point. 
IV.  Punishment Enhancements
In
his third, fourth, and fifth points, Derichsweiler argues that the trial court
erred by refusing his request for a punishment charge that tracked the
indictment=s enhancement paragraphs; that the State
failed to prove that he committed the offense alleged in the second enhancement
paragraph after the conviction alleged in the first enhancement paragraph
became final; and that the trial court erred by submitting a charge that failed
to instruct on an allegation in the indictment required to be proved in
accordance with penal code section 12.42(d).  See Tex. Penal Code Ann. §
12.42(d) (West Supp. 2011).
A.  The
Indictment, the Charge, and the Verdict
Derichsweiler’s
arguments arise from a defect in the indictment=s
enhancement paragraphs.  The first enhancement paragraph alleged that Derichsweiler
had been convicted of felony DWI in October 2003.  The second enhancement
paragraph alleged that Aafter the [2003] conviction
. . . was final,@ Derichsweiler committed the
felony offense of aggravated assault of a peace officer and was convicted in
October 1998.[2]  Obviously, the 2003
conviction was not final before Derichsweiler committed the 1998 offense. 
The
punishment charge omitted any reference to either enhancement conviction having
become final before Derichsweiler committed the offense underlying the other
enhancement conviction.  Instead, the charge=s
application paragraphs instructed the jury to find the enhancement allegations
true if it found beyond a reasonable doubt that the enhancement conviction in
question became final before Derichsweiler committed the offense for which he
was on trial—the 2006 felony DWI.  The charge further instructed the jury that
if it found both enhancement paragraphs true, it was to assess a punishment of
twenty-five to ninety-nine years= or
life confinement.
The
verdict form signed by the presiding juror introduced another wrinkle.  The
form states that the jury found both enhancements true, found that Derichsweiler
had been convicted of the 2003 DWI before he committed the 2006 DWI, and found that
Derichsweiler had been convicted of the 1998 assault on a peace officer before
he committed the 2003 DWI.  Thus, the verdict form recited the enhancement
convictions in the correct sequence, but it failed to recite that the 1998
conviction was final before the commission of the 2003 DWI.
At
trial, Derichsweiler objected that the charge did not track the indictment,
i.e., that the charge did not require the jury to find that the 2003 conviction
became final before Derichsweiler committed the 1998 assault on a peace
officer, the impossibility alleged by the indictment.  The trial court at first
appeared to sustain the objection, saying, AWhy
don=t we
go ahead and fix that,@ but the court later explicitly
overruled the objection.
The
punishment-phase evidence shows that the 1998 conviction was final before Derichsweiler
committed the 2003 DWI and that the 2003 DWI conviction was final before Derichsweiler
committed the 2006 felony DWI, and Derichsweiler does not argue otherwise.  
B.  The
Law of Enhancements
Penal
code section 12.42(d) provides as follows:
[I]f it is shown on
the trial of a felony offense other than a state jail felony punishable under
Section 12.35(a) that the defendant has previously been finally convicted of
two felony offenses, and the second previous felony conviction is for an
offense that occurred subsequent to the first previous conviction having become
final, on conviction the defendant shall be punished by imprisonment in the
Texas Department of Criminal Justice for life, or for any term of not more than
99 years or less than 25 years.
Tex.
Penal Code Ann. § 12.42(d).  The State must give a defendant notice in the
indictment or other pleading that it will seek the enhanced range of
punishment.  Brooks v. State, 957 S.W.2d 30, 33–34 (Tex. Crim. App.
1997).  “The purpose of an enhancement allegation is to provide the accused
with notice of the prior conviction relied upon by the State.”  Coleman v.
State, 577 S.W.2d 486, 488 (Tex. Crim. App. 1979); Bevins v. State,
422 S.W.2d 180, 181 (Tex. Crim. App. 1967).
Because
the purpose of the enhancement paragraphs is to provide notice, “‘it is not
necessary to allege prior convictions for the purpose of enhancement with the
same particularity which must be used in charging on the primary offense.’”  Williams
v. State, 980 S.W.2d 222, 226 (Tex. App.—Houston [14th Dist.] 1998, pet.
ref=d)
(quoting Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986)).  For
example, the date on which the prior convictions became final need not be
alleged.  Hollins v. State, 571 S.W.2d 873, 876 n.1 (Tex. Crim. App.
1978).  Nor is it necessary to allege the sequence of the prior convictions.  See
Jingles v. State, 752 S.W.2d 126, 129 (Tex. App.—Houston [14th Dist.] 1987,
pet. ref=d). 
Rather, the notice must enable the accused Ato
find the record and make preparation for a trial of the question whether he is
the convict named therein.@  Brown v. State, 636
S.W.2d 867, 868 (Tex. App.—Fort Worth 1982, no pet.).
The
sufficiency of the evidence should be measured by the elements of the offense
as defined by the hypothetically correct jury charge for the case, not the
charge actually given.  Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim.
App. 2011); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see
Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001).  This
principle applies equally to the affirmative findings necessary to sustain the
imposition of an enhanced punishment; the sufficiency of the evidence of the
enhancements should be measured by the hypothetically correct jury charge for
the enhancement.  Young v. State, 14 S.W.3d 748, 750 (Tex. Crim. App.
2000) (applying hypothetically correct jury charge to drug‑free zone
enhancement); see Sims v. State, 84 S.W.3d 768, 779 (Tex. App.—Dallas 2002,
pet. ref=d).
Generally,
the State must prove enhancement allegations as alleged in the indictment.  Ex
parte Augusta, 639 S.W.2d 481, 485 (Tex. Crim. App. 1982), overruled on
other grounds by Bell v. State, 994 S.W.2d 173, 175 (Tex. Crim. App. 1999).
 But in Gollihar, the court of criminal appeals—relying on Malik’s
hypothetically-correct-jury-charge rule, which the court extended to
punishment-phase enhancement allegations in Young—held that a
hypothetically correct jury charge need not incorporate allegations that give
rise to immaterial variances between the indictment and the evidence.  46
S.W.3d at 256.  A variance between the wording of an indictment and the
evidence presented at trial is fatal only if it is material and prejudices the
defendant=s substantial rights.  Id. at
257.  When reviewing such a variance, we must determine whether the indictment,
as written, informed the defendant of the charge against him sufficiently to
allow him to prepare an adequate defense at trial.  Id.[3]
C. 
No Error in Refusing to Track Indictment’s Language
Because
it was not necessary for the State to allege the dates on which the enhancing
convictions became final or the sequence of the enhancing convictions, the
indictment=s nonsequitur allegation that the 2003
DWI conviction was final before the commission of the 1998 assault is
immaterial.  The enhancement allegations recited the counties, courts, cause
numbers, and dates of conviction for both enhancements; this was sufficient to
enable Derichsweiler to find the record and prepare for trial regarding whether
he is the convict named in the convictions.  See Brown, 636
S.W.2d at 868.  Because the State was not required to allege the sequence of
convictions in the indictment, the trial court did not err by refusing to track
the indictment=s unnecessary and defective sequence
allegation in the jury charge.  We note that Derichsweiler does not argue that
the trial court erred by failing to instruct the jury that it could find the
enhancements true only if it found that the 1998 conviction was final before Derichsweiler
committed the 2003 DWI, as required by penal code section 12.42(d); he argues only
that the trial court erred by failing to conform the charge and verdict form to
the sequence of convictions alleged in the indictment.  We therefore overrule Derichsweiler=s
third and fifth points.
D. 
Sufficiency of the Evidence to Prove Enhancements
We
turn now to Derichsweiler=s contention that the State
failed to prove that the 2003 conviction was final before he committed the 1998
offense.  The hypothetically correct punishment charge would have alleged that
the 1998 conviction was final before Derichsweiler committed the 2003 offense. 
See Young, 14 S.W.3d at 750; see also Tex. Penal Code Ann. §
12.42(d); Byrd, 336 S.W.3d at 246; Malik, 953 S.W.2d at 240.  The
punishment-phase evidence shows that the 1998 conviction was final before Derichsweiler
committed the 2003 offense, and Derichsweiler does not argue otherwise.  To the
extent that the sequence of convictions proved at trial varied from the
impossible sequence alleged in the indictment, the variance was immaterial
because the State was not required to allege the sequence in the first place.  See
Gollihar, 46 S.W.3d at 257.
Weighing
the evidence against the hypothetically correct jury charge and in the light
most favorable to the prosecution, we hold that a rational trier of fact could
have concluded beyond a reasonable doubt that Derichsweiler had previously been
finally convicted of two felony offenses and that the second previous felony
conviction was for an offense that occurred subsequent to the first previous
conviction having become final.  See Tex. Penal Code Ann. § 12.42(d);
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton
v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).  Thus, the evidence
was sufficient to support the enhancement of Derichsweiler=s
punishment under section 12.42(d).  We overrule Derichsweiler=s
fourth point.
V.  Conclusion
Having
overruled all of Derichsweiler’s remaining points on remand, we affirm the
trial court’s judgment.
 
