GABAY v. STATE

No. 04-14-00783-CR.

Joseph Thomas GABAY, Appellant, v. The STATE of Texas, Appellee.

Court of Appeals of Texas, Fourth District, San Antonio.

Delivered and Filed: February 24, 2016.


MEMORANDUM OPINION

Joseph Thomas Gabay was convicted by a jury of failing to stop and render aid at the scene of an accident, and the court sentenced him to nine years' confinement in the Texas Department of Criminal Justice, Institutional Division. Gabay appeals the judgment, arguing the trial court erred by denying his motion to suppress his videotaped statement, by failing to properly charge the jury, and by denying his motion for mistrial based on the State's improper argument. We affirm the judgment.

BACKGROUND

On the evening of June 28, 2012, two motorists driving on the westbound access road of Interstate 10 in Kendall County saw a body and scattered pieces of a bicycle lying in a ditch beside the road. Emergency responders were dispatched at 7:16 p.m. and arrived within five minutes. The victim, identified as Dr. Larry Becker, was pronounced dead at the scene.

Photographs of the scene admitted into evidence showed that it was still light outside and witnesses testified that when the body was found it was sunny and clear. Law enforcement witnesses testified the access road is two-way, each lane is about twenty-five feet wide, and there is a double line down the middle of the roadway. No skid marks were found on the road. However, a broken antenna from a vehicle was found among the debris and chips of paint were found on the victim's jersey. An autopsy revealed the victim suffered extensive skull fractures, injuries to his face and at the base of his brain, two spinal fractures, a full-thickness laceration of the aorta, a pelvic fracture, and a laceration of the liver. The medical examiner testified the injuries were caused by massive blunt force.

On July 2, Joseph Gabay called the Texas Department of Public Safety and spoke to Sergeant James Todd Jennings, who was in charge of the investigation. Gabay reported that he might have been in involved in an accident in the area where Dr. Becker's body had been found. Sergeant Jennings arranged to meet Gabay in person at the Kendall County Sheriff's office later that day and asked Gabay to bring the truck that had been involved in his accident. Gabay's meeting with Sergeant Jennings and Texas Ranger Wayne Matthews was recorded and the videotape was admitted into evidence.

In the recorded statement, Gabay said that around 4:30 or 5:00 p.m. on June 28, 2012, after going grocery shopping, he stopped at a bar where he drank four beers. He left around 7:30 p.m. and drove home. Gabay said that he hit something in the road as he was driving on the Interstate 10 access road. He told the officers he heard a thump and something came up and hit the right side of his windshield, but he did not see what it was. He said he had not seen anything in the road and did not look in his rearview mirror. He thought he might have hit a small animal, but because his truck was handling fine, he continued driving home so he could get his groceries put away. Gabay said that after seeing the damage to his truck over the weekend and learning there had been a fatality in the same area, he decided to call DPS.

Gabay was allowed to leave after the interview, but was arrested later that evening. His truck was seized pursuant to a warrant and submitted to the DPS crime lab for processing. The right side of the truck's windshield was shattered and the truck had damage to the right front side of the hood, the right front quarter panel, the right side mirror, and the right headlight. The antenna located on right front quarter panel had broken off. Melissa Valadez, a forensic scientist and the trace evidence section supervisor at the DPS crime laboratory, testified that yellow fibers found on the edge of the quarter panel were similar in size, shape, color, optical properties, and polymer type to the yellow polyester fibers from the victim's jersey. Valadez also testified that the broken antenna found at the scene physically matches the broken antenna housing from the quarter panel of Gabay's truck.

At trial, Gabay presented the testimony of Dr. Matthew J. Wayner, an ophthalmologist and that of a clinical and forensic psychologist. The doctors examined Gabay shortly before trial and reviewed some of his medical records going back to February 2012, four months before the accident. Dr. Wayner testified that Gabay has "complete right homonymous hemianopia;" that is, no visual field to the right of fixation in either eye. The doctor explained that if Gabay is looking straight ahead, he is unable to see anything to the right of the center line. This condition was probably the result of a stroke Gabay had in 2007. Gabay suffered a second stroke in 2011, which caused further brain injury, resulting in mild to moderate cognitive and neurovascular disorders. The medical records, which were introduced into evidence, reflect that Gabay reported during a neuropsychological evaluation in April 2012 that he had been involved in a motor vehicle accident because of his restricted vision. The neuropsychologist "strongly encouraged" him to cease driving at that time.

