                                                                                          ACCEPTED
                                                                                      03-14-00560-CR
                                                                                              5974935
                                                                           THIRD COURT OF APPEALS
                                                                                      AUSTIN, TEXAS
                                                                                 7/8/2015 10:32:58 AM
                           No. 03-14-00560-CR                                       JEFFREY D. KYLE
                                                                                               CLERK




                                                                      FILED IN
                      In the Third Court of Appeals            3rd COURT OF APPEALS
                                                                   AUSTIN, TEXAS
                              Austin, Texas
                                                               7/8/2015 10:32:58 AM
                                                                 JEFFREY D. KYLE
                                                                       Clerk

                   CHRISTOPHER NEWBERRY,
                                            Appellant,

                                       v.

                       THE STATE OF TEXAS,
                                            Appellee.


               On appeal from the County Court-at-Law Number Five,
                                Travis County, Texas
                         Trial Cause No. C-1-CR-14-209349



                           STATE'S BRIEF


                                     DAVID A. ESCAMILLA
                                     TRAVIS COUNTY ATTORNEY


                                     GISELLE HORTON
                                     ASSISTANT TRAVIS COUNTY ATTORNEY
                                     State Bar Number 10018000
                                     Post Office Box 1748
                                     Austin, Texas 78767
                                     Telephone: (512)854-9415
                                     TCAppellate@traviscountytx.gov

July 8, 2015                         ATTORNEYS FOR THE STATE OF TEXAS



                      ORAL ARGUMENT IS NOT REQUESTED
                            TABLE OF CONTENTS


INDEX OF AUTHORITIES ............................................ 111


STATEMENT OF THE CASE ............................................        1

ISSUES PRESENTED .................................................        1

BACKGROUND ..................................................... 2


SUMMARY OF THE ARGUMENT ....................................... 4


ARGUMENT


     Reply Point One: The evidence is legally sufficient to sustain the
     judgment of conviction for driving while intoxicated .............. 5

     1.    Newberry's contentions ................................. 5

     2.    The standard of review .................................. 6

     3.    The evidence is legally sufficient to show that
           Newberry drove while intoxicated ........................ 7

     Reply Point Two: If the point is preserved, the trial court did
     not abuse its discretion in overruling Newberry's mistrial motion.. 8

     1.    Relevant facts .......................................... 8

     2.    Newberry's contentions ................................ 12




                                      i
     3.   General mistrial principles and the standard of review ..... 12

     4.   Newberry has forfeited appellate review .................. 14

     5.   The judgment is not subject to revision because a simple
          objection or an instruction to disregard could have prevented
          or cured the problem. . ................................. 15

PRAYER .........................................................      18

CERTIFICATE OF COMPLIANCE ....................................... 19


CERTIFICATE OF SERVICE ........................................... 19




                                  11
                         INDEX OF AUTHORITIES


Rule                                                               Page
TEX. R. APP. P. 33.1(a) ............................................. 15

Cases
Bledsoe v. State, 21 S.W.3d 615
       (Tex. App.- Tyler 2000, no pet.) .............................. 16
Griggs v. State, 213 S.W.3d 923
       (Tex. Crim. App. 2007) ....................................... 15
Jackson v. Virginia, 443 U.S. 307
       (1979) ...................................................... 6
Kuciemba v. State, 310 S.W.3d 460
       (Tex. Crim. App. 2010) ........................................ 7
Ladd v. State, 129 S.W.3d 126
       (Tex. Crim. App. 1999) .................................... 12, 15
Merritt v. State, 368 S.W.3d 516
       (Tex. Crim. App. 2012) ........................................ 6
Murray v. State, 457 S.W.3d 446
       (Tex. Crim. App. 2015) ........................................ 6
Ocon v. State, 284 S.W.3d 880
       (Tex. Crim. App. 2009) .................................... 13, 15
Ovalle v. State, 13 S.W.3d 774
       (Tex. Crim. App. 2000) ....................................... 15
Pierce v. State, 234 S.W.3d 265
       (Tex. App.- Waco 2007, pet. ref' d) ............................ 16
Sharper v. State, 22 S.W.3d 557
       (Tex. App.- Texarkana 2000, no pet.) .......................... 16
Sierra v. State, 280 S.W.3d 250
       (Tex. Crim. App. 2009) ........................................ 7
Simpson v. State, 119 S.W.3d 262
       (Tex. Crim. App. 2003) .................................... 13, 15


