
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-01-00733-CR


Nicholas Edward Origer, Appellant

v.


The State of Texas, Appellee






FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT

NO. CR2001-175, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING






A jury found appellant Nicholas Edward Origer guilty of felony driving while
intoxicated (DWI) and assessed punishment at imprisonment for six years and a $2000 fine.  See
Tex. Pen. Code Ann. § 49.04(a), .09(b) (West Supp. 2002).  On the jury's recommendation, the court
suspended imposition of sentence and placed him on community supervision.  Origer urges that the
State failed to prove he operated a motor vehicle on the night in question.  He also contends the
district court erred by admitting statements he made to the police and by excluding the testimony of
a defense witness regarding an out-of-court statement made by the person Origer claims was driving. 
We will affirm the conviction.

On April 13, 2001, William Cannon had a party at his residence near Canyon Lake. 
Origer, who was Cannon's neighbor and employee, attended the party.  At around 10:00 p.m.,
Cannon saw Origer leave in a pickup truck driven by a young man named Mike Fisher.  Mary
Stephens, another neighborhood resident who was also at the party, testified that Mike Fisher and
his brother Greg were visiting her family that weekend.  The Fisher brothers had arrived driving the
truck, which Stephens believed belonged to Greg Fisher. (1)  At about 10:45 p.m., this pickup truck
attempted to turn right at an intersection near Cannon's house, went wide and ran off the road, and
then struck a telephone pole.  
Jackie Schlichting and Greg Harris lived near the intersection and heard the accident. 
Schlichting stepped outside and "yelled if everybody was okay."  Origer, whose voice she
recognized, replied that he was unhurt.  Schlichting then called 911 while Harris went outside to
speak to Origer.  According to Schlichting, Harris later told her that "he . . . saw some kid take off
in front of the truck between the two houses."
Cannon testified that Mike Fisher returned to the party around midnight.  Although
Cannon did not speak to him, he noticed that Fisher "was missing a tooth and that he was bleeding
a little bit off of his head."  Stephens testified that Fisher returned to her house at about 2:30 a.m. 
He "had blood running from his mouth and a couple of teeth missing."  When Stephens was asked
by defense counsel to relate a statement made to her by Fisher, the State's hearsay objection was
sustained by the court.  In an offer of proof outside the jury's presence, Stephens testified that Fisher
told her, "We wrecked the truck." 

Statements at scene
The first officer to arrive at the accident scene was Deputy Rex Campbell.  He found
Schlichting, Harris, and Origer standing by the truck.  Campbell asked them, "Who's my driver?" 
Schlichting and Harris pointed to Origer.  Campbell then asked Origer if he was the driver and
Origer replied that he was.  Based on Origer's demeanor and the odor of alcoholic beverage,
Campbell concluded that he was intoxicated.
Department of Public Safety Trooper Timothy Upright arrived at the scene soon after
Campbell and assumed responsibility for the investigation.  Upright asked Origer if he was the driver
of the truck and Origer again said that he was.  Origer then told the officer that "he was trying to
make his turn and he didn't make it.  You know, then he said he swerved and he then hit the pole." 
This description was consistent with the physical evidence.  The trooper administered field sobriety
tests, all of which indicated that Origer was intoxicated.  Campbell then arrested Origer, handcuffed
him, and advised him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).
In his first point of error, Origer urges that his statements to the officers at the scene
of the accident admitting that he had been driving were the inadmissible product of unwarned
custodial interrogation.  The same argument was made without success in State v. Stevenson, 958
S.W.2d 824 (Tex. Crim. App. 1997), a case involving similar facts.  Stevenson claimed that his wife
had been driving when their car collided with a stop sign.  Id. at 825.  The investigating officer
noticed that Stevenson's wife was injured in a manner consistent with her being the passenger and
became suspicious that Stevenson, who showed symptoms of intoxication, had been driving.  Id. 
Upon further inquiry by the officer, Stevenson admitted that he had been the driver.  Id.  Stevenson
sought to suppress this admission, arguing that it was the product of custodial interrogation because
he had become the focus of a DWI investigation by the officer.  Id. at 829.  The court of criminal
appeals disagreed, holding that the officer's change of focus from investigating the accident to
investigating a possible DWI did not cause the roadside encounter between the officer and Stevenson
to escalate into custodial interrogation.  Id.  
Similarly, we hold that Origer was not in custody when he was asked by officers
Campbell and Upright if he was the driver of the pickup truck involved in the accident.  That the
officers had reason to believe Origer was intoxicated, and thus had reason to believe the incident was
a possible DWI, did not make the encounter a custodial one.  Thus, his admissions to the officers at
the scene of the accident were not the product of custodial interrogation.  We also note that Origer
did not object when Upright later testified to Origer's description of the accident, in which Origer
indicated that he was driving.  Any error in the admission of evidence is waived if the same evidence
is admitted elsewhere without objection.  Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App.
1984).  Point of error one is overruled.

