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

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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
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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.

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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.




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                                          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
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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
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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.




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