Christian Brian Domm v. State

Opinion issued June 6, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00272-CR
———————————
CHRISTIAN BRIAN DOMM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 355th District Court
Hood County, Texas1
Trial Court Case No. CR13530
MEMORANDUM OPINION
1
The Texas Supreme Court transferred this appeal from the Court of Appeals for the
Second District of Texas. See TEX. GOV’T CODE § 73.001 (authorizing transfer of
cases between courts of appeals).
A jury convicted appellant, Christian Brian Domm, of driving while
intoxicated [“DWI”], subsequent offense,2 found one enhancement paragraph true,
and assessed punishment at 20 years’ confinement and a $5,000 fine. In a single
issue on appeal, appellant contends that the trial court abused its discretion in
limiting trial counsel’s closing argument. We affirm.
BACKGROUND
The arrest
Appellant was stopped for speeding, and the arresting officer noticed that
appellant’s eyes were bloodshot and glassy. The officer also smelled alcohol inside
the vehicle and noticed that three beer cans had been thrown out of the car.
Appellant’s two passengers admitted to throwing the cans.
After failing to pass several field sobriety tests, appellant was arrested for
driving while intoxicated and taken to jail. There, he was read his statutory warnings
and asked to take either a breath or blood test, both of which he refused. He also
refused a DWI interview.
The arresting officer obtained a search warrant for appellant’s blood. He did
not hand appellant a copy of the warrant, but instead, placed a copy with appellant’s
property at the jail. After obtaining the warrant, the arresting officer took appellant
2
See TEX. PENAL CODE §§ 49.04, 49.09(b)(1).
2
to the hospital, where his blood was drawn. Nearly three hours after the traffic stop,
appellant’s blood alcohol content was 0.112.
The trial
At trial, appellant requested and received a jury instruction pursuant to article
38.23(a) of the Texas Code of Criminal Procedure, which provides:
No evidence obtained by an officer or other person in violation of any
provisions of the Constitution or laws of the State of Texas, or of the
Constitution or laws of the United States of America, shall be admitted
in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury
shall be instructed that if it believes, or has a reasonable doubt, that the
evidence was obtained in violation of the provisions of this Article, then
and in such event, the jury shall disregard any such evidence so
obtained.
TEX. CODE CRIM. PROC. art. 38.23(a).
During closing argument, appellant’s counsel attempted to argue that the
blood-draw evidence was illegally obtained and should be disregarded because the
arresting officer did not give appellant a copy of the search warrant.3 Specifically,
the following exchange took place:
3
Texas Code of Criminal Procedure article 18.06(b), provides in part:
On searching the place ordered to be searched, the officer executing the
warrant shall present a copy of the warrant to the owner of the place, if he is
present.
TEX. CODE CRIM. PROC. art. 18.06(b).
3
[Defense Counsel]: But let’s go back to the search warrant. I want you
to look on page 2, Paragraph 5. Bar none, that is the paragraph we seek
to have you focus on. That—the trooper stands there with the papers
and says, “Come on. I’ve got the warrant.”
Now, the law says, “Serve him with a warrant. Give him the
warrant.”
He’s standing right behind a fax machine—
[Prosecutor]: Your Honor, I’m going to object to this argument,
telling—this counsel telling the jury what the law is. That’s the purview
of the Court.
[The Court]: The law is stated in the charge. You can argue that portion
of the law that’s contained within the Court’s charge.
[Defense counsel]: Thank you.
[Prosecutor]: Well, Your Honor, there’s nothing in your charge about
search warrants or how they’re supposed to be executed or anything.
[The Court]: Well, I’ll sustain that objection.
After the trial court sustained the State’s objection, Defense counsel
nonetheless continued to argue that the blood was illegally drawn because appellant
was not given a copy of the search warrant.
So you can’t get evidence illegally and, if you do, you can’t rely on it.
You can’t use it. If you read it, if you have a reasonable doubt that the
blood was drawn illegally, then you—if you have a reasonable doubt,
you shall disregard any such evidence so obtained. Without the blood,
you’ve got to go back to, “Was he impaired?”
He wasn’t swerving. He wasn’t driving erratically. He was doing
nothing like that. He had a dip in his mouth. He comes out, he talks to
the police officer. The police officer—or the trooper says, “There’s beer
on the ground.”
4
That didn’t make him happy, I’m sure. And the whole thing was he
wasn’t impaired. That’s just the sum and substance of it. If he was
arrested based solely on the HGN test and the alphabet, come on. I mean
that’s just not even realistic. The blood was not obtained legally. The
search warrant was not provided to [appellant].
