Lopez, Frank v. State ( 2002 )

                                                            COURT OF APPEALS

                                                    EIGHTH DISTRICT OF TEXAS

                                                               EL PASO, TEXAS

FRANK LOPEZ,                                                  )

                                                                              )     No.  08-01-00165-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )     County Court at Law #4

THE STATE OF TEXAS,                                     )

                                                                              )     of El Paso County, Texas

Appellee.                           )

                                                                              )     (TC# 990C08925)

                                                                              )

O P I N I O N

This appeal arises from a misdemeanor charge of driving while intoxicated.  A jury found Appellant Frank Lopez guilty and the trial court assessed punishment at 180 days= confinement, probated for 15 months, and a fine of $750, $500 probated.  Appellant now raises two issues for consideration by this Court:  (1) whether the trial court erred in admitting a law enforcement officer=s report into evidence; and (2) whether the prosecution made improper comments during closing argument.  We affirm the conviction.

Appellant was pulled over by a DPS trooper for erratic driving. According to Trooper Jeffery Bell, Appellant=s vehicle was weaving from lane to lane without signaling.  After the trooper approached the car, he smelled a heavy odor of alcohol coming from inside the vehicle and from Appellant=s breath.  He also observed other signs of intoxication and decided to transport Appellant to the police station to conduct field sobriety tests.

Appellant failed or could not perform the field sobriety tests. The tests were videotaped and the video was later admitted into evidence at trial.  Appellant also refused to give a breath specimen.  The trooper asked Appellant a standard list of questions and his responses were recorded on the usual form used by DPS in such situations. During this questioning, Appellant admitted that he had been drinking that evening.

Appellant=s first issue on appeal is related to a law enforcement report admitted into evidence during the presentation of the State=s case.  The report at issue is a single-page document entitled ADWI Interview - Standardized Field Sobriety Testing.@  It is a standard form with questions to be asked by law enforcement officers of DWI suspects.  There are blanks next to each question for the recording of responses.  There is also a check list of observations made by the officer contemporaneous with the suspect=s performance of three field sobriety tests. The form entered into evidence in this case had been completed by Trooper Bell and included the responses given by Appellant along with the officer=s observations.

On direct examination, the officer testified at length about the questions asked of the defendant and the tests performed on the night he was arrested.  During his testimony, Trooper Bell mentioned the checklist of standard inquiries and the form on which Appellant=s responses were recorded.  At a later point, on rebuttal, Trooper Bell testified he could not remember all of the questions on the form.  The prosecutor then gave the trooper a copy of the report to refresh his recollection.  No objections were lodged by the defense.  The trooper then continued to testify.  Later, the State laid a proper predicate to admit the document under the recorded recollection exception to the hearsay rule (803(5)). The form was offered into evidence by the State.  The defense objected and the following exchange took place:

Defense:           However, Your honor, I object to it because the District Attorney=s office has taken it upon themselves to change his recording.

Prosecutor:       Your Honor, if he does not want to allow that one, I will have the original, and I will tear it out.  The only alterations that have been done to that have been highlighted by myself.  I will offer a copy that has not been highlighted.  Your Honor, was that State=s Exhibit No. 4?

The Court:        State=s 4.

Prosecutor:       Your Honor, may I approach the court reporter?

The Court:        Yes, you may.

Defense:           In addition, Your Honor, I make an objection as to hearsay contained on that document in that that is not in fact his total complete record, much less that stuff is preprinted and certainly is not his work product.  [Emphasis added].

The Court:        Okay.

Prosecutor:       Your Honor, may the State reoffer a new Exhibit 4 with no modifications or changes?

The Court:        In fact, this is an original; am I correct?

Prosecutor:       Yes, sir.

The Court:        Okay.  Mr. Smith have you seen this original?  It=s --

Defense:           Oh, I have, Your Honor.  I=m just going to keep on renewing my objections.

The Court:        Your objection is that the printed language is -- that=s what you=re objecting to on the basis of hearsay?

Defense:           Certainly it=s hearsay, Your Honor.

The Court:        That is your only objection at this time?

Prosecutor:       Your Honor, this is a document that he has personal knowledge of.  All of the rest of that is surplus.  And they can see by his markings what=s meant by total contact [sic] to that.

The Court:        Then your objection is overruled and State=s Exhibit No. --

Defense:           Your Honor, I=d also like to take the -- on voir dire, in reference to that document.

The Court:        That will be fine then.  Let=s go ahead and take the witness on voir dire.

Defense:           Thank you, Your Honor.

