Downey v. State

Full title: PAUL JAMES DOWNEY, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Apr 6, 2010

No. 05-09-00055-CR (Tex. App. Apr. 6, 2010)

Opinion

No. 05-09-00055-CR

Opinion issued April 6, 2010. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the County Criminal Court No. 9, Dallas County, Texas, Trial Court Cause No. MB06-80490-K.

Before Chief Justice WRIGHT and Justices MORRIS and LAGARDE.¹

1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

Opinion By Justice LAGARDE.

Paul James Downey appeals from the judgment against him entered after a jury found him guilty of the Class B misdemeanor offense of operating a motor vehicle in a public place while intoxicated (DWI). See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). After hearing evidence on punishment, the jury assessed appellant's punishment at 180 days' confinement in the Dallas County Jail and a $1,000 fine. The jury also recommended that the trial court suspend imposition of the sentence and place appellant on community supervision. In accordance with the jury's recommendation, the trial court suspended imposition of the confinement portion of appellant's punishment and placed him on community supervision for fifteen months. After appellant's motion for new trial was overruled by operation of law, this appeal ensued.

APPEAL

Appellant raises a sole evidentiary issue: whether the trial judge, under rule 404(b) of the Texas Rules of Evidence, reversibly erred in admitting testimony from the arresting officer about a subsequent encounter with appellant. Concluding appellant did not timely preserve error and, in the alternative, even if error were preserved, no extraneous offense evidence was admitted before the jury, we conclude the trial court did not abuse its discretion in admitting the complained-of evidence. Thus, we AFFIRM.

PROCEDURAL BACKGROUND

Pretrial

Appellant filed, and the trial judge granted, a motion in limine objecting to any testimony by the arresting officer, Dallas Police Officer Ronald A. Cathcart, about any subsequent contact/encounter/arrest with appellant. For purposes of context, the record shows that during the trial court's consideration of defense counsel's pretrial motions, the following occurred:

[DEFENSE COUNSEL]: I have, Your Honor.

Motion number four, Judge, there's several motions which address what I'm getting at here. The main point is that in the report that I've been tendered, okay, of Officer Cathcart's report, there's a mention in it of driver's license suspensions that my client had at the time and on the occasion that he was arrested. Okay.

And Counsel and I have agreed that before he goes into anything like that, and correct me if I'm wrong, he'll approach the Bench and ask for a ruling. Okay.

Now, as the Court is aware, Officer Cathcart was also the arresting officer on the other pending DWI of my client, and the thrust of this motion, along with a few other motions that I'll get into, is I want him instructed, with the Court's permission, beforehand before he gets into any testimony, not to go into either the DWI — other DWI arrests and/or any driver's license suspension.

Point being is there are people on the jury that may know or are aware that DWI arrests — arrests, there can be associated suspensions. And if they hear about these other suspensions, then in their mind they may be able to think, well, he's had another DWI arrest. He's probably guilty of this one. So I'm requesting that he be instructed not to go into those matters pertaining to any other DWI arrests which he was on or any other for that matter and/or the fact that he found these driver's license suspensions.

THE COURT: All right. What do you say to that?

[PROSECUTOR]: And, Your Honor, the State will agree to approach as far as any prior DWI arrests or any subsequent DWI arrests, but as far as the officer making initial contact with the defendant and learning that on that night his license was suspended, I believe the State — the State's position is there's many different reasons why a license would be suspended, and it's not just a DWI. I don't think it's prejudicial.

Also Defense counsel has a motion to suppress that he's going to be running with the trial for reason — I'm assuming for reasons whether or not it was a good stop or whether or not there's probable cause for arrest. That — that would be very relevant to those aspects, Your Honor.

THE COURT: Well, okay. We have a motion to suppress?

[DEFENSE COUNSEL]: I've got — it's going to be a running motion, Judge.

THE COURT: Okay. Well, I was going to say what's the relevance of someone having a suspended license doesn't have anything to do [with] whether he committed this crime or not; however, if you're going to question whether they have a right to arrest him, then they obviously had a right to arrest him at that point.

