Jason Jeffrey Olson v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-03-00152-CR ______________________________ JASON OLSON, Appellant  V.  THE STATE OF TEXAS, Appellee                                               On Appeal from the County Criminal Court 5 Dallas County, Texas Trial Court No. MB01-20542-F                                                  Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION           Jason Olson appeals from his conviction by a jury for driving while intoxicated. The trial court assessed punishment at 120 days in jail, probated for twenty-four months, and an $800.00 fine. Olson contends the court erroneously included a definition of "normal use" (of his faculties) in the jury charge over his objection and erred by failing to grant his motion to quash and to require the State to elect the acts on which it relied for conviction—i.e., loss of his faculties or by having an alcohol concentration of .08 or greater.           The evidence shows that Olson was stopped after being observed running a red light. The arresting officer testified that Olson exhibited numerous signs of intoxication, that his eyes were glassy and bloodshot, that his speech was slurred, and that there was a strong smell of alcohol on his breath. Olson admitted to the officer he had been drinking. Olson failed field sobriety tests and was arrested. An intoxylizer test at the police station showed an alcohol concentration level of at least .199.           On appeal, Olson contends the trial court committed reversible error by instructing the jury with a definition of "normal use." This is in connection with the portion of the application paragraph in which the court instructed the jury it could not convict unless it found beyond a reasonable doubt he "did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol, . . . ." The term "normal use" is not defined by statute.           Counsel objected to the use of the definition. The standard of review for errors in the jury charge depends on whether the defendant properly objected. Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g); Gornick v. State, 947 S.W.2d 678, 680 (Tex. App.—Texarkana 1997, no pet.). If a proper objection was raised, reversal is required if the error is "calculated to injure the rights of defendant." Almanza, 686 S.W.2d at 171. In other words, an error that has been properly preserved is reversible unless it is harmless. Id.           We first look to see if the court erred by giving the instruction. Although a term need not be defined in a charge if not statutorily defined, Martinez v. State, 924 S.W.2d 693, 698 (Tex. Crim. App. 1996), other appellate courts have (if not approving such a definition) found this instruction not to constitute reversible error. In Ford v. State, No. 05-02-00065-CR, 2003 Westlaw 176355, at *3 (Tex. App.—Dallas Jan. 28, 2003, pet. ref'd), and in Davy v. State, 67 S.W.3d 382, 394 (Tex. App.—Waco 2001, no pet.), the same instruction appears as the one given in this case. "'Normal Use' as used herein means the manner in which an average non-intoxicated person would be able to use his or her mental or physical faculties." Olson argues that the definition in those cases is confusing, based on the reasoning set out in Murphy v. State, 44 S.W.3d 656 (Tex. App.—Austin 2001, no pet.). However, in Murphy, a much more lengthy instruction was given that the court found to be confusing, misleading, and also a misstatement of the law. Id. at 664.           Even in Davy, the Dallas court recognized that the short definition did not take the defendant's evidence (of problems that might impact his ability to use his "mental or physical faculties" as well as the "average non-intoxicated person") into account and did not rest its eventual affirmance on the propriety of the definition, but instead on its review of the charge as a whole, concluding that the later instruction on intoxication only allowed the jury to convict if it found he did not have the normal use of his mental or physical faculties by reason of the introduction of the intoxicating agent.           We find this reasoning persuasive. We will not carte blanche approve the use of this definition, but in this case, there is no indication of any other reason for Olson's poor performance, and the definition is therefore not misleading. Further, as in Davy, the application paragraph allows the jury to convict (in this context) only if the jury found Olson did not have the normal use of his faculties by reason of the introduction of alcohol (as opposed to some other reason). Accordingly, in this instance, we find no error, and even if the definition were error, in light of the charge as a whole, any error was harmless.           