The jury found Gabay guilty of the offense of failure to stop and render aid. The trial court sentenced Gabay to nine years in prison and denied the State's request for a deadly weapon finding. Gabay now appeals.

VIDEOTAPED STATEMENT

Gabay argues the trial court erred in denying his motion to suppress the videotaped statement, asserting Sergeant Jennings continued to question Gabay after he invoked his right to counsel and coerced Gabay into involuntarily signing a waiver of his Miranda rights.

The only evidence presented in support of the motion was the videotape itself. On the videotape, Gabay is seen in a room at the Sheriff's office with a desk and two chairs. Sergeant Jennings entered the room in uniform with a holstered weapon and introduced himself. Sergeant Jennings stated that Gabay had called him and requested the meeting to discuss an accident in which he might have been involved. Sergeant Jennings confirmed that Gabay was there of his own free will and told Gabay that he was not under arrest or threatened with arrest and that he could leave at any time. Sergeant Jennings then told Gabay, "Before I ask you any questions, since this is a fatal crash, I'm going to read you your rights so that you understand what your rights are." Sergeant Jennings showed Gabay a written statement of the warnings required by article 38.22, section 2(a) of the Texas Code of Criminal Procedure and read the warnings out loud to Gabay.1 He then showed Gabay the waiver of rights and explained that before they could continue, Gabay would need to sign, stating that he understood his rights and that he knowingly, intelligently, and voluntarily waived his rights. Gabay then asked, "How do I go about getting a lawyer, since it looks kind of serious?" Sergeant Jennings responded, "Well, if you want a lawyer, you can have one, but at that point I can't ask you any more questions. That's your decision." Gabay immediately reached over and picked up a pen, said, "Okay, I guess I'll do it this way," and signed the waiver. Sergeant Jennings then began the interview. After approximately twenty minutes, Gabay gave Sergeant Jennings consent to search his truck. Sergeant Jennings went outside to look at the truck, and five minutes later, Ranger Wayne Matthews entered the room and continued the interview. The interview lasted several hours and at no time did Gabay ask for a lawyer or ask to stop the interview.

After reviewing the videotape and hearing counsel's arguments, the trial court denied the motion to suppress. The court made oral findings and subsequently signed supplemental written findings of fact and conclusions of law. The court's fact findings included:

▀ Before the Defendant was interviewed, Sgt. Jennings warned the Defendant of his rights (Miranda warnings) pursuant to the Texas Code of Criminal Procedure Art. 38.22. ▀ The Defendant understood the Art. 38.22 warnings. ▀ The Defendant voluntarily signed the Art. 38.22 warnings acknowledging that he understood the warnings. ▀ The Defendant did not ask for an attorney or request that an attorney be present during the interview. ▀ The Defendant asked Sgt. Jennings before the interview how he could go about getting a lawyer. Sgt. Jennings advised the Defendant that he could get an attorney, but that if he did, Sgt. Jennings would have to stop the questioning and could not ask him questions. The Defendant then agreed to be interviewed by Sgt. Jennings and Ranger Mathews. ▀ At no point before, during, or after was the Defendant threatened or coerced by Ranger Mathews or Sgt. Jennings.

The trial court's conclusions of law included:

▀ The Defendant freely and voluntarily signed the waiver of his rights ... ▀ The Defendant's conversation with Sgt. Jennings about an attorney did not amount to an unequivocal invocation of his right to counsel. ▀ The Defendant's statement was freely and voluntarily made in accordance with Texas Code of Criminal Procedure Art. 38.21.

Standard of Review

We review the trial court's ruling on a motion to suppress for an abuse of discretion, using a bifurcated standard. State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We view the record in the light most favorable to the trial court's determination and give "almost total deference" to its determination of historical facts. Story, 445 S.W.3d at 732. We review the court's application of the law to those facts de novo. Id.