And I was so careful on questioning Trooper Wilson. I want you—
remember that? “So you had [the warrant] in your hand, right?”
And then they had to wait at the hospital for awhile—just a little bit—
for the gal to get there and for him—remember, Tracie said he was
meticulous about the paperwork: “I had to wait.”
So during that time, he could have handed [appellant] the search
warrant. His—that’s all he had to do. He’s saying, “Search warrant.”
That’s all he had to do. And, instead, didn’t do it, so—
****
So we’re asking you to look at that drawing of blood. It’s there for a
reason that the search warrant has to be given to you. You have—
[Prosecutor]: Your Honor, I object to that. That’s out of your
instructions.
[Trial Court]: It’s argument. I’ll allow it.
****
[Defense counsel]: But we still come back to the main thing, Paragraph
5. If that blood was drawn illegally, you can elect to disregard anything
associated with that blood.
****
So we ask that you look at the evidence, consider the evidence, read
Paragraph 5, and decide for yourselves, “Should the trooper have
given him a copy of the subpoena search warrant?”
“Yeah.”
5
And if he should have and he didn’t, then follow Paragraph 5. You
can disregard the blood and the results thereof. We ask you to find
[appellant] innocent, not guilty.
During the Prosecutor’s closing argument, he argued as follows:
[Prosecutor]: There’s nothing in these instructions—Judge Walton
gives you all the law you need, all of it, and there is nothing in these
instructions about giving a copy of a search warrant to anybody, and so
I’m going to submit to you: If you follow the instructions that Judge
Walton has given you, then you completely disregard all of this. But
even if the defense is right and the law is required that a copy of a search
warrant be given to the person, that’s exactly what [the officer] did: put
it in [appellant’s] property at the jail. I mean, that’s where your stuff
goes. It’s not like the defendant has got a nightstand in the drunk tank
at the jail. His stuff is kept in his property, and that’s what happened
here.
The jury charge did not contain any instructions regarding the validity of
search warrants or the requirements of article 18.06(b). However, appellant did not
complain about the lack of such an instruction either at trial or on appeal.
LIMITATION ON ARGUMENT
In his sole issue on appeal, appellant contends that “[t]he trial court abused its
discretion in limiting trial counsel’s closing argument during the guilt phase of the
trial, effectively denying Appellant assistance of counsel.” Specifically, appellant
argues that his “defense focused on the law regarding search warrants and whether
the trooper had followed the law,” but “[b]ecause the trial court did not permit
Appellant’s attorney to argue that law during closing argument, Appellant was
deprived of counsel.”
6
Standard of Review and Applicable Law
We review the trial court’s ruling on the State’s objection to a defendant’s
jury argument for abuse of discretion. See Davis v. State, 329 S.W.3d 798, 825 (Tex.
Crim. App. 2010). The trial court has broad discretion in controlling the scope of
closing argument, but it may not prevent defense counsel from making a point
essential to the defense. Wilson v. State, 473 S.W.3d 889, 902 (Tex. App.—Houston
[1st Dist.] 2015, pet. filed). A defendant has the right to argue any theory supported
by the evidence and may make all inferences from the evidence that are legal, fair,
and legitimate. Id.; Melendez v. State, 4 S.W.3d 437, 442 (Tex. App.—Houston [1st
Dist.] 1999, no pet.).
Counsel is entitled to correctly argue the law, even if the law is not included
in the jury charge. State v. Renteria, 977 S.W.2d 606, 608 (Tex. Crim. App. 1998).
Prohibiting defense counsel from making a particular jury argument when counsel
is entitled to do so is a denial of the defendant’s right to counsel. Wilson, 473 S.W.3d
at 902.
Analysis
We agree that appellant should be able to argue law applicable to his case,
even if that law is not included in the charge. See Renteria, 977 S.W.2d at 608
(“[T]here is no error in correctly arguing the law, even if the law is not included in
the court’s charge”) (emphasis added). However, even if we were to conclude that
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the trial court erred in limiting appellant’s argument, which we do not,4 we would
nonetheless find that the error was harmless.
Because a trial court’s improper denial of a jury argument counsel is permitted
to make is a denial of the right to counsel, it is constitutional error, subject to harm
analysis under Rule of Appellate Procedure 44.2(a). TEX. R. APP. P. 44.2(a); Wilson,
473 S.W.3d at 902; Lemos v. State, 130 S.W.3d 888, 892 (Tex. App.—El Paso 2004,
no pet.). Under Rule 44.2(a), an appellate court “must reverse a judgment of
conviction or punishment unless the court determines beyond a reasonable doubt
that the error did not contribute to the conviction or punishment.” TEX. R. APP. P.
