John Cleveland Martin v. State

John Cleveland Martin v. State IN THE TENTH COURT OF APPEALS No. 10-01-335-CR      JOHN CLEVELAND MARTIN,                                                                          Appellant      v.      THE STATE OF TEXAS,                                                                          Appellee From the County Criminal Court at Law No. 12 Harris County, Texas Trial Court # 1046869                                                                                                                                                                                                                          O P I N I O N                                                                                                                       John Cleveland Martin appeals his conviction by a jury for the offense of driving while intoxicated. The trial court assessed his punishment at 180 days in the Harris County jail, suspended his sentence, placed him on community supervision for one year, and assessed a fine in the amount of $800. Martin contends in two points that the trial court erred in overruling his objection to the admissibility of the results of a horizontal gaze nystagmus test and that the trial court erred by denying him a hearing on his motion for new trial. We affirm.       Martin urges in point one that the trial court erred in overruling his objection to the admissibility of the results of a horizontal gaze nystagmus test. Martin's contention is that the arresting officers' comments to him that he would be arrested if he refused to perform the HGN test constituted coercion that rendered his agreement to take the test involuntary. He insists that because he was coerced into performing the test involuntarily, evidence of his performance on the test was inadmissible. A trial court’s ruling concerning the admission or exclusion of evidence may not be disturbed on appeal unless an abuse of discretion is shown. Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993).       Martin's contention that his performance on the HGN test is inadmissible because his agreement to perform the test was involuntary is based on an unspoken presumption that involuntary performance of field sobriety tests constitutes evidence that has been illegally obtained. However, a defendant may be compelled to give physical evidence of intoxication. Thomas v. State, 723 S.W.2d 696, 705 (Tex. Crim. App. 1986). A field sobriety test is physical evidence of an appellant’s mental and physical faculties. Gassaway v. State, 957 S.W.2d 48, 51 (Tex. Crim. App. 1997). Consequently, the performance of field sobriety tests is not compulsive in violation of one’s right to be free from self-incrimination when it does not make an express or implied assertion of fact. Id. Martin’s performance on the HGN test did not make an express or implied assertion of fact. We therefore hold that the trial court did not abuse its discretion in admitting evidence of Martin’s performance on the HGN test. See also, State v. Babbitt, 525 N.W.2d 102, 106 (Wis. Ct. App. 1994) (stating suspect has no Fifth Amendment right to refuse to perform field sobriety tests); State v. Meek, 444 N.W.2d 48, 50 (S.D. 1989) (same); State v. Marks, 644 N.W.2d 35, 37 (Iowa Ct. App. 2002) (requiring a person to submit to a field sobriety test or face the consequences of being arrested is not a coercive, prohibited tactic).       In arguing that the trial court abused its discretion by admitting his performance on the HGN test, Martin relies on the case of Erdman, supra. We find that case to be distinguishable. In Erdman, the Court held that results of a breath test, taken after the defendant was advised by a police officer that he would be arrested and charged with driving while intoxicated if he refused to take the test, constituted illegally obtained evidence. Id. at 894. The Court reached this conclusion by holding that the warning by the officer constituted coercion and noting that Article 6701l-5 provides that no breath test is to be conducted if the person requested to take the test refuses to do so. Id.; Tex. Rev. Civ. Stat. Ann. art. 6701l-5, § 2 (Vernon 1977). Martin refers us to no statute with similar provisions that would apply to field sobriety tests, and we are not aware of any. We overrule point one.       Martin urges in point two that the trial court erred by denying him a hearing on his motion for new trial. Martin timely filed a motion for new trial. In his motion, he urged the trial court to grant a new trial based on his counsel's failure to call two exculpatory witnesses. Although the motion indicated that affidavits of the two witnesses were attached, our record reflects that no affidavits were attached to the motion. The trial court subsequently denied Martin a hearing on the motion. Martin then filed an amended motion for new trial with the affidavits properly attached. There is nothing in the record to indicate that this motion was ever presented to the trial court. It is undisputed that no hearing was held on that motion. The trial court was not required to have a hearing on Martin's original motion for new trial because of its failure to have the affidavits attached. Redmond v. State, 30 S.W.3d 692, 700 (Tex. App.—Beaumont 2000, pet. ref'd). Given that our record does not reflect that Martin ever presented his amended motion to the trial court, the trial court did not err in failing to afford him a hearing on that motion. See Carranza v. State, 960 S.W.2d 76, 80 (Tex. Crim. App. 1998) (en banc); Tex. R. App. P. 21.6. We overrule point two.       