Right to Counsel

Law enforcement officers must cease questioning an accused if he "unambiguously request[s] counsel." Davis v. United States, 512 U.S. 452, 459 (1994); Pecina v. State, 361 S.W.3d 68, 79 (Tex. Crim. App. 2012). In deciding whether an accused unambiguously requested counsel, courts use an objective standard — did the accused "articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Davis, 512 U.S. at 459; Pecina, 361 S.W.3d at 79. Invocation of a right to counsel "must be clear and unambiguous; the mere mention of the word `attorney' or `lawyer', without more, does not automatically invoke the right to counsel." Dinkins v. State, 894 S.W.2d 330, 335 (Tex. Crim. App. 1995). "To trigger law enforcement's duty to terminate the interrogation, a suspect's request for counsel must be clear, and the police are not required to attempt to clarify ambiguous remarks." Davis v. State, 313 S.W.3d 317, 339 (Tex. Crim. App. 2010).

Gabay contends that his question, "How do I go about getting a lawyer?" was an "unequivocal demand" for counsel. After reviewing the evidence, we hold that under the totality of the circumstances, Gabay did not unambiguously convey he wanted a lawyer present with him at that time. He asked a procedural question that Sergeant Jennings could have interpreted as Gabay wanting an attorney during the interview or as Gabay wanting guidance on how to hire a defense attorney. In light of the fact that Gabay himself requested the interview, we cannot say that a reasonable police officer under these circumstances would interpret the statement as a request for an attorney. The trial court did not err in concluding that Gabay did not clearly and unambiguously invoke his right to counsel. See Davis, 512 U.S. at 459 (suspect's comment, "Maybe I should talk to a lawyer," was not unambiguous articulation of desire for counsel); Davis, 313 S.W.3d at 339 (statement, "I should have an attorney," accompanied by question about why suspect should help out detectives, did not constitute unambiguous request for counsel); Reed v. State, 227 S.W.3d 111, 113, 116 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd) (accused's question while he was reading paper listing his rights, "I can get a lawyer if I want one, right?" was not unequivocal request for counsel); Gutierrez v. State, 150 S.W.3d 827, 832 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (appellant's question "Can I have [a lawyer] present now?" after officer read him his rights, was ambiguous and did not clearly invoke right to counsel); Loredo v. State, 130 S.W.3d 275, 284-85 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd) (appellant's question, "Can I ask for a lawyer now?," was not unambiguous invocation of right to counsel).

Voluntary Waiver

Gabay also contends that his waiver of his right to counsel was involuntary because Sergeant Jennings's response to Gabay's question constituted "badgering" that coerced Gabay into unwillingly and reluctantly signing the waiver. To determine whether it was within the trial court's discretion to conclude that Gabay voluntarily waived his rights, we look at the totality of the circumstances surrounding the interrogation. Moran v. Burbine, 475 U.S. 412, 421 (1986); Joseph v. State, 309 S.W.3d 20, 25 (Tex. Crim. App. 2010). The waiver must be "voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim. App. 2011) (quoting Ripkowski v. State, 61 S.W.3d 378, 384 (Tex. Crim. App. 2001)). "Before it may be said that a waiver of a Miranda right is involuntary, however, there must be some element of official intimidation, coercion, or deception." Id.

Sergeant Jennings appropriately responded to Gabay's ambiguous question by explaining that: if Gabay wanted counsel present, he could have one; if Gabay wanted to have counsel present, the interview would not continue at that time; and the decision of whether to get counsel was Gabay's to make. See Gutierrez, 150 S.W.3d at 832; Loredo, 130 S.W.3d at 278. The videotape shows Gabay immediately thereafter made his decision by picking up a pen, signing the waiver of his rights, and continuing the interview. Gabay did not request counsel at that time nor at any time later in the interview.

The exchange between Gabay and Sergeant Jennings on the videotape does not reveal any intimidation or deception. Nor was the choice between (1) continuing the interview at that time without counsel and (2) having counsel present during an interview at a later time, a coercive choice. Sergeant Jennings did not suggest to Gabay that any adverse consequences would result from delaying the interview. The videotape does not reflect any unwillingness by Gabay to sign the waiver, and mere reluctance does not render a waiver involuntary. Moreover, the trial judge, who watched the videotape footage and witnessed Gabay's demeanor in the courtroom, found that Gabay "freely and voluntarily" signed the waiver. Nothing in the record contradicts that finding. We therefore conclude the trial court did not abuse its discretion in denying Gabay's motion to suppress.2

JURY CHARGE

Gabay argues the trial court erred by denying his requested instruction on the mens rea element of the offense and by submitting an instruction on voluntary intoxication.

