Frank Henry Wesch, Jr. v. the State of Texas ( 2021 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-20-00127-CR
Frank Henry WESCH, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 451st Judicial District Court, Kendall County, Texas
Trial Court No. 17-378-CR
Honorable Kirsten Cohoon, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: June 9, 2021
AFFIRMED
Frank Henry Wesch, Jr. appeals his conviction for Driving While Intoxicated (DWI), first
offense, a Class B misdemeanor. We affirm the trial court’s judgment.
BACKGROUND
Wesch was charged by information with operating a motor vehicle in a public place while
intoxicated “by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous
drug, a combination of two or more of these substances, or any other substance into the body.”
04-20-00127-CR
TEX. PENAL CODE ANN. § 49.04; id. § 49.01(2)(A) (definition of intoxication). He pled not guilty
and proceeded to a jury trial.
At trial, Boerne Police Department Officer Pedro Moncada testified he conducted a traffic
stop after observing Wesch’s vehicle cross over the roadway’s double yellow line. When he made
contact with Wesch, Officer Moncada noticed the smell of alcohol on Wesch’s breath and observed
that Wesch’s eyes were “glossy.” Wesch admitted drinking two glasses of wine prior to the stop.
Officer Moncada suspected that Wesch was intoxicated and administered the standard field
sobriety tests. Based on his performance on the field sobriety tests, Officer Moncada arrested
Wesch for DWI.
Officer Moncada testified he observed that Wesch’s pupils were constricted and “pinpoint”
in appearance, which, based on his experience, led him to suspect that Wesch had ingested a
“narcotic analgesic” like “heroin or painkillers” in addition to alcohol. During a post-arrest search
of Wesch’s vehicle, Officer Moncada found a dirty Q-tip on the front passenger seat along with a
piece of cotton swab and some “green flakes” 1 inside the center console. Officer Moncada testified
the items were indicative of drug use. In explanation, Officer Moncada stated he suspected the
green flakes were marijuana residue or “shake.” With respect to the Q-tip and cotton swab, Officer
Moncada testified that, while they are not inherently suspicious items, the surrounding
circumstances made them suspicious because “people that are on - - on heroin use filters from the
- - from the Q-tips as a filter to - - when they inject the heroin.” Photographs of the Q-tip and the
contents of the console, i.e., the piece of cotton and the green flakes, were admitted into evidence.
Officer Moncada further testified that a K-9 dog “hit” on the center console area of Wesch’s
1
Also referred to in the record as “green specks.”
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vehicle. In addition to Officer Moncada’s testimony, the video footage from his dash-cam and
body-cam were admitted.
The jury found Wesch guilty of DWI as charged in the information and the trial court
sentenced him to 180 days in jail, but suspended the sentence and placed him on two years’
community supervision with a condition of three days in jail and imposed a $700 fine. Wesch
appealed.
ANALYSIS
In a single issue, Wesch argues the trial court erred in admitting the evidence of “suspected
drug paraphernalia and/or drug use” found in Wesch’s vehicle because the evidence was
“speculative and irrelevant,” and thus inadmissible under Rules 401 and 402. See TEX. R. EVID.
401 (defining relevant evidence), 402 (inadmissibility of irrelevant evidence). Wesch argues in
the alternative that, even if the challenged evidence was relevant, the trial court erred in admitting
it because its probative value was substantially outweighed by the danger of unfair prejudice under
Rule 403. See TEX. R. EVID. 403 (permitting trial court to exclude relevant evidence if its probative
value is substantially outweighed by one of several factors, including unfair prejudice). Finally,
Wesch asserts the evidence was inadmissible under Rule 404(b). See TEX. R. EVID. 404(b)
(evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order
to show they acted in conformity with their character). The State responds that Wesch did not
object on any of these bases in the trial court, and therefore failed to preserve his issue for appellate
review.
Preservation of appellate complaints is governed by Rule 33 of the Texas Rules of
Appellate Procedure. Under Rule 33.1(a), a complaint must be raised in the trial court by request,
objection, or motion in a timely and specific manner, and the trial court must rule on the request,
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objection, or motion, whether expressly or implicitly. 2 TEX. R. EVID. 33.1(a)(1), (2); Garza v.
State, 126 S.W.3d 79, 81–82 (Tex. Crim. App. 2004). With respect to the specificity required to
preserve a complaint in the trial court, the rule requires in part that the request, objection, or motion
have “stated the grounds for the ruling that the complaining party sought from the trial court with
sufficient specificity to make the trial court aware of the complaint, unless the specific grounds
were apparent from the context.” TEX. R. EVID. 33.1(a)(1)(A). One of the main purposes for
requiring a timely, specific objection is to inform the trial judge of the basis of the objection and
provide an opportunity for the judge to consider and rule on the objection. Garza, 126 S.W.3d at
82.
Here, the record shows that, not only did Wesch not object under Rules 401, 402, 403 or
404(b), he did not raise any objection to Officer Moncada’s testimony that: he found the dirty Q-
tip on the passenger seat and the cotton swab and green flakes inside the center console of Wesch’s
vehicle; the items are indicative of drug usage; based on his experience, he believed the green
flakes were marijuana residue; and based on his experience, people use Q-tip filters to inject
heroin. Because no complaint was raised in the trial court challenging the admissibility of this
evidence, Wesch failed to preserve the issue for appellate review. TEX. R. EVID. 33.1(a); Garza,
126 S.W.3d at 81–82.
With respect to admission of the photograph of the Q-tip lying on the passenger seat (State
Exhibit No. 5), Wesch made no objection to the photo (the first page of the exhibit) and it was
admitted. Wesch did object to the second page of State Exhibit No. 5, and the trial court sustained
the objection and excluded that page. With respect to State Exhibit No. 6, the photograph of the
piece of cotton and the green flakes inside the vehicle console, Wesch objected that Officer
2
If the trial court refuses to rule on the request, objection, or motion, the party must object to the refusal. TEX. R.
EVID. 33.1(a)(2)(B).
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Moncada had failed to lay the proper predicate, but the objection was overruled and the photo was
admitted. Where the complaint raised on appeal does not comport with the trial objection, nothing
is preserved for our review. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); Huerta
v. State, 933 S.W.2d 648, 650 (Tex. App.—San Antonio 1996, no pet.). Wesch’s “improper
predicate” objection to admission of State Exhibit No. 6 does not comport with his appellate
arguments under Rules 401, 402, 403 and 404(b); therefore, Wesch failed to preserve his issue for
appellate review. TEX. R. APP. P. 33.1(a); Clark, 365 S.W.3d at 339.
Finally, even if Wesch had raised the proper objections during Officer Moncada’s
testimony on direct examination, defense counsel cross-examined Officer Moncada at length about
the dirty Q-tip, the piece of cotton, and green specks and their relationship to drug use. Therefore,
any error in the admission of the evidence was cured by Wesch’s questioning Officer Moncada
about the same evidence. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (“An error
in the admission of evidence is cured where the same evidence comes in elsewhere without
objection.”).
CONCLUSION
Based on the foregoing reasons, we affirm the trial court’s judgment.
Liza A. Rodriguez, Justice
DO NOT PUBLISH
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