Michael Gene Walker v. State

Opinion issued December

23, 2010

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00902-CR

———————————

Michael Gene Walker , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 351st District

Court

Harris County, Texas

Trial Court Case No. 1165264

MEMORANDUM OPINION

Appellant, Michael Gene Walker, challenges

the trial court’s judgment adjudicating him guilty of the offense of possession

of child pornography and sentencing him to 10 years in prison. Tex. Penal

Code Ann. § 43.26( a) (Vernon 2003).

In two issues, appellant contends that the trial court erred in revoking

his deferred adjudication community supervision and in denying his motion for

shock probation.

We affirm the trial court’s judgment

as modified.

Background

Appellant pleaded guilty to the charged

offense of child pornography. Pursuant

to the plea agreement, the trial court deferred adjudication of appellant’s

guilt and placed him on community supervision for six years. The State later filed a motion to adjudicate

appellant’s guilt. The State alleged

that appellant had violated the terms and conditions of his community

supervision by “[c]ommitting an offense against the State of Texas, to-wit: on

or about September 11, 2009, in Harris County, Texas, the Defendant did then

and there unlawfully operate[] a motor vehicle in a public place while

intoxicated.” The State also alleged

that appellant had violated a condition of community supervision “by failing to

avoid persons or places of disreputable or harmful character.”

The State presented a number of

witnesses at the adjudication hearing to support the State’s DWI allegation. Lisa Maldinado testified that on September 11,

2009, she was sitting at a stop light in her truck when she was struck from

behind by a car driven by appellant. It

was around 8:00 p.m. Maldinado testified

that when he got out of his car, appellant could not walk and was stumbling. Appellant told Maldinado that his foot had slipped

off of the brake pedal. Although the

damage to her vehicle was minor, Maldinado testified that she called the police

because she thought appellant was drunk; she was concerned that he would hurt

someone else if he continued to drive.

Appellant got in his car and told Maldinado

that he wanted to move it to a safer place, specifically a nearby fast-food parking

lot. To prevent him from moving his

vehicle, Maldinado stood in front of appellant’s car. In spite of Maldinado’s actions, appellant

moved his car. According to Maldinado,

appellant “was steadily coming right at me and trying to run me over with his

vehicle.” Maldinado got out of the way,

and appellant drove his car to the parking lot.

Officer L.R. Menendez-Sierra with the

Houston Police Department was dispatched to the scene. Officer Menendez-Sierra located appellant

standing next to his car in the restaurant parking lot. As appellant walked toward him, Officer Menendez-Sierra

observed appellant swaying and staggering.

Appellant told the officer, “I’m sorry. I dropped something on the

floorboard and I took my foot off the pedal and I hit them just a little bit.”

Upon questioning, appellant told the

officer that he had not been drinking.

Officer Menendez-Sierra testified that he did not smell any alcohol on

appellant’s breath. Appellant mentioned

to Officer Menendez-Sierra that he had taken medication. Appellant told Officer Menendez-Sierra, “I

might have taken too much medication because I just got a new prescription.”

Officer Menendez-Sierra administered the

Horizontal Gaze Nystagmus (HGN) test to appellant. Officer Menendez-Sierra observed that

appellant exhibited six out of six possible clues on the test. Officer Menendez-Sierra testified that he

believed appellant was intoxicated. Because

it did not appear that appellant had been drinking alcohol, Officer Menendez-Sierra

contacted dispatch to send a drug recognition expert to the scene.

In response to Officer Menendez-Sierra’s

call for assistance, Officer R. Farias was dispatched to the scene around 10:00

p.m. Officer Farias testified that he is

a member of the DWI Task Force.

At the scene, appellant told Officer

Farias that he had not been drinking, but stated that he had taken three

medications that day: Klonopin, Depakote, and Zoloft. Appellant told Officer Farias that he might

have over-medicated himself.

Officer Farias, who is NHTSA certified

to conduct field sobriety tests, administered field sobriety tests to

appellant, including the HGN, the walk-and-turn, and one-leg stand tests. Appellant exhibited six out of six clues on

the HGN, six out of eight clues on the walk-and-turn, and three out of four

clues on the one-leg stand. Officer

Farias testified that the results of the tests indicated to him that appellant

was impaired.

Officer Farias also had appellant

recite the alphabet from D to X to determine whether his mental faculties were

impaired. Officer Farias testified that

appellant was unable to accurately recite the alphabet in the manner the

officer had instructed. This indicated

to Officer Farias that appellant “had lost some of his mental faculties.”

Officer Farias also observed appellant

staggering and stumbling at the scene.

