Jason Brian Connor v. State ( 2014 )

Opinion issued July 8, 2014.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00971-CR
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JASON BRIAN CONNOR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 8
Harris County, Texas
Trial Court Case No. 1791565
MEMORANDUM OPINION
A jury convicted appellant, James Brian Connor, of the misdemeanor
offense of driving while intoxicated (DWI), and the trial court assessed punishment
at one year confinement, suspended in favor of placing appellant under community
supervision for two years, with three days’ confinement in the county jail as a
condition for the probation. In two points of error, appellant contends the trial court
erred by denying his motion to suppress because: (1) the detaining officer lacked
reasonable suspicion that appellant was intoxicated; and (2) the detention was
impermissibly prolonged and was unreasonable. In his third point of error,
appellant argues that the trial court erred by overruling his objection to the
prosecutor’s closing argument. We affirm.
BACKGROUND
On the night of November 5, 2011, Officer Ramon of the Houston Police
Department (HPD) was traveling westbound on the Katy Freeway when he saw
appellant driving a black BMW “like a rocket.” Ramon also saw appellant
changing lanes unsafely by cutting in and out of traffic, sometimes without the use
of a turn signal. Ramon testified that he saw other vehicles “hard braking” in
response to appellant’s driving. Ramon pulled over the appellant’s car on the exit
ramp to the Beltway. For safety reasons, Ramon approached the passenger side
window of appellant’s vehicle, and appellant admitted that he had been speeding.
Upon further questioning, appellant responded that he was coming from a Japanese
restaurant and had consumed “a beer and sake”. Ramon testified that he could not
smell any alcohol from the passenger side, but he had “a little suspicion” that
appellant was intoxicated, so he requested the dispatch of a DWI unit to perform
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field sobriety tests on appellant. Ramon was certified to administer field sobriety
tests and had investigated about 100 DWI’s in the past, but requested a DWI unit
according to his supervisor’s instructions. While waiting for the DWI unit officer
to arrive, Ramon placed appellant in the backseat of his patrol car.
Approximately 10 minutes later, Officer Shepard of the HPD DWI unit
arrived at the scene. Shepard saw that appellant had red, glassy eyes, and the
officer smelled the odor of an alcoholic beverage on appellant’s breath. Appellant
admitted to Shepard that he had drunk a 24-ounce beer and a shot of sake. Shepard
then conducted field sobriety tests on the median of the exit ramp while Ramon
kept an eye on oncoming traffic. Appellant displayed all 6 possible clues for
intoxication during the horizontal gaze nystagmus test when only 4 clues are
necessary to indicate intoxication. Appellant was unable to complete the one-leg
stand test without swaying, using his arms, and dropping his foot, exhibiting 3
clues when 2 clues indicate intoxication. Appellant struggled to maintain his
balance during the walk and run test, exhibiting two clues when two clues indicate
intoxication. Officer Shepard then arrested Appellant for driving while intoxicated.
MOTION TO SUPPRESS
In his first and second points of error, appellant contends that the trial court
abused its discretion by denying his motion to suppress evidence constituting “all
fruits of the detention.” Specifically, appellant contends the trial court erred by
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denying his motion to suppress because: (1) the detaining officer lacked reasonable
suspicion that appellant was intoxicated; and (2) the detention was impermissibly
prolonged and was unreasonable. The State responds that appellant’s issues are not
preserved for appellate review. We agree with the State.
Preservation of Error
Before trial, appellant did not file a motion to suppress any evidence
obtained as a result of Ramon detaining appellant in the back of his car. Similarly,
at trial, appellant did not object to Shepard’s testimony or the video exhibit of the
field sobriety tests.
However, after the State rested, appellant moved for directed verdict. In his
motion for directed verdict, appellant claimed that Officer Ramon illegally
detained appellant and requested that all testimony obtained after the detention,
including the testimony of Officer Shepard, be suppressed. The trial judge denied
both the motion for directed verdict and the motion to suppress without providing
reasons.
