Grady Lee Brown v. the State of Texas

Affirmed and Opinion Filed December 4, 2024

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00779-CR

GRADY LEE BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the County Court At Law No. 1
Kaufman County, Texas
Trial Court Cause No. 20-50269-CC-F

MEMORANDUM OPINION
Before Justices Reichek, Nowell, and Carlyle
Opinion by Justice Nowell
A jury convicted appellant Grady Lee Brown of driving while intoxicated with

two or more previous convictions under Texas Penal Code § 49.09(b) and sentenced

him to seven years’ confinement. He raises six issues on appeal regarding various

evidentiary rulings and the denial of his motion to suppress evidence. We affirm the

trial court’s judgment.

Background

On June 4, 2020, around 10 p.m., appellant swerved to miss a car that he

claimed ran a stop sign. He landed in a roadside ditch.
Kelley and Brad Jones were driving home from dinner when Brad observed

headlights appear in his rearview mirror and then suddenly disappear, which “just

looked odd.” He told Kelley he thought someone drove off the road, so they turned

around and went back. Upon confirming a truck had “gone off the road,” Kelley

contacted 9-1-1 while Brad went toward the vehicle to assist. He noticed appellant

leaning against the outside of his truck. As Brad approached the truck, he heard loud

music playing. He yelled at appellant twice and asked if he was okay, but appellant

did not respond. Brad returned to his car and waited for officers to arrive.

Officer Michael Holt responded to the 911 dispatch call from Kelley. Officer

Holt observed a truck in the grassy median between the Rose Hill off-ramp and

Interstate 20. Another officer told him the vehicle smelled strongly of alcohol, and

alcohol was inside the truck.

When Officer Holt saw appellant, he was in the back of an ambulance strapped

to a gurney. Officer Holt smelled alcohol on his breath, and his eyes were glossy.

Appellant admitted he consumed one malt liquor and poured another one into a

resealable container before driving, but he denied being intoxicated.

Officer Holt performed a horizontal gaze nystagmus test while appellant was

in the back of the ambulance, and appellant showed six signs of intoxication.

Appellant argued he did not want medical treatment so officers transported him to

jail where they performed the walk-and-turn and one-leg stand sobriety tests.

Appellant showed signs of intoxication on both tests. Because appellant’s

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breathalyzer test was inconclusive and he refused consent for a blood draw, officers

obtained a warrant. They transported appellant to the hospital for the blood draw,

which later revealed a blood alcohol level of 0.108.

A jury found appellant guilty of “Driving While Intoxicated 3rd or More, as

charged in the Indictment” and sentenced him to seven years’ confinement. This

appeal followed.

Sufficiency of Briefing

We first address the adequacy of appellant’s briefing. Appellant’s original

brief did not comply with the requirements of Texas Rule of Appellate Procedure

38.1. See TEX. R. APP. P. 38.1(a)–(k). We notified appellant of the briefing

deficiencies and directed him to file an amended brief. Appellant filed an amended

brief, but the State maintains appellant’s amended brief still fails to comport with

rule 38.1.1 See Houston v. State, 201 S.W.3d 212, 215 (Tex. App.—Houston [14th

Dist.] 2006, no pet.) (stating an appellant court “is not appellant’s counsel, and a

skeletal brief is an impermissible burden on the appellate process”).

When a party, despite notice and an opportunity to cure, fails to adequately

brief a complaint, he waives the issue on appeal. See TEX. R. APP. P. 44.3; Cardenas

v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (en banc). We first consider

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The State addresses appellant’s issues based upon its interpretation of appellant’s arguments and to
the extent it could understand the issues.
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each issue for compliance with rule 38.1; then, in the interest of justice and to the

extent we can discern appellant’s arguments, we will address each issue.

Motion to Suppress

In his first issue, appellant argues the trial court erred by denying his motion

to suppress because it failed to determine whether the arresting officer properly

performed field sobriety tests. He contends field sobriety tests are “at best junk

science.”

Appellant fails to identify which field sobriety test he is challenging or explain

how the arresting officer incorrectly performed any of the tests. He likewise

provides no legal authority for his bald assertion that field sobriety tests are “junk

science.” His only legal citation relates to the appropriate standard of review for a

motion to suppress; however, he wholly fails to apply the standard of review to any

facts. Because appellant fails to present any substantive analysis, with appropriate

supporting authorities as required by rule 38.1, appellant’s issue is waived. TEX. R.

APP. P. 38.1(i); Cardenas, 30 S.W.3d at 393.

Competency to Stand Trial

In his second issue, appellant argues the trial court erred by failing to

sufficiently inquire into his mental competence after defense counsel re-urged the

issue during pretrial. He alleges there was reasonable doubt about whether he truly

understood the proceedings and had the ability to communicate with defense

counsel.

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Appellant has failed to cite to any portion of the record supporting his

argument or to provide any citation to relevant authority with application of the law

to the facts of this case. TEX. R. APP. P. 38.1(i). Despite these briefing deficiencies,

the record belies appellant’s argument.

