Gerald Michael Anderson, Jr. v. State

Citation: Not availableDocket: 08-02-00412-CR

Court: Court of Appeals of Texas; November 17, 2004; Texas; State Appellate Court

Original Court Document: View Document

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Gerald Michael Anderson, Jr. appeals his jury conviction for driving while intoxicated (DWI), resulting in a 90-day jail sentence and a $1,250 fine. He raises four points of error regarding the trial court's decisions: 

1. Admission of evidence related to his prior DWI conviction, multiple investigations by the McKinney Fire Department for substance abuse misconduct, and discussions between the arresting officer and Anderson's sister about his drinking problem.
2. Overruling his objection to the jury charge definition of 'intoxicated' and the application paragraph, which he claimed were improperly defined.
3. Overruling his objections to oral statements about cocaine use, arguing these were made during custodial interrogation and should be inadmissible under Texas Code of Criminal Procedure Article 38.22.
4. Allowing the prosecutor to refer to him as an 'alcoholic' during closing arguments.

The appellate court affirms the conviction, stating that the trial court did not abuse its discretion in admitting evidence within the 'zone of reasonable disagreement' and that the decision can be upheld on any applicable legal theory. Testimony from Officer Mark Moyle indicated he recognized Anderson as extremely intoxicated during a traffic stop, prompting him to call for backup. Frank Roma, McKinney's assistant fire chief, confirmed multiple investigations into Anderson's conduct prior to his resignation, which the trial court also deemed relevant despite Anderson's objections based on relevance and specific evidentiary rules.

Anderson did not provide evidence of a prior DWI conviction, and while the State referenced such a conviction during the trial's punishment phase, Anderson's brief suggests he is not contesting that evidence. He also failed to detail the investigations related to his conduct prior to resignation, leaving unclear whether they indicated any misconduct. The court overruled objections to Officer Moyle's testimony regarding conversations with Anderson's sister about Anderson's drinking problem, despite claims of irrelevance and violations of Texas Rules of Evidence 404(b) and 403. The court noted that evidence, even if relevant, may be excluded if its prejudicial impact outweighs its probative value. In this case, the evidence regarding Anderson's drinking problem did not increase the likelihood of his intoxication at the incident in question; it risked irrational jury impressions, required minimal time to present, and was not critical for establishing any disputed fact. The court concluded that admitting this evidence was erroneous. A harm analysis was necessary to determine if this error warranted reversing the judgment. As the error was non-constitutional, it could be disregarded unless it affected substantial rights, defined as having a significant influence on the jury’s verdict, which would be evaluated by reviewing the entire record.

Testimony regarding Anderson's drinking habits was admitted without objection, including Officer Moyle's account of having seen Anderson consume alcohol and become intoxicated. Moyle, while acknowledging past outings with Anderson, asserted that Anderson's recollection of multiple drinking occasions with him was mistaken. He expressed confidence in Anderson's intoxication based on prior observations and noted Anderson's admission of having a drinking problem. Although defense counsel objected to Moyle's nonresponsive answer, no ruling was requested from the trial court. Moyle stated he had observed Anderson's high alcohol tolerance. The prosecutor did not mention Anderson's drinking problem in her opening statement but later referred to Anderson as an alcoholic, which was contested by Anderson, leading the prosecutor to rephrase her statement to "people with high tolerances."

Both Officers Moyle and McKee opined that Anderson was intoxicated during the incident. McKee administered a horizontal gaze nystagmus test, which Anderson failed, but other tests were not conducted at the scene due to safety concerns, and Anderson refused additional tests at the jail. The court concluded that admitting testimony about Anderson's drinking problem did not substantially affect the jury’s verdict or his rights, thus disregarding the error. 

Anderson also argued that the trial court erred in the jury charge definition of "intoxicated." Appellate review involves determining if an error occurred and assessing whether it caused sufficient harm to warrant reversal. Errors in jury charges require reversal only if they injure the defendant's rights, meaning there must be some harm resulting from the error.

A preserved error requires reversal unless deemed harmless, as established in Almanza, 686 S.W.2d at 171. The determination of harm considers the entire jury charge, the evidence state, contested issues, probative evidence weight, counsel arguments, and other relevant trial record information. The defendant bears the burden to show actual harm (Abdnor, 871 S.W.2d at 732; LaPoint v. State, 750 S.W.2d 180, 191). In Anderson's case, he claimed insufficient evidence linking his cocaine use to intoxication allegations. However, evidence included Anderson admitting to drinking and using cocaine, along with observations of slurred speech, bloodshot eyes, swaying, and failing an HGN test. Anderson was also speeding at 67 mph in a 40 mph zone. Officer Moyle, with twelve years of law enforcement experience, indicated that Anderson's level of intoxication was significant, often involving narcotics. This evidence justified the intoxication charge submitted to the jury, leading to the overruling of Point No. Two. Regarding Point No. Three, Anderson argued the trial court erred by admitting his cocaine admission made during custodial interrogation, which he claimed was inadmissible under Article 38.22 of the Texas Code of Criminal Procedure. Despite earlier objections to similar statements, Anderson did not object at the time his cocaine admission was presented. The trial court initially ruled to exclude certain cocaine-related statements but allowed for revisitation later. Nonetheless, during a subsequent hearing, Anderson objected again on the grounds of custodial interrogation concerning Officer Moyle's questioning.

During the second hearing regarding the admissibility of evidence, Officer Moyle testified that it was clear Anderson and others were under his control and not free to leave until released. Anderson's statement, made in response to a question aimed at gathering evidence for a DWI charge, was admitted despite his objection. The trial court determined that the statement did not arise from custodial interrogation as defined by Article 38.22 of the Texas Code of Criminal Procedure. Citing *Berkemer v. McCarty*, the court noted that statements made during a routine traffic stop before formal arrest are admissible. Thus, the court found no error in admitting Anderson’s oral statements prior to his arrest.

Anderson also challenged the prosecutor's closing argument, where he was labeled an "alcoholic." His defense claimed that this term was unwarranted since it lacked supporting evidence. The prosecutor countered by implying that having a high alcohol tolerance does not exempt one from intoxication laws. Following Anderson's objection, the prosecutor switched to the phrase "people with high tolerances." The court concluded that the evidence presented indicated Anderson was an alcoholic. It determined that even if the trial court erred in allowing the "alcoholic" label, the error was not constitutional and did not impact any substantial rights. All points of error were overruled, affirming the judgment.