                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-15-00188-CR
                           ____________________

                          SHERRIE HOFF, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 359th District Court
                        Montgomery County, Texas
                      Trial Cause No. 13-01-00945 CR


                         MEMORANDUM OPINION

      In five issues, Sherrie Hoff (Hoff or Appellant) challenges her conviction for

driving while intoxicated, third or more, and punishment of fifteen years’

confinement. We affirm the trial court’s judgment.

                             FACTUAL BACKGROUND

      A grand jury indicted Hoff for driving while intoxicated, third or more. See

Tex. Penal Code Ann. §§ 49.04, 49.09(b) (West Supp. 2016). The indictment also

alleged that Hoff used a deadly weapon, namely, a motor vehicle, during the
                                         1
commission of the offense. Additionally, the indictment included enhancements for

two previous felony convictions. Hoff pleaded “[n]ot guilty[.]” Hoff stipulated that

she was previously convicted of driving while intoxicated in 1991 and in 2011.

Testimony of Eyewitnesses

      Sudie Beard (Sudie) testified that on the day in question, she and her

husband (collectively the Beards) were traveling in their vehicle on road 1485 in

Montgomery County, Texas, with her husband driving. According to Sudie, the

Beards were traveling in the left-hand lane of 1485, approaching the intersection of

Kidd Cemetery Road, heading west, when another vehicle came up behind them in

the right-hand lane. Sudie explained that when vehicles approach the intersection

of 1485 and Kidd Cemetery Road, vehicles in the right lane are required to make a

right turn. Sudie testified that the vehicle that approached them was a van, the van

then passed the Beards’ vehicle going a little faster than the Beards, and the van

“kind of hit an orange barrel[.]” Sudie explained that the Beards’ vehicle continued

on 1485 westbound. Sudie saw the van in front of the Beards’ vehicle, and the

driver of the van was driving erratically, then hit a guardrail and ricocheted off the

guardrail and proceeded “off across the little bridge and . . . through the ditch and

hit a tree.” According to Sudie, the Beards then pulled off onto the shoulder and

Sudie called 911, but a deputy arrived at the scene before the 911 operator

                                          2
answered. Sudie testified that the driver of the van got out of the van and, although

the driver seemed to be okay, the driver appeared “dazed” or “unaware[,]” and her

voice sounded “puzzled.”

      At trial, Sudie identified Hoff as the person who was driving the van that

day. Sudie also testified that she did not see anyone in the van other than Hoff, and

she did not smell alcohol on Hoff. Sudie reported that the weather that day was

clear and she agreed that the traffic on the road was “moderate[.]”

      Roland Beard (Roland) also testified. According to Roland, he and his wife

Sudie were driving on 1485 on the day of the accident. Roland explained that a van

was originally driving behind the Beards, but the van “whipped over into my -- our

lane ahead of us[]” where the lane in which the van was traveling became a right-

turn-only lane. Roland described the van’s lane change as “abrupt[]” and explained

that the van “[c]lipped one of those barricade barrels[]” in the process. Roland

testified that, after the van moved into his lane, he “slowed down a little more[]”

and explained that “I’ve seen from my previous experience driving like that, you

don’t get too close.”

      Roland further explained as follows:

      [State’s attorney]: So, did you -- when she whipped into the lane that
      you were in, did you have to put on your brakes or take any
      maneuvers to avoid it?

                                         3
[Roland]: I slowed down a little more.

[State’s attorney]: What did -- what did the van do after that?

[Roland]: Continued traveling westbound on 1485.

[State’s attorney]: And did you notice anything else -- any other odd
driving on the way?

[Roland]: Kept easing into the right, like there was a magnet pulling
it.

[State’s attorney]: Okay. And did she hit anything else?

[Roland]: There was a guardrail over a small -- it was right across the
highway. Hit that and then went onto further down the road.

[State’s attorney]: You said she clipped that and then went further
down the road?

[Roland]: Yes.

[State’s attorney]: And what happened after she got pas[t] the
guardrail?

[Roland]: Again, just kept easing over to the right.

[State’s attorney]: What happened, ultimately, after she continued
easing over to the right?

[Roland]: The right -- like construction barrel. It pulled her into the
ditch, and she struck a small tree . . . .

      ....

[State’s attorney]: So, after -- you said after she crashed, what did you
see next?

                                   4
      [Roland]: I think I saw the air bag go off.

      [State’s attorney]: Okay. Which air bag?

      [Roland]: In her car.

      [State’s attorney]: In which seat in the car?

      [Roland]: Driver’s side.

Roland testified that, after the van crashed, the driver walked over to the Beards’

vehicle, but Roland did not talk with the driver of the van. Roland also testified

that he gave a statement to a DPS Trooper on the day of the accident. Roland also

described what the traffic was like on the day in question, stating as follows:

      [State’s attorney]: Okay. Do you recall what the traffic was like on
      1485 that day?

      [Roland]: It was called average.

      [State’s attorney]: Average?

      [Roland]: Yeah.

      [State’s attorney]: Okay. Tell me a little bit about what average traffic
      on 1485 looks like?

      [Roland]: Anything from the posted speed limit to ten over.

      [State’s attorney]: Okay. So, people maybe go a little fast?

      [Roland]: A little fast, yes.

      [State’s attorney]: How many cars would you say were on the road
      that day?
                                          5
      [Roland]: Oh, lord. I haven’t -- I wasn’t taking a traffic consensus
      [sic], so I don’t know.

      [State’s attorney]: Okay. Would you categorically say it was a few,
      moderate or a lot?

      [Roland]: Probably moderate.

             ....

      [Defense attorney]: Okay. Would you say the traffic was average on
      that video?

      [Roland]: Probably so.

      [Defense attorney]: So, that’s the way it is normally during the day
      about that time?

      [Roland]: It’s really, really active.

Testimony of Deputy O’Connor

      Deputy O’Connor (O’Connor) with the Montgomery County sheriff’s office

testified that he was on duty and patrolling on the day of the accident. He

explained that as he was driving on 1485, he encountered a “[v]ehicle off the side

of the road that was partially in the woods[]” and he radioed it in as an “unknown

major minor[]” accident. O’Connor recalled the driver telling him she was not

injured, but O’Connor still called for EMS. At trial, O’Connor identified Hoff as

the driver of the van.