In order for error to be preserved on appeal, the record must show that
appellant made a timely request, objection, or motion with a corresponding ruling
by the trial court. TEX. R. APP P. 33.1(a)(1); Nelson v. State, 626 S.W.2d 535, 536
(Tex Crim. App. [Panel Op.] 1981). An objection is timely only if it is raised as
soon as the ground for objection becomes apparent. Johnson v. State, 878 S.W.2d
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164, 167 (Tex. Crim. App. 1994). A motion to suppress is untimely if it was never
presented to or ruled upon by the court before trial and is later made orally after the
State rests its case-in-chief. Sims v. State, 833 S.W.2d 281, 284 (Tex. App.—
Houston [14th Dist.] 1992, pet. ref’d); see also Nelson, 626 S.W.2d at 536 (holding
that, even if appellant had obtained ruling on motion to suppress evidence obtained
by illegal search and seizure, it would have been untimely because motion was first
presented after State rested its case); Vierling v. State, No. 01-10-00247-CR, 2012
WL 4857363, at *4 (Tex. App.—Houston [1st Dist.] Oct. 11, 2012, pet ref’d)
(mem. op., not designated for publication) (holding that motion to suppress was
untimely when appellant filed it on first day of trial but did not move to suppress
evidence obtained as result of traffic stop until after State had rested its case).
Here, appellant’s motion to suppress was untimely because he did not file a
pretrial motion, nor did he object to Officer Shepard’s testimony until after the
State had rested its case-in-chief. Appellant did not present his oral motion to
suppress as soon as the grounds for objection became apparent; rather, the motion
to suppress was included as an argument in favor of a motion for directed verdict.
“There are two main purposes behind requiring a timely, specific objection: 1) to
inform the judge of the basis of the objection and give him the chance to make a
ruling on it, and 2) to give opposing counsel the chance to remove the objection or
provide other testimony.” Garza v. State, 126 S.W.3d 79, 82 (Tex. Crim. App.
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2004). Requiring timely objections is particularly important in jury trials because a
judge may shield the jury from hearing any potentially inadmissible evidence. Id.
at 83.
In this case, the jury had already been presented with Shepard’s testimony
and video footage of the sobriety tests before appellant moved to suppress the
evidence outside the jury’s presence. The State had rested its case and would have
been unable to provide other testimony. Further, with regards to the video footage
of the sobriety tests, appellant stated that he had no objection to the admission of
State Exhibit 1; rather, appellant informed the court that “[w]e would like it
admitted.” A defendant who affirmatively states that he has no objection to the
admission of evidence sought to be suppressed has waived any complaint over the
admission. Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986).
The Texas Court of Criminal Appeals recognized a limited exception to
Nelson in Garza, in which the appellant had filed a pre-trial motion to suppress,
but the judge directed that the motion be carried with the trial. Garza, 126 S.W.3d
at 84. The Garza exception is inapplicable here because there was no pre-trial
motion to suppress, and the judge did not direct appellant that he carry the motion
with the case.
Likewise, the fact that appellant also asserted his first and second points of
error in his motion for new trial does not preserve the complained of error for
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appeal. The failure to properly preserve error under Texas Rules of Appellate
Procedure Rule 33.1 cannot be cured by raising the matter in a motion for new
trial. Igo v. State, 210 S.W.3d 645, 647 (Tex. Crim. App. 2006).
Because appellant’s motion to suppress was untimely and did not preserve
the errors complained of, we overrule appellant’s first and second points of error.
IMPROPER JURY ARGUMENT
In his third point of error, appellant alleges that the trial court abused its
discretion by overruling his objection to a personal statement made to the jury
during closing statements. Appellant does not independently contest the trial
court’s decision to overrule his motions for a mistrial.
Background
During his closing argument, the prosecutor stated:
I watched these videos just as you did. And when I watch them, I
always try to find that one point, that one point in the case where I am
convinced beyond a reasonable doubt that that person is intoxicated.
And I’m not going to try a case if I don’t think someone truly is
intoxicated.
Appellant objected on the grounds of offering a personal opinion. The objection
was sustained, and the trial court instructed the jury to disregard the statement.
Appellant also requested a mistrial, and the request was denied. The prosecutor
continued, “And for me, it came with the one-leg stand. I watched as the Defendant
puts his foot in the air and there was some sway . . . . [W]hen he did that move,
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when his leg shot straight to the left, that’s when I knew, that’s when I knew that
man . . . .” Again, the appellant objected on grounds of offering a personal opinion
and requested a mistrial. The objection was sustained, and the trial court instructed
the jury to disregard the statement, but the mistrial was denied. Later, in reference
to the walk and turn test, the prosecutor stated, “It looked like he was suspended up
in the air, walking a tightrope as he tried to balance. And that’s when I knew that’s
a person that does not have the normal use of their mental faculties.” The appellant
objected on the same grounds, but this time the objection was denied.