He testified that appellant was “unsteady at best.” Based on his training and experience, Officer

Farias formed the opinion that appellant was intoxicated. Officer Farias transported appellant to the

police station.

Officer R. Montelongo, Jr. was working

at the police station that night. Officer

Montelongo is also assigned to the DWI Task Force. With regard to his training, Officer

Montelongo testified that he had attended “DWI school,” “intoxilyzer school,”

and “drug recognition expert school.” According

to Officer Montelongo, appellant was offered the opportunity to take a breath

or blood test to determine his impairment level but refused. Appellant told Officer Montelongo that he had

taken Klonopin, Depakote, and Zoloft.

Officer Montelongo testified that he saw appellant’s written

prescriptions for these medications.

Appellant told the officer that he had over-medicated. A video was also made of appellant at the

station, which was shown at the adjudication hearing.

At around midnight, Officer Montelongo

administered the HGN test to appellant.

He testified that appellant exhibited all six clues. Officer Montelongo also noted that, upon

testing, appellant’s eyes were not able to “converge” as they should. Officer Montelongo testified that he was not

able to conduct a drug recognition evaluation on appellant without first

determining that alcohol was not in appellant’s system. Alcohol could not be eliminated because

appellant had refused the breath and blood testing.

Officer Montelongo testified that

appellant did not have the normal use of his mental or physical faculties. Based on his observations, Officer Montelongo

formed the opinion that appellant was impaired and intoxicated on drugs.

In support of his defense, appellant

offered the testimony of his psychiatrist, Dr. Frank Chen. The doctor testified that appellant had been

diagnosed with major depressive disorder, generalized anxiety disorder, and

obsessive compulsive personality disorder traits. To treat these issues, Dr. Chen had

prescribed Klonopin, Depakote, and Zoloft.

The doctor testified that he had given

appellant a free sample of Depakote two days before the accident. He confirmed that the samples he gave his

patients had written warnings included in the packaging. Dr. Chen stated that appellant took Depakote

for impulse control. The doctor stated

that appellant was very concerned about losing control of his emotions. Dr.

Chen testified that Depakote can have cognitive side effects such as disorientation,

confusion and dizziness. Klonopin also

has cognitive side effects.

Dr. Chen explained that he had increased

appellant’s dosage of Zoloft two days before the accident. Dr. Chen did not increase the dosage of

appellant’s other two medications. The

doctor confirmed that it is possible to experience side effects from the

medication when the dosage is increased even though the person had not

previously experienced side effects.

Dr. Chen testified that he warns his

patients of the side effects of the medication he prescribes. With regard to Zoloft, he warns his patients

that the side effects can be nausea, vomiting, headache, diarrhea, and

worsening of anxiety. Dr. Chen testified

that a less common side effect of Zoloft is drowsiness, which occurs in

approximately 10 percent of persons taking it.

When asked on cross-examination what

he thought someone would mean if they said that they had “overmedicated,” Dr.

Chen stated that to him it meant that the person had taken more medication than

prescribed.

Appellant also testified at the

adjudication hearing. He confirmed that

his car had hit the back of Maldonado’s car while stopped at a red light. Appellant claimed that his foot had slipped

off the brake while he was trying to pick up some papers from the

floorboard.

Appellant stated that he had taken Zoloft

in the morning, Klonopin midday, and then had taken another Kloponin and Depakote

in the afternoon. Appellant agreed that

the video of him at the police station showed that he was not physically in a

condition that a person should be to drive a car. Appellant admitted that he felt the same side

effects at the time of the accident as he observed in the video.

Appellant’s testimony indicated that

he believed that he was impaired that night because of the increased dosage in

medicine. He had never become impaired

before his dosage of Zoloft was increased.

Appellant claimed that he would not have gotten in his car to drive that

night if he had realized that he was impaired.

On cross-examination, appellant stated

that he believed that he was more impaired at the time the video was taken—four

hours after the accident—because there would have been “additional effects of

the drugs” that he had taken later in the day. Appellant also agreed that the term

overmedicate indicates that he had taken more medicine than the doctor had

prescribed.

On re-direct, appellant denied taking his

medicine in a manner that deviated from that prescribed by Dr. Chen. He testified that he believed that taking the

Kloponin and Depakote in the afternoon together could have impaired him. Appellant testified that he normally took the

medications separately. Appellant

reiterated that he did not realize that he was impaired while he was driving on

the night of the accident.