Mens Rea

Gabay requested the trial court to charge the jury as follows:

You are instructed that in deciding whether the Defendant's vehicle was involved in an accident as alleged in the indictment you may not find in the affirmative unless you find that he also had knowledge that his conduct was reasonably calculated to result in injury or death to a person.

The trial court denied the requested instruction and charged the jury that it could find him guilty if he knew "the circumstances surrounding his conduct, that is, that he had knowledge that an accident had occurred."

Sections 550.021 and 550.023 of the Transportation Code, which state the offense of failure to stop and render aid, do not expressly provide a culpable mental state. See TEX. TRANSP. CODE ANN. §§ 550.021, 550.023 (West 2011 & Supp. 2015) In Goss v. State, the Texas Court of Criminal Appeals held "that the culpable mental state thereby required for the offense of failing to stop and render aid is that the accused had knowledge of the circumstances surrounding his conduct, i.e., had knowledge that an accident had occurred." 582 S.W.2d 782, 785 (Tex. Crim. App. 1979) (internal citation omitted).

We agree with the State that the charge submitted correctly states the law applicable to the case. The culpable mental state required for the offense of failing to stop and render aid is that the accused have knowledge of the circumstances surrounding his conduct, that is, that an accident had occurred. Goss, 582 S.W.2d at 785; Baker v. State, 974 S.W.2d 750, 750 (Tex. App.-San Antonio 1998, pet. ref'd). There is no requirement that the accused have subjective knowledge of the nature or extent of the injury resulting from the accident, or even that a person was involved. See Barnette v. State, No. 08-09-00147-CR, 2011 WL 486949, at *1 (Tex. App.-El Paso Feb. 9, 2011, pet. ref'd) (not designated for publication); Marez v. State, No. 13-06-00476-CR, 2007 WL 2333155, at *3 (Tex. App.-Corpus Christi, Aug. 16, 2007, pet. ref'd) (mem. op., not designated for publication); McCown v. State, 192 S.W.3d 158, 162 (Tex. App.-Fort Worth 2006, pet. ref'd); Goar v. State, 68 S.W.3d 269, 272 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd). "Such a prerequisite would defeat the public interest, which is served by requiring drivers involved in collisions to stop, provide specified information, and render assistance if necessary." McCown, 192 S.W.3d at 162-63.

We hold the trial judge correctly instructed the jury on the law applicable to the case and did not err by refusing Gabay's special instruction. See TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007).

Intoxication Instruction

The trial court instructed the jury pursuant to section 8.04 of the Texas Penal Code that "[v]oluntary intoxication, if any, does not constitute a defense to the commission of a crime. `Intoxication' means disturbance of mental or physical capacity resulting from the introduction of any substance into the body." See TEX. PENAL CODE ANN. § 8.04(a), (d) (West 2011). Gabay argues the trial court erred in submitting this instruction over his objection, arguing that it was an impermissible comment on the weight of the evidence. He argues he did not attempt to raise intoxication as a defense and the instruction "wrongly focused the jury's attention on the possibility that [Gabay] may have been `intoxicated' as a contributing circumstance at the time of the accident."

The trial court may instruct the jury on intoxication in accordance with section 8.04 of the Penal Code if the question of voluntary intoxication applies to the case. Sakil v. State, 287 S.W.3d 23, 26 (Tex. Crim. App. 2009). The question of voluntary intoxication applies to a case "if there is evidence from any source that might lead a jury to conclude that the defendant's intoxication somehow excused his actions." Id.; Taylor v. State, 885 S.W.2d 154, 158 (Tex. Crim. App. 1994). A defendant does not need to have relied upon intoxication as a defense or excuse in order to submit the instruction. Taylor, 885 S.W.2d at 158.

Gabay argues the instruction was inappropriate because there was no evidence of intoxication. We disagree. There was evidence Gabay drank four beers at a bar in the two to three hours immediately before the accident and he stated that his tolerance level is four or five beers. Gabay asserts the medical examiner's undisputed testimony established he was not intoxicated. However, the medical examiner only testified generally. She testified that one beer contains about one ounce of alcohol and that generally, subject to the person's size, weight, tolerance, genetics, activity level, and other very individualized factors, an ounce of alcohol metabolizes in about an hour. She did not offer any testimony about the factors, nor did she offer any opinion as to Gabay's blood alcohol level or whether he was intoxicated at the time of the accident. We agree that the evidence did not establish Gabay was intoxicated at the time of the accident. However, a section 8.04 instruction is appropriate when even slight evidence suggests that the defendant's actions were affected by an intoxicant. Sakil, 287 S.W.3d at 27-28; Taylor, 885 S.W.2d at 158. Here, the evidence of Gabay's alcohol consumption over a short period of time immediately prior to the accident is sufficient to raise the issue.