44.2(a); Wilson, 473 S.W.3d at 902. In applying the harmless-error test, the primary
question is whether there is a “reasonable possibility” that the error might have
contributed to the conviction or punishment. Mosley v. State, 983 S.W.2d 249, 259
(Tex. Crim. App. 1998); Wilson, 473 S.W.3d at 902; see Johnson v. State, 660
S.W.2d 536, 538 (Tex. Crim. App. 1983) (noting that under predecessor to current
constitutional-harmless-error analysis, primary question was whether there is a
4
The failure to provide a copy of a warrant and other ministerial violations of article
18.06 do not vitiate a warrant absent a showing of prejudice by the defendant. See
Greene v. State, 358 S.W.3d 752, 758 (Tex. App.—Fort Worth 2011, pet. ref’d);
Robles v. State, 711 S.W.2d 752, 753 (Tex. App.—San Antonio 1986, pet. ref’d).
Likewise, article 18.06(b) is not law of the case that is required to be included in a
jury charge absent a showing of prejudice. Hernandez v. State, No. 13-16-00651-
CR, 2018 WL 2440529, at *3 (Tex. App.—Corpus Christi 2018, pet. ref’d). In this
case, there was no evidence that appellant was prejudiced by the officer’s failure to
provide appellant with a copy of the search warrant rather than leaving it in his
possessions.
8
reasonable possibility that the error might have “contributed to the conviction or
affected the punishment assessed”).
In conducting our harmless-error analysis, we do not focus on the propriety
of the outcome of the trial, but instead “calculate as much as possible the probable
impact of the error on the jury in light of the existence of other evidence.” Wesbrook
v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000). We must evaluate the record
in a neutral, impartial, and even-handed manner, not in the light most favorable to
the prosecution. Cantu v. State, 395 S.W.3d 202, 211 (Tex. App.—-Houston [1st
Dist.] 2012, pet. ref’d). We consider the nature of the error, the extent to which it
was emphasized by the State, its collateral implications, and the weight a jury would
likely assign it. Cantu, 395 S.W.3d at 211; Snowden v. State, 353 S.W.3d 815, 822
(Tex. Crim. App. 2011). These factors are not exclusive, and other considerations
may inform our harm analysis. Cantu, 395 S.W.3d at 211. “At bottom, an analysis
for whether a particular constitutional error is harmless should take into account any
and every circumstance apparent in the record that logically informs an appellate
determination whether ‘beyond a reasonable doubt [that particular] error did not
contribute to the conviction or punishment.’” Snowden, 353 S.W.3d at 822
(alteration in original) (quoting TEX. R. APP. P. 44.2(a)).
In Vasquez v. State, this Court held that the trial court erred by not permitting
the defendant’s counsel to discuss the law applicable to registered sex offenders
9
during closing argument, even though that law was not included in the jury charge.
484 S.W.3d 526, 531–33 (Tex. App.—Houston [1st Dist.] 2016, no pet.). However,
we held that the error was harmless “[b]ecause Vasquez’s counsel conveyed to the
jury the substantive argument that Vasquez would be subject to sex offender
registration requirements[.]” Id. at 532. In so holding, we noted that “an appellate
court may consider the extent to which the defendant communicated his argument
despite the trial court’s rulings.” Id. at 533.
In this case, as in Vasquez, appellant was able to communicate his argument
that the search warrant was invalid despite the trial court’s initial adverse ruling.
Specifically, appellant’s counsel argued that “[the trooper] could have handed
[appellant] the search warrant. His—that’s all he had to do. He’s saying, ‘Search
warrant.’ That’s all he had to do. And, instead, didn’t do it, so” . . . “we’re asking
you to look at that drawing of blood. It’s there for a reason that the search warrant
has to be given to you.” Appellant further argued, “Should the trooper have given
him a copy of the subpoena search warrant? Yeah. And if he should have and he
didn’t, then follow Paragraph 5. You can disregard the blood and the results thereof.”
And, when the State re-urged its earlier objection, the trial court overruled it
and allowed the argument. Because the trial court’s initial ruling did not prevent
appellant from communicating his argument to the jury, error, if any, was harmless.
See Vasquez, 484 S.W.3d at 533.
10
We overrule appellant’s sole issue on appeal.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).
11