Williams v. State

Full title: WARREN GREGORY WILLIAMS, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jan 30, 2006

No. 05-04-01867-CR (Tex. App. Jan. 30, 2006)

Opinion

No. 05-04-01867-CR

Opinion issued January 30, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the County Criminal Court No. 6, Dallas County, Texas, Trial Court Cause No. MB03-64272-G. Affirmed.

Before Justices WHITTINGTON, WRIGHT and MAZZANT.

OPINION

Opinion By Justice MAZZANT.

Warren Gregory Williams appeals his conviction for driving while intoxicated. A jury found him guilty and he was sentenced to one hundred and fifty days' confinement, probated for twenty-four months, plus a fine of $800. He argues the trial court erred when it denied his motion for new trial based on prosecutorial bad faith. We affirm the trial court's judgment.

Background

Appellant was charged with misdemeanor driving while intoxicated. Officer Ronald Cathcart testified that he asked appellant "what and how much he had had to drink" and appellant said "two glasses of saki between 7 and 8 p.m., then after that he had a couple of Martinis." The prosecutor asked Cathcart if he knew what saki was and he said, "It's like rice wine . . . with a fairly high alcohol level. Not the normal alcohol level like a beer or something like that." Defense counsel asked appellant about the alcohol content of saki, suggesting it was more like beer than wine:

Q. And you testified that you had two sakis?

A. Right. Well —

Q. Sakis, that's Japanese beer?

A. No, it's just a little rice wine.

Q. Rice wine?

A. Uh-huh.

Q. Is it the size of a normal — I'm going to refer to it as beer. Is it the size of a normal beer?

A. No. Each of the little sushi bottles holds about four ounces.

Q. Four ounces.

A. And a beer is twelve, so that's a third of a beer.

Q. And you had how many of those?

A. I had one of the little bottles.

During her cross-examination of appellant, the prosecutor questioned him as follows:

Q. You're saying that saki is beer?

A. [DEFENDANT]: It's — I mean, no, it's wine, but, I mean, I'm comparing like if four ounces is only one third of a can of beer.

Q. Okay. Isn't it true that actually saki contains a lot of vodka?

A. No, I don't think that's true at all.

Q. So you're saying that saki has no vodka in it at all?

A. I don't believe it does. I've never heard that in my life. I don't know. A short time later, the prosecutor posed the following question:

Q. Okay. Isn't it actually true that saki is fifty percent alcohol?

A. [DEFENDANT]: I have no idea of the alcohol content of saki. I don't read the bottle. It comes in a little white bottle. It doesn't say what's on it. I've never read it. All I know is it's a rice wine. And if it is fifty percent alcohol, four ounces, that would give me two ounces of alcohol. That would be, what, one drink?

Appellant filed a motion for new trial arguing the prosecutor had no good faith basis to ask him about the alcohol content of saki and that her "bad faith" questions were designed merely to invite the jury to speculate as to whether what she was saying was true. The trial court denied the motion.

Discussion

In his only issue, appellant claims he is entitled to a new trial based on the bad faith of the prosecutor in asking questions which had no legitimate factual basis. In order to preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex.R.App.P. 33.1(a)(1); Hardeman v. State, 1 S.W.3d 689, 690 (Tex.Crim.App. 1999); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App. 1998) (op. on reh'g); Salazar v. State, 131 S.W.3d 210, 214 (Tex.App.-Fort Worth 2004, pet. ref'd). The only objection appellant raised at trial regarding evidence of the alcohol content of saki was to Cathcart's qualifications to testify to the jury on that subject. Appellant's trial objection does not comport with the issue he raises on appeal. Furthermore, appellant's motion for new trial cannot be used to preserve error because he could have objected at trial to the prosecutor's questions but failed to do so. See Hardeman, 1 S.W.3d at 690; see also Aguilar v. State, 26 S.W.3d 901, 905-06 (Tex.Crim.App. 2000) (objection to the admission of improper evidence should be made at the time the evidence is offered to preserve error). Because appellant failed to timely object to the prosecutor's questions, he has not preserved his complaint for appellate review. We overrule appellant's sole issue and affirm the trial court's judgment.