                                              6
      O’Connor testified that, when he asked Hoff for her driver’s license, she

handed him a prescription bottle that was inside the van. O’Connor explained that

Hoff also handed him a bag from a pharmacy containing other pill bottles.

According to O’Connor, Hoff appeared “very relaxed for someone that had just

had an accident[]” and her speech was slowed. O’Connor testified that he had

taken classes relating to DWI investigations and field sobriety tests, and that in his

training, he had learned what to look for in detecting whether drivers are

intoxicated. O’Connor explained that his suspicions that Hoff was driving while

intoxicated were based on her giving him the pill bottle instead of her driver’s

license, the conversation he had with her in which she told him she had gone to the

pharmacy, and that Hoff told him she had taken Soma medication about twenty

minutes earlier. Once a DPS Trooper arrived at the scene, O’Connor relayed his

impressions and passed the investigation to the Trooper.

Testimony of Trooper Larson

      Trooper Larson (Larson) with the Texas Department of Public Safety (DPS)

testified that, on January 28, 2013, he was working in East Montgomery County

when the dispatcher informed him of the accident in question. Larson explained

that by the time he arrived at the scene, in addition to the wrecked van, he found a

wrecker, a sheriff’s deputy, and another vehicle at the scene. According to Larson,

                                          7
the van was in the westbound ditch, and it had initially struck a guardrail or a

construction barrel. At trial, Larson identified Hoff as the driver of the van.

      Larson testified that he asked Hoff what happened, and “[s]he said [a] car

came over and she moved.” Larson further explained that Hoff told him she was

coming back from her doctor’s office in Houston and that she was going to a

friend’s house to get the oil in her car changed. However, according to Larson, the

location of the friend’s house was in the opposite direction from the direction in

which Hoff had been traveling. Larson told Hoff that Larson had learned of the

accident at about 1:30 p.m. And, Hoff then indicated that she estimated the time of

the accident to be about 1:40 p.m., which Larson regarded as odd.

      Larson testified that Hoff told him she took Soma and Lorcet for back pain

right after she left Houston, which was about twenty minutes before the accident,

and that she had also taken Ibuprofen and Hydrocodone earlier in the day.

According to Larson, Hoff’s pupils were small, she “seemed to sway while she . . .

was standing[],” and she had “basically a confused demeanor” and a “blank look

on her face.” Larson also testified that Hoff’s speech was slurred and her responses

to his questions were slow.

      Larson explained that he is a field sobriety test instructor and that he was

certified to perform field sobriety tests. He indicated that he had worked on cases

                                           8
before in which the driver was intoxicated after taking Soma, Hydrocodone, or

Clonazepam. Larson explained he administered the horizontal gaze nystagmus

(HGN) test, the walk-and-turn test, and the one-leg-stand test to Hoff. According to

Larson, Hoff showed no signs of intoxication on the HGN test, but she manifested

six clues out of a possible eight on the walk-and-turn test, and she manifested three

clues on the one-leg-stand test. Larson explained that he also administered the

Romberg test, in which he asks a person to tilt her head back, close her eyes and

estimate the passage of thirty seconds. According to Larson, Hoff’s time estimate

was about a minute and three seconds, which he described as “substantially

longer[]” than normal.

      Larson agreed that, based on his training and experience with people who

are intoxicated from taking Soma, Hydrocodone, or Clonazepam, the signs of

intoxication he observed in Hoff on the day of the accident, were consistent with

the medications that she said she had taken. Larson further explained that, based on

Hoff’s performance on field sobriety tests, his interaction with Hoff, and the fact

that Hoff had driven off the road, Larson concluded that Hoff had lost the normal

use of her mental and physical faculties, which Larson believed was the result of

Hoff having ingested prescription medication. Larson testified that, after placing

Hoff under arrest, he read her the statutory DIC-24 warnings.

                                         9
      Larson also testified that a camera in his vehicle made a video recording of

the events at the scene, and the video was admitted as State’s Exhibit 3 and

published to the jury. Segments of the video include Larson reading the DIC-24

warnings to Hoff after placing her under arrest, after which the following exchange

occurred:

      THE TROOPER: . . . I am now requesting a specimen of your blood?

      MS. HOFF: What is that?

      THE TROOPER: Whether or not you want to give a blood specimen.

      MS. HOFF: Uh, what happens to the breathalyzer test?

      THE TROOPER: That’s for alcohol. Like -- I mean, I don’t think
      you’re on alcohol.

      MS. HOFF: No.

      THE TROOPER: Right. I mean, that’s why I’m not asking for --

      MS. HOFF: I’ll give blood, whatever. Do I need to do this before I
      speak with my attorney?

      THE TROOPER: Yes, ma’am. We’ll have to go down to the hospital.
      It’s not me who is going to be taking it, it will be a nurse or doctors,
      something like that. Let me read this to you before we do anything
      else. It’s basically your Miranda rights.

Larson testified that, after Hoff consented to provide a blood specimen, he took her

to Kingwood Medical Center where a nurse performed a blood draw.


                                        10
Testimony of Dawn Allgood

      Dawn Allgood (Allgood), a nurse and manager of the Emergency

Department at Kingwood Medical Center, testified that she was on duty on January

28, 2013. Allgood testified that she was asked to take a blood sample from Hoff,

and that she complied with the request and obtained blood from Hoff.

Testimony of Sarah Martin

      Sarah Martin (Martin), a forensic scientist from the toxicology department of

the DPS crime lab in Austin, also testified at trial. Martin explained that she has a

B.S. and M.S. in forensic science, has had “extensive” on-the-job training at DPS,

has given oral and poster presentations on drug detection, has co-authored several

articles, and that she has testified as an expert in forensic chemistry twenty times.

Martin also testified that her training included the effects of drugs on the body, and

she agreed that a scientist working in her lab would be required to know how to

test for drugs and the effects of drugs on the body.

