Chris Randall Cowger v. State

Citation: Not availableDocket: 12-08-00459-CR

Court: Court of Appeals of Texas; January 28, 2010; Texas; State Appellate Court

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Chris Randall Cowger appeals his conviction for felony driving while intoxicated (DWI) following an incident on October 30, 2007. Longview police officer Jason Hampton observed Cowger driving away from a known narcotics location and initiated a stop after witnessing two traffic violations. Cowger exhibited erratic behavior, had difficulty retrieving his license, and provided inconsistent explanations for possessing three different licenses. Although Hampton found no odor of alcohol, he noted Cowger's fixed, pinpointed pupils and gold paint on his knuckles, raising suspicions of intoxication. Hampton began field sobriety tests but halted after Cowger claimed disability. Cowger offered a breath sample but refused a blood test, leading to his arrest. He was indicted for felony DWI due to two prior convictions and subsequently convicted at trial, receiving a four-year prison sentence.

On appeal, Cowger challenges a jury charge instruction that allowed the jury to consider his refusal to submit to a blood test as evidence of intoxication, claiming it constituted an impermissible comment on the evidence's weight. The court outlines the standard for jury charges, emphasizing that they should not express opinions on evidence weight and must guide the jury in applying the law to the case. The review process involves determining the existence of an error and assessing whether it resulted in harm warranting reversal.

A person's refusal to provide a breath or blood specimen can be used as evidence in a trial, as per Tex. Transp. Code Ann. 724.061. However, the Texas Court of Criminal Appeals has ruled that jury instructions implying that such refusals can be considered as evidence constitute an impermissible comment on evidence weight (Bartlett v. State, 270 S.W.3d 147, 154). Although the evidence of refusal remains admissible, if a defendant does not object to the jury charge, reversible error occurs only if there is a showing of egregious harm, which deprives the accused of a fair trial. Factors for determining egregious harm include the entire jury charge, the state of the evidence, counsel arguments, and other relevant information (Almanza v. State, 686 S.W.2d 157, 171).

In the case at hand, the trial court erroneously instructed the jury to consider the appellant's refusal to submit to a blood test as evidence of intoxication. Since the appellant did not object to this instruction, the focus shifts to whether it caused egregious harm. The instruction was brief and not prominently featured in the jury charge, which otherwise contained standard instructions and did not lessen the State's burden of proof. There was ample evidence supporting the conviction, including the appellant's suspicious behavior, conflicting statements about his driver's licenses, and admissions regarding his drug use. In closing arguments, the prosecutor referenced the refusal to submit to a blood test, suggesting it could alone justify a guilty verdict.

A judge cannot instruct the jury about a defendant's refusal to provide a blood or breath specimen; however, the prosecutor is allowed to comment on such refusals. This was affirmed in Leija v. State and Vargas v. State, where the courts held that comments regarding a refusal to submit to tests can be part of the State’s jury argument and can imply evidence of intoxication. The court found that any charge error did not deprive the appellant of a fair trial, leading to the conclusion that the jury instruction did not result in egregious harm, thus overruling the appellant's first issue.

In the appellant's third issue, it was argued that the trial court erred by allowing Deputy Yvette Roth to testify without being listed as a potential witness and without granting a continuance. The review standard assesses whether the trial court abused its discretion, with the appellant bearing the burden of proof. The prosecutor disclosed that Roth observed the appellant moving without difficulty, countering his claim of disability. Despite objections from the appellant’s counsel regarding the lack of prior notice and a request for a continuance to summon the appellant's doctor for rebuttal, the trial court denied the objection and allowed Roth’s testimony. The law stipulates that there is no absolute constitutional right to discovery in criminal cases, and while defendants have a right to exculpatory evidence, the prosecution is not required to disclose all witnesses prior to trial.

A defendant is granted limited discovery rights under the Texas Code of Criminal Procedure, specifically regarding expert witnesses, which must be disclosed only when ordered by the court. Non-expert witnesses do not require disclosure, and any voluntary lists provided by the state need not be updated unless mandated by the trial court. When evaluating whether the trial court abused its discretion in allowing an unlisted witness to testify, two main factors are considered: the state's alleged bad faith in failing to disclose the witness and the defendant's ability to anticipate the witness's testimony.

To determine bad faith, the following criteria are used: (1) whether the state intended to deceive the defendant, (2) whether the defendant had adequate time to prepare, and (3) whether the state maintained an open file policy and timely communicated updates. For assessing the defendant's anticipation, factors include the surprise element, the disadvantage posed by that surprise, and the trial court's ability to mitigate it.

In this case, the trial court's decision to allow Deputy Roth’s testimony, despite being unlisted, indicated a finding of no bad faith on the state's part. The appellant argued that the state acted in bad faith by failing to disclose Roth, claiming prior knowledge of her testimony due to her previous observation of him. However, this alone did not substantiate a claim of bad faith, nor did the appellant demonstrate that the state intended to deceive him or had a history of discovery violations. Although he lacked sufficient time to prepare for Roth's testimony after a denied continuance request, the record did not support his claims regarding the state’s intent. Thus, the trial court's conclusion that the state did not act in bad faith was upheld.

Appellant was surprised by Deputy Roth's testimony, which was revealed on the trial's first day, impacting the credibility of Appellant’s claims regarding his disability. Appellant admitted that he should have anticipated the State's attempt to undermine his statements but maintained that the late disclosure of the witness was unexpected, preventing him from subpoenaing his doctor for rebuttal evidence. A request for a continuance was denied, leaving Appellant at a disadvantage. The trial court found that the State acted without bad faith, which justified allowing Deputy Roth's testimony despite the late notice. 

