Opinion
No. 06-11-00137-CR
01-11-2012
TYLER WILLIAM DEXTER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court At Law
Fannin County, Texas
Trial Court No. 45201
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Tyler William Dexter was driving a truck—the suspension of which made the truck unusually tall and the headlights unusually far off the ground—when Officer George Robinson saw him turning the vehicle around on a dead-end road and decided to stop him for having headlights that were too far off the ground. See TEX. TRANSP. CODE ANN. § 547.321 (West 2011) (headlights "shall be mounted at a height from 24 to 54 inches"). After getting Dexter to get down out of the truck cab so the two could converse, Robinson noticed a "strong odor of an alcoholic beverage" coming from Dexter's person. Dexter failed the field sobriety tests, was arrested for driving while intoxicated (DWI), and determined to have a blood-alcohol concentration of .16. A Fannin County jury convicted Dexter of DWI.
Trooper Carmen Barker arrived at the scene to administer field sobriety tests. She testified that Dexter exhibited "[s]ix out of six" clues of intoxication during the horizontal-gaze nystagmus test, "[f]our out of eight" clues during the walk-and-turn test, and "[o]ne out of four" clues during the one-legged stand test.
Dexter's sentence of six months' confinement in the county jail was suspended. He was placed on twelve months' community supervision and was ordered to pay a $1,000.00 fine.
On appeal, Dexter argues that the trial court should have suppressed the evidence because the stop was improper and should have ruled that the State improperly commented on Dexter's failure to testify. We affirm the judgment of the trial court because (1) Robinson had reasonable suspicion to detain Dexter and (2) nothing was preserved regarding any comment on Dexter's failure to testify.
(1) Robinson Had Reasonable Suspicion to Detain Dexter
When he noticed Dexter's vehicle, Robinson determined that he "was going to stop the vehicle for the headlight violation" because the truck "s[at] very high off the ground." Section 547.321 of the Texas Transportation Code mandates that every vehicle be equipped with at least two headlamps which "shall be mounted at a height from 24 to 54 inches." TEX. TRANSP. CODE ANN. § 547.321(c). Because of the truck's unusual height, Robinson "had to have [Dexter] get down out of the vehicle" so that he "could talk to him." From this initial stop, all the evidence of Dexter's DWI was learned.
Dexter argues that no reasonable suspicion justified his detention.
We review a trial court's decision on a motion to suppress evidence by applying a bifurcated standard of review. Graves v. State, 307 S.W.3d 483, 489 (Tex. App.—Texarkana 2010, pet. refd); Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.—Texarkana 2009, pet. ref'd). While we defer to the trial court on its determination of historical facts and credibility, we review de novo its application of the law and determination on questions not turning on credibility. Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Graves, 307 S.W.3d at 489. We also afford deference to a trial court's "application of law to fact questions," if the resolution of those questions turns on an evaluation of credibility and demeanor. Guzman, 985 S.W.2d at 89.
Because a routine traffic stop implicates the United States and Texas Constitutions, the traffic stop must be reasonable. Berkemer v. McCarty, 468 U.S. 420, 436–37 (1984); Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996); see U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 22 (1968). To initiate an investigative stop, the officer must possess a reasonable suspicion based on specific, articulable facts that, in light of the officer's experience and general knowledge, would lead the officer to reasonably conclude the person detained actually is, has been, or soon will be engaged in criminal activity. United States v. Sokolow, 490 U.S. 1, 10 (1989); Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). These facts must be more than a mere hunch or suspicion. Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997).
"If an officer has a reasonable basis for suspecting that a person has committed a traffic offense, the officer may legally initiate a traffic stop." Zervos v. State, 15 S.W.3d 146, 151 (Tex. App.—Texarkana 2000, pet. ref'd); Graves, 307 S.W.3d at 489. The videotape of Dexter's arrest confirms Robinson's statement that Dexter's truck "s[at] very high off the ground," requiring Robinson to ask Dexter to step down from the driver's seat in order to engage in conversation. Robinson stopped "the vehicle for [a] headlight violation," a traffic offense under Section 547.321 of the Texas Transportation Code. We conclude that Robinson had a reasonable basis for suspecting that Dexter had committed a traffic offense.
