Hennessy v. State

268 S.W.3d 153

Thomasine Marie HENNESSY, Appellant, v. The STATE of Texas, Appellee.

No. 10-07-00022-CR.

Court of Appeals of Texas, Waco.

August 27, 2008.

Rehearing Overruled September 16, 2008.

John T. Quinn, Bryan, TX, for Appellant.

Bill R. Turner, Brazos County Dist. Atty., Bryan, TX, for Appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

BILL VANCE, Justice.

A jury found Appellant Thomasine Marie Hennessy guilty of felony driving while intoxicated (third offense) and assessed an eight-year prison sentence. In her appeal, Hennessy complains in three issues of the legal and factual sufficiency of the evidence and the denial of her suppression motion concerning the admissibility of her pre-arrest silence. We will affirm.

Sufficiency of the Evidence

Hennessy's first and second issues challenge the legal and factual sufficiency of the evidence supporting her DWI conviction. When reviewing a challenge to the legal sufficiency of the evidence to establish the elements of a penal offense, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any 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, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our duty is to determine if the finding of the trier of fact is rational by viewing all of the evidence admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex.Crim.App. 1992). In doing so, any inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000).

In a factual sufficiency review, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the factfinder's verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim.App.2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). "The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact." Johnson, 23 S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996)). The appellate court "does not indulge in inferences or confine its view to evidence favoring one side of the case. Rather, it looks at all the evidence on both sides and then makes a predominantly intuitive judgment. . . ." Id. (quoting William Powers and Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 TEXAS L.REV. 515, 519 (1991)). The nature of a factual sufficiency review authorizes an appellate court, although to a very limited degree, to act as the so-called "thirteenth juror" to review the factfinder's weighing of the evidence and to disagree with the factfinder's determination. Watson, 204 S.W.3d at 416-17.

A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. TEX. PEN.CODE ANN. § 49.04 (Vernon 2003). "Intoxicated" means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body. Id. § 49.01(2)(a).

College Station police officer Joseph Benningfield testified that on the evening in question, around 11:20 p.m., he observed Hennessy hit and drive up on and over the curb for ten to fifteen yards before pulling back onto the street, and as he followed her, she drove on the yellow lane dividing line with her two left tires and made a wide right turn. He stopped her and, while initially questioning her, observed a minor alcohol odor on her breath and "bloodshot, very glassy" eyes. She told him that she had had a couple of beers to drink but would not answer further questions about her drinking or where she had been.

The officer asked her to get out of her car to do field sobriety tests, and Hennessy told him to "just take [her] in." But she got out and as she stepped over to the front of the patrol car, as requested, she oddly shuffled sideways while looking at Benningfield. Hennessy refused to do the "walk-and-turn" and "one-leg-stand" tests, claiming a lack of coordination, but she did do the horizontal gaze nystagmus (HGN) test. The videotape of the stop shows Hennessy taking a misstep and slightly stumbling upon Benningfield's request that she move over a little to start the HGN test. Benningfield said that while doing the HGN test, Hennessy had a "significant swing" and was unsteady, and she showed all of the six clues of impairment on the HGN test.

Benningfield next had Hennessy do the Rhomberg test, in which she looked straight up and with her eyes closed estimated the passage of thirty seconds. Her time estimation was close, but she had a "significant" three-inch sway from front to back (noticeable on the videotape), which Benningfield said was an indication of intoxication. When Hennessy refused to answer more questions about where she was coming from and how much she had had to drink, he arrested her for driving while intoxicated and took her to the police station, where she refused to provide a breath or blood specimen after being advised of her rights thereto.

After being given her statutory and Miranda warnings, Hennessy answered some of the officer's questions, stating that she was driving home, had last eaten at 7:00 p.m., that she had drank Budweiser beer but did not know how much or when her last drink was, that she was not ill, injured, or on medication, and that she had napped that afternoon. After the videotape was shown, Benningfield testified that, based on his observations, Hennessy was intoxicated and had lost the normal use of her physical and mental faculties due to alcohol. Hennessy's stipulation to her two prior DWI convictions was read into evidence.

On cross-examination, Benningfield admitted that Hennessy did not display some of the signs of intoxication (e.g., her speech was not slurred and she estimated time on the Rhomberg test well) and that her driving was not necessarily indicative of intoxication. This testimony is the crux of Hennessy's insufficiency complaints. But despite this alleged absence of some evidence of intoxication, viewing all the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found beyond a reasonable doubt that Hennessy was guilty of driving while intoxicated. And considering all of the evidence in a neutral light, we find that the jury was justified in finding Hennessy guilty. We overrule her first and second issues.

Pre-arrest Silence

Hennessy's third issue asserts that the trial court erred in admitting evidence of her pre-arrest silence. The trial court denied her pretrial motion to suppress. We review a trial court's denial of a motion to suppress under the well-established bifurcated standard of review. See Gentry v. State, 259 S.W.3d 272, at 273 (Tex.App.-Waco 2008, no pet. h.).

Benningfield pulled over Hennessy after observing her hit and drive up on the curb for ten to fifteen yards before pulling back onto the street, drive on the yellow lane dividing line with her two left tires, and then make a wide right turn. The stop, Benningfield's conversations with Hennessy, and her performance of field sobriety tests were videotaped, and the trial court reviewed the videotape, as have we.

Early in their encounter—beginning before she even got out of her car—and before her arrest, Hennessy would not answer some of Benningfield's questions about where she had been and how much she had to drink, saying that she really didn't want to say anything, that she didn't want to incriminate herself, and that she wanted a lawyer. Hennessy moved to suppress her pre-arrest and pre-Miranda silence. The State agreed to redact the portion of the videotape after Hennessy requested a lawyer. The trial court ruled that the remainder of the videotape—including her several refusals to answer questions—was admissible.

Hennessy argues that evidence of her invocation of her constitutional right to remain silent and to not incriminate herself is inadmissible. See Hardie v. State, 807 S.W.2d 319, 322 (Tex.Crim.App.1991). She contends that she was effectively in custody for Fifth Amendment and Miranda purposes.

"There are three recognized categories of interaction between the police and citizens: encounters, investigative detentions and arrests." State v. Rudd, 255 S.W.3d 293, 298 (Tex.App.-Waco 2008, pet. ref'd). Benningfield testified that he had stopped Hennessy to investigate his suspicion that she was driving while intoxicated and that she was not free to leave until he had completed his investigation and traffic stop. Under nearly identical facts, the Fort Worth Court, primarily relying on Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), and State v. Stevenson, 958 S.W.2d 824, 827 (Tex.Crim.App.1997), recently held that the driver's statements to the officer were the result of an investigative detention, not a custodial interrogation. See Arthur v. State, 216 S.W.3d 50, 56-58 (Tex.App.-Fort Worth 2007, no pet.).

A stop is deemed an investigative detention when a police officer detains a person reasonably suspected of criminal activity to determine his identity or to momentarily maintain the status quo to garner more information. Hoag v. State, 728 S.W.2d 375, 380 (Tex.Crim.App.1987). An investigative detention must last no longer than necessary to effectuate the purpose of the stop and must involve actual investigation. Akins v. State, 202 S.W.3d 879, 885 (Tex.App.-Fort Worth 2006, pet. ref'd). An arrest occurs when a person's liberty of movement is...