Lawrence Werdlow, III v. State ( 2005 )

                                    NUMBER 13-04-004-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

LAWRENCE WERDLOW, III,                                                            Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

       On appeal from the County Court of Jackson County, Texas.

                                M E M O R A N D U M   O P I N I O N

     Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

      Opinion by Chief Justice Valdez  

Appellant, Lawrence Werdlow, III, was convicted of driving while intoxicated.  On appeal, he argues there were errors related to the admissibility of evidence and the prosecutor=s closing arguments. We affirm the judgment of the trial court.

I.  Facts and Procedural History

At approximately 10:00 P.M. on August 18, 2000, Officer Nielsen stopped appellant for speeding. When he approached the vehicle, Officer Nielsen noted appellant had glassy, bloodshot eyes and the smell of alcohol on his breath.  A police videotape captured the events that followed.  An inebriated passenger in the vehicle told Officer Nielsen that he had warned appellant about his driving, that there was a bottle of whiskey under the seat, and appellant had consumed some, and that he knew appellant had drunk more than he had.  Officer Nielsen performed three standardized field sobriety tests on appellant. 

First, he asked appellant to track a pen as he moved it from side to side, looking for nystagmusBa slight jerking motion in the eye that can indicate intoxication.  Appellant failed this test.  Second, he asked appellant to walk heel-to-toe.  Appellant stumbled or staggered on two steps.  Finally, he asked appellant to stand on one foot for sixty seconds.  Appellant could not do so successfully.  The officer informed appellant he was under arrest and handcuffed him.  Appellant took several steps backward and required help regaining his balance.  Officer Nielsen took appellant to the station to perform a breath test.

On the way to the station, appellant asked whether he could refuse the breath  test.  When they arrived, appellant did not stumble or stagger.  Officer Nielsen explained to appellant that to get an accurate alcohol reading he had to blow into the machine with sufficient force until he heard a tone, and then continue blowing until told to stop.  Officer Nielsen testified that in his opinion appellant was uncooperative and merely puffed out his cheeks without actually blowing into the machine.  Officer Nielsen urged him to try again.  On his second and third attempts he blew into the machine slightly, but as soon as the tone sounded he stopped.  Appellant refused to try again. 

Appellant is blind in his left eye and has had back and knee surgery.  Officer Nielsen did not ask appellant if he had any medical condition that might affect the outcome of the tests.  During trial, Officer Nielsen conceded that any type of medical impairment could affect the tests, but he did not believe appellant=s medical history affected his performance on these tests.  Officer Nielsen said he had spoken with his ophthalmologist, who told him that appellant=s partial blindness should not have affected the field test for nystagmus. 

The jury found appellant guilty, and the court sentenced him to six months= imprisonment. Appellant now brings four issues on appeal claiming the court erred in admitting evidence.

II.  Hearsay Objections

Appellant=s first issue complains of the admission of hearsay evidence.  Appellant enumerates three instances where the court allegedly erred by admitting hearsay evidence with the cumulative effect of creating the likelihood of an improper judgment. 

Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d).  Hearsay is not admissible except as provided by statute or rules of evidence.  Tex. R. Evid.  802.

The State first claims that this argument is multifarious and presents nothing for our review. See Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990). However, issues relating to the same theory of recovery or defense may be combined in an appellate brief if the appellant makes separate references to the record for each contention. See Armstrong v. State, 845 S.W.2d 909, 910 (Tex. Crim. App. 1993).  Appellant=s brief does address each claim of hearsay independently with statements to the record and appropriate citations to legal authority; we therefore reject the State=s claim that the argument presents nothing for our review.

Second, the State argues (1) appellant=s brief fails to cite authority or make a legal argument that the cumulative error is a basis for reversal; therefore, the issue is inadequately briefed and waived on appeal, and (2) appellant did not object to the cumulative effect of the evidence so no error was preserved.  The appellant=s brief Amust contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@  Tex. R. App. P. 38.1(h).  When appellant=s brief fails to make a clear and concise argument with appropriate citations, the courts will hold that appellant has waived the issue.  See, e.g., In re A. J. G., 131 S.W.3d 687, 692 (Tex. App.BCorpus Christi 2004, pet. denied).  Furthermore, to preserve an error for appeal, appellant=s trial counsel must make an appropriate and timely objection or the issue is waived.  See Tex. R. App. P. 33.1(a).  Appellant=s brief cites objections in the record for each instance and argues that each violation independently weighs in favor of reversal.  In the interest of justice, we will address each of appellant=s claims.  Sterling, 800 S.W.2d at 521. 

