Opinion
No. 05-04-00292-CR
Opinion Filed June 21, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law Number 3, Collin County, Texas, Trial Court Cause No. 003-82590-03.
Affirmed.
Before Justices WRIGHT, MOSELEY and LANG.
MEMORANDUM OPINION
John Costello appeals his conviction for driving while intoxicated. In three issues, he contends that (1) the admission of statements Costello made to a jail officer violated his constitutional right against self-incrimination, (2) the admission of "unrecorded" statements Costello made to a jail officer violated his rights under Article 38.22 of the Texas Code of Criminal Procedure, and (3) the trial court erred in overruling Costello's bias-based challenge for cause to a prospective juror. For the reasons set out below, we decide Costello's issues against him and affirm the trial court's judgment.
I. Factual Context
At around midnight on April 30, 2003, Plano Police Officer Kris Tyler noticed Costello driving fifty-three miles per hour in a forty-mile per hour speed zone. Tyler noticed Costello swerve in and out of driving lanes two times, the second of which was a "big, big sweep across." When Costello arrived at a red light, he failed to stop at the crosswalk. After the light turned green, Tyler initiated a traffic stop and Costello pulled into a parking lot.
In addition to a strong odor of alcohol, Tyler observed that Costello's eyes were bloodshot and watery, and that Costello's speech was slurred. Costello told Tyler that he had had six beers to drink. Tyler conducted three field sobriety tests: the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test. Based on all the factors he observed, Tyler concluded that Costello did not have the normal use of his mental or physical faculties due to the introduction of alcohol into his body. Tyler arrested Costello and took him to the Plano city jail, where he refused a breath test.
After Costello was read his Miranda rights, he was booked into the jail by Officer Kris Kline, who testified (1) that Kline obtained no information as to any physical abnormalities or defects of Costello, (2) that Costello thought he was in jail in Richardson, Texas, and (3) that Costello told Kline that he had had five beers to drink.
Before trial, Costello's counsel filed a pre-trial motion to suppress. The motion made no mention of any of the specific statements Costello made to Kline, but sought to suppress "[a]ll written and oral statements made by [Costello] to any law enforcement officers or others in connection with this case." The basis for such a request was that "[a]ny statements obtained from [Costello] were obtained in violation of the rights of [Costello] pursuant to the Fourth and Fourteenth Amendments to the United States Constitution, Article I, Section 9 of the Constitution of the States of Texas and Chapters 14 and 38 of the Texas Code of Criminal Procedures."
At trial, Costello's counsel did not object to two of Kline's statements: (1) that Kline did not obtain any information about any abnormalities or physical defects, and (2) that Costello thought he was in jail in Richardson.
Also, during voir dire, Costello's counsel asked the jury panel whether they would give a police officer's testimony more weight than they would another witness's, to which a few of the panelists raised their hands. After the trial judge clarified the statements to the jury panel by asking whether their answer would be the same if the police officer had "equal training" as another witness, the panel members agreed that they would not give any more weight to the police officer's testimony than another witness's. At the end of this discussion, Costello's counsel lodged a challenge for cause, which was denied.
II. Admission of Costello's Statements from Jail.
In his first point, Costello contends that the trial court erred in admitting his post- Miranda statements to Kline. Specifically, Costello contends that each of the questions constituted a custodial interrogation outside the scope of the "routine booking questions" exception, and therefore the admission of those statements violated his constitutional right against self-incrimination. We will address each of the three statements separately.
Statement 1: Physical Abnormalities or Defects.
Costello contends that the admission of evidence that he failed to report any injury to Kline undercut his theory at trial that a prior knee injury affected his performance of the field sobriety tests.
To preserve a complaint for appellate review, a defendant must make a timely request, objection, or motion to the trial court that states the grounds for the ruling he seeks with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds are apparent from the context. See Tex.R.App.P. 33.1(a)(1)(A); Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App. 2004). A specific objection must be made each time an offer of inadmissible evidence is made in order to preserve any error for review. Purtell v. State, 761 S.W.2d 360, 368 (Tex.Crim.App. 1988); Edwards v. State, 813 S.W.2d 572, 576 (Tex.App.-Dallas 1991, pet. ref'd).