Aside from the testimony regarding the

DWI charge, evidence was also presented to support the State’s allegation that

appellant had failed to avoid persons or places of disreputable or harmful

character. Appellant’s probation officer

testified that a member of a therapy group appellant had attended contacted her

to report that appellant had spoken to him outside of the group setting. Appellant did not deny that he had done this,

but testified that it was not clear to him that he could not have such

contact. Appellant claimed that, at the

time he had made the contact, he was not aware that it was not appropriate. He stated that other group members had communicated

outside of the group setting. Appellant

testified that, at the time of the hearing, he realized that it is forbidden

for therapy participants to have contact with one another outside of group therapy.

At the end of the adjudication

hearing, the trial court stated,

[F]or the record,

I find [appellant’s] Mr. Walker’s testimony regarding the DWI allegation not to

be credible. Upon that, I’m going to

find the first allegation of the DWI law violation to be true. I’m going to find the second violation

regarding associating with a disreputable, harmful person or person of that

character, I’m going to find that to be true. . . .

Upon that, I’m going to find you

guilty of possession of child pornography and revoke your probation.

The

trial court then conducted the punishment phase. The trial court sentenced appellant to 10

years in prison.

Nearly

six months after the trial court signed its judgment adjudicating his guilt,

appellant filed a motion for shock probation.

The trial court denied the motion the same day that it was filed.

Appellant

appeals the trial court’s judgment raising two issues.

Adjudication

of Guilt

In his

first issue, appellant contends that the trial court abused its discretion in adjudicating

him guilty because the evidence was insufficient to show that he violated the

terms and conditions of his community supervision .

A. Standard

of Review

A trial court’s determination on a

motion to adjudicate is reviewable in the same manner as a determination of a

motion to revoke community supervision. Tex.

Code Crim. Proc. Ann . art. 42.12, § 5(b) (Vernon Supp. 2010). A revocation proceeding is neither criminal

nor civil in nature; rather, it is an administrative proceeding. Canseco

v. State , 199 S.W.3d 437, 438 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).

At a revocation hearing, the State must

prove by a preponderance of the evidence that the defendant has violated a

condition of his community supervision. Id . at 438–39. Proof of a single violation is sufficient to

support a revocation. Id . at 439.

Appellate review of an order revoking community

supervision is limited to abuse of the trial court’s discretion. Rickels

v. State , 202 S.W.3d 759, 763 (Tex. Crim. App. 2006. We view the evidence in the light most

favorable to the trial court’s judgment. Canseco ,

199 S.W.3d at 439 . The trial court is

the exclusive judge of the credibility of the witnesses and must determine

whether the allegations in the motion to revoke are sufficiently demonstrated. Id .

B. Analysis

Appellant contends that the trial

court abused its discretion when it found that he violated the terms of his

community supervision by committing the offense of driving while intoxicated. We disagree.

To establish the offense of driving

while intoxicated, the State must prove the defendant was intoxicated while

operating a motor vehicle in a public place. Tex.

Penal Code Ann . § 49.04(a) (Vernon 2003); Stoutner v. State , 36 S.W.3d 716, 721 (Tex. App.—Houston [1st

Dist.] 2001, pet. ref’d). The Penal Code

defines “intoxicated” as (1) “not having the normal use of mental or physical

faculties by reason of the introduction of alcohol, a controlled substance, a

drug, a dangerous drug, a combination of two or more of those substances, or

any other substance into the body,” or (2) “having an alcohol concentration of

0.08 or more.” Tex. Penal Code Ann . § 49.01(2) (Vernon 2003).

Appellant offers two arguments to show

that the trial court abused its discretion when it found, by a preponderance of

the evidence, that appellant had committed the offense of driving while

intoxicated. Appellant does not argue

that the evidence failed to show he was intoxicated. Indeed, as discussed above, there is ample

evidence in the record showing that appellant’s physical and mental faculties

were impaired that night. Instead, appellant

first argues that the State failed to establish the offense because the

evidence does not show “the manner and means” by which appellant became

intoxicated.

Significantly, the substance that

causes intoxication is not an element of driving while intoxicated, see Tex.

Penal Code Ann . § 49.04(a), and thus, the State can prove intoxication

without proof of the type of intoxicant, see

Gray v. State , 152 S.W.3d 125, 132 (Tex. Crim. App. 2004). Here, the evidence showed that appellant had

taken Klonopin, Depakote, and Zoloft on the day of accident. Appellant testified that, late in the

afternoon, he had taken Klonopin and Depakote at the same time. He testified that he normally did not take

the two drugs together. The State presented testimony that appellant

admitted to the police officers that he had overmedicated himself. The witnesses, including appellant and his

psychiatrist, agreed that the term “overmedicated” indicates that more

medication was taken than had been prescribed.

