----------- Cecil Cherian, Appellant v. The State of Texas, Appellee

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Court of Appeals of Texas, Houston (1st Dist.).

----------- Cecil Cherian, Appellant v. The State of Texas, Appellee

NO. 01-09-00570-CR

Decided: October 28, 2010

Panel consists of Justices Keyes, Higley, and Bland.

MEMORANDUM OPINION

Appellant, Cecil Cherian, was charged by indictment with Intoxication Manslaughter.1  Appellant pleaded guilty.   After a presentence investigation hearing, the trial court assessed punishment at 15 years' confinement.   In two points of error, appellant argues that the doctrines of double jeopardy and collateral estoppel precluded the trial court from determining that a prior offense involved alcohol when the State had reduced the charge in the prior case from Driving While Intoxicated to Obstruction of a Highway.

We affirm.

Background

The issues on this appeal relate to certain evidence considered by the trial court in sentencing appellant.   Specifically, appellant complains about the consideration of certain testimony of Officer D. Senter of the Friendswood Police Department regarding appellant's intoxication in the prior obstruction of a highway case (the “prior case”).

Officer Senter testified that around 5:00 in the morning on May 13, 2006, he was working with another officer to clear a motor vehicle accident from F.M. 2351.   Officer Senter was in his patrol car and the other officer was about to get in when appellant drove by at a speed exceeding the speed limit.   Appellant's car came 12 to 24 inches from the other officer as appellant drove by him.   Officer Senter pursued appellant and pulled him over.

Upon approaching appellant, Officer Senter detected the odor of alcohol.   Appellant told Officer Senter that he had consumed two cocktails containing vodka, but later admitted to having more.   Officer Senter performed a field sobriety test and took him into custody for driving while intoxicated.   The video containing the field sobriety test was admitted without objection.   When State's counsel asked Officer Senter his opinion about whether appellant had lost the normal use of his mental or physical faculties at that time, the following exchange occurred:

[Appellant's counsel]:  Judge, this goes to an essential element of the crime and I'm going to object on that basis.

The Court:  Overruled.   He may answer.   He may give his personal opinion based upon his observations.

A. I did.

Q. Okay. What was your opinion?

A. I believe[d] him to be intoxicated.

The State subsequently amended its charge in the prior case from driving while intoxicated to obstruction of a highway or other passageway.2  Appellant pleaded nolo contendere and waived his right to a jury.   On April 27, 2007, the trial court in the prior case found appellant guilty, sentenced him to 180 days in a county jail, suspended the sentence, and placed him on community supervision for 12 months.   Among the conditions of appellant's community supervision were the requirements that appellant abstain from the use of alcohol in any form at any time and never become intoxicated.

Less than seven months later, appellant committed the offense of intoxication manslaughter by driving the wrong direction on Interstate 45 in Harris County, Texas with an alcohol concentration of 0.24, colliding with an oncoming car, and killing the driver.

Admissibility of Evidence of Appellant's Intoxication as a Part of His Obstruction of a Highway Offense

In two points of error, appellant argues that the doctrines of double jeopardy and collateral estoppel precluded the trial court from determining that a prior offense involved alcohol when the State had reduced the charge from driving while intoxicated to obstruction of a highway or other passageway.

A. Standard of Review

We review a trial court's decision to admit or exclude evidence for abuse of discretion.  Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996).   If the trial court's evidentiary ruling is within the “zone of reasonable disagreement,” there is no abuse of discretion, and the reviewing court must uphold the trial court's ruling.  Id. at 102.   All relevant evidence is admissible, except as otherwise provided by constitution, by statute, by the rules of evidence, or by other rules prescribed pursuant to statutory authority.  Tex.R. Evid. 402.   Evidence is relevant if it tends to make the existence of any consequential fact more or less probable than it is without the evidence.  Tex.R. Evid 401.

In all criminal cases, after a finding of guilt by either a judge or a jury, both parties may offer any evidence relevant to sentencing.  Tex.Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp.2010);  Rivera v. State, 123 S.W.3d 21, 30 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd).   This evidence may include the defendant's prior criminal record, character testimony, reputation testimony, or evidence of extraneous crimes or bad acts the defendant has been shown, beyond a reasonable doubt, to have committed.   Rivera, 123 S.W.3d at 30.   The determination of what is “relevant” in regard to punishment, under article 37.07 section 3(a), “should be a question of what is helpful to the jury in determining the appropriate sentence in a particular case.”  Mendiola v. State, 21 S.W.3d 282, 285 (Tex.Crim.App.2000).