                                    iii
Wead v. State, 129 S.W.3d 126
     (Tex. Crim. App. 2004) ....................................... 13
Wood v. State, 18 S.W.3d 642
     (Tex. Crim. App. 2000) ....................................... 12
Young v. State, 137 S.W.3d 65
     (Tex. Crim. App. 2004) ................................. 13, 14, 15




                                   iv
                          STATEMENT OF THE CASE


      Newberry was charged by information with the Class B

misdemeanor of driving while intoxicated (DWI), alleged to have been

committed June 9, 2014. CR 5-6, 8. A jury found him guilty of the offense

on August 6, 2014. CR 36.

      On August 7, 2014, the trial court assessed punishment and

sentenced Newberry to 120 days' confinement in the Travis County Jail.

CR 39. Newberry gave written notice of appeal on August 28, 2014. CR 51,

52 [amended notice of appeal].

                             ISSUES PRESENTED


      Issue One: If the Court ignores (1) the eyewitness's identification of

Newberry as the driver in a nearby collision, and (2) Newberry's on-the-

scene admission to driving, is the evidence legally sufficient to sustain the

judgment for driving while intoxicated?

      Issue Two: Newberry testified that he was intoxicated when the

police found him, but that his co-worker had driven, not he. Intending to

impeach his credibility with a felony conviction, the prosecutor began by
                                       1
asking Newberry on cross-examination whether he was currently in jail (he

was) and whether he was incarcerated on a parole hold (he was not).

Newberry never objected or asked for a curative instruction. Instead, he

moved for a mistrial some time later. Was the trial court's denial of this

mistrial motion reversible error?

                                BACKGROUND

      Police received a suspicious-person call about a Jeep parked on the

sidewalk in front of the Summit assisted-living facility on Mesa Drive, in

Austin. 3 RR 23; 5 RR State's Exhibits #3, 4 & 6 [photos], State's Exhibit #5

[third 9-1-1 call]. The Jeep's driver was reportedly "out stumbling around."

5 RR State's Exhibit #5@ 8:30, 8:50. When police got there about twenty

minutes later, they found a Jeep parked halfway on the sidewalk. Inside

was a man asleep in the driver's seat, covered in sweat and drooling, with

the Jeep's keys in his lap. 3 RR 26. This was Newberry. 3 RR 79.

      After the police woke him up, Newberry "wasn't all there." 3 RR 27.

His speech was unintelligible. "It kind of came and went." His balance was

poor. 3 RR 27. Police saw two open beers in the Jeep: one in the center
                                       2
console, and another "in the rear portion of the center console, possibly on

the back floor." 3 RR 30. They also found three unopened beer cans in a

cooler. 3 RR 30; 5 RR State's Exhibit #7 [photograph]; 5 RR State's Exhibit

#8@ 18:45:10 [videotape]. Newberry smelled of alcohol but denied

drinking. 3 RR 38. He had watery, glassy eyes and very restricted pupils.

3 RR 38, 73. He told the officers that he had been driving, "heading into

Austin." 3 RR 77.

      Police began to suspect that this Jeep might have been the same one

that-according to two independent 9-1-1 callers' reports almost an hour

and a half earlier-had been driving "crazy" erratically and had collided

with a guardrail on FM 2222. Both callers reported that the Jeep had turned

off of 2222 and onto Mesa Drive; one caller related that the Jeep had turned

into the Summit assisted-living facility. 3 RR 28; 5 RR State's Exhibit #5.

