Jacob Levi Heirs v. State ( 2003 )

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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JACOB LEVI HEIRS,

Appellant,

THE STATE OF TEXAS,

Appellee.

No. 08-02-00251-CR

Appeal from the

409th District Court

of El Paso County, Texas

(TC# 20020D00560)

MEMORANDUM OPINION

Jacob Levi Heirs was charged with manslaughter and failure to stop and render aid while operating a motor vehicle. A jury found Heirs not guilty of manslaughter, but convicted him for failure to stop and render aid. It assessed a punishment of five years= incarceration, coupled with a fine of $5,000. Heirs appeals the punishment phase of his trial. We affirm.

Evidence at punishment phase

This conviction stems from Heirs= fatal collision with a pedestrian on June 15, 2001. During the punishment phase of Heirs= trial, the State produced evidence that Heirs had been driving the same vehicle on April 2, 2000, when he was arrested for DWI. A DPS trooper had stopped Heirs for speeding. Approaching Heirs= vehicle, the officer detected an odor of alcohol and Heirs exhibited slurred speech. The officer conducted field sobriety tests; horizontal gaze nystagmus (HGN) and walk-and-turn test which indicated Heirs was drunk.

During the patrolman=s testimony of that night=s events the following statements and objections transpired:

Q: Did he [Heirs] do anything abnormal?

A: From the beginning--I wouldn=t say from the beginning--he was very apologetic prior [to] going to the vehicle [patrol car].

Defense counsel: I object to any statement post arrest, Your Honor, unless we test whether or not they=re custodial and those type of protections afforded, Your Honor.

The Court: Overruled.

Further testimony by the patrol officer was objected to by defense counsel:

Q: Did he [Heirs] become agitated at one point while seated in your unit?

A: Yes, sir, he did. He--

Defense counsel: Again, I=m going to object to any statements from this defendant, Your Honor, until we test these potential protections afforded post arrest.

The Court: Overruled.

The patrolman then testified that Heirs asked to relieve himself. Based on Heirs= apparent level of intoxication, the officer believed if not allowed to do so, Heirs would urinate in the patrol car and upon himself. The patrolman stated that Heirs then asked to pray outside the patrol car. Upon being told he could pray in the car, Heirs became violent. Heirs began smashing his head into the patrol car window, then into the dashboard, this resulted in a camera spinning off its mount. The officer testified to telling Heirs to cease and that by further smashing his head against the dash might result in activation of the car=s air bags. Eventually, Heirs had to be pepper-sprayed in order to move him into the back of the vehicle where he could do less damage.

On cross-examination, the defense explored the procedures used by the patrol officer for the HGN test. The patrolman agreed with the defense that the testing was imperfect. After the trooper had completed his testimony and been excused from court, the defense made a motion that evidence of the sobriety test be excluded. The motion was denied.

Heirs= mother testified on his behalf. On cross-examination, the prosecutor attempted to elicit testimony that she told the patrolman at the scene of the DWI arrest that she would never allow Heirs to use her car again. Heirs= mother testified that she could not recall that statement. She testified without objection that Heirs had wrecked three cars.

Post-arrest statements did not result from custodial interrogation

In his first issue on appeal, Heirs contends that his statements to DPS Trooper James Jones during a previous arrest for DWI were the product of custodial interrogation which did not comply with Tex. Code Crim. Proc. Ann. art. 38.22. Thus, he argues, it was error for the trial court to admit them. We disagree.

We review a trial court=s ruling on the admissibility of evidence for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). The test for abuse of discretion is not whether, in our view, the facts present an appropriate case for the trial court=s action. Instead, we determine whether the court acted without reference to any guiding rules and principles. Coots v. Leonard, 959 S.W.2d 299, 301 (Tex. App.--El Paso 1997, no pet.).

During the punishment phase of trial, Officer Jones testified at length about his arrest of Heirs on April 2, 2000. His testimony included various statements Heirs made: he was very apologetic; he requested to relieve himself; he requested he be allowed to pray. Defense counsel objected to these statements Aunless we test whether or not they=re custodial and those type of protections afforded;@ and Auntil we test these potential protections afforded post arrest.@ Although these objections are not a model of clarity, we conclude they were sufficient to preserve the complaint that the statements did not meet the requirements of article 38.22. Nevertheless, we find that article 38.22 did not apply because the statements were voluntarily made, rather than the result of interrogation.