Defense counsel then asked Trooper Bell several questions related to whether the officer had personal knowledge of the responses recorded on the form.  It appears he was attempting to establish that because the responses were elicited from Appellant, Trooper Bell had no personal knowledge of the truthfulness of the statements recorded.  The officer explained the responses recorded on the document were those of Appellant on the night of the incident.  He essentially vouched for the accuracy and truthfulness of his recording of the responses, but not the truthfulness of the response itself.  At the conclusion of this exchange, the defense attorney stated, AI renew my objection, Your Honor.@  The court overruled the objection and admitted State=s Exhibit 4 into evidence.  The exhibit was then published to the jury.  The State also used an enlarged copy of the exhibit for demonstrative purposes only.

Appellant now complains on appeal the trial court erred in admitting this document into evidence and allowing it to be taken into the jury room contrary to the Texas Rules of Evidence 803(8) and 803(5). Appellant argues the report amounted to inadmissible hearsay and was harmful in that it improperly bolstered Trooper Bell=s testimony that he was driving while intoxicated.

Texas Rule of Evidence 803 provides exceptions to the general hearsay rule.  Tex.R.Evid.  803. Rule 803(8) relates specifically to public records and reports.  It provides:

(8)        Public Records and Reports.  Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth: 

(A) the activities of the office or agency;

(B) matters observed pursuant to duty imposed by law as to which matter there was a duty to report, excluding in criminal cases matters observed by police officers and other law enforcement personnel; or

(C) in civil cases as to any party and in criminal cases as against the state, factual findings resulting from an investigation made pursuant to authority granted by law;

unless the sources of information or other circumstances indicate lack of trustworthiness.  [Emphasis added].

Tex.R.Evid. 803(8).  Appellant argues because State=s Exhibit 4 was a law enforcement report and included matters observed by Trooper Bell, it should be excluded as hearsay.  However, this argument was not raised at trial.  At trial, Appellant objected that the document Acontained hearsay@ Ain that that is not in fact his total complete record@ and parts of the document were Apreprinted@ and not part of the officer=s Awork product.@  As the record clearly indicates, Appellant never objected to the admission of State=s Exhibit 4 on the basis of Rule 803(8).

To preserve error for review on appeal, a defendant must object in a timely and specific manner at trial.  Tex.R.App.P. 33.1(a); Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App. 1986); Clemons v. State, 893 S.W.2d 212, 216 (Tex.App.--El Paso 1995, no pet.). Further, the objection made at trial must comport with the complaint made on appeal.  Id.; Hodge v. State, 631 S.W.2d 754, 757 (Tex.Crim.App. 1982).  If the complaint on appeal asserts a different legal theory or basis for objection than that raised at trial, the appellant fails to preserve any issue for review.  Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App. 1998); Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990).

In this case, Appellant failed to object to admission of State=s Exhibit 4 on the basis of Rule 803(8) at trial.  Nothing is preserved for review and we decline to address the merits of Appellant=s claim on this basis.  Thomas, 723 S.W.2d at 700; Davila v. State, 930 S.W.2d 641, 650 (Tex.App.--El Paso 1996, pet. ref=d).

Appellant also asserts error occurred when State=s Exhibit 4, admitted under the recorded recollection exception to the general hearsay rule, was taken into the jury room in violation of Rule 803(5).  Texas Rule of Evidence 803(5) provides:

(5) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness= memory and to reflect that knowledge correctly, unless the circumstances of preparation cast doubt on the document=s trustworthiness.  If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. [Emphasis added].

Tex.R.Evid. 803(5).

As with our previous discussion related to Rule 803(8), the record does not reflect an objection by defense counsel on the basis of a Rule 803(5) violation.  Therefore, Appellant=s objections at trial do not correspond with his issues raised on appeal.  Thomas, 723 S.W.2d at 700; Davila, 930 S.W.2d at 650.  Further, there is also nothing in the record establishing whether or not State=s Exhibit 4 was in fact taken into the jury room.  Appellant states in his reply brief the exhibit was improperly taken into the jury room, but offers no supporting evidence for this assertion. Finding nothing in the record to uphold this contention and no related objection at trial, the appellant has failed to preserve this issue for review.  Tex.R.App.P. 33.1(a); Dixon, 2 S.W.3d at 265.  Appellant=s first issue on appeal is overruled.

With his second issue, Appellant argues the prosecutor made improper statements during closing argument.  In particular, Appellant takes exception to the assistant district attorney=s statement that AI got this case, I looked at it, evaluated it, and thought it was good to go.@ Appellant contends this is an improper comment in that it inappropriately injects the prosecutor=s personal opinion and expertise into the case.