      According to Martin, in the testing process, when a substance is identified in

a sample, a confirmation test is performed. Martin testified that she received Hoff’s

blood specimen on February 5, 2013, she performed a first test on March 26, 2013,

and she performed a second test on August 1, 2013. Martin reported that the initial

testing of Hoff’s sample showed the presence of “the Carisoprodol/Meprobamate

                                         11
category as well as an Opiate category” as well as “a slight response for

Benzodiazepines[.]” In her second testing, she found “Carisoprodol, Clonazepam,

Hydrocodone and Meprobamate.” Martin also explained that, sometime after

testing Hoff’s sample, her lab determined that the calibration of Clonazepam and

Hydrocodone were high and the lab decided to report only the presence of these

drugs and not their quantity. Consequently, the lab issued an amended report.

According to Martin, such calibration inaccuracies affect test results regarding the

quantity of a drug in a sample but do not affect test results regarding the presence

of a drug in a sample. Martin’s amended report was admitted as State’s Exhibit 13.

      Martin explained that Carisoprodol is prescribed as Soma, a muscle relaxer,

and that Soma and Meprobamate have similar effects on the body. According to

Martin, Carisoprodol “could produce drowsiness, dizziness, stumbling around,

slurred speech, blurred vision . . . [and] a lack of coordination.” And, Martin

agreed that Carisoprodol would have the potential to impair a person’s ability to

operate a motor vehicle. Martin testified that Meprobamate produces “the typical

depressant effects, slurred speech, blurred vision, dizziness, [and] drowsiness[.]”

Martin explained that Carisoprodol and Meprobamate can cause impaired driving

when the drug levels are higher than ten milligrams per liter and that Hoff’s

combined level of the substances was about fifteen milligrams per liter.

                                        12
      Martin testified that Clonazepam is a benzodiazepine, which is a central

nervous system (CNS) depressant and is prescribed for anxiety or seizures.

According to Martin, Clonazepam “has the typical CNS depressant effects[,] []

stumbling around, slurred speech, blurred vision, drowsiness, dizziness, lack of

coordination.” Martin agreed that Clonazepam would affect driving by producing

delayed reactions or interfere with a driver’s ability to observe surroundings.

      Martin explained that Hydrocodone is an opiate and produces depressant

effects “just like the Carisoprodol and Clonazepam and Meprobamate.” Martin

further explained that the drugs detected in Hoff’s sample have additive effects that

are “greater and possibly more impairing th[a]n just one by itself. So, their effects

kind of stack up on top of each other.”

      The defense called no witnesses. The jury found Hoff guilty of driving while

intoxicated, third or more, and also found “beyond a reasonable doubt that the

Defendant used or exhibited a deadly weapon during the commission of the

offense.” Hoff elected to have the court assess punishment. She pleaded “not true”

to the enhancements for two prior felony convictions. After a hearing on

punishment, the trial court found the enhancement allegations to be “true” and

assessed Hoff’s punishment at fifteen years of confinement. See Tex. Penal Code

Ann. § 12.42(d) (West Supp. 2016). Hoff timely appealed, raising five issues.

                                          13
                                RIGHT TO COUNSEL

      In her first issue, Appellant argues that the trial court erred by not

suppressing certain statements she made and evidence collected after she

“unambiguously invoked her right to counsel.” According to Appellant, after the

state trooper arrested her and read the statutory DIC-24 warnings, the trooper asked

her to provide a blood specimen. Appellant argues she “unequivocally” asserted

her right to counsel by asking the trooper, “Should I do this before I speak to my

attorney.” Appellant explains that “whether the Appellant provided any consent for

a blood draw is immaterial, she no longer should have been questioned[,]” and her

statements and blood-draw evidence should have been suppressed. She argues that,

under the Sixth Amendment,1 her statements and blood-draw evidence were

illegally obtained. Appellant does not make a Fifth Amendment2 argument in her

appellate brief, but Appellant cites to Edwards v. Arizona, 471 U.S. 477 (1981) in

support of her “right to counsel” argument. See id. at 481-82 (an accused has a

Fifth Amendment right to have counsel present during custodial interrogation).
      1
          The Sixth Amendment provides in relevant part that “In all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence.” U.S. Const., amend. VI.
        2
          The Fifth Amendment provides in relevant part that “No person shall be
. . . compelled in any criminal case to be a witness against himself. . . .” U.S.
Const., amend. V. This right includes the right to counsel during a custodial
interrogation. See Miranda v. Arizona, 384 U.S. 436, 471 (1966); Pecina v. State,
361 S.W.3d 68, 74-75 (Tex. Crim. App. 2012).
                                        14
      We review a trial court’s ruling on a motion to suppress under a bifurcated

standard of review, giving almost total deference to the trial court’s findings of

historical fact and reviewing de novo the trial court’s application of the law.

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). When the trial judge

makes express findings of fact, we view the evidence in the light most favorable to

the court’s ruling and determine whether the evidence supports the factual

findings. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). “We

will sustain the trial court’s ruling if that ruling is ‘reasonably supported by the

record and is correct on any theory of law applicable to the case.’” Id. at 447-48

(quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)).

      “[T]he Fifth Amendment right to interrogation counsel is triggered by the

Miranda warnings that police must give before beginning any custodial

questioning. The Sixth Amendment right to trial counsel is triggered by judicial

arraignment or Article 15.17 magistration.” Pecina v. State, 361 S.W.3d 68, 71

(Tex. Crim. App. 2012). “Among the rights about which the police must advise a

suspect whom they have arrested is the right to have counsel present during any

police-initiated interrogation.” State v. Gobert, 275 S.W.3d 888, 892 (Tex. Crim.

App. 2009) (citing Miranda v. Arizona, 384 U.S. 436, 479 (1966)). Once a suspect

has invoked her Fifth Amendment right to counsel, police interrogation must cease

                                        15
until counsel has been provided or the suspect herself reinitiates a dialogue. Id.