Even though appellant testified that he had taken the medication as

prescribed, the trial court was free to disbelieve appellant’s testimony in

this regard. See Casey v. State , 519 S.W.2d 859, 861 (Tex. Crim. App. 1975) (explaining

that as the trier of fact in a revocation hearing, trial court is the sole

judge of the credibility of the witnesses and the weight to be given their

testimony; trial court may accept or reject all or any part of witnesses’

testimony).

Moreover, the evidence showing that

appellant was unsteady on his feet and performed poorly on the sobriety tests

is circumstantial evidence indicating that appellant’s intoxication resulted

from his ingestion of medication, which he admitted to have taken several times

that day, including late in the afternoon. In short, the record contains ample evidence

from which the trial court could have inferred that appellant’s intoxication

resulted from his ingestion of the prescription medication.

Appellant also contends that he

“proved that he was involuntarily intoxicated due to prescription drugs.” Appellant argues that his intoxication

resulted from Dr. Chen’s increasing of the dosage of his Zoloft two days

earlier. Appellant contends that he took

the increased dosage as prescribed without knowledge that it would cause him to

lose control of his physical and mental faculties.

Texas courts have held that

involuntary intoxication is not a defense to DWI because the offense of DWI

does not require a culpable mental state.

See, e.g. , Brown v. State , 290 S.W.3d 247, 250

(Tex. App.—Fort Worth 2009, pet. ref’d); Stamper

v. State , No. 05-02-01730-CR, 2003 WL 21540414 , at *1 (Tex. App.—Dallas

July 9, 2003, no. pet.) (mem. op., not designated for publication) (emphasizing

that involuntary intoxication is not defense to DWI and that correct defense is

involuntary act); Bearden v. State ,

No. 01-97-00900-CR, 2000 WL 19638 , at *4 (Tex. App.—Houston [1st Dist.] Jan.

13, 2000, pet. ref’d) (not designated for publication) (declining to extend involuntary

intoxication defense to offense of driving while intoxicated); Aliff v. State , 955 S.W.2d 891, 893

(Tex. App.—El Paso 1997, no pet.) (holding that proof of culpable mental state

is not required for DWI conviction, thus, involuntary intoxication cannot be defense

to such charge). Moreover, the voluntary

taking of prescription drugs, which impair mental or physical faculties, is not

a defense to DWI. [1] Tex.

Penal Code Ann . § 49.10 (Vernon Supp. 2010).

In any event, the evidence in this

case supports a finding by the trial court that appellant voluntarily took an

intoxicant for which he was aware of the side effects or which he did not take

as prescribed. The evidence showed that

appellant admitted to the police officers that he had overmedicated himself

that day. Dr. Chen testified that he

warns his patients of the side effects of the medication.

As he points out, appellant testified

that he took the medication as prescribed and that he was not aware of his

impairment when he got in his car.

Nonetheless, the trial court was free to disbelieve appellant’s

testimony in these respects. Casey , 519 S.W.2d at 861 .

We conclude that the record supports

the trial court’s finding that appellant had violated the terms and conditions

of his community supervision by committing the offense of driving while

intoxicated. [2] We hold that the trial court did not abuse

its discretion in revoking appellant’s community supervision and adjudicating

his guilt. See Rickels , 202 S.W.3d at 763–64.

We overrule appellant’s first issue.

Modification

of Judgment

As mentioned, the trial court stated

on the record that it found to be true the State’s allegations that appellant

violated the terms and conditions of his community supervision by committing

the DWI offense and by failing

to avoid persons of disreputable character.

The trial court’s judgment recites that the court found that appellant violated his community supervision by

committing an offense against the laws of the State of Texas. The judgment did not recite that the trial

court found that appellant had violated his community supervision terms by failing

to avoid persons of disreputable character.

The State requests that we modify the judgment to reflect that the trial

court’s finding regarding appellant’s association with person of disreputable

character

When there is a conflict between the trial

court’s oral pronouncement of the findings supporting revocation and the

written judgment, the oral pronouncement controls. See

Smith v. State , 290 S.W.3d 368, 377 (Tex. App.—Houston [14th Dist.] 2009,

pet. ref’d) (citing Thompson v. State ,

108 S.W.3d 287, 290 (Tex. Crim. App. 2003)). We may modify the trial court’s written

judgment to correct such a clerical error when we have the necessary

information before us to do so. See Tex.