[DEFENSE COUNSEL]: Well, but, Judge, my motion to suppress goes to the reason for the initial stop.

THE COURT: Not the arrest?

[DEFENSE COUNSEL]: That's right, the initial stop.

THE COURT: So if that's the only motion to suppress, what is the relevance of a pending DWLS? How does that go to his intoxication on that night?

[DEFENSE COUNSEL]: Well, it doesn't.

[PROSECUTOR]: Well, Your Honor, I think the State would agree with the court and agree to approach on any situation like that to see if the facts have changed.

THE COURT: Okay. So at this point what I'm ruling is that you cannot get into any prior DWI arrests or any subsequent DWI arrests, any driving with your license suspended, anything along that nature or any other crime that's not associated with this crime and it's not before the Court on trial, because we're not trying any DWLS today, are we?

[DEFENSE COUNSEL]: That's right, Judge.

THE COURT: So, however, if the State feels as if the door's been opened in some manner or an issue has arisen and all of a sudden you want to bring up as a motion to suppress the arrest, or for some reason you feel it's appropriate to get into, you can approach, and we can take that up outside the presence of the jury. However, you cannot get into it, and you need to instruct the officer that he can't just slip that in, he can't forget that he's not supposed to. He needs to be fully aware that he is not allowed to go into any of that.

Trial

During trial on direct examination, Cathcart identified appellant as the person he stopped on December 22, 2006. The next day, during cross-examination, defense counsel asked Cathcart if he looked at the police report to refresh his recollection. Cathcart testified in response to questions from defense counsel:

A. No, I didn't look at the report to refresh my memory. I remember Mr. Downey very well and this incident very well.

Q. And if you remember it so well, let's see, this was December 22, 2006, right:

A. Yes, sir.

Q. All right. And how you said just earlier that you've arrested probably, what, 3,000 people for DWI in the past, right?

A. Over the last 19 years, yes, sir.

Q. Let me ask you, since 2006, December 22^nd, up until now, how many people would you venture you've arrested For DWI?

A. Probably — I do probably 2-to 300 a year, so coming up on two years, so 400 to 600.

Q. Okay. And you're saying — telling the jury that you distinctly remember my client after all those arrests; is that right?

A. Yes. This particular, yes, sir, I remember very well.

Outside the jury's presence, the State contended that the above testimony asking Cathcart why he specifically remembered this case had "opened the door" to evidence of outside acts. Still outside the jury's presence, Cathcart testified he had arrested appellant about four months after this arrest, he remembered appellant because of his repeated contact with him, and the subsequent arrest was for driving while intoxicated. The trial judge took the matter under advisement. The next day, the trial judge stated his ruling would be that testimony would be permitted "at this point that he had another encounter — he had encountered with him four months later and that's how he remembers him, but I'm not going to, at this point, let you go into it was a DWI investigation, arrest, or anything." The trial judge also allowed the prosecutor to ask how long the encounter lasted. Before the jury, on redirect examination, Cathcart testified, without objection, to the testimony about which appellant complains on appeal.

Q. Now, Officer, Defense counsel asked — asked you to some extent about why you remembered this case specifically without needing your police report to refresh that memory. Why is it that you have an independent recollection of this case?

A. Approximately four months later after this incident, I had another encounter with the defendant.

Q. All right. Now, was that encounter something like a 30-second encounter, or was that a little bit longer of an encounter?

A. It was a good bit longer than that.

On appeal, appellant claims such testimony violates rule 404(b) of the Texas Rules of Evidence.