During the State=s closing argument, the following took place:

Prosecutor:       Ladies and gentlemen, Trooper Bell did his job.  And a lot of times we=re at home, open a newspaper, look at the TV and hear about DWIs.  And I=d be there; >Man, I wish somebody would do something about this problem.=  Well, Trooper Bell did something.  He pulled this gentleman over.  He made a determination that he was driving while intoxicated.

Our office got the case, screened, and -- the District Attorney would then screen and look at the case and said, >Yeah, we need to go forward on this.=  This case came to me.  I looked at this case. I --

Defense:           Objection, Your Honor, improper jury argument as to anything that the prosecution=s done.  It=s not evidence.  He=s supposed to argue evidence from the case, Your Honor, with common sense history and the court=s charge.

Prosecution:      Your Honor there=s a long line --

Defense:           I mean, what he=s doing in his office is --

The Court:        Ladies and gentlemen --

Defense:           It=s also misstatements of facts because he hasn=t been here for two years.

Prosecutor:       I know.

The Court:        I=ll overrule your objection.  Ladies and gentlemen, this is jury--

Defense:           Thank you, Your Honor.

The Court:        -- argument and you are to consider the facts and the evidence presented and the law that I instruct you on in rendering a verdict.

Thank you.  Go ahead and proceed.

Prosecutor:       Ladies and gentlemen, when I got the case, I looked at it, evaluated it, and thought it was good to go.  There=s one more link here, and that=s you.  I can=t do anything beyond this point.  Trooper Bell can=t do anything beyond this point.  Our people in screening can=t do anything beyond this point.  So I=m asking you, respectfully and humbly, remember the testimony of Officer Bell. Remember his experience, remember his expertise, remember his evaluation.  And take a good look at that video.

Now, like I said, >God, I wish that we had a video that from the second he thought there was a DWI, that he could have turned that on.= But you heard him testify, >I don=t have an on-and-off button.  When I turn the lights on, that=s when that video camera goes on.=

And after you think about all of that evidence, and after you watch that video over and over in the jury room, there, I am hoping that you are going to do the right thing and find this defendant guilty of driving while intoxicated.  [Emphasis added].

In order to preserve error for review, a defendant must make a timely and specific objection to the State=s improper jury argument.  Tex.R.Evid. 103(a)(1); Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996), cert. denied, 520 U.S. 1173, 117 S. Ct. 1442, 137 L. Ed. 2d 548 (1997); Nixon v. State, 940 S.W.2d 687, 693 (Tex.App.-- El Paso 1996, pet. ref=d); see also, Valdez v. State, 2 S.W.3d 518, 522 (Tex.App.--Houston [14th Dist.] 1999, pet. ref=d)(finding that appellant had failed to preserve error for review because he failed to object each time the State characterized him as a pedophile).  The issue on appeal must also be the same as the objection raised at trial.  Tex.R.App.P. 33.1(a); Bouchillon v. State, 540 S.W.2d 319, 322 (Tex.Crim.App. 1976); Davila, 930 S.W.2d at 650.  If the trial objection and the appellate argument are mismatched, no issue will be preserved for review.  Coffey v. State, 796 S.W.2d 175, 179-180 (Tex.Crim.App. 1990); Maldonado v. State, 902 S.W.2d 708, 711 (Tex.App.--El Paso 1995, no pet.). 

At the time the complained-of comment was made by the prosecutor, defense counsel lodged no objection.  In his reply brief, Appellant argues the defense objection made earlier in the State=s argument preserves error for the later complained-of comment.  Assuming arguendo defense counsel=s objection is timely as to the complained of comment, we consider the objection lodged.  The basis for the objection at trial was that it is inappropriate for the State to mention Aanything that the prosecution=s done@ because it does not constitute evidence. Appellant=s attorney also argued the prosecutor had misstated facts related to his personal involvement with the case.  Appellant now argues on appeal that the prosecutor inappropriately injected his own opinion into the case.  Because the issue on appeal varies from the objection lodged at trial, nothing is presented for review.  Coffey, 796 S.W.2d at 179-80; Bouchillon, 540 S.W.2d at 322. Accordingly, Appellant=s second issue on appeal is overruled.

None of the issues raised for consideration by this Court have been properly preserved for review.  Appellant=s issues on appeal are overruled.  We affirm the judgment of the trial court.

July 25, 2002

DAVID WELLINGTON CHEW, Justice

Before Panel No. 5

McClure, J., Chew, J., and Preslar, C.J. (Ret.)

Preslar, C.J., (Ret.)(Sitting by assignment)

(Do Not Publish)