R. App. P . 43.2(b); Bigley v.

State , 865 S.W.2d 26 , 27–28 (Tex. Crim. App. 1993); Asberry v. State , 813 S.W.2d 526 , 529–30 (Tex. App.—Dallas 1991,

pet. ref’d). Accordingly, we modify the judgment to show that appellant also violated

the terms and conditions of his community supervision by failing to avoid

persons or places of disreputable or harmful character. See

Tex. R. App. P. 43.2(b); s ee also Smith , 290 S.W.3d at 377

(modifying order of adjudication to include trial court’s oral pronouncement

that defendant violated six conditions of his deferred adjudication); Smith v. State , 790 S.W.2d 366, 368

(Tex. App.—Houston [1st Dist.] 1990, pet. ref’d) (modifying order revoking probation

to include trial court’s oral pronouncement that defendant failed to maintain

employment).

Shock

Probation

In his

second issue, appellant contends that the trial court erred in denying his

motion for shock probation.

Section 6(a) of article 42.12 of the

Code of Criminal Procedure governs shock probation. That section provides:

For the purposes of this section, the jurisdiction

of a court in which a sentence requiring imprisonment in the institutional

division of the Texas Department of Criminal Justice is imposed by the judge of

the court shall continue for 180 days from the date the execution of the sentence

actually begins. Before the expiration

of 180 days from the date the execution of the sentence actually begins, the

judge of the court that imposed such sentence may on his own motion, on the

motion of the attorney representing the state, or on the written motion of the

defendant, suspend further execution of the sentence and place the defendant on

community supervision under the terms and conditions of this article, if in the

opinion of the judge the defendant would not benefit from further imprisonment

and:

(1) the defendant is

otherwise eligible for community supervision under this article; and

(2) the defendant had never

before been incarcerated in a penitentiary serving a sentence for a felony.

Tex. Code Crim. Proc. Ann. art. 42.12, § 6 (Vernon Supp. 2010).

Here, appellant filed a motion for

shock probation less than 180 days after the trial court signed the judgment

adjudicating guilt. In the motion, appellant

asserted that he was no longer a danger to society and that he had been

truthful when he testified that he had not intentionally or knowingly

overmedicated himself. In support of his

claim of truthfulness, appellant attached a report from a polygraph examiner

reporting the results of a polygraph test appellant had taken.

Appellant asserts that the trial court

abused its discretion in denying his motion for shock probation because the

motion addressed the trial court’s concerns expressed at the adjudication

hearing and because the polygraph examiner found him to be truthful.

The language of article 42.12, section

6 makes clear that the decision whether to grant shock probation is committed

to the discretion of the trial court. See id.

It is not mandatory.

Moreover, as the trier of fact in a revocation hearing, the trial court

is the sole judge of the credibility of the witnesses and the weight to be

given their testimony. Casey , 519 S.W.2d at 861 . The trial court may accept or reject all or

any part of a witness’s testimony. Id .

It was the trial court’s prerogative to disbelieve appellant, in spite

of the polygraph examination. See id. ; see also Nesbit v. State , 227 S.W.3d 64 , 66 n.4 (Tex. Crim. App. 2007)

(recognizing general rule that results of polygraph test are not admissible in

a Texas criminal proceeding).

Appellant has not shown that the trial

court abused its discretion in denying his motion for shock probation.

We overrule appellant’s second issue.

Conclusion

The judgment of the trial court is

affirmed as modified.

Laura

Carter Higley

Justice

Panel consists of Justices Keyes, Higley, and Bland.

Do not publish. Tex. R.

App. P. 47.2( b).

[1]

Several courts of appeals have, however,

considered an involuntary act, i.e., automatism, as a defense to DWI. See,

e.g., Peavey v. State , 248 S.W.3d 455, 465 (Tex. App.—Austin 2008, pet.

ref’d) (discussing automatism as a defense to DWI); see also Stamper v. State , No. 05-02-01730-CR, 2003 WL 21540414 , at

*1 (Tex. App.—Dallas July 9, 2003, no. pet.) (mem. op., not designated for

publication) (recognizing that appellant incorrectly argued involuntary

intoxication when she should have argued involuntary act); Waters v. State , No. 01-96-00631-CR, 2001 WL 754759 , at *3 (Tex.

App.—Houston [1st Dist.] June 29, 2001, no pet.) (not designated for

publication) (analyzing whether appellant voluntarily became intoxicated).

[2]

Because this ground supports the

trial court’s judgment, we do not reach appellant’s other challenge in which he

argues that the trial court’s finding that he violated the terms of his

community supervision by failing to avoid persons or places of disreputable or

harmful character. See Moore v. State , 605 S.W.2d 924, 926 (Tex. Crim. App. 1980)

(explaining that single ground supporting trial court’s action ends inquiry

into appellant’s challenge); Canseco v.

State , 199 S.W.3d 437, 439 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).