Wayne Dee Binford v. State ( 2007 )

Affirmed and Memorandum Opinion filed April 26, 2007

Affirmed and Memorandum Opinion filed April 26, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00401-CR

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WAYNE DEE BINFORD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 1034992

M E M O R A N D U M    O P I N I O N

Appellant, Wayne Dee Binford, was convicted by a jury of driving while intoxicated, third offender.  Appellant pled true to allegations contained in two enhancement paragraphs for aggravated assault and burglary of a building.  The trial court made findings of true as to the enhancement paragraphs and assessed appellant=s punishment at 30 years= confinement in the Texas Department of Criminal Justice, Institutional Division.  In his sole point of error on appeal, appellant contends the State=s closing argument violated his right to due process and was a violation of Crawford v. Washington.^[1] We affirm. 

Shortly after 1:00 a.m., on July 24, 2005, Sergeant Dorothy Denhert of the Harris County Sheriff=s Department was driving north on I-45 when she observed appellant=s truck weave from the center lane into the right lane.  The driver of a car in the right lane Ajerked his car to the right to keep from getting hit.@  Appellant moved back into the center lane.  Denhert observed a couple of other incidents where appellant=s truck nearly hit vehicles in other lanes.  Appellant was driving at speeds ranging from 60 to 80 miles per hour.

Denhert then observed appellant coming up on a van at 80 or 85 miles per hour.  Denhert thought appellant was going Ato run smack into the back of that van . . . but he slammed on his brakes,@ coming almost to a complete stop and then resumed driving.  At this point, Denhert, who was driving her personal vehicle, called 911 from her cell phone.  Denhert followed appellant and stayed on the phone with the 911 operator.  As appellant continued to weave in and out of lanes of traffic, other vehicles moved out of appellant=s way.  When appellant exited the freeway, he ran over the curb with his front tire and came to a stop sign, where he stopped for a minute before turning right and running over the median. 

Officer Laura Lindquist of the Houston Police Department was on duty, driving her patrol car, but not headed to any call, when appellant=s truck edged into her lane.  Lindquist had to back off a little to avoid a collision.  Then appellant=s truck moved into the center of her lane and drifted back over.  Lindquist turned on her lights to initiate a traffic stop because he had failed to maintain a single lane of traffic.  According to Lindquist, appellant did not respond, but continued to drive, Aweaving over again.@  She pulled up next to him to try to get his attention, but he was staring straight ahead. Linquist turned on the siren and yelled at appellant that he need to pull over.  After the passenger in appellant=s truck heard her, appellant pulled into a parking lot.  Lindquist got out of her car.  She noticed appellant had bloodshot eyes, his speech was slurred, and there was alcohol on his breath.  Appellant then drove away and she got back into her patrol car and turned on her lights and siren.  Appellant pulled into another parking lot.^[2]

Sergeant Denhert followed them into the parking lot, pulling over to the side, and got out so that Lindquist would know she was law enforcement.  Lindquist attempted to administer a field sobriety test, but he was not able to do what she asked him to do.  Appellant was not able to stand unassisted.^[3] The passenger told them appellant had been drinking since noon.  Appellant was much more intoxicated than the passenger.  Lindquist allowed the passenger to walk away from the scene, and transported appellant to the police station. 

Officer Luis Romano was assigned to the intoxilyzer room at the police station when appellant was brought in.  Appellant refused to take the breath test.  Romano noticed a very strong odor of alcoholic beverage and appellant=s slurred speech and slow reactions.  Appellant refused to take any field sobriety tests because he said he had the legal right not to. 

In his sole point of error on appeal, appellant claims the State=s closing argument violated his right to due process and was a violation of Crawford because the passenger in appellant=s truck was unavailable to testify.  The following took place during the State=s closing argument:

MR. RUCKER: Now, Mr. Binford, you can kind of write a book on what exactly he was trying to do that night.  And the book is kind of like a recipe of getting out of D.W.I.  It=s, you know, if you are drinking and you are driving all over the road, and you got a sheriff=s deputy following you, and you are swerving in and out of lanes, you are driving, you are going fast and you can=t control your car, and then get stopped by an H.P.D. officer, and you can=t follow our instructions, and you can=t do any field sobriety tests, and you are falling down, and your buddy=s drunk, you told the officer they have been drinking all day -- 

MS. HARPER:  Objection, Your Honor.  That=s not in evidence.

THE COURT:  Lawyer=s arguments are not evidence, ladies and gentlemen.

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MS. HARPER:  Your Honor, I would like to move for a mistrial based on the Prosecutor testifying from a witness that was not in court, bringing up evidence that was never brought before this jury.

THE COURT:  It is denied.

Appellant=s complaint on appeal is without merit. First, we note that Denhert testified during cross-examination Athe passenger told us that he had been drinking since noon.@  Appellant=s counsel did not object to the statement.

Second, appellant waived his complaint on three levels. The defendant=s failure to pursue an adverse ruling to his objection to a jury argument results in waiver of his right to complain about the argument on appeal.  Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).  The trial court=s statement, ALawyer=s arguments are not evidence, ladies and gentlemen,@ is not an adverse ruling on appellant=s objection.  See, e.g., Flores v. State, 871 S.W.2d 714, 723 (Tex. Crim. App. 1993) (holding trial court=s statement, Awhat the attorneys say is not evidence and cannot be considered by you as evidence,@ was not adverse ruling); Stiles v. State, 927 S.W.2d 723, 733 (Tex. App.CWaco 1996, no pet.) (holding trial court=s statement, Ayou=ll remember the evidence and that=s the only thing you would be guided by@ not an adverse ruling).

Next, appellant=s request for a mistrial was not made contemporaneously with the prosecutor=s complained of statement. A defendant waives error regarding the alleged impropriety of the State=s argument by not making a proper objection contemporaneously with the argument.  Campos v. State, 946 S.W.2d 414, 416 (Tex. App.CHouston [14th Dist.] 1997, no pet.).  Appellant waited until after the prosecutor had concluded his closing argument before requesting a mistrial. 

Finally, appellant did not argue in the trial court, as he does on appeal, that the State=s argument violated his right to due process and was a violation of the confrontation clause.  Instead, he objected that the prosecutor=s statement was about a matter that was not in evidence.  A complaint on appeal must comport with the objection made in the trial court or it is waived.  Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004).  Appellant=s sole point of error is overruled. 

Accordingly, the judgment of the trial court is affirmed. 

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed April 26, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  541 U.S. 36 (2004). 

^[2]  Denhert=s and Lindquist=s versions of the event differ at this point. According to Denhert, when appellant was making a left turn at a green light, he nearly hit an HPD vehicle approaching from the other direction.  When Lindquist stopped appellant, Denhert observed the HPD vehicle was pulled up next to appellant=s truckCAdriver-to-driver.@  Lindquist opened her door, but did not get out. Appellant reached through his window and pushed the patrol car=s door shut and drove off.  Lindquist pulled him over immediately into a parking lot.

^[3]  Denhert similarly testified that when appellant was getting out of his truck, he almost fell down.  Appellant could not sit up without Lindquist reaching in and pulling him back up.