Jess Hightower v. State

Hightower v. State TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00609-CR



Jess Hightower, Appellant

v.

The State of Texas, Appellee



FROM THE COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY NO. 39,613, HONORABLE HOWARD S. WARNER, JUDGE PRESIDING

Appellant, Jess Hightower, was convicted by a jury of driving while intoxicated. Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 3, 1983 Tex. Gen. Laws 1568, 1574 (Tex. Rev. Civ. Stat. Ann. art. 6701l-1(b), since amended and codified at Tex. Penal Code Ann. § 49.06). Punishment was assessed by the trial court at confinement in jail for 180 days, a fine of $500, plus court costs, probated for two years.

On appeal, appellant complains that the trial court erred: (1) in allowing the arresting officer, who had little or no independent recollection of appellant's arrest, to testify from his police report as to the details of that arrest; (2) in refusing to allow appellant to inquire into the religious beliefs and disciplinary record of the arresting officer; (3) in failing to grant a mistrial when the State presented into evidence a portion of a videotape concerning which the trial court had granted a motion-in-limine; (4) in allowing the State to use the videotape to attack appellant's credibility during closing arguments; and (5) in failing to grant a mistrial based on the cumulative effect of the alleged errors challenged in the other points of error. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 5, 1993, Officer Taylor of the San Marcos Police Department stopped appellant on Interstate 35 because his truck was weaving on the highway. Officer Taylor asked appellant to perform a field sobriety test and subsequently arrested him for driving while intoxicated. At the police station, appellant was videotaped during a post-arrest interrogation by the arresting officer, but he refused to perform the sobriety tests for the camera or a breath test. On the video, appellant stated that he was an attorney with ten years of experience.

During appellant's trial, in which appellant represented himself, the State's evidence consisted of the testimony of the arresting officer and the showing of the post-arrest videotape. Appellant filed a motion-in-limine to suppress the portion of the videotape in which he stated his profession, believing it to be prejudicial; however, the video was later admitted in full. The jury convicted appellant of driving while intoxicated, and he now appeals based on aspects of both the officer's testimony and the presentation of the part of the videotape revealing his profession.

DISCUSSION

Appellant presents five points of error for review. In his first point of error, appellant contends that the testimony of Officer Taylor, the arresting officer, is inadmissible as hearsay. Appellant argues that Officer Taylor had no present recollection of stopping, arresting, or interrogating appellant over a year before the trial, and that as a result, he testified by reading out of his police report, which the trial court had ruled inadmissible. However, when appellant objected to the direct reading of the report into evidence, the State asked Officer Taylor whether he would remember anything about the case without referring to the report. Officer Taylor answered that he would, and that he was using the report to refresh his memory, as opposed to reading directly from it. The court did tell Officer Taylor not to read from his report after appellant objected further, but Officer Taylor was not told to close the report and was thereafter allowed to refer to it to refresh his recollection before answering. No finding of fact was made by the trial court that Officer Taylor read the report verbatim into evidence, and the report was not submitted for comparison by this Court. The record, therefore, does not support appellant's contention that Officer Taylor was reading his notes directly into the record, only that he was allowed to refresh his memory by referring to a report he had previously made. This practice is both proper and admissible. See Tex. R. Crim. Evid. 611; Davis v. State, 330 S.W.2d 443, 445 (Tex. Crim. App. 1959). When present recollection fails, a witness may refresh his memory by reviewing a report or other writing that was made when his memory was fresh. Welch v. State, 576 S.W.2d 638, 641 (Tex. Crim. App. 1979). The testimony was admissible because Officer Taylor stated that he used the report merely to refresh his memory, and the record does not demonstrate otherwise. Appellant's first point of error is overruled.

In his second point of error, appellant contends that the trial court erred in preventing him from testing the credibility of Officer Taylor through questions concerning the officer's religious convictions about alcoholic beverages and his police disciplinary record. The State's objections to such questions were sustained. However, appellant made no bill of exceptions. As to excluded evidence, a bill of exceptions is necessary to reflect matters that are not otherwise part of the record. If a trial court unduly limits a defendant's cross-examination, a bill of exceptions must be perfected showing his proposed questions and the expected answers to those questions, or nothing is preserved for review. Johnson v. State, 800 S.W.2d 563, 566 (Tex. App.Houston [14th Dist.] 1990, pet. ref'd). An informal bill of exceptions, found in the reporter's notes as an offer of proof made outside the jury's presence, is sufficient when it includes a summary of the proposed questions and answers and a statement of counsel's belief of what the testimony would prove. Love v. State, 861 S.W.2d 899, 901 (Tex. Crim. App. 1993). It is not necessary for counsel to show the trial court that his cross-examination of the witness would affirmatively establish the facts he sought to prove. Hurd v. State, 725 S.W.2d 249, 253 (Tex. Crim. App. 1987). In the absence of any bill of exceptions, however, this Court must indulge the presumption of the correctness of the ruling of the trial court. See King v. State, 95 S.W.2d 454, 455 (Tex. Crim. App. 1936). Accordingly, appellant's second point of error is overruled.