One of these eyewitness/callers came to the scene and identified Newberry

as the driver who hit the guardrail. 3 RR 28. Consistent with the collision

reports, the Jeep's bumper had sustained a big dent. 5 RR State's Exhibit #6.



                                       3
      Field sobriety testing showed that Newberry was intoxicated. 3 RR

53. After arrest, Newberry at first agreed to give a breath specimen for

testing purposes at the jail, but later refused. 3 RR 55, 60.

                        SUMMARY OF THE ARGUMENT


      Summary of Reply Point One: Newberry has failed to view the

evidence as the standard of review requires. Two concerned eyewitnesses

called police to report an extremely erratic driver who had been swerving

all over the road and hitting the curb on FM 2222; the driver then collided

with a guardrail.

      About an hour and a half later, police responded to a suspicious-

person call and found a Jeep parked on the curb. The driver was asleep at

the wheel, with keys in his lap and beer in his car. He smelled of alcohol,

and showed typical signs of intoxication. He told police he had been

driving. One of these 9-1-1 callers came to the scene and identified

Newberry as the driver who had collided with the guardrail. Viewing this

evidence in the light most favorable to the verdict, any rational trier could

have found that Newberry drove while intoxicated.
                                        4
      Summary of Reply Point Two: Because defense counsel withdrew

the mistrial motion relating to the "parole hold," only the mistrial motion

relating to Newberry's incarceration is at issue. Newberry forfeited his

appellate complaint, because his mistrial motion was untimely.

      Furthermore, appellate courts will not reverse when lesser remedies

such as an objection or an instruction could have cured the error. The

complained-of testimony easily could have been prevented by timely

objection. And an instruction to disregard could have "cured" it because

the incarceration question and response does not fall within the narrow

class of highly prejudicial errors for which mistrials are reserved. The trial

court therefore did not abuse its discretion in refusing to declare a mistrial.

                                 ARGUMENT


      Reply Point One: The evidence is legally sufficient to sustain the
      judgment of conviction for driving while intoxicated.

1.    Newberry's contentions.

      In his first point, Newberry contends that the evidence of driving

while intoxicated is insufficient once the Court ignores two key items of


                                       5
evidence: (1) an officer's testimony that a 9-1-1 caller identified Newberry

as the driver who collided with the guardrail, and (2) Newberry's

admission at the scene that he had been driving. Newberry's Brief, pp. 25,

28-33. Alternatively, Newberry contends that, even if the evidence showed

him driving, the State established no temporal link between that driving

and his intoxication at the scene. Newberry's Brief, p. 38.

      These contentions misapply the standard of review.

2.    The standard of review.

      A legal-sufficiency challenge asks whether, viewing the evidence in

the light most favorable to the verdict, 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); Murray v. State, 457 S.W.3d 446,

448 (Tex. Crim. App. 2015). The reviewing court presumes that the jury

resolved all conflicts in favor of the verdict and defers to that

determination. Jackson, 443 U.S. at 326; Merritt v. State, 368 S.W.3d 516, 525

(Tex. Crim. App. 2012) ("The jury is the sole judge of credibility and weight

to be attached to the testimony of witnesses").
                                       6
3.    The evidence is legally sufficient to show that Newberry drove
      while intoxicated.

      Two 9-1-1 callers saw Newberry crash into a guardrail after

repeatedly swerving and hitting the curb. 5 RR State's Exhibit #5. The

callers stated that the Jeep's driver was "wasted," that he "must be super

drunk," and that he was" going to kill somebody." 5 RR State's Exhibit #5

@ 1:15,3:50. One of the 9-1-1 callers identified him at the scene as the driver

in the collision. 3 RR 24-28, 101; 5 RR State's Exhibit #8@ 18:19:30 [DVD].