Olson next contends the trial court erred by failing to require the State to elect which act on which it was relying for its prosecution. The indictment alleged both definitions of proving intoxication—lack of normal use of faculties and alcoholic concentration of .08 or more. Olson filed a motion to quash in which he also asked the court to require the State to elect which manner and means of committing the offense on which it was relying. Olson then reiterated his request at the close of testimony.           If a statute provides more than one way for a defendant to commit the act or omission, then on timely request the State must allege the manner and means it seeks to establish, either separately or in some disjunctive combination. Garcia v. State, 747 S.W.2d 379, 380–81 (Tex. Crim. App. 1988). In Solis v. State, 787 S.W.2d 388, 391 (Tex. Crim. App. 1990), the court held: Because the methods of proving intoxication by alcohol are set out statutorily and do not depend on any conduct committed by a defendant, other than introduction of alcohol into the body--which was already alleged, the State need not specify in the charging instrument whether it will use loss of faculties or alcohol content to prove the offense. Thus, the definition of intoxication need not be further alleged in the charging instrument. In this case, the State alleged both definitions of intoxication in the disjunctive. Since the State is not required to specify which definition it intends to prove, alleging both possible ways to prove intoxication was proper. State v. Winskey, 790 S.W.2d 641, 642 (Tex. Crim. App. 1990); Morris v. State, 89 S.W.3d 146, 150 (Tex. App.—Corpus Christi 2002, no pet.).           When a statute sets out more than one way that an offense can be committed, each of which is based on the same definition, is punishable in the same manner, and is not repugnant to each other, the various methods of commission are not distinct offenses, may be charged in the same indictment, and thus the State need not elect between the various theories alleged, the jury may consider all theories and return a general verdict of guilty. See Jurek v. State, 522 S.W.2d 934, 941 (Tex. Crim. App. 1975); Fitts v. State, 982 S.W.2d 175, 179 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd). The contention of error is overruled.           We affirm the judgment of the trial court.                                                                             Jack Carter                                                                            Justice Date Submitted:      April 27, 2004 Date Decided:         April 28, 2004 Do Not Publish LsdException Locked="false" Priority="61" SemiHidden="false" UnhideWhenUsed="false" Name="Light List Accent 5"/>          In The Court of Appeals                        Sixth Appellate District of Texas at Texarkana                                                 ______________________________                                                              No. 06-11-00002-CR                                                ______________________________                             ANTHONY GENE HARRINGTON, Appellant                                                                 V.                                      THE STATE OF TEXAS, Appellee                                                                                                                                               On Appeal from the 8th Judicial District Court                                                           Hopkins County, Texas                                                          Trial Court No. 0719176                                                                                                                                                Before Morriss, C.J., Carter and Moseley, JJ.                                        Memorandum Opinion by Chief Justice Morriss                                                      MEMORANDUM OPINION             After pleading “guilty” to the offense of possession of a controlled substance,[1] Anthony Gene Harrington was sentenced to ten years’ deferred adjudication community supervision. Approximately two years later, the State moved to proceed with adjudication of guilt, alleging Harrington violated the terms of his community supervision by committing the offense of forgery and in failing to comply with program rules and to successfully complete his term of confinement and treatment in a substance abuse felony punishment facility (SAFPF). Harrington complains of the judgment adjudicating his guilt. We affirm the judgment of the trial court because (1) the evidence supports a finding that Harrington committed forgery, (2) the evidence supports a finding that Harrington failed to complete his term in the SAFPF, and (3) no Confrontation Clause claim was preserved. (1)       The Evidence Supports a Finding that Harrington Committed Forgery             Harrington initially complains the evidence was legally insufficient to prove he violated his community supervision by committing another offense and by failing to complete his period of confinement and treatment in a SAFPF. The record demonstrates otherwise.            