A fundamental principle of our criminal justice system is that, as a matter of

constitutional due process, an incompetent criminal defendant may not stand trial.

Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018). We review a trial

court’s competency decision for an abuse of discretion. Clark v. State, No. 05-18-

00944-CR, 2020 WL 1502731, at *2 (Tex. App.—Dallas Mar. 30, 2020, no pet.)

(mem. op., not designated for publication) (citing Moore v. State, 999 S.W.2d 385,

393 (Tex. Crim. App. 1999)). A trial court does not abuse its discretion absent a

showing that its decision was arbitrary or unreasonable. Id.

Incompetency to stand trial is shown if a person does not have (1) sufficient

present ability to consult with his lawyer with a reasonable degree of rational

understanding or (2) a rational as well as factual understanding of the proceedings

against him. Boyett, 545 S.W.3d at 563.

The record indicates the trial court signed an “Agreed Order for Examination

Regarding Incompetency” on June 22, 2022 because “there is evidence to support a

finding of incompetency and that Defendant should be examined as provided by

Article 46B.021.” The court ordered appellant to submit to examination by July 15,

2022. The clerk’s record contains a subsequent motion for competency examination

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filed by defense counsel on December 14, 2022. The trial court signed an “Order

Appointing Competency Evaluation” the same day. Neither competency evaluation

report appears in the record; however, in a motion for continuance filed on February

28, 2023, defense counsel acknowledged appellant had been evaluated twice for his

competency to stand trial, and both evaluations found him competent to stand trial.

During a pretrial hearing, appellant’s granddaughter testified she believed

appellant’s strokes had diminished his mental capacity. He forgot conversations and

little things like where he placed his keys. She acknowledged she had no medical

training and had not attended any doctors’ appointments with him, but she believed

he did not know what was going on with the proceedings.

At the conclusion of her testimony, the trial judge said the following:

There have been questions throughout the last four, five years, and there
have been two competency evaluations. And the threshold for
competency is not necessarily a high one, and Mr. Brown has met the
threshold in those two different tests. I don’t see any reason to postpone
or to have a new test. . . . I think we have been prudent throughout this
case, and with your client, with making sure he is competent, taking
into consideration the issues that presented themselves from the
beginning with previous counsel, and then later after his strokes.
The court stated appellant met the threshold for competency and continued with the

trial.

The trial court is not obligated to revisit the competency issue absent a

material change of circumstances suggesting that the defendant’s mental status has

deteriorated. Clark, 2020 WL 1502731, at *3. Appellant has not cited to any

evidence in the record indicating the trial court abused its discretion by finding
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appellant competent on two separate occasions to stand trial. His granddaughter’s

testimony did not suggest a material change in circumstances suggesting a

deterioration in his mental status. Moreover, appellant’s expert testified he believed

with a reasonable degree of certainty that appellant was able to consult with his

attorney and understand the proceedings. The trial court did not act arbitrarily or

unreasonably under these facts; therefore, it did not abuse its discretion in

proceeding with trial without further inquiry into his competency. Id. We overrule

appellant’s second issue.

Prior DWI Convictions Read to Jury During Arraignment

In his third issue, appellant argues the trial court erred by allowing the State

to read appellant’s prior DWI convictions to the jury during arraignment “for the

purpose of unfair prejudice.” The State responds the trial court did not err because

the reading of prior convictions to the jury is permissible if, as here, no evidence

regarding the prior DWI’s is presented during the guilt-innocence phase.

An appellant waives error when his argument on appeal fails to comport with

the objection raised in the trial court. Rezac v. State, 782 S.W.2d 869, 870 (Tex.

Crim. App. 1990); Gonzales v. State, No. 05-18-00895-CR, 2019 WL 3059878, at

*7 (Tex. App.—Dallas July 12, 2019, pet. ref’d) (mem. op., not designated for

publication). At trial, defense counsel objected to the State reading the prior DWI

convictions “because of the stipulation.” He did not object that reading the prior

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convictions would unfairly prejudice him in front of the jury. Because his objection

at trial does not comport with his argument on appeal, appellant’s issue is waived.

Even assuming he preserved his issue, it is well-established the State may read

the entire indictment, including the jurisdictional allegations (in this case, the prior

DWI convictions), in arraigning the defendant in the presence of the jury. Martin v.

State, 200 S.W.3d 635, 640 (Tex. Crim. App. 2006); Williams v. State, No. 08-03-

00083-CR, 2006 WL 2987117, at *1 (Tex. App.—El Paso Oct. 19, 2006, no pet.)

(op. on remand, not designated for publication). Further, in cases such as this where

the defendant agrees to stipulate to the two previous DWI convictions, the Texas

Court of Criminal Appeals has determined the proper procedure to avoid undue

prejudice to the defendant is “when the State reads the indictment at the beginning

of trial, mentioning only the two jurisdictional prior convictions, but [the State] is

foreclosed from presenting evidence of the convictions during its case-in-chief.”