The police found a big dent in the Jeep's bumper, which was consistent

with a collision with the guardrail. 3 RR 32-33; 5 RR State's Exhibit #6. The

collision with the guardrail shows driving while intoxicated. See Kuciemba

v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010); Sierra v. State, 280

S.W.3d 250, 256 (Tex. Crim. App. 2009); Thompson v. State, No. 03-11-00255-

CR, 2012 Tex. App. LEXIS 6714, at *22-23 (Tex. App.-Austin Aug. 8, 2012,

no pet.) (mem. op., not designated for publication) (evidence that

defendant did not have normal use of mental or physical faculties included

circumstances of collision and reckless driving observed by witnesses).


                                       7
      The manner and place of the Jeep's coming to rest-tires up on the

curb, in front of the assisted-living facility-show that Newberry drove

while intoxicated. The fact that he stumbled around outside the assisted-

living facility, then fell asleep behind the wheel, keys in his lap, also show

driving while intoxicated. The highly intoxicated Newberry admitted to

police that he had been driving. From this any rational trier could have

found beyond a reasonable doubt that Newberry drove while intoxicated.

      Reply Point Two: If the point is preserved, the trial court did not
      abuse its discretion in overruling Newberry's mistrial motion.

1.    Relevant facts.

      Newberry took the stand at trial, admitted drinking, but denied

driving. He testified that his illegal alien co-worker, Juan, was the driver.

Juan, he related, stopped in front of the assisted-living facility because he

knew someone there. The drunk stumbling about who was reported in the

suspicious-person call was Juan, not Newberry. Newberry moved over to

the driver's seat to roll down a difficult window, then fell asleep; Juan was




                                       8
gone when he woke up. The dent on the Jeep's bumper happened long

ago. 3 RR 73-83.

      Intending to attack the credibility of this testimony, the prosecutor

led off his cross-examination by asking Newberry if he had been in jail

since this arrest.

      PROSECUTOR:             [L ]et' s talk about what happened since
                              this arrest. Since this arrest, you've been
                              in jail haven't you?

      NEWBERRY:               Yes, sir.

      PROSECUTOR:             Okay, and that's been on a parole hold,
                              correct?

      NEWBERRY:               That's been for this.

      DEFENSE COUNSEL:        Your Honor-

      THE COURT:              Please approach.

3RR86.

      It was only after some discussion at the bench that defense counsel

moved for a mistrial because of the incarceration question. 3 RR 89. The

trial court did not rule on the motion immediately, but wanted to consider


                                          9
further testimony. 3 RR 90. On voir dire examination, Newberry testified

that he is currently on parole for two felonies-bribery and burglary-and

that a DWI conviction could jeopardize his parole status. 3 RR 91-92. At

the conclusion of this brief voir dire examination, the trial court told the

prosecutor,

      You can only impeach him with the actual felony conviction for
      bribery, which is a crime of moral turpitude. So I can allow the
      testimony that he has been convicted of bribery, but the whole
      line of questioning about him being on parole, and that being
      some sort of motivation to lie, I don't think you can-I'm not
      going to allow that.

3 RR 92. Defense counsel then moved for a mistrial on grounds that the

jury had heard that Newberry was on parole. 3 RR 93.

      As soon as the court denied the motions, defense counsel retracted

her mistrial motion regarding the "parole hold," telling the trial court: "If

you're going to . . . say the bribery is allowable, then . . . the fact that

he's not been revoked from parole and he's been successful for three years

out in the world, I think is relevant." 3 RR 95. The trial court ascertained

that counsel had withdrawn the "parole" mistrial motion and now was


                                       10
concerned only with the first question and answer about Newberry's

incarceration. 3 RR 95. Defense counsel proposed to explain to the jury

why Newberry was currently in jail, by putting on testimony about the

nature of parole "and how, by virtue of this very charge, that's what's

holding him." 3 RR 95-96. The trial court did not "want to go down that

road" because it was time-consuming and irrelevant. 3 RR 96, 97-98. After

a brief recess, the judge told the parties she was denying the mistrial

motion, and would instruct the jury to disregard the testimony about

Newberry's current incarceration. 3 RR 97.

