Opinion
Nos. 05-03-00593-CR, 05-03-00594-CR.
Opinion Filed May 7, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-48669-T F02-01321-T. Affirmed.
Before Justices BRIDGES, FITZGERALD, and LANG-MIERS.
OPINION
Elroy Campbell, Jr. appeals his convictions and sentences for intoxication assault and intoxication manslaughter. Appellant contends that he should be granted a new trial because (1) the trial court erred when it overruled his motion to suppress blood sample evidence, (2) the State committed reversible error by injecting personal comments into its closing arguments to the jury, and (3) the State wrongfully withheld exculpatory evidence from appellant. We affirm the trial court's judgment.
Background
On March 3, 2002, appellant and his friend, Edward Harmon, were involved in a car accident that severely injured the occupants of the other car. Sometime between 12:00 noon and 1:00 p.m. on March 3, appellant and Harmon bought two twelve packs of beer from a liquor store on Martin Luther King, Jr. Boulevard in Dallas. The two men drove around in the car all day, drinking beer and visiting friends and relatives. After drinking beer steadily all afternoon, Harmon and appellant stopped at a gas station to visit with a friend. When they left the gas station, they headed westbound on Illinois Avenue. Soon after the two men left the station, appellant "passed out" at the wheel of the car. The car continued westbound on Illinois Avenue at a high rate of speed until it collided with another car. The other car flipped over and hit a tree, severely injuring both of the car's occupants. One of the occupants was rendered a quadriplegic and later died from injuries received in the accident, and the other occupant became a paraplegic. Neither Harmon nor appellant were seriously injured. Harmon exited the car without assistance and pulled appellant out of the car through the passenger-side door. Officer Poston, a police officer with the Dallas Police Department, was called to the scene of the accident. He looked over the accident scene and spoke with both Harmon and appellant. Officer Poston found beer cans in the driver's side of appellant's vehicle and detected the smell of alcohol from appellant and Harmon. Appellant told Officer Poston that he was driving the car. Because of the severity of the accident, Officer Poston asked that an accident investigator be dispatched to the scene. Officer LaPere, an accident investigator with the Dallas Police Department, went to the accident scene to investigate. Officer LaPere spoke with Officer Poston, looked over the accident scene, and interviewed witnesses. Officer LaPere believed alcohol was a contributing factor to the cause of the accident. He also believed it was possible that both of the motorists who were in the car appellant hit would die. He sent Officer James, an officer who had been directing traffic at the accident scene, to the hospital to collect a blood sample from appellant. Officer James took an involuntary blood sample because appellant refused to give a blood sample voluntarily. Appellant's blood test results showed that his blood alcohol level was .26 milligrams of alcohol per 100 milliliters of blood, more than three times the legal limit of .08 milligrams per 100 milliliters of blood. The results were introduced as evidence at trial. Appellant was convicted of intoxication assault and intoxication manslaughter. On appeal, appellant contends that the blood test results should have been suppressed at trial. Appellant also contends that the State wrongfully withheld exculpatory evidence and harmfully injected new facts into the trial during its closing arguments. For the reasons discussed below, we affirm appellant's conviction.Discussion
In his first point of error, appellant claims that the trial court erred when it overruled his motion to suppress evidence. More specifically, appellant claims that his blood sample was inadmissible because (1) he was arrested illegally and (2) the blood sample was taken in violation of section 724.013 of the Texas Transportation Code. We conclude that this issue is not properly preserved for our review. To properly preserve an issue for appellate review, the record must reflect a timely objection, motion, or request that specifies the legal basis for the complaint, unless the specific grounds are apparent from the context of the objection. Tex.R.App.P. 33.1. Additionally, the error raised on appeal must be the same as the objection raised at trial, or nothing is preserved for appellate review. Greenwood v. State, 740 S.W.2d 857, 860 (Tex. App.-Dallas 1987, no pet.). At trial, appellant made two objections to the admission of his blood sample. One objection was a general reference to the Texas Transportation Code and the other was based on a claimed violation of section 724.015 of the Transportation Code. Appellant does not argue a violation of section 724.015 on appeal, and appellant's general objection did not adequately inform the trial court of any complaint upon which it might rule. See Scherl v. State, 7 S.W.3d 650, 652 (Tex. App.-Texarkana 1999, pet. ref'd). We conclude that complaints about a violation of section 724.013 of the Texas Transportation Code, or of an illegal arrest, are not preserved for our review. We resolve appellant's first point of error against him. In his second point of error, appellant claims that reversible error occurred when the State delivered its closing arguments to the jury because the State injected personal opinion into its arguments with a comment on the demeanor of a witness. Appellant admits that no objection was made at trial but contends that the State's closing argument was manifestly improper and injected new and harmful facts. To preserve error for improper jury argument, a party must object to the argument, request an instruction to the jury to disregard, and then move for a mistrial. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). The Court of Criminal Appeals has held that even if the argument is erroneous and an instruction to disregard would not cure the harm caused by the improper argument, it is waived if the defendant did not object. See Valencia v. State, 946 S.W.2d 81, 82-83 (Tex.Crim. App. 1997) (op. on reh'g). In the present case, appellant claims that comments made by the prosecutor in closing argument about the demeanor of a testifying witness constitute reversible error. However, it is not error for a party to refer to the demeanor of a testifying witness during argument if the jury had the same opportunity to observe the demeanor during the witness's testimony. Good v. State, 723 S.W.2d 734, 736 (Tex.Crim.App. 1986). Additionally, appellant failed to preserve any claimed error for review because he did not object to the State's closing arguments at trial. As a result, we resolve appellant's second point of error against him. In his third point of error, appellant contends that the State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). More specifically, appellant contends that under Brady, the State was required to disclose the fact that appellant's blood samples were not refrigerated for "two lengthy time periods." We disagree. Pursuant to Brady, the State has an affirmative duty under the Due Process Clause of the Fourteenth Amendment to disclose evidence that is favorable to the defendant and that is material to a defendant's guilt or punishment. Thomas v. State, 841 S.W.2d 399, 407 (Tex.Crim. App. 1992). To establish a Brady violation, a defendant must show that (1) the State failed to disclose evidence, (2) the withheld evidence was favorable to the defendant, and (3) the evidence is material, meaning there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Little v. State, 991 S.W.2d 864, 866 (Tex.Crim.App. 1999). The State does not have a duty to disclose inculpatory evidence. Rivera v. State, 808 S.W.2d 80, 95 (Tex.Crim.App. 1991). The first issue to determine is whether the State failed to disclose evidence. There is no indication in the record of whether the State was aware that the blood specimen had not been continuously refrigerated. It appears that appellant's counsel first became aware of the issue when he was cross examining the State's chemist. We will assume, without deciding, that it was not disclosed to appellant's counsel before that time without regard to whether and when the State became aware of the issue. The second issue to determine is whether the evidence is favorable to appellant. To support his argument that it is favorable, appellant cites Moone v. State, 728 S.W.2d 928, 930 (Tex.App.-Houston [14th Dist.] 1987, no pet.) for the proposition that blood evidence degrades when not properly refrigerated. Although Moone does not stand for that proposition, appellant does not explain how, even if it did, the fact that blood evidence degrades when not properly refrigerated would make the evidence favorable to appellant. In fact, testimony elicited by appellant at trial established that blood sample evidence may degrade during periods of time when blood samples are not refrigerated. However, the evidence was that any degradation caused by a lack of refrigeration would result in a decrease of alcohol content and that continuous refrigeration would have possibly resulted in higher concentrations of blood alcohol, not lower concentrations. Obviously, the evidence that the lack of refrigeration may have resulted in tests showing lower alcohol concentrations was not favorable to appellant because it would indicate that appellant's actual alcohol concentration may have been higher than was shown by the test results. The third issue to determine is whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result would have been different. As the Court of Criminal Appeals held in Little, "[t]o prevail under Brady, [appellant] must show not only a failure to timely disclose favorable evidence. He must also show he was prejudiced by the tardy disclosure." Little, 991 S.W.2d at 867. Little involved a case where the appellant was convicted of driving while intoxicated. At trial, the State's chemist testified that Little's blood alcohol concentration was 0.13. After this testimony and before cross-examination began, the State told defense counsel that the chemist had lost the paperwork from his tests. Defense counsel cross-examined the chemist about the lost paperwork, his expert testified that without the missing paperwork he could not determine whether the chemist's conclusions were correct and during closing argument Little's counsel argued that the State's blood test results were unreliable or insufficient to convict because "the paper" was missing. The Court noted that:"[h]e did not object to the admission of the blood test results or attempt to take the chemist on voir dire after the loss of the graph was disclosed. So he cannot show that the outcome of the proceeding would have been different had that fact been disclosed earlier. And he cannot show that the trial was unfair, since he had every opportunity to object to the blood test results before and after the State disclosed the fact that the graph had been lost. Little received the information in time to put it to effective use at trial, under his theory. He just neglected to do so."Id. The court held that it was not sufficient for the appellant to show that the outcome may have been different but that he "must show a reasonable probability that, had the evidence been disclosed to the defense earlier, the result of the proceeding would have been different." Id. (emphasis added). Appellant has not satisfied the Brady requirements. He does not argue that the outcome would have been different as is required by Little, he merely contends that "the outcome of the trial is called into question." Additionally, appellant does not reveal what he would have done differently if he had been aware earlier that the blood specimen was not continuously refrigerated. In fact, appellant's counsel's cross examination elicited both the disclosure regarding lack of refrigeration of the blood specimen and the testimony that indicates that the evidence is not favorable to appellant. He did not make an objection at the time and did not raise any issue of prejudice from any claimed tardy disclosure. There is no indication that if appellant had learned earlier that the blood specimen was not continuously refrigerated, he would have handled the case any differently and none demonstrating that the result of the proceeding would have been different. As a result, appellant has not met his burden of showing a reasonable probability that had the evidence been disclosed to him earlier the result of the proceeding would have been different. We resolve appellant's final point of error against him.