(citing Edwards, 451 U.S. at 484-85). However, in the context of an arrest for

driving while intoxicated, a police officer’s request for a suspect to take a blood-

alcohol test is not an interrogation within the meaning of Miranda. See Griffith v.

State, 55 S.W.3d 598, 603 (Tex. Crim. App. 2001) (citing South Dakota v. Neville,

459 U.S. 553, 564 n.15 (1983)).

      Not every mention of a lawyer is sufficient to invoke the Fifth Amendment

right to the presence of counsel during questioning. See Gobert, 275 S.W.3d at 892

(citing Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995) (“[T]he mere

mention of the word ‘attorney’ or ‘lawyer’ without more, does not automatically

invoke the right to counsel.”)). An ambiguous or equivocal statement with respect

to counsel does not require officers to seek clarification, nor does it require the

officers to halt their interrogation. Id. at 892 (citing Davis v. United States, 512

U.S. 452, 461-62 (1994)). Whether the mention of a lawyer constitutes a clear

invocation of the right to counsel depends upon the statement itself and the totality

of the surrounding circumstances. Id.

      Prior to trial, Hoff filed a motion to suppress, arguing that the statements

Hoff made and evidence obtained from her should be suppressed as illegally




                                         16
obtained under the Fifth and Sixth Amendments.3 Before the trial began, the court

conducted a hearing on Hoff’s motion to suppress. While not issuing findings of

fact and conclusions of law, in denying the motion, the trial court explained on the

record that “I do not find that her question: Do I need to do this after I speak with

my attorney was an unambiguous invocation of her right to counsel.”

      Hoff’s statement to the trooper, wherein she asked “[d]o I need to do this

before I speak to my attorney[,]” was made prior to any judicial arraignment or

Article 15.17 proceeding and therefore the Sixth Amendment right to counsel was

not triggered at that time. See Pecina, 361 S.W.3d at 71; Griffith, 55 S.W.3d at

603. The record reflects that Larson requested a blood specimen and Hoff agreed

to provide a blood sample before Larson read Hoff the Miranda warnings. Based

upon the record before us, we conclude that Appellant’s question, “do I need to do

this before I speak with my attorney?,” was not produced by a custodial

interrogation and Appellant had no Fifth Amendment right to counsel at that time.

See Griffith, 55 S.W.3d at 603. Hoff’s question to the trooper occurred before

Hoff’s Fifth Amendment right to counsel attached. See Pecina, 361 S.W.3d at 71.



      3
         Hoff’s motion to suppress also cited other sections of the federal
constitution, the Texas constitution, and numerous state statutes. We address herein
only those arguments made by Hoff on appeal concerning the right to counsel. See
Tex. R. App. P. 47.1.
                                         17
      Additionally, we further conclude that the trial court did not abuse its

discretion in concluding that the question Hoff asked the trooper would not

constitute, under the totality of the circumstances, an unambiguous request for an

attorney. Hoff’s question did not constitute a clear invocation of her right to

counsel, nor did it require the police officer to halt the blood draw. See Gobert, 275

S.W.3d at 892.4 We conclude that the trial court did not err in overruling Hoff’s

motion to suppress. We overrule Appellant’s first issue on appeal.

      4
        See also, e.g., Davis v. United States, 512 U.S. 452, 455, 458-62 (1994) (a
suspect’s statement “Maybe I should talk to a lawyer” was ambiguous and did not
invoke the right to counsel); Davis v. State, 313 S.W.3d 317, 338-41 (Tex. Crim.
App. 2010) (under the totality of the circumstances, a suspect’s statement “I should
have an attorney” was not an unambiguous request for counsel); Mbugua v. State,
312 S.W.3d 657, 665 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (“Can I
wait until my lawyer gets here?” did not clearly state a firm, unambiguous, and
unqualified condition that any further questioning must be conducted only with his
attorney present); Flores v. State, 30 S.W.3d 29, 33-34 (Tex. App.—San Antonio
2000, pet. ref’d) (a suspect’s question “Will you allow me to speak to my attorney
before?” was neither clear nor unequivocal about his desire to speak to an
attorney); Cooper v. State, 961 S.W.2d 222, 226 (Tex. App.—Houston [1st Dist.]
1997, pet. ref’d) (“Where is my lawyer? Where is he?” was not an unequivocal
assertion of the right to counsel); accord Mueller v. Angelone, 181 F.3d 557, 573-
74 (4th Cir. 1999) (question “Do you think I need an attorney here?” posed to
police officer during interrogation was an ambiguous query whether his
interrogator thought that counsel might be helpful and not a clear assertion of his
right to counsel); Diaz v. Senkowski, 76 F.3d 61, 63-64 (2d Cir. 1996) (question
“Do you think I need a lawyer?” was not a clear invocation of the right to counsel);
United States v. Ogbuehi, 18 F.3d 807, 813 (9th Cir. 1994) (a suspect asking if he
“should see a lawyer” has not clearly invoked his right to counsel); United States v.
March, 999 F.2d 456, 460 (10th Cir. 1993) (defendant’s question “Do you think I
need an attorney?” did not constitute an unequivocal request for an attorney).
                                         18
                            DEADLY-WEAPON FINDING

      In her second issue, Appellant argues that the trial court erred in allowing a

deadly-weapon instruction to be submitted to the jury because the State did not

present sufficient evidence to support such an instruction. Citing to Cates v. State,

102 S.W.3d 735 (Tex. Crim. App. 2003), Appellant argues that “there is no

evidence that Appellant used the vehicle in a reckless, dangerous or careless

manner” and no evidence that others were actually endangered. At trial, the

defense objected to the deadly-weapon instruction and argued:

              [t]here was no evidence from the Beards who testified about the
      initial accident[] [t]hat they were in danger or that -- that others were
      actually in danger if they had been present. No evidence at all. And
      that merely hypothetical potential was, if anything, testified about, but
      nothing more than that. So, my feeling is, I believe it’s very clear,
      there was no evidence at all regarding a deadly weapon from the State
      that should be allowing in the Court’s Charge to that effect.