      When the jurors came back in, the judge instructed them to

"disregard the last question and response," 3 RR 99, about whether

Newberry was being held in jail on a parole violation. Defense counsel

never objected to any of the complained-of questioning, never requested

any sort of instruction to disregard, and did not point out that the

instruction given was not what the trial court had intended.

     When the prosecutor resumed his cross-examination, he established

Newberry's felony conviction for bribery. 3 RR 99-100.
                                      11
2.    Newberry's contentions.

      Newberry's second point contends that the trial court erred

reversibly when it denied his mistrial motion after the prosecution

improperly elicited that he was in jail and on parole at the time of trial.

Newberry's Brief, pp. 40, 49. He asserts that the complained-of testimony

violated his rights and operated to deny him a fair trial. Newberry's Brief,

pp. 49-51. Newberry likens his case to that of a defendant involuntarily

dressed in jail attire during trial. Newberry's Brief, p. 50.

3.    General mistrial principles and the standard of review.

      Declaring a mistrial is appropriate only for "highly prejudicial and

incurable errors." Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000).

Only in extreme circumstances, where the prejudice is incurable-when

error is so prejudicial that expenditure of further time and expense would

be wasteful and futile-should proceedings be halted and a mistrial

declared. Ladd v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 1999).

Whether the error rises to this level must be determined on the case's

particular facts. Id.
                                       12
      Denial of a mistrial motion is reviewed under the abuse of discretion

standard. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004);

Simpson v. State, 119 S.W.3d 262,272 (Tex. Crim. App. 2003). An appellate

court reviews the evidence in the light most favorable to the trial court's

ruling and considers only those arguments before the trial court at the time

of the ruling. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009);

Wead, 129 S.W.3d at 129.

      Newberry did not object or ask for a curative instruction before

moving for a mistrial. When a party's first action is to move for mistrial,

appellate review is limited to asking whether the trial court erred in not

taking the most serious action of ending the trial. If an event could have

been prevented by timely objection or cured by a jury instruction to

disregard, but the appellant did not request these lesser remedies, the

appellate court will not reverse. Ocon, 284 S.W.3d at 885; Young v. State, 137

S.W.3d 65, 70 (Tex. Crim. App. 2004); see also Rice v. State, No. 03-07-00446-

CR, 2009 Tex. App. LEXIS 2062, at *16 (Tex. App.- Austin March 26, 2009,

no pet.) (mem. op., not designated for publication).
                                      13
4.    Newberry has forfeited appellate review.

      Defense counsel withdrew her mistrial motion as to the question and

response about Newberry's parole hold. 3 RR 95. Thus, only the mistrial-

worthiness of the incarceration question and response is properly before

the Court.

      The potential for error became apparent as soon as the prosecutor

asked Newberry, "Since this arrest, you've been in jail, haven't you?" 3 RR

86. Surely defense counsel knew the answer to this question. An objection

therefore would have prevented the prejudicial event's occurrence.

      But counsel did nothing until well after the trial court on its own

initiative called the parties to the bench and discussed the matter. If a party

delays his mistrial motion, and by failing to object allows for the

introduction of further objectionable testimony and greater accumulation

of harm, the party may no more rely on the untimely mistrial motion than

on an untimely objection. Young, 137 S.W.3d at 70. Because the mistrial

motion was untimely, Newberry's second point is unpreserved for



                                      14
appellate review. TEX. R. APP. P. 33.1(a); Griggs v. State, 213 S.W.3d 923, 927

(Tex. Crim. App. 2007); Young, 137 S.W.3d at 70.

5.    The judgment is not subject to revision because a simple objection
      or an instruction to disregard could have prevented or cured the
      problem.

      When the movant does not first request a lesser remedy, the court of

appeals will not reverse the judgment if the problem could have been

cured by the less drastic alternative. Ocon, 284 S.W.3d at 885.

      As discussed earlier, a simple objection would have obviated the

problem altogether. Furthermore, any prejudice could have been cured by

an instruction to disregard.