B. Double Jeopardy

Appellant argues that, by reducing the charge against appellant from driving while intoxicated to obstruction of a highway or other passageway, the State “implicitly decid[ed] that the only offense for which Appellant was guilty in that matter did not ‘involve alcohol.’ ”   Accordingly, appellant argues, when he was found guilty of obstructing a highway or other passageway, he was also acquitted of driving while intoxicated, and double jeopardy attached to any claims that he was drunk at the time.

The State argues that appellant did not raise this issue in the trial court and, as a result, has waived any error in the introduction of the relevant testimony.   The State also acknowledges, however, that a double-jeopardy claim can be raised for the first time on appeal “when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests.”  Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App.2000).   Accordingly, we consider whether the undisputed facts show that appellant's claim of a double-jeopardy violation is clearly apparent on the face of the record and whether enforcement of the usual rules of procedural default serves no legitimate state interests.

“There are three distinct types of double jeopardy claims:  (1) a second prosecution for the same offense after acquittal;  (2) a second prosecution for the same offense after conviction;  and (3) multiple punishments for the same offense.”  Langs v. State, 183 S.W.3d 680, 685 (Tex.Crim.App.2006).   Appellant's argument is based on the first type of double-jeopardy claim.   He argues that he was implicitly acquitted of driving while intoxicated by his being found guilty of obstruction of a highway or other passageway.

“A defendant is acquitted when ‘the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.’ ”  State v. Moreno, 294 S.W.3d 594, 598 (Tex.Crim.App.2009) (quoting U.S. v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354-55 (1977)).

A person commits the offense of the driving while intoxicated “if the person is intoxicated while operating a motor vehicle in a public place.”  Tex. Penal Code Ann. § 49.04(a) (Vernon 2003).   As it pertains to appellant, a person commits the offense of obstruction of a highway or other passageway if the person (1) obstructs a street “regardless of the means of creating the obstruction and whether the obstruction arises from his acts alone or from his acts and the acts of others” or (2) “disobeys a reasonable request or order to move issued by a person the actor knows to be or is informed is a peace officer.”  Tex. Penal Code Ann. § 42.03(a) (Vernon 2003).

There are no common factual elements between driving while intoxicated and obstruction of a highway or other passageway.   Accordingly, double jeopardy could not have attached to the charge of driving while intoxicated.   Additionally, it is evident from the case law that an acquittal requires an affirmative ruling and is not created “implicitly.”   See Moreno, 294 S.W.3d at 598 (requiring ruling by judge or trier of fact).

We overrule appellant's second point of error.

C. Collateral Estoppel

Appellant argues that the State's change of its charge against him from driving while intoxicated to obstruction of a highway or other passageway triggered the doctrine of collateral estoppel and prevented the State from introducing evidence relating to appellant's intoxication during that offense.

The State argues that this complaint has also been waived because appellant did not raise a proper objection to the relevant testimony at the presentence investigation hearing.   Two of our sister courts have held in published opinions that a collateral-estoppel complaint cannot be raised for the first time on appeal.  Gonzalez v. State, 301 S.W.3d 393, 400 (Tex.App.-El Paso 2009, pet. ref'd);  Hughes v. State, 16 S.W.3d 429, 431 (Tex.App.-Waco 2000, no pet.).

Even if we were to hold that a collateral-estoppel complaint could be raised for the first time on appeal, we still find no error.   In order to determine whether collateral estoppel bars relitigation of certain facts, “courts must determine ‘(1) exactly what facts were “necessarily decided” in the first proceeding;  and (2) whether those “necessarily decided” facts constitute essential elements of the offense in the second trial.’ ”   Ex parte Taylor, 101 S.W.3d 434, 440 (Tex.Crim.App.2002) (quoting Neal v. Cain, 141 F.3d 207, 210 (5th Cir.1998)).   Appellant does not point to any facts “necessarily decided” in the first proceeding that constituted essential elements of the offense litigated in this case.   Instead, appellant merely argues that the State effectively conceded that it could not prove appellant was intoxicated when it changed the charge to obstruction of a highway or other passageway.   Even if we were to take this as true, collateral estoppel still would not apply.   As stated, collateral estoppel applies to facts “necessarily decided” in a proceeding.  Id. The State's determinations as to what crimes to charge a person are not decided in a proceeding;  nor are those determinations facts.

We overrule appellant's first point of error.

Conclusion

We affirm the judgment of the trial court.

FOOTNOTES

FN1. See Tex. Penal Code Ann. § 49.08(a) (Vernon Supp.2010)..  FN1. See Tex. Penal Code Ann. § 49.08(a) (Vernon Supp.2010).

FN2. See Tex. Penal Code Ann. § 42.03(a) (Vernon 2003)..  FN2. See Tex. Penal Code Ann. § 42.03(a) (Vernon 2003).

Laura Carter Higley Justice

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