      In this case, we must decide whether, in viewing the evidence in the light

most favorable to the verdict, a rational trier of fact could have found beyond a

reasonable doubt that Hoff used or exhibited her vehicle as a deadly weapon when

she was driving while intoxicated. See Sierra v. State, 280 S.W.3d 250, 255 (Tex.

Crim. App. 2009) (citing Cates, 102 S.W.3d at 738). A deadly weapon is “a

firearm or anything manifestly designed, made, or adapted for the purpose of

inflicting death or serious bodily injury.” Tex. Penal Code Ann. § 1.07(a)(17)(A)

                                         19
(West Supp. 2016). A deadly weapon is also “anything that in the manner of its use

or intended use is capable of causing death or serious bodily injury[.]” Id.

§ 1.07(a)(17)(B). Objects that are not usually considered dangerous weapons may

become so depending on the manner in which they are used during the commission

of an offense. Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). A

motor vehicle is not a deadly weapon per se, but it may be found to be a deadly

weapon if used in a manner capable of causing death or serious bodily injury. See

Brister v. State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014); Drichas, 175

S.W.3d at 798; Cates, 102 S.W.3d at 738 (“An automobile can be a deadly weapon

if it is driven so as to endanger lives.”). Specific intent to use a motor vehicle as a

deadly weapon is not required. Drichas, 175 S.W.3d at 798. The danger posed to

motorists must be actual and not simply hypothetical. Id. at 799. “Actual danger”

refers to the risk of “death or serious bodily injury.” Brister, 449 S.W.3d at 494.

“Capability is evaluated based on the circumstances that existed at the time of the

offense.” Drichas, 175 S.W.3d at 799. Merely driving while intoxicated, without

more, does not establish that the vehicle is a deadly weapon. See Brister, 449

S.W.3d at 495.

      A “deadly-weapon finding is justified if a rational jury could have concluded

that the appellant’s vehicle posed an actual danger of death or serious bodily

                                          20
injury.” Brister, 449 S.W.3d at 494 (citing Sierra, 280 S.W.3d at 254, 256-57). To

determine whether the evidence supports a deadly-weapon finding in a case

involving a motor vehicle, we conduct a two-part analysis. Hilburn v. State, 312

S.W.3d 169, 177 (Tex. App.—Fort Worth 2010, no pet.) (citing Sierra, 280

S.W.3d at 255). First, we evaluate the manner in which the defendant used the

motor vehicle during the felony, considering factors such as (1) intoxication,

(2) speeding, (3) disregarding traffic signs and signals, (4) driving erratically, and

(5) failing to control the vehicle.” Sierra, 280 S.W.3d at 255. Second, we “consider

whether, during the felony, the motor vehicle was capable of causing death or

serious bodily injury.” Id. To satisfy the second inquiry, there must be evidence

that “1) the object meets the definition of a deadly weapon; 2) the deadly weapon

was used or exhibited during the transaction on which the felony conviction was

based; and 3) other people were put in actual danger.” Brister, 449 S.W.3d at 494

(citing Drichas, 175 S.W.3d at 798).

      In Brister, the evidence in the record showed that

             . . . appellant briefly crossed the center line into the oncoming
      lane of traffic at a time at which there were very few, if any, cars in
      that lane. After the officer activated his emergency lights, appellant
      committed no other traffic offenses and appropriately stopped. There
      is no testimony that appellant caused another vehicle or person to be
      in actual danger.


                                         21
Id. at 495. Because there was no evidence that the appellant caused another vehicle

or person to be in actual danger, the Court of Criminal Appeals determined “there

was no reasonable inference that appellant used his motor vehicle as a deadly

weapon.” Id. Likewise, in Foley v. State, the Corpus Christi Court of Appeals

rejected a deadly-weapon finding when there was no evidence in the record that a

person or vehicles were “in the immediate vicinity of Foley’s crash.” Foley v.

State, 327 S.W.3d 907, 917 (Tex. App.—Corpus Christi 2010, pet. ref’d).

      By contrast, in Drichas, the evidence was sufficient to support a deadly-

weapon finding where the evidence showed that Drichas led law enforcement

officers on a fifteen-mile high-speed chase, “drove erratically, wove between lanes

and within lanes, turned abruptly into a construction zone, knocking down

barricades as he did so, and drove on the wrong side on the highway.” 175 S.W.3d

at 797-98. Similarly, in Mann v. State, the evidence was sufficient because it

established that Mann “nearly hit another vehicle head-on and that a collision was

avoided only because the other driver took evasive action.” 58 S.W.3d 132, 132

(Tex. Crim. App. 2001). Accordingly, the evidence was sufficient to support a

deadly-weapon finding. Id.

      On appeal, Hoff argues that there is no evidence she used her vehicle in a

reckless, dangerous, or careless manner and no evidence that the Beards witnessed

                                        22
that other people were put in actual danger. We disagree. The facts of this case are

more analogous to Drichas and Mann, than Brister. In the case at bar, there was

testimony from Sudie and Roland, eyewitnesses to Hoff’s accident, from which a

jury could reasonably conclude that Hoff drove in a dangerous manner and that

someone other than Hoff was placed in actual danger. Sudie testified that Hoff was

going faster than the Beards’ vehicle, although neither Sudie nor Roland could

testify that Hoff was speeding. Both Sudie and Roland testified that Hoff was

driving erratically, and that Hoff hit multiple objects. According to Sudie, Hoff hit

a barrel and a guardrail, and then Hoff’s vehicle ricocheted off the guardrail back

into traffic, went off the road, into a ditch, and hit a tree. Roland testified that

Hoff’s lane change was “abrupt” and that Hoff’s vehicle “whipped” into the lane in

front of the Beards’ vehicle, and Roland slowed down to avoid getting too close to

Hoff’s vehicle. Roland also testified that Hoff ‘s vehicle continued to appear as if it

kept veering to the right, even after striking the guardrail, that Hoff’s vehicle

actually hit a guardrail and a barrel, and eventually left the roadway and hit a tree.

According to Roland, the traffic was either “moderate” or “really, really active[]”

that day, and drivers commonly go “[a] little fast[]” on that stretch of road.