PRESERVATION OF ERROR

To preserve error for appellate review, one must make a timely and specific objection or motion at trial, and there must be an adverse ruling by the trial court. Tex. R. App. P. 33.1(a)(1); Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008), cert. denied, 77 U.S.L.W. 3397 (U.S. Jan. 12, 2009) (No. 08-6624). The failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence. Id. The State contends on appeal that because appellant did not preserve error in the trial court, nothing is presented for our review. First, the State argues appellant's motions were motions in limine which preserve nothing for review. Griggs v. State, 213 S.W.3d 923, 926 n. 1 (Tex. Crim. App. 2007). Second, the State claims appellant did not preserve error at the hearing outside the jury's presence. The State correctly recognizes that under rule 103(b) of the Texas Rules of Evidence, no objection is required to be made before the jury where the court hears objections to offered evidence outside the presence of the jury. Tex. R. Evid. 103(b). Rule 103(b) applies only where the court "rules that the evidence be admitted." Moreover, argues the State, following the trial court's ruling that the prosecutor could ask about Cathcart's ability to remember appellant because of his encounter four months later and the length of the encounter, defense counsel did not object. Rather, defense counsel stated, "I understand. I just want to make sure, he can't talk in detail about the encounter." Thus, says the State, error was not preserved. Third, the State points out there was no objection before the jury to Cathcart's testimony. Thus, appellant did not meet the requisites of Fuller to make a timely and specific objection and obtain an adverse ruling by the trial court. Fuller, 253 S.W.3d at 232. And fourth, although appellant complained in his motion for new trial about Cathcart's testimony, such complaint was untimely and failed to preserve error. Griggs, 213 S.W.3d at 927 (untimely motion for mistrial does not preserve error). Based on the record before us, we agree with the State that appellant did not preserve the evidentiary error about which he now complains on appeal. And, we agree for the reasons stated by the State: a motion in limine does not preserve error, and appellant received no adverse ruling from the trial court as required by rule 33.1(a)(1). Here, the trial court ruled the subsequent DWI arrest would not be admitted. To the extent appellant complains about the restricted testimony the trial judge allowed to be heard by the jury, appellant did not object. Thus, nothing is presented for our review. Next, the State contends that even if appellant could be said to have preserved error, the trial court did not reversibly err in admitting such testimony because the evidence did not constitute extraneous offense evidence, and it did not show a crime or bad act to which the appellant was connected. See Lockhart v. State, 847 S.W.2d 568, 573 (Tex. Crim. App. 1992); Tex. R. Evid. 404(b). Because of the restrictions placed on the testimony by the trial judge, the evidence showed only that Cathcart had a subsequent encounter with appellant four months after the arrest in this case, and that the encounter lasted a "good bit longer" than thirty seconds. Compare McKay v. State, 707 S.W.2d 23, 31-32 (Tex. Crim. App. 1985) (trial court's restrictions prevented testimony from showing improper extraneous offense evidence). Defense counsel argues that because of Cathcart's extensive experience in making DWI arrests, the jury would "likely infer" the subsequent encounter was another DWI arrest. As the State points out, however, the test in McKay is whether the evidence "necessarily involves" misconduct by appellant — not whether the jury would "likely infer" that it did. The State further contends that even if viewed as extraneous offense evidence, the defense "opened the door" by its cross-examination of Cathcart on the issue of appellant's identity. The State points out that extraneous offense evidence is not inadmissible under rule 404(b) when it is offered to rebut an affirmative defense or a defensive issue that negates one of the elements of the crime. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).²

STANDARD OF REVIEW

A trial court's decision to permit the admission of extraneous offense evidence is reviewed by the appellate court under an abuse of discretion standard. Prystash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App. 1999); Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996). The appellate court should not reverse a trial judge whose evidentiary ruling was within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). The appellate court is not permitted to substitute its judgment for the trial court's, but rather must decide whether the trial court's decision was arbitrary or unreasonable. State v. Gonzalez, 855 S.W.2d 692, 695 n. 4 (Tex. Crim. App. 1993). Reviewing the trial court's ruling under the proper standard, we conclude the trial court's ruling was not arbitrary or unreasonable. Thus, the trial court did not abuse its discretion in admitting the alleged extraneous offense evidence. For all the reasons set out above, we resolve appellant's sole issue against him. We affirm the trial court's judgment.