      Asking an improper question will seldom call for a mistrial. Ladd, 3

S.W.3d at 567. And, ordinarily, a prompt instruction to disregard will cure

the error associated with an improper question and response. Ovalle v.

State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000); see also Simpson, 119

S.W.3d at 272. A trial court does not abuse its discretion if, at the time of

the motion, the improper question's effect could have been cured by jury

instruction. Ocon, 284 S.W.3d at 886-87; Young, 137 S.W.3d at 70.
                                       15
      A question revealing that a defendant is in jail at the time of trial is

often improper, but courts have consistently held that it is not incurably

prejudicial. See Pierce v. State, 234 S.W.3d 265, 268 (Tex. App.- Waco 2007,

pet. ref' d) (instruction by the trial court cured any prejudice caused by

witness testimony exposing defendant's incarceration); see also Bledsoe v.

State, 21 S.W.3d 615, 624 (Tex. App.- Tyler 2000, no pet.); Sharper v. State,

22 S.W.3d 557,559 (Tex. App.- Texarkana 2000, no pet.).

      In Sharper, the State asked a witness if he was with Sharper in "hold-

over the past two or three days." 22 S.W.3d at 558. The witness confirmed

that Sharper was in jail at the time of trial. Id. After acknowledging that the

prosecutor's question was improper, the court instructed the jury to

disregard the testimony, and denied Sharper's motion for mistrial. Id.

      Distinguishing the case from one in which the defendant appeared

before the jury in jail attire, the Sharper Court affirmed, holding that the

error was cured by the instruction to disregard. Sharper, 22 S.W.3d at 559.

"The matter was raised one time, and it does not appear that it was

emphasized or even repeated at any other point in the proceeding." Id.
                                       16
      Moreover, the brief statement that Newberry was incarcerated does

not equate to the "recurring impression created when a defendant appears

throughout trial in handcuffs, shackles or jail clothing." Hamilton v. State,

No. 14-08-00175-CR, 2010 Tex. App. LEXIS 480, at *7 (Tex. App.-Houston

[14th Dist.] Jan. 28, 2010, no pet.) (mem. op., not designated for

publication); see also Butler v. State, No. 14-11-01001-CR, 2012 Tex. App.

LEXIS 8132 at *6-7 (Tex. App.-Houston [14th Dist.] September 27, 2012,

no pet.) (mem. op., not designated for publication).

      As in Sharper, the improper questioning was not of such a character

that a curative instruction would have been ineffective in removing any

prejudice. Indeed, defense counsel could not have believed the error to

have been incurably prejudicial when she herself proposed to adduce

testimony educating the jury about Newberry's sentence on the bribery

conviction, involving prison and release on parole. 3 RR 96. Thus, the

denial of Newberry's mistrial motion was within the zone of reasonable

disagreement, and the trial court did not abuse its discretion in failing to

take the extreme action of ending the trial.
                                       17
                                  PRAYER

      For these reasons, the Travis County Attorney asks this Court to

overrule Newberry's points of error and affirm the judgment of conviction

for driving while intoxicated.

                                   Respectfully submitted,

                                   DAVID A. ESCAMILLA
                                  TRAVIS COUNTY ATTORNEY




                                   Assi an ravis County Attorney
                                         ar Number 10018000

                                  Austin, Texas 78767
                                  Telephone: (512)854-9415
                                  TCA ppellate@traviscountytx.gov

                                  ATTORNEYS FOR THE STATE OF TEXAS




                                    18
                       CERTIFICATE OF COMPLIANCE


     Relying on Corel WordPerfect's word-count function, I certify that

this document complies with the word-count limitations of TEX. R. APP. P.

9.4. The document contains 3687 words.




                          CERTIFICATE OF SERVICE


     I certify that I have sent a complete and legible copy of this State's

brief via electronic transmission, to Mr. Newberry's attorney, Mr.

Christopher Morgan, at chrismorganlaw@cs.com, on or efore July 8, 2015.




                                               ravis County Attorney




                                     19