      Accordingly, the evidence reasonably gives rise to an inference that Hoff

drove in a dangerous manner based on the evidence which established she was

                                          23
intoxicated, she drove erratically, she failed to control her vehicle, she hit a barrel

and ricocheted off of the guardrail, and crashed into a tree. The record and

testimony from the eyewitnesses also indicates that Hoff’s vehicle actually passed

the Beards’ vehicle, and that after Hoff’s vehicle made the abrupt lane change into

the Beards’ lane, the Beards continued to remain behind Hoff’s vehicle, where the

Beards continued to observe Hoff’s erratic driving and eventual crash. A

reasonable jury could conclude on the evidence that other people (including Sudie

and Roland Beard) were put in actual danger of death or serious bodily injury.

Viewing the evidence in a light most favorable to the verdict, a jury could have

reasonably inferred that Hoff used her vehicle as a deadly weapon during the

commission of the offense, and the evidence is legally sufficient to support the

deadly-weapon finding. See Sierra, 280 S.W.3d at 256. We overrule Appellant’s

second issue on appeal.

                          ADMISSION OF SCIENTIFIC EVIDENCE

      Appellant’s third issue brings multiple challenges to the admission of DPS

forensic scientist Sarah Martin’s testimony. Appellant argues the State failed to

properly qualify Martin under Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim.

App. 1992). According to Appellant, Martin was not qualified under Kelly because

Martin did not address the validity of the underlying scientific theory for the

                                          24
procedures she employed in analyzing Hoff’s blood specimen. Appellant also

argues that Martin was not qualified to address the physiological effects of

prescription drugs. Finally, Appellant argues that certain analytic “irregularities”

discovered more than a year after Hoff’s arrest violated Hoff’s due process rights

under the Fourteenth Amendment and denied her a fair trial.

      We review the admission of evidence, including expert testimony, under an

abuse of discretion standard. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim.

App. 2010); Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). Error

may not be predicated on a ruling that admits evidence unless a party’s substantial

rights are affected. Tex. R. Evid. 103(a); see Tex. R. App. P. 44.2(b). We will not

reverse if, after examining the entire record, we have fair assurance that the error

did not influence the jury or had but slight effect. Taylor v. State, 268 S.W.3d 571,

592 (Tex. Crim. App. 2008).

Validity of the Underlying Scientific Theory

      For scientific evidence “to be considered sufficiently reliable as to be of help

to a jury,” the proponent must satisfy three criteria by clear and convincing

evidence: “(1) the underlying scientific theory must be valid; (2) the technique

applying the theory must be valid; and (3) the technique must have been properly




                                         25
applied on the occasion in question.” Reynolds v. State, 204 S.W.3d 386, 390 (Tex.

Crim. App. 2006) (citing Kelly, 824 S.W.2d at 573).

      Hoff failed to object at trial to the results of Martin’s analysis of Hoff’s

blood specimen on grounds that the analysis was not scientifically reliable under

Kelly or Rule 702. Hoff’s trial objections were limited to hearsay and to Martin’s

qualification to testify about the effects of drugs on the body. Therefore, Appellant

has failed to preserve for our review her complaint that the analysis used by the

expert was not scientifically reliable. See Wilson v. State, 71 S.W.3d 346, 349

(Tex. Crim. App. 2002); Gregory v. State, 56 S.W.3d 164, 182 (Tex. App.—

Houston [14th Dist.] 2001, pet. dism’d) (lack of a specific objection at trial to the

admission of scientific evidence was insufficient to preserve error).

      Nevertheless, even if such objection had been preserved, Martin testified at

trial and provided a detailed explanation of the blood-testing procedure, and Martin

explained that the method she used is widely accepted in the scientific community.

On the record before us, we conclude that the trial court did not abuse its discretion

in admitting the results of testing on Hoff’s blood specimen.

Testimony on the Physiological Effects of Drugs

      A witness is qualified as an expert by knowledge, skill, experience, training,

or education. See Tex. R. Evid. 702. The expert must have a sufficient background

                                         26
in a particular field, and the witness’s background should relate to the matter on

which the witness is to offer an opinion. Davis v. State, 329 S.W.3d 798, 813 (Tex.

Crim. App. 2010). “The focus is on the fit between the subject matter at issue and

the expert’s familiarity with it.” Id. “Because the spectrum of education, skill, and

training is so wide, a trial court has great discretion in determining whether a

witness possesses appropriate qualifications as an expert on a specific topic in a

particular case.” Id. If a witness is not testifying as an expert, opinion testimony is

limited to opinions that are rationally based on the witness’s perception and

“helpful to clearly understanding the witness’s testimony or to determining a fact

in issue.” Tex. R. Evid. 701.

      At trial, Martin explained that she has a B.S. in forensic chemistry and an

M.S. in forensic science as well as extensive on-the-job training. Martin has been

trained regarding the physiological effects of drugs on the body, and Martin

explained that as a scientist who works in this area for the DPS, she would be

required to know the effects of drugs, as well as how to test for drugs. We

conclude that the trial court did not err in overruling the objection that Hoff made

to Martin’s qualifications or in concluding that Martin was qualified to testify

regarding the physiological effects of the drugs in question.




                                          27
The Amended Report

      Martin testified that, after having performed the initial analysis on Hoff’s

blood sample, the lab determined that the calibration of the amount of Clonazepam

and Hydrocodone in the blood was high. As a result, the lab issued an amended

report that then included only the presence of these two drugs and not the quantity

of each. At trial, Hoff objected to the State’s reliance on the amended report as

follows:

      THE COURT: . . . Your complaint is that you did not receive notice of
      this, but that it changed?

      [Defense attorney]: Not only that it changed, but it denies me the right
      of cross-examination of why it changed. I was told by the State that it
      was changed because they were going to do -- the calibration was off
      and they were going to redo all of the drugs. They didn’t do that. They
      just did two of the drugs. So, it denied me the right to cross-examine --
      to confront the witness in this case, which would be Ms. Martin.

      THE COURT: She’s here.

      [Defense attorney]: I know she’s here now.

      THE COURT: You have an opportunity for cross in just a minute.

