Belzora Poledore Birhiray v. State

In The

Court of Appeals

For The

First District of Texas

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NO. 01-06-00934-CR

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BELZORA POLEDORE BIRHIRAY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Court at Law Number One

Fort Bend County, Texas

Trial Court Cause No. 120,845

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MEMORANDUM OPINION

Appellant, Belzora Poledore Birhiray, pleaded not guilty to misdemeanor driving while intoxicated (DWI), and was found guilty by a jury. Pursuant to a agreement entered into with the State after the guilt phase of the trial, the trial court assessed punishment at 180 days' confinement, suspended for 12 months' community supervision, a $600 fine, plus court costs, 40 hours of community service, a $50 donation to the Fort Bend County Women's Shelter, and participation in a victim-impact panel. ⁽¹⁾ In three points of error, appellant contends that the trial court erred by overruling appellant's objections to voir-dire questioning by the prosecutor and by permitting peace officers to state their opinions about whether appellant was intoxicated. We affirm.Factual Background

While on patrol duty on November 6, 2005, DPS Trooper B. Chacon stopped appellant for driving 68 miles per hour in a zone posted at 60 miles per hour. Appellant and a companion had recently left a house-warming party when Trooper Chacon noticed that appellant was speeding and had been driving with her right blinker activated for an extended period of time. Chacon engaged his emergency overhead lights, and appellant stopped her vehicle, although she was in a moving lane of traffic. Trooper Chacon had to use his bullhorn three times before appellant complied with his directions by driving to a nearby parking lot.

On approaching appellant, Trooper Chacon noticed a strong odor of alcohol coming from her vehicle. Chacon described appellant's speech as slurred and said her eyes were "red and glassy." When she was asked for her driver's license and proof of insurance, appellant handed Trooper Chacon her mother's driver's license. Appellant initially denied making that mistake, but eventually realized her error. As she handed over her personal license, Trooper Chacon noticed the smell of alcohol on appellant's breath, and he asked her to step out of her vehicle to perform some field-sobriety tests.

Trooper Chacon recorded six out of six clues indicating intoxication when appellant performed the horizontal gaze nystagmus test. He noticed additional indicators of intoxication when he asked appellant to perform the walk-and-turn and one-leg-stand tests. At one point during the testing, appellant fell to the pavement. After conducting the field-sobriety tests, Trooper Chacon concluded that appellant was intoxicated, having lost the normal use of her physical and mental faculties due to alcohol introduced into her system, and he placed her under arrest for DWI. Trooper Chacon requested a breath sample at that point, but appellant refused to provide one. Appellant claimed she had consumed only one beverage, consisting of champagne and juice, and had eaten hors d'oeuvres. A videotape of the stop and the field-sobriety testing was introduced into evidence at trial.

Deputy T. Robinson of the Fort Bend Sheriff's Department noticed Trooper Chacon's vehicle in the parking lot and stopped to assist and ensure the safety of the officer and appellant. Deputy Robinson observed while appellant performed the three field-sobriety tests and testified at trial that he believed she was intoxicated.

"Commitment" Questions

Appellant's first and second issues challenge voir-dire questions and statements by the prosecutor. Appellant contends that the prosecutor was attempting to commit prospective jurors to a verdict based on a specific set of facts, in violation of Standefer v. State, 59 S.W.3d 177, 183 (Tex. Crim. App. 2001). Standefer proscribes attempts by attorneys to obtain commitment by potential jurors "to a verdict based on a hypothetical set of facts." Id. Appellant complains of two portions of the prosecutor's voir dire.

A. "Normal Use" as Objective Standard

In her first point of error, appellant argues that questioning by the prosecutor attempted to commit potential jurors to the proposition that a police officer need not know, or be familiar with, what constitutes the "normal use" of a particular defendant's mental and physical faculties in order to determine that the defendant, whom the officer had never previously met, is intoxicated. Appellant complains of the following portion of the State's voir-dire examination:

PROSECUTOR I want to point out one big thing on this in this law. Not having the normal use. Let's say, an officer is---pulled somebody over for driving while intoxicated, and they give them some field sobriety tests. The law says that they have to not have the normal use. The officer has never met this person before. Does the officer have to know what their normal is? And I'm--before you answer, I'm going to tell you the law says no. The officer would only be able to arrest--

DEFENSE COUNSEL: Your Honor, I'm going to object. This--that is an inaccurate statement.

PROSECUTOR: That is an accurate statement of the law, Judge.

...

(Emphasis added.) After a discussion with counsel at the bench, the trial court overruled appellant's objection.