Costello did not object at trial to Kline's testimony regarding any physical abnormalities or defects of Costello. Further, the pre-trial motion to suppress did not make any specific reference to such testimony. Rather, Costello's counsel attempted to suppress "all written and oral statements" made to law enforcement. The general objection in the motion to suppress and the absence of any oral objection when the testimony was introduced will not preserve this point on appeal as to this evidence. See Heidelberg, 144 S.W.3d at 537.
Statement 2: Costello's Location After Arrest.
Costello contends that his response that he was in jail in Richardson, rather than Plano, should have been excluded since it tended to show that he had lost the normal use of his mental faculties. Costello did not object to Kline's testimony and did not object with specificity in his pre-trial motion to suppress. Accordingly, he did not preserve this point on appeal as to this evidence. See Id.
Statement 3: Number of Drinks.
Costello contends that his statement to Kline that he had five beers, which was one less than he told Officer Tyler, before he was arrested, tended to show that he either lied about his drinking or was not in full use of his mental faculties. At trial, Costello objected specifically to Kline's testimony in this regard during direct examination, thereby preserving this point on appeal. See Tex.R.App.P. 33.1(a)(1)(A). However, the improper admission of evidence is not reversible error or harmful when the same facts are proven by other testimony to which no objection was made. Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998); Greenwood v. State, 740 S.W.2d 857, 860 (Tex.App.-Dallas 1987, no pet.). Moreover, introduction of evidence in violation of a defendant's constitutional rights will not be reversed if the record establishes beyond a reasonable doubt that its introduction did not contribute to appellant's conviction. See Tex.R.App.P. 44.2(a); O'Neal v. State, 999 S.W.2d 826, 831 (Tex.App.-Tyler 1999, no pet.).
In this case, the facts weigh heavily in support of Costello's conviction. Before he was pulled over and during the traffic stop, Costello exhibited several signs of intoxication while driving: (1) he was traveling in excess of ten miles per hour over the speed limit on a residential street, (2) he was swerving between lanes, (3) he failed to stop his automobile outside the pedestrian crosswalk at the stop light, (4) he emitted a strong odor of alcohol, (5) his eyes were bloodshot and watery, (6) his speech was slurred, (7) he admitted to Tyler that he had had six drinks, and (8) he failed all three of the field sobriety tests decisively.
Based on the weight of the evidence favoring the guilty verdict, we conclude that the record establishes beyond a reasonable doubt that the introduction of Costello's statement to Kline, that he had consumed five beers, did not contribute to the conviction. As such, the error, if any, in admitting this statement, was harmless. See O'Neal, 999 S.W.2d at 831.
We decide against Costello on his first point.
III. Admission of Costello's Unrecorded Statements — Article 38.22.
In his second point, Costello contends that because his statements to Kline were not recorded, there was a violation of article 38.22, § 3(a)(1) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(1) (Vernon Supp. 2004) (providing that no oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless an electronic recording is made of the statement).
To preserve a complaint under article 38.22 of the Texas Code of Criminal Procedure, a defendant must specifically invoke that article in his trial objection. See Thomas v. State, 723 S.W.2d 696, 699-700 (Tex.Crim.App. 1986) (finding trial objection that police officer's testimony was inadmissible under Art. 1, § 10 of the Texas Constitution and article 1.05 of the Texas Code of Criminal Procedure did not preserve complaint under article 38.22); Gonzalez v. State, 783 S.W.2d 774, 778-79 (Tex.App.-Corpus Christi 1990, no pet.) (finding that merely citing article 38.22 did not raise an issue concerning the inadmissibility of orally made statements). Here, Costello's pre-trial motion to suppress referenced Chapter 38 of the Texas Code of Criminal Procedure. However, merely referencing Chapter 38 is not sufficient to preserve this point on appeal. See Gonzalez, 783 S.W.2d at 778. Further, no objection was made at trial on this ground. As such, Costello waived his objection. See Id.; Thomas, 723 S.W.2d at 699-700. We decide against Costello on this point.