      [Defense attorney]: At the time, I was told there was going to be no --

      THE COURT: So, how has that -- how has that hurt you?

      [Defense attorney]: Well, I think it’s harmed my client because now we
      got a second report and actually did not retest it the first two parts --


                                        28
      THE COURT: Actually, Mr. [Defense attorney] [], when did you get
      that second report?

      [Defense attorney]: It doesn’t matter when I got it, Judge.

      THE COURT: Don’t tell me that.

      [Defense attorney]: I’m saying it doesn’t matter when I got it. The fact
      is that I was told that they retested it. And I was told that it was retested
      to the same amount. Instead I was told that they didn’t retest it. And it’s
      the same amount because it’s the same amount that they originally
      tested it for.

      THE COURT: I don’t find that that jeopardizes your client at all. And
      you have this witness here. And so, you may question her as to
      whatever you want to do about that second report.

      An issue on appeal must comport with the objection made at trial, and an

objection stating one legal basis may not be used to support a different legal theory

on appeal. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); Rezac

v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). Thus, when an appellant’s

trial objection does not comport with her argument on appeal, she forfeits her right

to raise the new argument on appeal. See Clark, 365 S.W.3d at 339; Goff v. State,

931 S.W.2d 537, 551 (Tex. Crim. App. 1996).

      On appeal, Appellant suggests Hoff’s objection at trial (excerpted above)

includes an objection alleging she was denied the right to cross-examine and

confront witnesses, which invokes a right protected by the Sixth Amendment. See

U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36 (2004). On appeal,
                                          29
she argues that she has been denied due process and a fair trial because she was

under the impression that the DPS lab was going to retest the quantity of drugs

after it detected a calibration error, but instead the lab issued an amended report,

thereby denying her a fair trial. Hoff’s appellate argument does not comport with

her objection at trial.5 See Clark, 365 S.W.3d at 339; Goff, 931 S.W.2d at 551.

Additionally, Hoff has failed to explain with specificity how the State’s decision

not to retest her blood specimen denied her due process. See Tex. R. App. P.

38.1(h). We overrule Appellant’s third issue.

                     SUFFICIENCY OF EVIDENCE OF INTOXICATION

      In her fourth issue, Appellant argues that the State failed to present sufficient

evidence of intoxication. More specifically, she argues that (1) evidence of her

alleged extrajudicial admission alone was not sufficient evidence and Appellant

argues that the evidence at trial failed to satisfy the corpus delicti rule, and

(2) other testimony demonstrated only that Hoff was “impaired” and not

“intoxicated” at the time she was arrested. Appellant argues that, as a consequence,

the evidence at trial failed to satisfy the corpus delicti rule.

      5
          Appellant’s brief appears to argue that she brought a Fourteenth
Amendment due process challenge in her motion to suppress filed before trial. But
the motion to suppress does not include such an argument. Furthermore, her
motion to suppress was filed on April 8, 2013, well before the DPS crime lab
issued its amended report on May 15, 2014.
                                            30
      In order to determine if the evidence is legally sufficient, we review all of

the evidence in the light most favorable to the verdict and determine whether any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jackson v. State,

17 S.W.3d 664, 667 (Tex. Crim. App. 2000). The factfinder is the sole judge of the

credibility of the witnesses and the weight to be given their testimony. Adelman v.

State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). The factfinder may choose to

believe or disbelieve all or any part of any witness’s testimony. Sharp v. State, 707

S.W.2d 611, 614 (Tex. Crim. App. 1986).

      A person commits the offense of driving while intoxicated when she

operates a motor vehicle in a public place while intoxicated. Tex. Penal Code Ann.

§ 49.04(a). “Intoxicated” means not having the normal use of mental or physical

faculties by reason of the introduction of alcohol or a controlled substance. Id.

§ 49.01(2)(A) (West 2011). Penal Code section 49.04, entitled “Driving While

Intoxicated[,]” requires the State to prove that a defendant lost her faculties by

reason of the introduction of a substance into her body, but it does not require the

State to prove what substance caused the loss of the normal use of mental or

physical faculties. Gray v. State, 152 S.W.3d 125, 132 (Tex. Crim. App. 2004). A

conviction for the offense of driving while intoxicated may be supported solely by

                                         31
circumstantial evidence. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App.

2010). Evidence of a controlled substance in a defendant’s blood is relevant, when

the State presents testimony from which a juror reasonably could determine that a

drug affected the defendant’s intoxication. See Bekendam v. State, 441 S.W.3d

295, 302 (Tex. Crim. App. 2014).

      “The corpus delicti rule is one of evidentiary sufficiency affecting cases in

which there is an extrajudicial confession.” See Miller v. State, 457 S.W.3d 919,

924 (Tex. Crim. App. 2015) (citing Hacker v. State, 389 S.W.3d 860, 865 (Tex.

Crim. App. 2013)). The rule requires evidence independent of the defendant’s

extrajudicial confession to establish that the defendant was guilty of the crime for

which the jury convicted her. Id.; Salazar v. State, 86 S.W.3d 640, 645 (Tex. Crim.

App. 2002). In prosecutions for the offense of driving while intoxicated, the corpus

delicti rule requires proof that the defendant operated a motor vehicle in a public

place while intoxicated. Layland v. State, 144 S.W.3d 647, 650-52 (Tex. App.—

Beaumont 2004, no pet.). Hoff admitted to the officers at the scene of the accident

that she had taken Soma and Lorcet approximately twenty minutes before the

accident and that she had taken Hydrocodone earlier in the day. Under the corpus

delicti rule, we examine the record to determine whether there was evidence of

intoxication other than Hoff’s own statements that she had taken the drugs.

                                        32
      The record contains the testimony of eyewitnesses who described Hoff’s

driving and the details of the accident, as well as testimony from Deputy O’Connor

and Trooper Larson, who not only spoke with Hoff at the scene but also observed

her demeanor immediately after the accident. Officer Larson testified regarding the

results of the field sobriety tests, his observance of clues of intoxication, and the

State presented testimony and testing results regarding Hoff’s intoxication. Sudie

testified that she observed Hoff driving erratically, and Sudie observed Hoff’s van

hit a barrel, hit a guardrail and “ricochet” off the guardrail, drive into a ditch, and

hit a tree. According to Sudie, Hoff had a “dazed” or “puzzled” appearance.