The judgment is affirmed.                                                                          JOHN G. HILL                                                                          Senior Justice Before Chief Justice Davis,       Justice Gray, and       Senior Justice Hill (Sitting by Assignment) Affirmed Opinion delivered and filed January 8, 2003 Publish [CR25] ent:.5in;line-height:200%'>Dr. Ann Sims, the medical director for the Advocacy Center for Crime Victims and Children in Waco, also testified; she had examined both T.B. and C.K. Dr. Sims stated that when she asked T.B. why she had come to the Advocacy Center, T.B. hid her head in her legs and said that Roberts had done something to her and C.K. Dr. Sims stated that T.B. told her [h]e had touched their private area with his weaner [sic] and his fingers. She went on to say that it didn’t go inside her private area, but it hurt, and did not cause her to bleed. She said that he also pulled her pants down and put his weaner [sic] on her bottom or her butt.  When later asked why T.B. would feel some type of pain in her vaginal area, Dr. Sims stated that the “most likely thing to cause pain is touching that hymen” and that, for something to touch the hymen, it would have to penetrate the outer and inner lips of the female sexual organ to get to the hymen. Dr. Sims testified that the results of T.B.’s physical exam were normal, which she expected, because, unless a child is seen within the first twenty-four hours or unless the child has a history of bleeding, the chance of the child having anything but a normal exam is less than ten percent. Roberts argues that the evidence is legally insufficient to support his conviction because T.B. never stated that his actions even reached the point of “slight penetration.” However, T.B. did not need to directly testify as to the penetration for the State to prove the element. See Villalon, 791 S.W.2d at 133. In this case, Dr. Sims’s testimony that T.B. told her that Roberts touched her private area with his fingers and that it hurt, in addition to Dr. Sims’s testimony that T.B.’s pain was most likely caused by the touching of the hymen, which would require the penetration of the outer and inner lips of the female sexual organ, is sufficient to embrace the essential element of penetration. See Mosley v. State, 141 S.W.3d 816, 823 (Tex. App.—Texarkana 2004, pet. ref’d) (holding other evidence sufficient to establish penetration even though victim testified that defendant only touched her on outside of her clothes and that it only hurt on outside of her “booty”). Viewing all the evidence in the light most favorable to the verdict, we conclude that the evidence is sufficient to support Roberts’s conviction in cause number 10-10-00076-CR. 10-10-00080-CR Lastly, contrary to Roberts’s contention in his brief, to obtain a conviction for aggravated sexual assault based on the allegations in the indictment in cause number 10-10-00080-CR, the State was required to prove beyond a reasonable doubt that Roberts intentionally or knowingly caused the sexual organ of T.B., a child under the age of fourteen, to contact his sexual organ. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii), (2)(B).  The indictment did not allege penetration, nor did the charge’s application paragraph. T.B. stated that while at Roberts’s house, Roberts’s pee-pee touched her pee-pee.  T.B. testified that she was not told to make these things up.  Again, a child victim’s testimony alone is sufficient to support a conviction for aggravated sexual assault. Tex. Code Crim. Proc. Ann. art. 38.07(a); Tear, 74 S.W.3d at 560. Viewing all the evidence in the light most favorable to the verdict, we conclude that the evidence is sufficient to support Roberts’s conviction in cause number 10-10-00080-CR. Notice of Intent to Consolidate            In his identical second issues in cause numbers 10-10-00075-CR, 10-10-00076-CR, and 10-10-00080-CR and identical first issues in cause numbers 10-10-00077-CR, 10-10-00078-CR, and 10-10-00079-CR, Roberts argues that the trial court erred in joining the six indictments for a single trial. Specifically, Roberts contends that the State violated section 3.02(b) of the Penal Code by failing to give the trial court and the defendant written notice of its intent to prosecute multiple indictments in a single criminal action not less than thirty days before trial. See Tex. Penal Code Ann. § 3.02(b) (Vernon 2003); Fernandez v. State, 814 S.W.2d 417, 419-20 (Tex. App.—Houston [14th Dist.] 1991), aff’d, 832 S.W.2d 600 (Tex. Crim. App. 1992). However, after Roberts filed his brief in each of these appeals, a supplemental clerk’s record was filed in each cause containing the State’s written notice of intent to prosecute the six indictments in a single trial. The notice was filed more than thirty days before trial. Thus, we overrule Roberts’s second issue in cause numbers 10-10-00075-CR, 10-10-00076-CR, and 10-10-00080-CR and his first issue in cause numbers 10-10-00077-CR, 10-10-00078-CR, and 10-10-00079-CR.            Having overruled all Roberts’s issues in all six appeals, we affirm the trial court’s judgment in each appeal.  REX D. DAVIS Justice  Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed May 4, 2011 Do not publish [CRPM] Â