Well-settled law recognizes that an appellant may not claim error on appeal based on a trial objection premised on a different legal theory. E.g., Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999) (holding that relevancy objection at trial did not preserve error concerning admissibility of extraneous offense). As shown by the excerpt from the record, above, appellant objected at trial that the prosecutor had misstated the law. On appeal, she argues that the prosecutor's questioning violated Standefer--a contention that the trial court had no opportunity to address. Because appellant's complaint on appeal differs from her trial objection, appellant presents nothing for review. See Tex. R. App. P. 33.1(a)(1)(A); Heidelberg v. State, 144 S.W.3d 535, 538 (Tex. Crim. App. 2004); Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). ⁽²⁾

We overrule appellant's first point of error.

B. "Normal Use" Hypotheticals

In her second point of error, appellant contends that the prosecutor misstated the law by suggesting that the State need show only that appellant lost a "little bit" of her mental faculties. Appellant contends that the trial court erred because it did not sustain her objection, and she directs us to the portion of the State's voir dire in which the prosecutor was presenting hypotheticals involving consumption of different amounts of alcoholic beverages, with resulting variances in degrees of impairment. The following exchange occurred after the prosecutor hypothesized that potential juror Kanyha had consumed "one and a half beers":

PROSECUTOR: If Mr. Kanyha has gotten [sic] behind the wheel, he's had one and a half [beers], he's lost a little bit of his mental faculties. Physical faculties, he's fine. Has he broken the law?

JUROR WELLS: At one half [sic], I'd have to say no.

PROSECUTOR: Okay. I'm glad you said that because what I'm going to point out is remember we talked about what I said, he's lost some of his mental faculties.

Appellant requested a bench conference at that point, which was not reported, after which the trial court announced that it had sustained appellant's objection.

PROSECUTOR: All right. I'm back. Let me say it like this. That way he'll be happy. It's -- if he's lost a little bit of the -- and it's -- he doesn't have the normal use -- okay -- is that clear? Okay. He's lost some, and he doesn't have the normal use. Okay. Does that make clear for everybody? I don't mean to insinuate a tiny, tiny bit. (Emphasis added.) You know, if he's lost the normal use -- okay -- is that clear? Mr. Martinez, you're making a face like -

JUROR MARTINEZ: I'm just thinking.

PROSECUTOR: Okay.

VENIREPERSON: So, making a real small point.

PROSECUTOR: It's a very small point. It's very important to him.

At that point, appellant requested an additional bench conference, which follows:   

DEFENSE COUNSEL: My objection is that the [p]rosecutor has misstated the law to the jury. The law that . . . intoxication is the loss of normal use. The [p]rosecutor has told the jury or suggested strongly to the jury that it's -- it's -- the law is the loss of a little bit. She in my opinion has not cleared it up. The jury continues to be confused with what the law is, and my motion is for the [court] to instruct the jury on what the law is.

THE COURT: Right. And your response?

PROSECUTOR: I think I cleared it up. It should be to the satisfaction. [sic] I still maintain that the case law indicates that it's any loss of mental and physical faculties. If he wants a ruling on that instruction, he wants an instruction to the jury on quote what the law is, then we need to pull some law and make sure before we give an instruction like that.

(Emphasis added.)

At the conclusion of the bench conference and beyond the jury's hearing, the trial court ruled, "the State has cleared it up; and jury instructions are not required. The prosecutor then continued her voir dire by returning to Juror Wells, the same juror whose response prompted appellant's first objection. The prosecutor repeated her hypothetical question to Juror Wells about a driver's having consumed one and a half beers and then supplemented the question with variables aimed at demonstrating that a fixed amount of alcohol might affect individuals differently, depending on their tolerance. All of this subsequent questioning proceeded without objection by appellant.

To preserve error for appeal, a defendant must (1) object, (2) state the grounds with sufficient specificity, and (3) obtain an adverse ruling. Tex. R. App. P. 33.1; see Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985); Zunker v. State, 177 S.W.3d 72, 78 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd). Failure to obtain an adverse ruling waives error. See Zunker, 177 S.W.3d at 78.