Tamez v. State, 11 S.W.3d 198, 202 (Tex. Crim. App. 2000). As no evidence of the

prior DWI’s was presented during the guilt-innocence phase, the trial court did not

err in overruling appellant’s objection. We overrule appellant’s third issue.

Lay Witness Opinion Testimony

In his fourth issue, appellant argues the trial court abused its discretion by

overruling his objection to speculative witness testimony. The State responds the

testimony was proper lay witness testimony because it was based on what the

witness perceived at the scene and was helpful in determining a fact at issue.

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The admissibility of evidence is within the discretion of the trial court and will

not be reversed absent an abuse of discretion. Osbourn v. State, 92 S.W.3d 531,

537–38 (Tex. Crim. App. 2002). If evidence supports the trial court’s decision to

admit evidence, there is no abuse of discretion, and the appellate court must defer to

that decision. Id.; Wells v. State, 675 S.W.3d 814, 828 (Tex. App.—Dallas 2023,

pet. granted).

Brad Jones testified that as he approached appellant’s vehicle, he heard loud

music coming from it. He yelled, “Are you okay?” but appellant did not answer.

Jones got closer to appellant and again asked if he was okay, but appellant still did

not respond.

The State asked Jones “his belief at that time on why [appellant] did not

respond.” Defense counsel objected it called for speculation, and the trial court

overruled it. Jones then testified, “I thought that either the music was too loud

coming out of the vehicle to hear me, or he could have possibly been intoxicated and

just did not know I was there.”

Texas Rule of Evidence 701 provides that lay opinion testimony is allowed

when it is “rationally based on the witness’s perception.” TEX. R. EVID. 701. A lay

witness can give an opinion as to whether another person is intoxicated. Oropeza v.

State, No. 05-03-00741-CR, 2004 WL 575712, at *1 (Tex. App.—Dallas Mar. 24,

2004, pet. ref’d) (not designated for publication) (citing Vaughn v. State, 493 S.W.2d

524, 525 (Tex. Crim. App. 1972)). Brown’s testimony was based on what he

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perceived at the scene, which was appropriate lay opinion testimony and not

speculation. Accordingly, the trial court did not abuse its discretion. Appellant’s

fourth issue is overruled.

Exclusion of Expert Testimony

In his fifth issue, appellant argues the trial court abused its discretion by

sustaining the State’s relevancy objection to a portion of his expert’s testimony.

Appellant failed to cite to the record or explain what testimony he is challenging on

appeal. Instead, he cited to the trial court sustaining the State’s relevance objection

because the testimony “goes outside the scope of the offense.” As such, we conclude

appellant failed to comply with rule 38.1 and therefore waived his issue. TEX. R.

APP. P. 38.1(g), (i).

Even if appellant had adequately briefed this issue, it is still waived. When a

trial court sustains a relevancy objection, to preserve error, the offering party must

inform the court of the evidence’s “substance by an offer of proof, unless the

substance was apparent from the context.” Fields v. State, 507 S.W.3d 333, 337

(Tex. App.—Houston [1st Dist.] 2016, no pet.) (citing TEX. R. EVID. 103(a)(2)). It

is not apparent from the record why any of appellant’s early life cognitive struggles

was relevant to a felony DWI committed decades later. As such, appellant failed to

preserve error in the trial court. Id. His fifth issue is overruled.

Sufficiency of Evidence of Prior Convictions

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In his sixth issue, appellant argues the State failed to prove his prior DWI

convictions with fingerprint evidence. The State responds there is no requirement

to prove prior convictions through fingerprint evidence.

To establish that a defendant has been convicted of a prior offense, the State

must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the

defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921–22

(Tex. Crim. App. 2007). No specific document or mode of proof is required to prove

these two elements. Id. There is no “best evidence” rule in Texas that requires a

prior conviction be proven with any document, much less any specific document.

Id. While evidence of a certified copy of a final judgment and sentence may be a

preferred and convenient means, the State may prove both of these elements in a

number of different ways, including (1) the defendant’s admission or stipulation, (2)

testimony by a person who was present when the person was convicted of the

specified crime and can identify the defendant as that person, or (3) documentary

proof (such as a judgment) that contains sufficient information to establish both the

existence of a prior conviction and the defendant’s identity as the person convicted.

Id. at 922. “Just as there is more than one way to skin a cat, there is more than one

way to prove a prior conviction.” Id. Thus, a fingerprint is not required to connect

a defendant to a prior conviction. Appellant has not challenged the State’s

presentation of his prior convictions on any other ground. As such, we overrule his

final issue.

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Conclusion

The trial court’s judgment is affirmed

/Erin A. Nowell//
ERIN A. NOWELL
230779f.p05 JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)

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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

GRADY LEE BROWN, Appellant On Appeal from the County Court At
Law No. 1, Kaufman County, Texas
No. 05-23-00779-CR V. Trial Court Cause No. 20-50269-CC-
F.
THE STATE OF TEXAS, Appellee Opinion delivered by Justice Nowell.
Justices Reichek and Carlyle
participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered this 4th day of December, 2024.

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