Xavier Rodriguez v. State ( 2003 )

NUMBER 13-01-398-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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XAVIER RODRIGUEZ

, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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  On appeal from the County Court at Law No. 2 of Cameron County, Texas.

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  MEMORANDUM OPINION

Before Justices Hinojosa, Yañez, and Castillo Memorandum Opinion by Justice Castillo  

A jury convicted Xavier Rodriguez of driving while intoxicated. ⁽¹⁾ Rodriguez challenges the trial court's denial of his requested jury instruction. We affirm.

I. FACTS

On January 7, 2001, Rodriguez was driving on State Highway 100 in Cameron County, Texas. It is undisputed that he had consumed alcoholic beverages. A Los Fresnos police officer, Gilbert R. Losoya, stopped him for exceeding the speed limit and for having a defective license plate lamp. During the traffic stop, Losoya detected the odor of alcohol emanating from the vehicle. He also noticed that Rodriguez had bloodshot eyes and slurred speech. Rodriguez got out of his vehicle to examine the condition of the license plate lamp. Although Losoya did not notice any signs of intoxication in Rodriguez's movements, the odor of alcohol prompted the officer to ask Rodriguez to consent to field sobriety tests. Rodriguez consented.

Losoya administered three field sobriety tests to Rodriguez. After determining that Rodriguez failed the tests, the officer arrested him. Losoya recited Miranda warnings and D.W.I. statutory warnings to Rodriguez in the police station booking room. See generally Miranda v. Arizona, 384 U.S. 436 (1966). Rodriguez indicated that he did not want to take the alcohol breath test and chose not to answer interview questions.

During trial, the trial court admitted into evidence a videotape of the events that took place in the booking room. Rodriguez did not object to introduction of the video, nor did he request an instruction limiting the jury's consideration of the video. The State played the video for the jury. It showed Rodriguez's invocation of his right to counsel, his silence after recitation of the Miranda warnings, and his refusal to take an alcohol breath test. After the tape was played for the jury, Rodriguez asked the trial court to add a limiting instruction to the jury charge that "a request for counsel, and silence after the Miranda warnings are given do not carry an inference of guilt, and the reason for refusal to submit to a breath test is inadmissible." The trial court denied Rodriguez's requested instruction. Later, Losoya testified that Rodriguez refused to submit to a breath test. Rodriguez neither objected to this testimony nor requested a limiting instruction regarding Losoya's testimony.

On appeal, Rodriguez claims that the trial court erred by refusing to instruct the jury that: (1) a request for counsel does not carry with it the inference of guilt; (2) silence after Miranda warnings are issued does not carry an inference of guilt; and (3) the reason for refusing to submit to a breath test is inadmissible.

II. LIMITING INSTRUCTIONS TO THE JURY AND WAIVER

A party opposing evidence has the burden of requesting the limiting instruction at the introduction of the evidence. Hammock v. State, 46 S.W.3d 889, 892 (Tex. Crim. App. 2001) (quoting Garcia v. State, 887 S.W.2d 862, 878 (Tex. Crim. App. 1994)). If the jury is required to consider evidence in a limited manner, then it must do so from the moment the evidence is admitted. Id. at 894. Allowing the jury to consider evidence for all purposes and then telling them to consider that same evidence for a limited purpose asks the jury to do the impossible. Id. To be effective, a limiting instruction must be given when the evidence is admitted. Id. (citing Rankin v. State, 974 S.W.2d 707, 713 (Tex. Crim. App. 1998) (op. on reh'g)). Therefore, limiting instructions should be given to the jury twice: once when the evidence is admitted and again in the charge. Id. at 895 (citing Rankin, 974 S.W.2d at 712 n.3). Rodriguez did not ask for a limiting instruction at the introduction of the videotape. The videotape was admitted for all purposes. The trial court was not required to include a limiting instruction in the charge to the jury. See id. Accordingly, we hold that Rodriguez waived any error with respect to the trial court's refusal to include in the jury charge an instruction limiting the jury's consideration of the videotape.

III. CONCLUSION

Having overruled Rodriguez's issue on appeal, we affirm the judgment of the trial court.   

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 30th day of October, 2003.

1. Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003)

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