Statements at jail
Following his arrest, Origer was taken to the county jail where, after being booked,
he was taken to the intoxilyzer room, again advised of his Miranda rights, and asked to perform
various sobriety tests.  He was then given the administrative warning (DIC 24) and asked if he would
submit a breath sample for testing.  He replied, "Nah.  I'd rather call myself and get a lawyer."  After
Origer signed the form indicating that he refused to give a breath specimen, Upright conducted the
"standard DWI interview."  Once again, Origer admitted driving the pickup truck.
In point of error two, Origer asserts that he had invoked his right to counsel, that all
questioning should have ceased, and that any statements he made to Upright during the jail interview
should not have been admitted.  See Russell v. State, 727 S.W.2d 573, 575-76 (Tex. Crim. App.
1987); Ochoa v. State, 573 S.W.2d 796, 800-01 (Tex. Crim. App. 1978).  Origer did not object to
Upright's testimony on this basis, and he expressly stated that he had no objection when the
videotaped interview was played for the jury.  Point of error two was not preserved for review and
is therefore overruled.  Earhart v. State, 823 S.W.2d 607, 621 (Tex. Crim. App. 1991); Ethington
v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Tex. R. Evid. 103(a)(1).
By his third point of error, Origer urges that his waiver of rights in the interview room
was not knowing and voluntary because Upright gave him "confusing and inconsistent Miranda
warnings."  Appellant's brief contains no argument or authorities in support of this contention, but
merely urges that the asserted error was harmful.  See Tex. R. App. P. 38.1(h).  Not only is this point
inadequately briefed, but once again any error was waived when the videotaped interview was
admitted and played for the jury without objection.  Point of error three is overruled.