Standard of Review
Permissible jury arguments generally fall into one of four areas: (1)
summation of the evidence; (2) reasonable deduction from the evidence; (3) an
answer to the argument of opposing counsel; or (4) a plea for law enforcement.
Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010); Alejandro v. State,
493 S.W.2d 230, 231–32 (Tex. Crim. App. 1973). Whether a party’s jury argument
properly falls within one of the four proper areas of jury argument is considered in
light of the record. Magana v. State, 177 S.W.3d 670, 674 (Tex. App.—Houston
[1st Dist.] 2005, no pet.); see also Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.
Crim. App. 2000). Jury argument that expresses the prosecutor’s personal opinion
is non-constitutional error. See Allen v. State, 149 S.W.3d 254, 261 (Tex. App.—
Fort Worth 2004, pet. ref’d) (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex.
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Crim. App. 1998). Non-constitutional errors are reversible if the improper
argument affects the defendant’s substantial rights. TEX. R. APP. P. 44.2(b);
Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000). If the non-
constitutional error has a substantial and injurious effect upon the jury’s verdict,
then a substantial right is affected. King v. State, 953 S.W.2d 266, 271 (Tex. Crim.
App. 1997).
Error, if Any, is Harmless
Even assuming that the prosecutor’s remarks were an improper jury
argument, they did not affect appellant’s substantial rights, and any error in the
trial court’s ruling on appellant’s objection was harmless. Courts balance three
factors to determine whether or not an improper jury argument is harmful under
Rule 44.2(b): (1) the severity or prejudicial effect of the misconduct; (2) any
curative measures from the court; (3) the certainty of conviction absent the
misconduct. Martinez, 17 S.W.3d at 692–93; Mosley, 983 S.W.2d at 259. An
improper jury argument generally will not be considered harmful error unless, “in
light of the record as a whole, the argument is extreme or manifestly improper,
violative of a mandatory statute or injects new facts, harmful to the accused into
the trial proceeding.” Todd v. State, 598 S.W.2d 286, 297 (Tex. Crim. App. [Panel
Op.] 1980).
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The prejudicial effect of the prosecutor’s statement was insignificant. The
statement, “[a]nd that’s when I knew that’s a person that does not have the normal
use of their mental faculties,” came only after the prosecutor had recounted
evidence concerning the officers’ observations and the field sobriety tests. Even if
the argument implied that the prosecutor had some special knowledge of
intoxication, the argument also called upon the jury to evaluate the evidence in
reaching its own conclusion. When read in light of the prosecutor’s entire closing
argument, the statement challenged on appeal lacked the severity to infringe
appellant’s substantial rights.
Because the judge overruled appellant’s objection, there were no curative
measures taken with regards to the statement challenged on appeal. Appellant also
argues that the prosecutor’s two prior improper statements, which the trial court
instructed the jury to disregard, magnified the harmfulness of the prosecutor’s
subsequent statement. A prompt instruction to disregard by the trial court will
generally cure any error associated with an improper jury argument “unless it
appears the argument was so clearly calculated to inflame the minds of the jury or
is of such a damning character as to suggest it would be impossible to remove the
harmful impression from the juror’s minds.” Torres v. State, 424 S.W.3d 245, 261
(Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (citing Logan v. State, 698
S.W.2d 680, 683–84 (Tex. Crim. App. 1985) (en banc)). Any error caused by
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previous statements was cured because the trial court twice sustained appellant’s
objections and instructed the jury to disregard the statements. It is true that
repeated noncompliance with a court’s ruling on an improper jury argument can
influence the harmfulness of the error. See McClure v. State, 544 S.W.2d 390, 393
(Tex. Crim. App. 1976). However, here the jury argument challenged on appeal
related to the evidence rather than flatly asserting appellant’s guilt based on
personal knowledge.
Most importantly, in this case, the certainty of conviction was still
substantial. The State introduced significant evidence of appellant’s intoxication
from two police officers who testified that appellant was speeding, drove unsafely,
admitted to drinking, had red eyes, had a distinct odor of alcohol on his breath,
refused to offer a blood sample, and failed three field sobriety tests. The videotapes
of the field sobriety tests were also admitted into evidence. Because the foundation
of the prosecutor’s closing argument consisted of recounting these facts and asking
the jury to rely on them in determining guilt, the remark in question likely had little
weight in the jury’s verdict.
Thus, even if we assume that the prosecutor’s statement was an improper
jury argument, it was harmless error because the impact of the statement upon the
outcome of the trial and appellant’s substantial rights was insignificant.
We overrule appellant’s third point of error.
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CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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