Roland also testified that he observed Hoff’s vehicle hit a barricade barrel, make

an abrupt lane change, hit a guardrail, and hit a tree. Deputy O’Connor testified

that he suspected that Hoff was driving while intoxicated in part based on the fact

that Hoff handed him a pill bottle instead of her driver’s license. O’Connor also

testified that Hoff handed him a bag that contained prescription medication.

Finally, Trooper Larson testified that he performed field sobriety tests on Hoff, and

she exhibited multiple clues of intoxication on each test. Larson also explained

that, based on Hoff’s performance on the field sobriety tests, his overall interaction

with Hoff, and the fact that Hoff had driven off the road, he concluded that Hoff




                                          33
had lost the normal use of her mental and physical faculties after taking

prescription medication.6

      Martin testified that Hoff’s blood specimen tested positive for the presence

of Carisoprodol, Clonazepam, Hydrocodone, and Meprobamate, and, according to

Martin, these four substances, singly or in combination, can impair a person’s

ability to operate a motor vehicle. Accordingly, we conclude that there was

sufficient evidence independent of Hoff’s extrajudicial statements or admissions

that supports the jury’s finding that Hoff was intoxicated. We overrule Appellant’s

fourth issue.

                              EXCESSIVE PUNISHMENT

      In her fifth and final issue, Appellant argues that the trial court’s assessment

of punishment was “cruel and unusual” because it was “grossly disproportionate”

to the crime. She argues that the sentence assessed was excessive because (1) the

accident giving rise to the arrest “was not thoroughly investigated and, therefore, a

mechanical malfunction could not be eliminated[,]” (2) Hoff is the primary


      6
        Appellant did not challenge the qualifications of the officer on this point.
We note that even if such objection had been made, the erroneous admission of
testimony from an unqualified witness is harmless where another expert provides
similar testimony. See Paradoski v. State, 477 S.W.3d 342, 351 (Tex. App.—
Houston [14th Dist.] 2015, no pet.) (citing Jones v. State, 111 S.W.3d 600, 604-05
(Tex. App.—Dallas 2003, pet. ref’d) and Riley v. State, 988 S.W.2d 895, 899 (Tex.
App.—Houston [14th Dist.] 1999, no pet.)).
                                         34
caregiver for her two young children, and (3) Hoff’s criminal history is “not

extremely bad.”

      In the case at hand, Appellant was convicted for a third time of driving while

intoxicated, a third degree felony, and her sentence was enhanced by two prior

felony convictions under section 12.42(a) of the Texas Penal Code. See Tex. Penal

Code Ann. §§ 49.04, 49.09(b). She faced a punishment range between two and

twenty years’ imprisonment for her conviction because the trial court found that

Appellant was previously convicted of two non-sequential felonies. See Tex. Penal

Code Ann. §§ 12.33(a) (West 2011), 12.42(a) (West Supp. 2016).

      The legislature is vested with the power to define crimes and prescribe

penalties. Davis v. State, 905 S.W.2d 655, 664 (Tex. App.—Texarkana 1995, pet.

ref’d); see also Simmons v. State, 944 S.W.2d 11, 15 (Tex. App.—Tyler 1996, pet.

ref’d). Punishment that falls within the limits prescribed by a valid statute,

including punishment enhanced pursuant to a habitual-offender statute, is not

excessive, cruel, or unusual. See Ex parte Chavez, 213 S.W.3d 320, 323-24 (Tex.

Crim. App. 2006); Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983);

Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis, 905 S.W.2d

at 664; see also Samuel v. State, 477 S.W.2d 611, 614-15 (Tex. Crim. App. 1972).




                                        35
      To preserve error for review, a defendant must make a timely, specific

objection at trial. Tex. R. App. P. 33.1(a). Generally, a party’s failure to make a

timely objection in the trial court forfeits the complaint on appeal. Collins v. State,

378 S.W.3d 629, 631 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Even

constitutional errors may be waived by failure to object at trial. Broxton v. State,

909 S.W.2d 912, 918 (Tex. Crim. App. 1995). Texas courts have established that

failure to raise an Eighth Amendment cruel-and-unusual-punishment claim at the

trial level waives the claim on appeal. See Saldano v. State, 70 S.W.3d 873, 891

(Tex. Crim. App. 2002); Arriaga v. State, 335 S.W.3d 331, 334 (Tex. App.—

Houston [14th Dist.] 2010, pet. ref’d); Williamson v. State, 175 S.W.3d 522, 523-

24 (Tex. App.—Texarkana 2005, no pet.) (motion for new trial is appropriate way

to preserve disproportionality claim for appellate review). Such claims have been

held not to be so fundamental as to relieve an appellant of the requirement of a

timely, specific objection at trial. See Curry v. State, 910 S.W.2d 490, 497-98 (Tex.

Crim. App. 1995); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth

2009, pet. ref’d).

      There is no indication in the record before us that Appellant raised this

objection at trial. Because Appellant did not make an objection to her sentence on

cruel-and-unusual-punishment grounds at trial, she has failed to preserve this issue

                                          36
for review. Furthermore, the trial court assessed punishment at fifteen years in this

case, which is within the statutory range. See Tex. Penal Code Ann. §§ 12.33(a),

12.42(a). Therefore, the punishment assessed is not prohibited as cruel and unusual

punishment, nor is it per se excessive. See Samuel, 477 S.W.2d at 614-15; see also

State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016) (where appellant’s

sentence “fell well within the statutory range . . . there is no reason to compare his

sentence to sentences imposed on others”). We overrule Appellant’s fifth issue.

      We affirm the judgment of the trial court.

      AFFIRMED.




                                                    _________________________
                                                       LEANNE JOHNSON
                                                             Justice


Submitted on July 14, 2016
Opinion Delivered October 19, 2016
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, J.J.




                                         37