Because a revocation hearing is unique, and because the trial court has broad discretion in the proceedings, the general standards for reviewing evidentiary sufficiency do not apply. Miles v. State, 343 S.W.3d 908, 913 (Tex. App.—Fort Worth 2011, no pet.) (given unique nature of revocation proceeding, evidentiary sufficiency challenges on appeal do not apply to trial court’s decision to revoke community supervision); Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.—Texarkana 2003, pet. ref’d). We review a decision to adjudicate guilt “in the same manner” as we review a decision to revoke community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 2011). The trial court’s decision to revoke community supervision is reviewed for an abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); In re T.R.S., 115 S.W.3d 318, 320 (Tex. App.—Texarkana 2003, no pet.). In order to revoke community supervision, the State must prove by a preponderance of the evidence every element of at least one ground for revocation. T.R.S., 115 S.W.3d at 321. If the greater weight of the credible evidence creates a reasonable belief a defendant has violated a condition of his or her community supervision, a revocation order is not an abuse of discretion and must be upheld. Rickels, 202 S.W.3d at 763–64; T.R.S., 115 S.W.3d at 320–21.            Harrington argues there is no rational justification for finding him guilty of forgery beyond a reasonable doubt. The standard in a revocation hearing is not guilt beyond a reasonable doubt. Rather, the standard, as discussed above, is proof of each element of at least one ground asserted for revocation by a preponderance of the evidence. Moore v. State, 11 S.W.3d 495, 498 (Tex. App.—Houston [14th Dist.] 2000, no pet.). A single violation is sufficient to support revocation. O’Neal v. State, 623 S.W.2d 660, 661 (Tex. Crim. App. 1981).            Here, the motion to proceed to adjudication alleged Harrington committed the new offense of forgery March 26, 2010, when Harrington forged a signature on a check that was not his.  To sustain a finding of forgery, the State had to prove that Harrington forged[2] checks with the intent to defraud another. Tex. Penal Code Ann. § 32.21(b) (West 2011).            At trial, Nona Johnson testified that she and Harrington lived together for the past two years, but were separated in April 2010. During that month, Harrington wrote six separate checks on Johnson’s checking account, totaling in excess of $500.00. Johnson testified that she is familiar with Harrington’s handwriting and recognizes his signature on the checks. Harrington did not have permission to draw the checks on Johnson’s bank account. On discovery of these checks in her bank statement, Johnson confronted Harrington, who told Johnson he would reimburse her for the checks. After affording Harrington a reasonable opportunity to replace the withdrawn funds, Johnson made a police report and executed a forgery affidavit.            Because the trial court was the sole trier of the facts and credibility, it was free to believe Johnson’s uncontroverted testimony. See T.R.S., 115 S.W.3d at 321. Accordingly, the evidence was sufficient to prove each element of forgery, as alleged, by a preponderance of the evidence. See Diggs v. State, 928 S.W.2d 756, 758 (Tex. App.—Houston [14th Dist.] 1996, pet. dism’d) (wife forged check on husband’s account when couple was separated, conviction affirmed). (2)       The Evidence Supports a Finding that Evans Failed to Complete His Term in the SAFPF             The terms of Harrington’s community supervision included the requirement that he “successfully complete a term of confinement and treatment in a substance abuse felony treatment facility (SAFPF) under this section, abiding by all rules and regulations of said program for a term of not less than 90 days or more than 1 year.” The motion to proceed to adjudication alleged Harrington failed to comply with program rules and to successfully complete his term of confinement and treatment in the SAFPF.            Crystal Fetting, Harrington’s substance abuse counselor at the SAFPF, testified that the facility has a zero tolerance policy for violence and for threats of violence. While there, Harrington became angry with another inmate and lunged at the inmate with his fists balled. This incident was witnessed by a SAFPF staff member, as well as by other inmates. As a result of this aggressive behavior, Harrington was discharged from the SAFPF, and therefore failed to successfully complete his treatment there.            