We overrule this point of error.
(2) Nothing Was Preserved Regarding any Comment on Dexter's Failure to Testify
Dexter also argues that the trial court "erred in overruling the objection of improper argument by the prosecutor as the prosecutor commented on the failure of Appellant to testify." In presenting this point, he refers to the following portion of the jury argument:
So, what it all boils down to is while intoxicated. Was the defendant, Tyler Dexter, intoxicated? Yes, he was. And how do we know this? We can go through all of the individual little things that Trooper Barker identified, that Deputy Robinson even observed for the little bit of time that he talked to Mr. Dexter, all of the things that we can see on the video. What are those? Well, first the glassy, bloodshot eyes. Heard both officers talk about that. The constant movement of hands that Trooper Barker talked about. Mr. Dexter admitted to the fact that he was drinking. We also know that he lied about how much he had to drink. Said that he had two light beers around 5:00 p.m.
[Defense Counsel]: Your Honor, we'll object to the comment on the credibility of the witness.
[State's Attorney]: Your Honor, it's a comment on the weight evidence.
THE COURT: I'll overrule the objection.
[State's Attorney]: How do we know that? We heard the analyst from the crime lab say that two light beers eight hours before the blood draw, that wouldn't leave in the blood the result that he came up with. We know that's not true. Can't remember what kind of beer he drinks at home. I know what kind of beer I drink at home - -
[Defense Counsel]: Your Honor, I' m going to object to personally testifying and improper argument.
THE COURT: I'm going to overrule the objection.
The videotape of Dexter's arrest was admitted into evidence for the jury's review. Dexter told Barker that he had ingested two light beers at approximately 5:00 p.m.
The videotape of Dexter's arrest was admitted into evidence for the jury's review. Dexter told Barker that he had ingested two light beers at approximately 5:00 p.m.
Dexter complains that, because only he "could have provided testimony as to why he was unable to identify the brand of beer he had drank earlier in the day and only [he] could testify as to the number of beers he had drank," the State's argument was a comment on his failure to testify.
A prosecutor's comment amounts to a comment on a defendant's failure to testify only if the prosecutor manifestly intends the comment to be, or the comment is of such character that a typical jury would naturally and necessarily take it to be, a comment on the defendant's failure to testify. Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). It is not sufficient that the comment might be construed as an implied or indirect allusion to the defendant's failure to testify. Id.
As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion that: (A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.TEX. R. APP. P. 33.1(a)(1)(A); see Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Points of error on appeal must correspond or comport with objections and arguments made at trial. Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet. ref'd) (citing Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998)). "Where a trial objection does not comport with the issue raised on appeal, the appellant has preserved nothing for review." Id.; see TEX. R. APP. P. 33.1; Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999).
An objection that a prosecutor made an "improper argument" does not preserve the issue of whether the prosecutor commented on the defendant's failure to testify. Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004). Dexter's counsel did not object at trial on the grounds that the prosecutor's statements constituted a comment on his failure to testify; instead, counsel objected only that the prosecutor's statements constituted "a comment on the credibility of the witness" and "improper argument." The ground Dexter raises on appeal was not apparent from the context of the prosecutor's argument or the objections raised at trial. Because Dexter did not raise the issue that the prosecutor's argument may have constituted a comment on his failure to testify in a manner sufficient to make the trial court aware of the complaint, we find that Dexter has failed to preserve the issue. Id. (court of appeals erred in considering argument that prosecutor's comment constituted comment on appellant's failure to testify because appellant "made no such argument in the trial court.").
Prosecutorial jury argument is permissible if it falls within one of the following categories: (1) summation of the evidence; (2) reasonable deduction drawn from the evidence; (3) answer to argument of opposing counsel; and (4) a plea for law enforcement. Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. App. 2000); Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996). Lawyers are permitted to express reasonable deductions so long as they are based on the evidence in the record and do not constitute unsworn testimony. Penry v. State, 903 S.W.2d 715, 756 (Tex. Crim. App. 1995) (per curiam); Bui v. State, 964 S.W.2d 335, 345 (Tex. App.—Texarkana 1998, pet. ref'd).
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This point of error is overruled.
We affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice
Do Not Publish