Miranda^{^[1]} and Tex. Code Crim. Proc.Ann. art. 38.22 govern the admissibility of defendant=s statements made as a result of custodial interrogation. Rodriguez v. State, 939 S.W.2d 211, 215 (Tex. App.--Austin 1997, no pet.); Morris v. State, 897 S.W.2d 528, 531 (Tex. App.--El Paso 1995, no pet.). If defendant=s statements do not stem from custodial interrogation, however, neither Miranda nor article 38.22 requires their suppression. Morris, 897 S.W.2d at 531. Custody exists if a reasonable person would believe that Ahis freedom of movement was restrained to the degree associated with a formal arrest.@ Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). Clearly, Heirs was in custody at the time he made the statements at issue here. Thus, the question before us is whether the statements were elicited in response to interrogation or whether they were voluntary.

AInterrogation,@ for these purposes, applies to both express questioning and to any words or actions on the part of law enforcement that the questioner should know are reasonably likely to elicit an incriminating response. Jones v. State, 795 S.W.2d 171, 174 (Tex. Crim. App. 1990); Morris, 897 S.W.2d at 531. The latter part of this definition focuses on the subjective perception of the suspect rather than the intent of the questioning officer. Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689 (1980). Neither Miranda nor article 38.22 mandate exclusion of statements which are volunteered, whether made in custody or not. Id. at 299-300, 100 S.Ct. at 1689; Morris, 897 S.W.2d at 531.

Here, the statements Heirs challenges were volunteered and thus admissible. No questioning by the officer or any actions he took can be construed as reasonably likely to have solicited Heirs= remarks that he was sorry, that he needed to urinate, or that he wanted to pray. Because all three statements were volunteered, they were properly admitted and no error is shown. The first issue for review is overruled.

Complaint regarding results of field sobriety tests not preserved

In Heirs= second issue, he claims that the trial court erred in admitting the results of field sobriety tests taken during the April 2000 stop for DWI, urging they were not reliable. We find that error has not been preserved on this issue.

Officer Jones testified extensively about the field sobriety tests he asked Heirs to perform, and Jones= qualifications to perform and evaluate them. It was his opinion that Heirs failed the tests because he was intoxicated. On cross-examination, defense counsel questioned Jones regarding how he performed the field sobriety tests. After Jones testimony had concluded, defense counsel made the following objection: AYour Honor, I think the--the objection is--the motion is this. Any of those--any testimony with regard to feel [sic] sobriety tests should be excluded.@ The trial court cut counsel off before he could explain his reasons for the objection, but we surmise it is based on a theory that the method used to perform the tests was not reliable. Nevertheless, we find his objection and motion to strike were untimely.

Heirs did not object to this evidence until the witness had finished testifying and had been excused. His objection and motion to strike came too late, and no error is preserved for review. Garcia v. State, 573 S.W.2d 12, 16 (Tex. Crim. App. 1978). Heirs= second issue is overruled.

Hearsay complaint waived

In his third issue on appeal, Heirs complains of testimony elicited from his mother, Nova Heirs, urging it was inadmissible hearsay. Again we find that no error has been preserved.

The State cross-examined Ms. Heirs, asking about her conversations with Officer Jones following her son=s April 2000 arrest, specifically if she had told the trooper anything about her son=s driving habits. Defense counsel objected on hearsay grounds, but was overruled. Ms. Heirs responded she did not recall. Without further objection, the following occurred:

Q: (by the prosecutor) Okay. Did you tell Officer Jones that you were never going to allow your son to drive your automobile again?

A: I might have. I was pretty angry. I don=t recall.

Q: Why did you tell Officer Jones that?

A: I=m sorry. I really don=t recall.

Q: Okay. Could that be the case, though, that you, in fact, told Officer Jones that you were not going to let your son Jacob drive your automobile anymore?

A: I=ll tell you right now I get very angry, and I very well could have made that statement.

Ms. Heirs then testified, without objection, that Heirs had been involved in three wrecks, plus the arrest for DWI.

Error in the admission of evidence is not preserved when the same evidence is admitted elsewhere without objection. Gillum v. State, 888 S.W.2d 281, 285 (Tex. App.--El Paso 1994, pet. ref=d). Here, although Heirs did object to the first mention of his mother=s conversation with Officer Jones, he did not object when the prosecutor pursued the line of questioning. No error was preserved. Heirs= third issue is overruled.