Harrington’s account of these events does not include any threat of violence toward the inmate. Harrington concedes he was angry with the inmate and “walked toward” him. He did not, however, physically threaten violence. In a revocation hearing, the trial court is the sole trier of facts and determines the credibility of the witnesses and the weight to be given to the testimony. T.R.S., 115 S.W.3d at 321. The trial court may accept or reject any or all of a witness’ testimony. Id. This evidence could have led the trial court to conclude by a preponderance of the evidence that Harrington failed to complete his term in the SAFPF due to Harrington’s violation of rules against aggression.            We conclude that the greater weight of the credible evidence, when reviewed in a light most favorable to the ruling, created a reasonable belief that Harrington violated at least one condition of community supervision. The trial court, therefore, did not abuse its discretion in proceeding to adjudication of guilt and sentencing. Pierce, 113 S.W.3d at 436. (3)       No Confrontation Clause Claim Was Preserved             Alicia Bowden testified that she is Fetting’s supervisor at the SAFPF in Winnsboro. Bowden’s testimony centered on Harrington’s noncompliance with the facility rules that prohibit even threats of aggressive behavior. During the course of her testimony, Bowden acknowledged the presence of witnesses to Harrington’s alleged aggressive behavior. On appeal, Harrington claims he was deprived of his rights under Articles 1.05[3] and 1.25[4] of the Texas Code of Criminal Procedure because the witnesses to his alleged aggressive behavior did not testify at trial, and were thus not subject to cross-examination. See Tex. Code Crim. Proc. Ann. arts. 1.05, 1.25 (West 2005).            Harrington’s Confrontation Clause complaints[5] were not raised to the trial court. No objection was made to the failure to call witnesses to the incident of alleged aggressive behavior. Further, no objection was made to Bowden’s or Fetting’s testimony regarding the alleged aggressive behavior. “The purpose of requiring the objection is to give to the trial court or the opposing party the opportunity to correct the error or remove the basis for the objection.” Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000). Harrington never complained to the trial court that he was deprived of his right to confront the witnesses against him. Confrontation Clause complaints are waived if they are not voiced at trial. Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004) (trial objection on hearsay grounds failed to preserve error on Confrontation Clause grounds); Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000). Because error was not preserved, we need not decide Harrington’s Confrontation Clause complaints.[6]            We affirm the judgment of the trial court.                                                                                               Josh R. Morriss, III                                                                                   Chief Justice  Date Submitted:         November 14, 2011 Date Decided:            December 8, 2011  Do Not Publish  [1]Tex. Health & Safety Code Ann. § 481.115(b) (West 2010).  [2]“Forge” means “to alter, make, complete, execute, or authenticate any writing so that it purports . . . to be the act of another who did not authorize that act.” Tex. Penal Code Ann. § 32.21(a)(1)(A)(i) (West 2011).    [5]In all state and federal criminal prosecutions, the accused has a right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, “to be confronted with the witnesses against him.”  U.S. Const. amends. VI, XIV; Crawford v. Washington, 541 U.S. 36, 42 (2004); Pointer v. Texas, 380 U.S. 400, 406 (1965) (applying Sixth Amendment to states).  Articles 1.05 and 1.25 of the Texas Code of Criminal Procedure grant those rights of confrontation set forth in the Texas Constitution.  See Tex. Const. art 1, § 10. The Texas Constitution and the Texas Code of Criminal Procedure do not provide greater protections than the United States Constitution. King v. State, 189 S.W.3d 347, 361–62 (Tex. App.—Fort Worth 2006, no pet.).  [6]While the Texas Court of Criminal Appeals has not considered whether the Confrontation Clause applies to a revocation hearing, several intermediate courts have determined that, because a revocation hearing is not a stage of a criminal prosecution, the Confrontation Clause does not apply to such hearings. Wisser v. State, 350 S.W.3d 161, 163–64 (Tex. App.—San Antonio 2011, no pet.); Mauro v. State, 235 S.W.3d 374, 375–76 (Tex. App.—Eastland 2007, pet. ref’d); Trevino v. State, 218 S.W.3d 234, 239 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Diaz v. State, 172 S.W.3d 668, 672 (Tex. App.—San Antonio 2005, no pet.).