1.  Indirect Hearsay

Appellant=s first subissue raises the complaint of indirect hearsay.  During the trial, the prosecutor asked Officer Nielsen if he had a conversation with the passenger about appellant=s consumption of alcohol; he answered in the affirmative.  Defense counsel objected:  AI=m going to object based upon the earlier ruling of the Court.@  This objection does not specify which ruling. In his brief, appellant claims the ruling referred to was that audio portions of the police videotape would be admitted solely for impeachment purposes.  The record does not support a claim that appellant=s counsel made a hearsay objection.  We therefore hold this subissue is waived.  See Tex. R. App. P. 33.1(a).

2.  Expert Opinion Statement

Appellant=s second subissue complains Officer Nielsen should not have been allowed to give hearsay testimony regarding appellant=s ability to successfully perform the nystagmus test despite being blind in one eye:

Q         Do you have any knowledge of the tracking in the blind eye, if it follows what the other eye is doing?

A         I have asked my ophthalmologist.  She stated you can have nystagmus in a blind eye.

MS. DAVIS: Objection, not any evidenceB

MR. BELL: He answered the question.

MS. DAVIS:   He didn=t answer about his knowledge, he answered

about someone else=s knowledge.

MR. BELL:     You wouldn=t know your name if someone didn=t tell you.

That is how you gain your knowledge.

THE COURT: Your objection is overruled.

The State argues the objection does not preserve the error because defense counsel did not specify she objected to improper hearsay.  An objection must include the specific grounds for the objection if it was not apparent from the context.  Tex. R. Evid. 103(a)(1).  Objections that do not specify the legal principle are not waived on appeal if the objection was sufficiently specific to make its meaning clear to the court.  See, e.g., Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977) (op. on reh'g.).  We hold that defense counsel=s objection that Officer Nielsen was speaking of someone else=s knowledge was sufficiently specific to preserve his hearsay objection.  See id.  However, we note that during the trial, defense counsel cited a field manual entitled AStandardized Field and Sobriety Testing,@ and had Officer Nielsen read aloud a portion of it that said a person whose eyes did not track together could be indicative of an injury, serious medical condition, or neurological disorder.  We hold that in light of the countervailing evidence introduced, the effect of Officer Nielsen=s statement on the jury was negligible.  Therefore, error, if any, in the admission of the complained -of hearsay testimony  was harmless.  See Tex. R. App. P. 44.2(a).

3.  Passenger=s Statements

Appellant=s third subissue is similar to the first.  He claims the court impermissibly allowed the prosecutor to ask Officer Nielsen about the passenger=s statement that appellant had drank more than the passenger himself did.  Defense counsel objected on grounds that it violated a previously granted motion in limine.  The court overruled the objection.  Appellant=s brief calls this a Aproper objection to the hearsay character of the evidence.@  We disagree.  The objection to a violation of the court=s ruling on a motion in limine is not the same as a hearsay objection.  Because no hearsay objection is apparent from the context, we hold this subissue waived.  See Tex. R. App. P. 33.1(a). 

Appellant=s first issue is overruled.

III.  Sobriety Test Demonstration

In appellant=s second issue, he claims the court should have allowed Officer Nielsen to demonstrate his field sobriety test during the trial.  Defense counsel wished to have Officer Nielsen demonstrate the walk-and-turn test in the courtroom to determine whether a person might waver without being intoxicated.  The State objected to the demonstration as irrelevant because the officer=s ability to perform the test was not an issue.  The actual test as performed by appellant was available on videotape.  The court sustained the objection.  

Appellant now claims the court erred because the walk-and-turn test would have been conducted under substantially similar circumstances.  Appellant acknowledges the trial court has discretion to admit or exclude experiments.  Cantu v. State, 738 S.W.2d 249, 255 (Tex. Crim. App. 1987).  Appellant urges us to determine whether the court abused its discretion.  Id. When the facts affirmatively show that the proposed experiment would be conducted under substantially similar circumstances and conditions, the court abuses its discretion in excluding the evidence.  Id.

Appellant, however, misses the point.  The court sustained the objection because of the relevance of Officer Nielsen=s ability to perform the test B not because the circumstances were dissimilar.  Irrelevant evidence is inadmissible.  Tex. R. Evid. 402.  Even relevant evidence may be barred by the court in some situations.  Tex. R. Evid. 403.  Appellate courts must afford the trial court great discretion in its evidentiary decisions.  Montgomery v. State, 810 S.W.2d 372, 378‑79 (Tex. Crim. App. 1990). Absent clear abuse of discretion, the trial court=s decision should be upheld.  Id. at 378.  The walk-and-turn test is an accepted, standardized test used to determine if a person is inebriated.  The trial court determined that Officer Nielsen=s ability to perform the walk-and-turn test in the courtroom was not relevant.  We hold that the decision was not a clear abuse of discretion and therefore overrule this issue.  Id.