Appellant's third point of error complains of the admission into evidence of the portion of the post-arrest videotape in which appellant stated, in answer to the final taped question, that he was an attorney with ten years of experience. A motion-in-limine had been granted to appellant for the final question on the tape and for his taped refusal to answer any further questions. During Officer Taylor's testimony at trial, the State sought to introduce into evidence other portions of the post-arrest videotape. When appellant and the State could not agree on precisely when to mute the video concerning appellant's refusal to answer further questions, appellant said, "Why don't I waive my objection and let them [the jury] hear the whole thing. I want them to hear me talk." The video was then admitted and played in its entirety, including appellant's statement of his profession, without objection.

A motion-in-limine by itself does not preserve error. Maynard v. State, 685 S.W.2d 60, 64 (Tex. Crim. App. 1985). Testimony offered at trial must be objected to at trial, or any error in its admission is waived. Hernandez v. State, 825 S.W.2d 765, 770 (Tex. App.--El Paso 1992, no pet.). Thus, for error to be preserved with regard to the subject matter of a motion-in-limine, it is absolutely necessary that an objection be made at the time when the subject is raised during trial. Siegel v. State, 814 S.W.2d 404, 407 (Tex. App.--Houston [14th Dist.] 1991, pet. ref'd). Appellant raised his objection to the disputed portion of the videotape too late. Limine procedure does not, as he contends, require the State to ask the court's permission before offering evidence on which a motion-in-limine has been granted. Appellant could have asked in the motion-in-limine that before the subject of his profession was entered into that the State be required to approach the bench and inform the court, but no such action was taken. Romo v. State, 577 S.W.2d 251, 252 (Tex. Crim. App. 1979). Whatever the procedure chosen, however, defense counsel must object before the evidence is admitted during trial to properly call the court's attention to the matter and preserve the error for appeal. Id. Because the statement of appellant's profession was offered without timely objection, any error in admitting it was waived. Appellant's third point of error is overruled.

Appellant complains in his fourth point of error that the trial court erred in allowing the prosecutor, during final argument, to play at full volume the portion of the videotape in which appellant stated his profession, thereby rendering audible appellant's otherwise marginally audible statement. Once evidence has been admitted without objection or limiting instruction, however, opposing counsel may use that evidence throughout trial to the full extent of its rational persuasive power. Garcia v. State, 887 S.W.2d 862, 878 (Tex. Crim. App. 1994). Appellant's fourth point is overruled.

Appellant's fifth point of error is a claim of unfair trial based on the cumulative effect of all of the alleged error complained of in the points of error discussed above. Having overruled all of the first four points, appellant's fifth point is likewise overruled.

CONCLUSION

We affirm the conviction.

J. Woodfin Jones, Justice

Before Chief Justice Carroll, Justices Jones and B. A. Smith

Affirmed

Filed: March 13, 1996

Do Not Publish

would prove. Love v. State, 861 S.W.2d 899, 901 (Tex. Crim. App. 1993). It is not necessary for counsel to show the trial court that his cross-examination of the witness would affirmatively establish the facts he sought to prove. Hurd v. State, 725 S.W.2d 249, 253 (Tex. Crim. App. 1987). In the absence of any bill of exceptions, however, this Court must indulge the presumption of the correctness of the ruling of the trial court. See King v. State, 95 S.W.2d 454, 455 (Tex. Crim. App. 1936). Accordingly, appellant's second point of error is overruled.

Appellant's third point of error complains of the admission into evidence of the portion of the post-arrest videotape in which appellant stated, in answer to the final taped question, that he was an attorney with ten years of experience. A motion-in-limine had been granted to appellant for the final question on the tape and for his taped refusal to answer any further questions. During Officer Taylor's testimony at trial, the State sought to introduce into evidence other portions of the post-arrest videotape. When appellant and the State could not agree on precisely when to mute the video concerning appellant's refusal to answer further questions, appellant said, "Why don't I waive my objection and let them [the jury] hear the whole thing. I want them to hear me talk." The video was then admitted and played in its entirety, including appellant's statement of his profession, without objection.

A motion-in-limine by itself does not preserve error. Maynard v. State, 685 S.W.2d 60, 64 (Tex. Crim. App. 1985). Testimony offered at trial must be objected to at trial, or any error in its admission is waived. Hernandez v. State, 825 S.W.2d 765, 770 (Tex. App.--El Paso 1992, no pet.). Thus, for error to be preserved with regard to the subject matter of a motion-in-limine, it is absolutely necessary that an objection be made at the time when the subject is raised during trial. Siegel v. State, 814 S.W.2d 404, 407 (Tex. App.--Houston [14th Dist.] 1991, pet. ref'd). Appellant raised his objection to the disputed portion of the videotape too late