 
 
SUE WALKER
JUSTICE
 
PANEL: 
DAUPHINOT, GARDNER, and WALKER, JJ.
 
DAUPHINOT,
J. concurs without opinion.
 
PUBLISH
 
DELIVERED:  January 19, 2012




[1]The State argues that
by citing Coit instead of Cole in his trial court objection,
Derichsweiler failed to preserve his argument based on Cole for appeal. 
We disagree.  His complaint to the trial court was sufficiently specific to
apprise the judge of its basis—that Dr. Springfield did not perform the lab
tests—even if he misstated the name of the case that he relied on, the trial
judge understood his complaint, and his complaint on appeal is essentially the
same. A>Straightforward
communication in plain English will always suffice=@ to preserve error.  Clarke
v. State, 270 S.W.3d 573, 580 (Tex. Crim. App. 2008) (quoting Lankston
v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)).


[2]Derichsweiler pleaded
guilty to this offense in 1991 and received a ten year sentence probated for
ten years; a judgment revoking his probation was signed in 1998 (hereinafter
referred to as the 1998 assault on a peace officer offense).


[3]The Gollihar
court stated a second element of the fatal variance test: whether prosecution
under the deficiently drafted indictment would subject the defendant to the
risk of being prosecuted later for the same crime.  Id.  Because
enhancement allegations do not implicate jeopardy—that is, allegations used to
enhance a current prosecution may also enhance a later prosecution for a different
offense—this second element is inapplicable to our analysis.