In addressing Appellant's claim of ineffective assistance of counsel, it was argued that trial counsel failed to subpoena Appellant’s doctor, did not object to jury instructions regarding blood tests, and neglected to contest the State’s closing arguments. To succeed in an ineffective assistance claim, Appellant needed to demonstrate both deficient performance by counsel and resulting prejudice. The standard requires showing that counsel's performance fell below reasonable professional standards, with a presumption that counsel acted strategically. The burden rests on the defendant to provide substantial evidence of ineffectiveness, and absent a clear record of counsel's strategy, claims of ineffectiveness are often denied.

A defendant alleging ineffective assistance of counsel must prove both deficient performance and resulting prejudice, demonstrating a reasonable probability that the outcome would have differed but for the counsel's errors (Mitchell v. State). Failure to establish either element is detrimental to the claim (Strickland v. Washington). The standard for assessing trial counsel's performance does not require flawless representation (Ex parte Welborn). 

In this case, the appellant claims ineffective assistance due to trial counsel's failure to subpoena a doctor as a rebuttal witness, object to jury instructions regarding blood test refusal, and challenge the prosecutor's closing argument. However, the appellant's brief lacks substantive analysis of these claims, leading to their waiver under Texas Rule of Appellate Procedure 38.1(i). Additionally, regarding the jury instruction on blood test refusal, it was not clearly improper at the time of trial, as shown in prior case law. The decision in Bartlett, which might suggest otherwise, was issued after the appellant's appeal was filed, indicating that trial counsel's inaction was not deficient. Furthermore, there is no evidence of prejudice from counsel's performance, resulting in a rejection of the appellant's claims.

Regarding the sufficiency of evidence, the appellate review mandates an examination of evidence favoring the prosecution to determine if a rational jury could find the essential elements of the offense beyond a reasonable doubt. The jury retains the authority to assess witness credibility and resolve evidentiary discrepancies.

The jury bears the responsibility of evaluating evidence and drawing reasonable inferences from basic to ultimate facts, as established in Jackson v. Virginia. In assessing the factual sufficiency of evidence for a conviction, the court examines the evidence neutrally to determine if it is so weak or contrary to the weight of evidence that the verdict would be unjust. The reviewing court must address the evidence cited by the appellant that undermines the jury's decision, while maintaining significant deference to the jury's assessment of witness credibility.

DWI (Driving While Intoxicated) is defined under Texas law as operating a motor vehicle while intoxicated, with specific elements required for conviction. In felony DWI cases, the state must also prove that the defendant has two prior DWI convictions. Intoxication is characterized by a lack of normal mental or physical faculties due to substances. The testimony of the arresting officer can suffice to establish intoxication.

In this case, the primary dispute is the sufficiency of evidence indicating the appellant's intoxication. Officer Hampton observed the appellant leaving a known drug house and noted two traffic violations. During the interaction, the officer suspected intoxication due to the appellant's erratic behavior and inconsistent explanations regarding multiple driver's licenses. Although the officer found an "old" beer in the vehicle and conducted a horizontal nystagmus test, which suggested the appellant might not be alcohol-intoxicated, he observed the appellant's pupils were fixed and non-reactive to light, leading him to suspect intoxication from substances other than alcohol.

Officer Hampton observed gold paint residue on Appellant’s hands, suggesting inhalant abuse based on his experience. Appellant offered to provide a breath sample but declined a blood test. He admitted to consuming 120 Vicodin and 240 methadone pills monthly, taking two of each shortly before his arrest, and described the effects as making him "kind of ‘stupid’ for about an hour." Hampton opined that Appellant was intoxicated, and despite Appellant's claims of no physical evidence of intoxication (e.g., no nystagmus, lack of field sobriety tests due to claimed disability, no drugs found), the jury had sufficient evidence to support the verdict. The jury favorably resolved conflicting evidence, particularly considering Appellant’s admissions on videotape regarding his pill usage.

Regarding the sentence, Appellant, convicted of DWI with two prior offenses (a third-degree felony), argued his punishment of four years was excessive under the Eighth Amendment. However, this sentence falls within the statutory range of two to ten years as established by Texas law. While Appellant claimed the sentence was grossly disproportionate, the court noted that proportionality is assessed by examining the severity of the offense, penalties for similar crimes, and sentences for the same crime in other jurisdictions. The court upheld the conviction and sentence as not manifestly unjust or excessively harsh.

Appellant must demonstrate that his sentence is grossly disproportionate to his crime for further examination of the second and third Solem criteria to be warranted. The determination of gross disproportionality is guided by Rummel v. Estelle, which concluded that a life sentence for obtaining a small amount through false pretenses was not unconstitutional. After analyzing the facts of the case against this precedent, the court found Appellant's sentence to be constitutionally proportionate. Consequently, the claim of cruel and unusual punishment was rejected, and Appellant’s fifth issue was overruled. The trial court's judgment was affirmed. The opinion, delivered on January 29, 2010, included a panel of Chief Justice Worthen, Justice Griffith, and Justice Hoyle. The court noted that it did not opine on the prosecutor's potential misstatement of law regarding the blood test but assumed for harm analysis purposes that such a misstatement occurred. However, this was deemed mitigated by the prosecutor's prior comment allowing the jury discretion in weighing Appellant's failure to submit to the test. Additionally, the trial court had granted Appellant's motions for witness disclosure and discovery, and concerns were raised regarding the reliability of the vertical gaze nystagmus test administered by Officer Hampton.