Andrew Tran v. State ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00310-CR
Andrew Tran § From County Criminal Court No. 9
§ of Tarrant County (1225161)
v. § November 8, 2012
§ Opinion by Chief Justice Livingston
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Chief Justice Terrie Livingston
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00310-CR
ANDREW TRAN APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
Appellant Andrew Tran appeals his conviction for driving while intoxicated
(DWI).2 In his sole point, appellant contends that the trial court erred by admitting
lay opinion testimony from the arresting officer. We affirm.
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 49.04(a) (West Supp. 2012).
2
Background Facts
One early morning in December 2010, Adam Smead, an officer with the
North Richland Hills Police Department, had just gotten off duty and had recently
left the police station when he saw appellant driving erratically on Northeast Loop
820. Appellant was driving on the highway while straddling the lane-dividing
dashes and occasionally swerving. Officer Smead was concerned that appellant
was intoxicated, so he contacted a dispatcher. Officer Smead followed appellant
as appellant entered Haltom City. Appellant eventually parked at an apartment
complex. Officer Smead began a conversation with appellant while waiting for
Haltom City police officers to arrive. Appellant admitted to Officer Smead that he
had been drinking.
Timothy Clontz, an officer with the Haltom City Police Department, was
dispatched to find appellant. Officer Clontz arrived at the apartment complex a
few minutes after appellant and Officer Smead had arrived there. After Officer
Clontz spoke with Officer Smead, he interviewed appellant, saw that appellant’s
eyes were bloodshot and watery, and detected a strong odor of alcohol on
appellant’s breath. Appellant told Officer Clontz that he had consumed three
beers. Appellant performed standardized field sobriety tests, all of which,
according to Officer Clontz’s evaluation, appellant failed. Officer Clontz arrested
appellant.
The State charged appellant with DWI. Appellant retained counsel and
pled not guilty. A jury convicted appellant, and the trial court assessed his
3
punishment at ninety days’ confinement but suspended that sentence and placed
him on community supervision. Appellant brought this appeal.
Preservation of Objections
In his only point, appellant contends that the trial court erred by admitting
certain lay opinion testimony from Officer Clontz. During Officer Clontz’s
questioning by the State, the following exchanges occurred:
Q. Did the defendant indicate to you . . . that he had any
injuries that might interfere with the [walk-and-turn] test?
A. I had asked him before we actually started, which is
something else I do. I ask them if they have any physical defects,
birth defects that I need to know about because I didn’t notice
anything when he walked towards me. However, when I asked him
if he had anything wrong, he said he had a knee problem.
Q. Did you clarify?
A. Yes, yes. Basically, I need to know exactly what he’s
referring to because over the past two years, from my experience,
I’m finding a lot of people starting to try to play the system. And he
was --
[DEFENSE COUNSEL]: Judge, I’m going to object to
nonresponsive.
THE COURT: Sustained.
....
[DEFENSE COUNSEL]: Instruction to disregard, Judge.
THE COURT: Disregard the last part of the answer.
....
Q. Okay. My question now is: Did you demonstrate the
[walk-and-turn] test?
4
A. Yes, I did. I demonstrate every test I do to the person.
Q. Just once or more than once?
A. On the walk and turn to Mr. Tran, I had to do it a total of
three times I think it was.
Q. And why was that?
A. He seemed to not understand what I was telling him as far
as -- he wouldn’t ask -- When I was doing the actual evaluation, I
would get through and then he would look at me like he didn’t
understand it. However, he was standing like I asked him to do after
just being told to do so once. So, again, I felt like I was being
misled.
[DEFENSE COUNSEL]: Judge, I’m going to object. Same
objection.
THE COURT: Officer, try not to include your personal -- I
mean as far as any answer that may suggest what the mental
processes of another person are and just confine your answers to
the question asked.
Officer Clontz later testified that he believed that appellant was lying when
appellant said that he could not understand Officer Clontz’s instructions;
appellant did not object at all to that testimony.
Appellant argues on appeal that Officer Clontz’s apparent opinions that
appellant was feigning an injury or faking a misunderstanding of Officer Clontz’s
instructions were inadmissible under rule of evidence 701. See Tex. R. Evid. 701
(explaining that a lay witness’s testimony in the form of opinions or inferences is
limited to opinions or inferences that are rationally based on the perception of the
witness and are helpful to a clear understanding of the witness’s testimony or the
5
determination of a fact in issue). The State replies that appellant forfeited these
complaints. We agree with the State.
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that stated the specific grounds
for the desired ruling if they were not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333,
339 (Tex. Crim. App. 2012). An objection preserves only the specific ground
cited. Tex. R. App. P. 33.1(a)(1)(A); Marchbanks v. State, 341 S.W.3d 559, 565
(Tex. App.—Fort Worth 2011, no pet.). Further, the trial court must have ruled
adversely on the request, objection, or motion, either expressly or implicitly, or
the complaining party must have objected to the trial court’s refusal to rule. Tex.
R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App.
2004); Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998); State v. Duke,
59 S.W.3d 789, 791 (Tex. App.—Fort Worth 2001, pet. ref’d) (op. on reh’g). A
reviewing court should not address the merits of an issue that has not been
preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App.
2010) (op. on reh’g).
Appellant objected to Officer Clontz’s first statement quoted above,
concerning “people starting to try to play the system,” on the ground that the
testimony was “nonresponsive.” The trial court sustained the objection and
granted appellant’s request for the jury to disregard the statement. Appellant did
not request a mistrial or any other relief from the trial court regarding this
6
statement. Despite appellant’s argument that the trial court’s favorable rulings
preserved error, appellant was required to pursue and obtain an adverse ruling in
order to preserve his objection for appeal. Dixon, 2 S.W.3d at 265. Because he
did not obtain an adverse ruling, no error was preserved. See id.; Turner v.
State, 805 S.W.2d 423, 431–32 (Tex. Crim. App.), cert. denied, 502 U.S. 870
(1991).
Appellant made the “[s]ame objection” to the second statement, which
concerned Officer Clontz’s feeling that he was being misled by appellant.
Presumably, appellant was referring to his immediately preceding objection,
which was that Officer Clontz’s testimony was “nonresponsive.” The trial court
did not explicitly rule on appellant’s second objection, but appellant argues that
the court’s admonishment of the witness constituted an implied ruling.
See Tex. R. App. P. 33.1(a)(2)(A) (explaining that to preserve error, the trial court
must rule on an objection either expressly or implicitly). Even if the trial court’s
statement quoted above that followed appellant’s second objection could be
interpreted as a ruling, it cannot be construed as an adverse ruling. In fact, in his
brief, appellant characterizes the statement as the trial court’s sustaining the
second objection. Because appellant failed to obtain an adverse ruling on his
second objection, he likewise forfeited any complaint concerning that objection.
See Dixon, 2 S.W.3d at 265; Turner, 805 S.W.2d at 431–32.
Appellant did not object to Officer Clontz’s third statement discussed
above, nor did he request any other relief from the trial court based upon that
7
statement. Thus, appellant forfeited any complaint associated with the third
statement. See Tex. R. App. P. 33.1(a); Clark, 365 S.W.3d at 339.
Because appellant has not preserved any part of his argument for appeal,
we overrule his sole point.
Conclusion
Having overruled appellant’s point, we affirm the trial court’s judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 8, 2012
8