IV.  Medical Records

Appellant sought to introduce medical records filed with the court that would show appellant=s surgical history with regard to his back and knee.  The State objected, denying it had received proper notice at least fourteen days before trial as required by rule 902(10)(a) and made a motion in limine to prohibit those records.  Defense counsel insisted that she had made timely delivery of notice to the District Attorney=s office, but no certificate of service in the clerk=s file attested to such notice being provided.  The court granted the motion.  Appellant moved for a continuance to satisfy the notice requirement, which the court denied. Appellant now claims that because the State did not show unfair surprise, the court erred in granting the State=s motion in limine.

The trial court=s ruling on admissibility of evidence is reviewed on an abuse of discretion standard.  Montgomery, 810 S.W.2d at 378.  Absent clear abuse of discretion, the trial court=s decision should be upheld. Id. Texas Rule of Evidence 902(10)(a) enumerates the requirements for admission of business records, including medical records. Counsel must provide prompt notice not only to the clerk of the court, but also to opposing counsel according to the methods set forth in rule of civil procedure 21(a) at least fourteen days prior to commencement of trial.  Tex. R. Evid. 902(10)(a).  Proper notice requires the attorney of record to certify compliance through a writing over signature and on the filed instrument. Tex. R. Civ. P. 21(a).

Appellant cites case law for the proposition that the courts should not make a formalistic interpretation of rule 902(10).  For example, appellant argues that the hearsay exception for business records should be liberally construed, citing Coulter v. State, 494 S.W.2d 876, 883 (Tex. Crim. App. 1973).  However, the issue with regard to the State=s motion in limine is not the hearsay exception; it is whether appellant provided the statutorily required notice.  Appellant also cites Harris v. State, 799 S.W.2d 348, 350-51 (Tex. App.BHouston [14th Dist.] 1990, no pet.).  In Harris, the court rejected a formalistic interpretation of rule 902(10) when the parties had been given notice in an earlier cause number involving the same facts.  Id. at 350-51.   These cases, however, are inapposite because appellant cannot show that the State had been given notice within the statutorily required period, either under another cause number or in any other manner.

Appellant further argues that the State failed to show any unfair surprise.  To the contrary, the record demonstrates that the State argued that it would need time to have its own medical experts review the records and be prepared to rebut appellant=s arguments.

 Because the Texas Rules of Evidence set forth the requirements for admission of business records, and those requirements were not met, appellant cannot show an abuse of discretion in the court=s application of those rules.  This issue is overruled.

V.  Witness Endorsement

Finally, appellant challenges closing statements wherein the prosecutor improperly professed a personal acquaintance with Officer Nielsen, a witness at the trial, and his faith in Officer Nielsen=s veracity. Specifically, the prosecutor said of Officer Nielsen, AI=ll tell you this, from the testimony in this case and listening to [Officer Nielsen] and knowing him, you couldn=t get [Officer Nielsen] to lie, if your life depended on it.@  Defense counsel objected to the prosecutor=s comments about the character, honesty, or integrity of the witness.  The prosecutor explained he meant that, based on the evidence presented, Officer Nielsen would not lie.

Texas courts have emphasized that the prosecutor must not vouch for the honesty of a witness because it bolsters witness credibility through unsworn testimony.  See, e.g., Menefee v. State, 614 S.W.2d 167, 168 (Tex. Crim. App. 1981).  On appeal, the State claims that the prosecutor=s statement lacked the degree of specificity needed to rise to the level of error.  The State argues the phrase Aknowing him@ could be interpreted as the jury=s knowledge of the witness based upon his conduct rather than the prosecutor=s knowing him personally.  Furthermore, the State argues when the prosecutor said, Ayou couldn=t get [him] to lie,@ the antecedent of the second person pronoun Ayou@ could refer to the jury, and he was merely indicating that the jury was incapable of making Nielsen lie.  We disagree; the prosecutor=s statement, interpreted in plain English, clearly was meant to signal to the jury that he knew the witness and vouched for his honesty.  We conclude that for the trial court to overrule the objection and permit this statement was clear error, and we are compelled to evaluate the effect of this error.

Improper comments by the prosecutor regarding the honesty or credibility of participants are not considered constitutional errors.  See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Non‑constitutional errors call for reversal only if the error affects a substantial right of the defendant. Tex. R. App. P. 44.2(b).  A substantial right is affected "when the error had a substantial and injurious effect or influence in determining the jury's verdict."  King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)).  We do not believe the prosecutor's attempt at bolstering the credibility of Officer Nielsen had a substantial effect on the jury's verdict.  The jury could not have been surprised to learn that the State believed the arresting officer. Presumably, if the State did not find him credible, it would not have brought the case.  We conclude that the prosecutor's comment likely had little effect and is insufficient to warrant reversal of this case.  Appellant=s final issue is overruled.

VI.  Conclusion

We affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Do not publish.

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

Memorandum Opinion delivered and filed

this 22nd day of August, 2005.