IV. Costello's Challenge for Cause Based on Juror Bias.
In his third point, Costello contends that the trial court erred in overruling his challenge for cause of a particular juror based on bias. He argues that a juror was biased because the juror said he would give more credibility to a police officer's testimony than to another witness's. We cannot agree.
During voir dire, Costello's counsel asked the venire whether they would give a police officer's testimony more weight than they would another witness's testimony. After a few potential jurors, including the challenged juror, raised their hands, the trial judge sent the panel outside the courtroom but asked a group of nine, including the challenged juror, to remain behind for further discussion:
THE COURT:
. . . If I may ask you to assume for just a moment two witnesses that are equal in every respect except that one is a peace officer witness and the other is not; but all other things are equal in whatever way you can imagine it, as those two witnesses are with respect to one another. Age, for example; opportunity to observe, for example; motivation, for example; and anything else one can imagine.
The two witnesses are equal except one of the witnesses is a peace officer witness and the other is not.
I understand the several of you would not mean to say that in that situation you would credit the witness that is a peace officer witness, because of the fact that the witness is a peace officer witness, you would credit that witness more than the other. I understand that to be the same thing that you said. Put your hand up if that's what you mean to report now.
. . . .
THE COURT:
But with respect to the example I have drawn your attention to and the attention of the other jurors, with respect to this example, equal training. You see? Equal training.
VENIREPERSON:
Then they should have equal respect as a witness.
THE COURT:
In which case you wouldn't credit the testimony of the peace officer witness any more than the testimony of the witness that's not a peace officer, correct?
VENIREPERSON:
With equal training, correct.
THE COURT:
With equal training. Now, panel members, if that's how you mean to express yourself on the subject as the prospective juror just did, would you raise your hand now, please.
( Hands raised.)
THE COURT:
Well, panel members, I believe I see all your hands raised. I may be mistaken. Please put your hands back up. Yes, I do. I see all hands raised.
After this exchange, the trial judge dismissed the nine potential jurors that had remained behind and asked counsel if there were any challenges for cause. At that point, Costello's counsel addressed the trial court and lodged a challenge to "all the people that you just dismissed or that you just allowed to rehabilitate themselves." The trial judge denied Costello's challenge for cause.
The trial court's decision to deny Costello's challenge for cause is subject to review under the abuse of discretion standard. Garcia v. State, 887 S.W.2d 846, 854 (Tex.Crim.App. 1994). A trial court's ruling on a challenge for cause is reviewed with "`considerable deference' because the trial court is in the best position to evaluate the venireperson's demeanor and responses." Blue v. State, 125 S.W.3d 491, 497 (Tex.Crim.App. 2003) (quoting Colburn v. State, 966 S.W.2d 511, 517 (Tex.Crim.App. 1998)). This is especially true when the record reflects that a potential juror was vacillating or equivocating, because the trial judge was in the best position to observe the person's demeanor and tone of voice — important factors that "do not come through when reviewing a cold record." Banda v. State, 890 S.W.2d 42, 54 (Tex.Crim.App. 1994).
Although the law is clear that a potential juror cannot be rehabilitated once the juror demonstrates bias, the record in this case does not reflect that the challenged juror was biased. The challenged juror did not say that he would believe a police officer's testimony over another witness's. Rather, once the court clarified the inquiry, the challenged juror agreed that with "equal training," a peace officer's testimony would receive no more weight than another witness's. Accordingly, we conclude that the trial court did not abuse its discretion in overruling Costello's challenge for cause. See Lane v. State, 822 S.W.2d 35, 43-45 (Tex.Crim.App. 1991). Costello's third point is decided against him.
V. Conclusion
Having decided against Costello on his three points, we affirm the trial court's judgment.