Gabay also contends the instruction was improper because he did not attempt to rely on intoxication as an excuse or to explain his conduct. However, the defendant need not rely on intoxication in order for the instruction to be proper. Taylor, 885 S.W.2d at 158. One of the purposes of the charge is "to lead and prevent confusion." Sakil, 287 S.W.3d at 26. Thus, if there was any evidence that might have led the jury to conclude that intoxication excused Gabay's actions or prevented him from having the requisite mental state, the instruction was appropriate. See Taylor, 885 S.W.3d at 158.

The focus of Gabay's defensive case was that he did not have the requisite mental state for conviction. When evidence was admitted that might have led the jury to believe that Gabay was under the influence of alcohol at the time of the offense and that this might have contributed to his action or inaction, it was proper for the court to instruct the jury. See Jaynes v. State, 673 S.W.2d 198, 202 (Tex. Crim. App. 1984), abrogated on other grounds by Chauncey v. State, 877 S.W.2d 305 (Tex. Crim. App. 1994). "The jury was free to find that appellant had no knowledge of the accident as long as they did not attribute that lack of knowledge to intoxication." Id. This is not a comment on the weight of the evidence. Id. The trial court did not err in submitting the charge.

CLOSING ARGUMENT

In his final point of error, Gabay argues the trial court erred by denying his motion for mistrial based on the prosecutor's remarks during closing argument. During closing argument, the prosecution stated:

I want to thank you, ladies and gentlemen, for being here. I know — I know that it is sacrificial service to sit on a jury. You are paid a pittance. You have taken time away from your family, your friends, your work, and all your other obligations to come up here, and we want to thank you for it, because, simply put, you are the conscience and you are the voice of your community right now. You get to decide what kind of a community you want to live in, and if you want to allow someone to run over someone and leave them for dead in the ditch, then say so with your verdict. If, on the other hand, you don't want to live in that kind of a community and you don't want to tolerate that kind of behavior, then let your verdict say that, too, but I want to thank you for your time and your attention.

Gabay objected to these remarks and moved for a mistrial. The trial court overruled Gabay's objection and denied his motion for mistrial.

A mistrial is proper only if the argument was improper and only in extreme circumstances where the prejudice is incurable. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). Proper jury argument includes appropriate pleas for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). "Although a jury argument that the community expects, demands, or desires a particular result is improper, a prosecutor may address the jurors as representatives, spokesmen, and even the conscience of the community." Barcenes v. State, 940 S.W.2d 739, 749 (Tex. App.-San Antonio 1997, pet. ref'd)(internal citation omitted). Thus, it is not improper for the prosecutor to ask the jury to "be the voice of conscience of the people of this County and State." Brown v. State, 508 S.W.2d 91, 96 (Tex. Crim. App. 1974), abrogated on other grounds by Payton v. State, 572 S.W.2d 677 (Tex. Crim. App. 1977).

The prosecutor's remarks asked the jurors to speak for the community and did not argue the community expected, demanded, or desired a particular result. We hold the trial court did not err in overruling Gabay's objection. Because the trial court properly overruled Gabay's objection to the prosecutor's remarks, the trial court's decision to deny the motion for mistrial was not an abuse of discretion.

CONCLUSION

We affirm the trial court's judgment.

FootNotes


1. The warnings required by section 2(a) are virtually identical to those required by Miranda v. Arizona, 384 U.S. 436, 444-45 (1966), with the exception that section 2(a) adds an additional requirement that the accused be warned he "has the right to terminate the interview at any time." TEX. CODE CRIM. PROC. ANN. art. 38.22 § 2 (a) (West Supp. 2015); Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).
2. Gabay's third point of error asserts the trial court erred by failing to make an express finding that Gabay's statement was voluntary before admitting it into evidence. Although we believe it can be fairly inferred from the trial court's original findings that the court concluded the statement was voluntarily given, we abated and remanded to the trial court for further clarification. The trial court's supplemental findings and conclusions expressly state that the "statement was freely and voluntarily made." We therefore overrule this point.

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