Defense testimony
In his fourth point of error, Origer contends the district court erred by excluding as
hearsay Stephens's testimony that Fisher told her, "We wrecked the truck."  He argues that this
statement was admissible both as a present sense impression and as an excited utterance.  Tex. R.
Evid. 803(1), (2).  Origer did not urge the admission of the statement as a present sense impression
and thus failed to preserve that ground for appeal.  Earhart, 823 S.W.2d at 621; Tex. R. Evid.
103(b); Tex. R. App. P. 33.1(a)(1)(A).
For an out-of-court statement to be admissible under the excited utterance exception,
the statement must be the product of a startling occurrence, the declarant must have been dominated
by the emotion, excitement, fear, or pain of the occurrence, and the statement must be related to the
circumstances of the startling occurrence.  Salley v. State, 25 S.W.3d 878, 880 (Tex. App.--Houston
[14th Dist.] 2000, no pet.).  That the statement is an answer to a question or that it was separated by
a period of time from the startling event are factors to be considered, but neither factor is dispositive. 
Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001).  The pivotal inquiry is whether the
declarant was still dominated by the emotions, excitement, fear, or pain of the event.  Id.; King v.
State, 953 S.W.2d 266, 269 (Tex. Crim. App. 1997).  We review the trial court's ruling for an abuse
of discretion, meaning that we will uphold the ruling if it is within the zone of reasonable
disagreement.  Salazar, 38 S.W.3d at153-54. 
Stephens testified at the offer of proof that Fisher was bleeding, his lip was swollen,
and he had two or three teeth missing.  She also said he "was shaken, nervous.  He was hurting,
naturally from the broken teeth."  When Stephens asked him what had happened, he said, "We
wrecked the truck."  Fisher made this statement about four hours after the accident, and after he had
returned to the party.  Viewing this and the other relevant circumstances in the light most favorable
to the court's ruling, we conclude that the trial court could reasonably conclude that Fisher was no
longer dominated by the emotions arising from the accident.  The decision not to admit his statement
to Stephens as an excited utterance was within the zone of reasonable disagreement.  Thus, the ruling
has not been shown to be an abuse of discretion.
Even if the exclusion of Fisher's statement was an abuse of discretion, the error did
not affect a substantial right.  See Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim. App. 2002); Tex.
R. Evid. 103(a).  The only issue in dispute at trial was whether Origer was driving the pickup truck
or was merely a passenger when it collided with the telephone pole.  The strongest evidence that
Origer was driving was his own statements to the police.  He was asked at least three times by two
different officers if he was the driver of the truck, and each time he said that he was.  In his jury
argument, defense counsel argued that Origer, in his intoxicated state, had been tricked or coerced
by the police into saying that he was the driver of the truck.  Because Origer's jail interview was
videotaped and shown to the jury, the jurors were able to judge for themselves the degree of Origer's
intoxication and the nature of the officer's questioning. (2)
There was no evidence directly contradicting Origer's admissions that he was driving. 
Fisher was seen driving the pickup truck with Origer as his passenger approximately one-half hour
before the accident, but this does not exclude the possibility that Origer and Fisher changed places
before the accident.  In fact, Origer told Trooper Upright that he was on his way home from a
neighborhood convenience store when the accident occurred; this intermediate stop would have
presented an opportunity for the men to change places and for Origer to begin driving before the
accident occurred.  While there was also testimony that someone was seen running from the accident
and that Fisher was later seen injured and bleeding, these facts merely support the conclusion that
Fisher was in the truck at the time of the accident, a fact the State did not deny.  The only other
evidence at all relevant to this issue was that Origer did not personally own a vehicle and rarely
drove.
Fisher told Stephens only that "we" had wrecked the truck.  The excluded statement
merely confirms that Fisher was in the truck at the time of the accident without shedding any
additional light on the critical issue of who was driving when the accident happened.  Under the
circumstances, we conclude that the exclusion of the excited utterance, if error, did not affect
Origer's substantial rights.  Point of error four is overruled.

Sufficiency of evidence
In his last point of error, Origer asserts that he is entitled to an acquittal because, if
his statements to the police had been suppressed and Fisher's statement to Stephens had been
admitted, no rational trier of fact would have convicted him.  When assessing the sufficiency of the
evidence to sustain a conviction, however, the reviewing court must consider all the evidence the
jury was permitted, rightly or wrongly, to consider.  Johnson v. State, 871 S.W.2d 183, 186 (Tex.
Crim. App. 1993).  Thus, we would consider Origer's statements to the police even if we had
sustained Origer's points of error complaining of the admission of those statements.
Viewing all the evidence before the jury in the light most favorable to the verdict, a
rational trier of fact could have found the essential elements of the offense beyond a reasonable
doubt.  See Jackson v. Virginia, 443 U.S. 307, 324 (1979); Griffin v. State, 614 S.W.2d 155, 158-59
(Tex. Crim. App. 1981).  Point of error five is overruled.
The judgment of conviction is affirmed.


				___________________________________________
				Bea Ann Smith, Justice
Before Justices Kidd, B. A. Smith and Yeakel
Affirmed
Filed:   November 7, 2002
Do Not Publish
1.        There is evidence that the truck was registered to a man with a Longview, Texas, address who
had no connection with these events.
2.        There is no suggestion that Origer deliberately lied to protect Fisher, who was a total stranger
to him so far as the record reflects.

