Hoff v. State

SHERRIE HOFF, Appellant v. THE STATE OF TEXAS, Appellee

NO. 09-15-00188-CR

Court of Appeals Ninth District of Texas at Beaumont

Submitted on July 14, 2016

October 19, 2016

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 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 operatoranswered. 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?

[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?

[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?

[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.

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,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 casesbefore 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...