In this case, appellant obtained a favorable ruling after the trial court sustained her first objection, the basis of which is not revealed by the record. Appellant did not request that the venire be instructed to disregard the prosecutor's comments, or that the panel be quashed and, therefore, did not pursue the trial court's ruling to an adverse ruling. Appellant's having received the relief she requested further supports her having waived error, if any, in the trial court's ruling. Tex. R. App. P. 33.1; see Zunker, 177 S.W.3d at 78. Waiver occurs regardless, as addressed in our disposition of appellant's first point of error, when, as here, a defendant's trial objection presents one legal theory--that the prosecutor "misstated" the law--and presents a different theory on appeal, in this case a Standefer contention. See Tex. R. App. P. 33.1(a)(1)(A); Heidelberg, 144 S.W.3d at 538.

Appellant's second objection was that the prosecutor had not "cleared up" the distinction between loss of "normal use" and "loss of a little bit" of a defendant's physical and mental faculties, and that the jury remained confused. The prosecutor replied that she thought she had "cleared it up." The trial court agreed and ruled that jury instructions were not necessary. This ruling was adverse to appellant, but nonetheless preserved no error. Immediately after the bench conference, the prosecutor resumed questioning of Juror Wells, to whom the prosecutor repeated her hypothetical about a driver's having consumed one and a half beers, and then supplemented the question with additional variables presented to Juror Wells to demonstrate that a fixed amount of alcohol might produce varying degrees of incapacity with different individuals, depending on tolerance--all without any objection by appellant. At the conclusion of that questioning, Juror Wells replied, again without objection by appellant, "It all depends on the person."

Waiver occurs when, as here, the defendant objects to the State's hypothetical questions during voir dire, but does not object when the prosecutor continues the voir dire by using similar explanations to question the venire. Montes v. State, 870 S.W.2d 643, 645-46 (Tex. App.--El Paso 1994, no pet.). By not objecting when the prosecutor repeated to Juror Wells the original hypothetical regarding impairment after one and a half beers, as clarified by the prosecutor's statement that she did not "mean to insinuate a tiny, tiny bit," it appears from the record that appellant acquiesced to the trial court's ruling that the prosecutor had cleared up the distinction, despite her stated concerns regarding confusing the jury. See Cole v. State, 194 S.W.3d 538, 545 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd); Montes, 870 S.W.2d at 645-46. By not continuing to object or to obtain a running objection when the prosecutor continued, appellant further waived error, if any, despite her overruled second objection.

We overrule appellant's second point of error.

Peace Officer's Testimony Regarding Intoxication

In her third point of error, appellant contends that the trial court erred by allowed Trooper Chacon and Deputy Robertson to state their opinions regarding whether appellant was intoxicated because this "was an ultimate issue for the jury to determine and a legal conclusion." ⁽³⁾ We review trial-court decisions to admit or exclude evidence under an abuse-of-discretion standard, and we will not reverse a trial court's ruling unless it falls outside the zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).

Settled law recognizes that opinion testimony that is otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact. Tex. R. Evid. 704; Ex Parte Nailor, 149 S.W.3d 125, 134 (Tex. Crim. App. 2004) (describing officer's testimony that victim had not been attacked); Solomon v. State, 49 S.W.3d 356, 364 (Tex. Crim. App. 2001) (holding that lay witness properly offered opinion regarding defendant's criminal responsibility). Appellant limits her challenge to both peace officers' testimony to the erroneous contention that the officers could not testify on the dispositive issue in her trial, specifically, whether she was intoxicated while driving.

Accordingly, we overrule appellant's third point of error.  

Conclusion

We affirm the judgment of the trial court.

Sherry Radack Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Do not publish. Tex. R. App. P. 47.2(b).

1. Because appellant pleaded not guilty, the trial court properly certified that this is not a plea-bargain case and certified that appellant has a right to appeal. See Tex. R. App. P. 25.2(a)(2); Terrell v. State, __ S.W.3d __, Nos. 01-06-00645-CR, 01-06-00646-CR, 2007 WL _____, *___, slip op. at 5-6 (Tex. App.--Houston [1st Dist.] Oct. 18, 2007) (order) (not yet reported).

2.

This is not a case in which the complaint on appeal was obvious, to the trial judge and opposing counsel, from the objection asserted at trial. See Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006) (citing Heidelberg v. State, 144 S.W.3d 535, 539-43 (Tex. Crim. App. 2004)); Massey v. State, 933 S.W.2d 582, 586-87 (Tex. App.--Houston [1st Dist.] 1996, no pet.) (holding that appellant's objection, that testimony was "getting into extraneous offenses," sufficient to preserve appellate contentions grounded in rule 404(b) of Rules of Evidence).

3. Appellant objected at trial that Deputy Robertson was "not qualified as a proper expert" to respond to the prosecutor's inquiry regarding whether appellant was intoxicated, but has not pursued that contention on appeal.