Opinion
No. 06-03-00096-CR.
Submitted: February 19, 2004.
Decided: February 25, 2004. DO NOT PUBLISH.
On Appeal from the County Court at Law, Hunt County, Texas, Trial Court No. CR0100796.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Arthur Dell Duvall appeals his conviction for driving while intoxicated. A jury found Duvall guilty, and the trial court sentenced him to sixty days in the Hunt County Jail. Duvall's sole issue on appeal is whether the State's closing argument implying Duvall was an alcoholic is reversible error. We affirm the judgment of the trial court. On February 2, 2001, at approximately 10:30 p.m., Duvall, a sixty-nine-year-old man, was traveling east on Interstate 30 in Hunt County. When Duvall swerved to miss a slow-moving vehicle, moving approximately thirty miles per hour or less, he lost control of his vehicle. His vehicle, a minivan, rolled and came to a stop upside down, with Duvall hanging from the seat belts. Two witnesses, Dane Cofer and John Watson, stopped and cut Duvall free from the seat belt. Both Cofer and Watson had been able to avoid the slow-moving vehicle immediately before Duvall. When Trooper Chris Earnest, an officer with the Texas Department of Public Safety, arrived at the scene, he noticed an odor of alcohol on Duvall's breath. Duvall informed Earnest he had drunk "about three beers" at the VFW that night. Earnest performed the horizontal gaze nystagmus test on Duvall and testified he observed all six clues of intoxication. Earnest arrested Duvall for driving while intoxicated. At the jail, Duvall refused to submit a specimen of his breath into the intoxilyzer. The closing argument of the State implied Duvall was an alcoholic. Duvall argues that this improper argument resulted in harm which could not be cured by the limiting instruction. Duvall argues the trial court should have granted him a mistrial. The offending portion of the closing argument is as follows:
[Prosecutor]: . . . . Now, remember in voir dire we talked about you've got alcoholics and not all people exhibit all of the signs of intoxication. The defendant wants you to say, well, he didn't have this and he didn't have this and he didn't have this. Everyone is different. Everyone is different. He still exhibited all of these signs. We've talked about how there are people out there who are alcoholics —
[Defense Counsel]: Objection, Your Honor. There was no evidence in this trial that the defendant was an alcoholic at any time. She's trying to make him out to be an alcoholic and that was never introduced in evidence, even referenced slightly. We object to the reference of my client being termed an alcoholic.
[Prosecutor]: May I respond?
THE COURT: Yes, ma'am.
[Prosecutor]: Your Honor, the defendant has clearly stated that there aren't particular signs here, and I think a reasonable inference from the evidence is that, if there aren't any signs, then it could be possibly that he is an alcoholic.
THE COURT: Well, there has been no evidence, and as the jury was instructed in the instructions and what the law is, they can only take what was said on the witness stand, with your depositions, into consideration, into evidence in this matter. They can infer whatever they want to, but there has been no testimony that he's an alcoholic.
[Prosecutor]: Your Honor, for argument, I believe proper argument is reasonable inference from the evidence.
[Defense Counsel]: That's exactly what my objection was.
[Prosecutor]: I'll go on. I'm wasting time.
[Defense Counsel]: We would ask that the jury be made to disregard those comments.
THE COURT: Again, the jury is to take the evidence that was presented to them and not anything that wasn't evidence. I think that instruction is sufficient.
[Defense Counsel]: Defendant moves for a mistrial at this point based on prosecutorial misconduct.
THE COURT: Overruled. Denied.Texas law requires that permissible jury argument fall within one or more of the following four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim. App. 1999); Wilson v. State, 7 S.W.3d 136, 147 (Tex.Crim.App. 1999); Lagrone v. State, 942 S.W.2d 602, 619 (Tex.Crim.App. 1997). The trial court abuses its discretion if it permits argument outside these four areas. See Dinkins v. State, 894 S.W.2d 330, 357 (Tex.Crim.App. 1995). The State argues Duvall was not explicitly called an alcoholic. While this is true, the statement implies the defendant was an alcoholic. The State was offering this argument to refute Duvall's argument that he was not behaving like a typical person who was under the influence of alcohol. The State was arguing that, if Duvall was an alcoholic, he may not exhibit all the symptoms of intoxication. Because not all the symptoms were present, the State's closing argument implies Duvall is an alcoholic. Further, the State argued to the court that such statement was a reasonable inference from the evidence because "it could be possibly that he is an alcoholic." This argument was made to the court in the presence of the jury. Our conclusion is that the State did characterize the defendant as an alcoholic. Duvall argues that the reference to Duvall as an alcoholic was an impermissible jury argument. Duvall cites Jordan v. State, 646 S.W.2d 946, 948 (Tex.Crim.App. 1983), and Monkhouse v. State, 861 S.W.2d 473, 478 (Tex. App.-Texarkana 1993, no pet.), in support of this contention. In Jordan, the Texas Court of Criminal Appeals held it was error for the State to suggest the defendant had needle marks on his arms when there was no evidence to support such a statement. Jordan, 646 S.W.2d at 948. In Monkhouse, this Court held the State's argument the defendant may still be a drug dealer was improper because it implied the existence of extraneous offenses outside the record. Monkhouse, 861 S.W.2d at 478. In rare circumstances, certain characterizations of a defendant may not be error if supported by the evidence, but characterizations not supported by the evidence are clearly error. There was no evidence Duvall was an alcoholic, nor is such a conclusion a reasonable deduction from the evidence. The State argues that the argument was in response to Duvall's argument he did not display evidence of intoxication. In his closing argument, Duvall's attorney stated that:
[H]e was walking around okay. No one said he wasn't walking around okay. Ladies and Gentleman, you don't have the things that they really classically like to throw at you on a case of intoxication. No bloodshot eyes, no slurred speech. One person said perhaps. No stumbling, no staggering, no fumbling for records, no inability to provide information, no incoherence, no problems walking, a slight sway during the HGN, no strong odor of alcoholic beverage.The State asserts that its alcoholic argument falls within the permissible area of jury argument as a proper response to the defense argument. The State also argues that it was trying to ask the jury members to recall that during voir dire several jury members stated that alcoholics they knew in their personal lives did not always exhibit signs of intoxication after consuming alcoholic beverages. The suggestion Duvall might be an alcoholic has a much greater implication than to merely explain why all the typical manifestations of intoxication were not seen. The word "alcoholic" has many undesirable connotations. While the State could have argued in general terms that not all people exhibit the same symptoms of intoxication, the State chose to imply to the jury the defendant was an alcoholic. As this Court noted in Monkhouse, "it is error for the State to make statements during jury argument that would lead the jury to speculate on extraneous offenses or other matters that are not in evidence." Monkhouse, 861 S.W.2d at 478. Because the State implied Duvall was an alcoholic, the jury may have assumed the State had additional evidence of alcoholism not presented at trial. Our justice system cannot condone an argument that would lead a jury to assume facts which are not in evidence. The argument that not all persons exhibit the same symptoms of intoxication can be made without requiring an assumption that Duvall is an alcoholic. The State's response to the defense argument "does not exceed the scope of the invitation." Andujo v. State, 755 S.W.2d 138, 144 (Tex.Crim.App. 1988); Villarreal v. State, 79 S.W.3d 806, 813 (Tex. App.-Corpus Christi 2002, pet. ref'd). The State could have argued that not all people display the same symptoms of intoxication. It is common knowledge that the effects of alcohol cause different symptoms of intoxication in different people. Since the argument could have been made without the harmful characterization of Duvall, the argument exceeded the permissible scope of a response to the defense argument. Therefore, the implication Duvall was an alcoholic was improper jury argument. Having found that the State committed improper jury argument, we must now determine if the trial court committed reversible error. Duvall argues that the implication is so prejudicial it cannot be cured. We do not believe that the trial court committed reversible error. Generally, in order to preserve a complaint for appellate review, the record must show (1) that the complaint was made to the trial court by a request, objection, or motion that was timely and sufficiently specific to make the trial court aware of the grounds of the complaint, and (2) that the trial court ruled adversely. Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim. App. 1999). If the objection is sustained, counsel must then ask for an instruction to disregard the evidence. Nethery v. State, 692 S.W.2d 686, 701 (Tex.Crim.App. 1985); Schumacher v. State, 72 S.W.3d 43, 47 (Tex. App.-Texarkana 2001, pet. ref'd). If the instruction is given, counsel must then move for a mistrial. Schumacher, 72 S.W.3d at 47 (citing Nethery, 692 S.W.2d at 701)). If counsel does not pursue the objection to an adverse ruling, error is not preserved. TEX. R. APP. P. 33.1; Ramirez v. State, 815 S.W.2d 636, 643 (Tex.Crim.App. 1991). Duvall's counsel objected to the argument, and his motion for a mistrial was denied. Since Duvall's attorney pursued the objection until he received an adverse ruling, the error was preserved. In the alternative, the State argues that, if the argument was improper, the harm was cured by the court's instruction to the jury. Most comments that fall outside the areas of permissible argument will be considered error of the nonconstitutional variety. Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim. App. 2000). Since the State's comments do not raise any unique concerns requiring constitutional issues, we will apply the standard of review for nonconstitutional errors. Rule 44.2(b) provides that a nonconstitutional error "that does not affect substantial rights must be disregarded." TEX. R. APP. P. 44.2(b). After the new harmless error rule was adopted, the Texas Court of Criminal Appeals adopted the federal harmless error test for improper jury arguments. Under this test, courts should examine three factors: "(1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks), (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction)." Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998); see Charles F. Baird, Standards of Appellate Review in Criminal Cases, 42 S. TEX. L. REV. 707, 753 (2001). The first factor requires consideration of the magnitude of the prejudicial effect of the State's argument. The State did not explicitly say that Duvall was an alcoholic or that as an alcoholic he would again drive while intoxicated. The State did not emphasize or repeat the erroneous comments and the comments, formed a rather small portion of the State's entire closing argument. Thus, the degree of misconduct was relatively minor and therefore favors a finding of harmless error. Under the second factor, we must consider the measures adopted to cure the improper argument. In many instances, an instruction to the jury to disregard improper argument is sufficient to cure the error. See Dinkins, 894 S.W.2d at 357; see also Moore v. State, 999 S.W.2d 385, 405-06 (Tex.Crim.App. 1999). The trial court agreed there was no evidence Duvall was an alcoholic and instructed the jury to "take the evidence that was presented to them and not anything that wasn't evidence." While this curative instruction could have been more explicit in instructing the jury to disregard the argument, it instructed the jury no evidence was present that Duvall was an alcoholic and that the jury was to base its decision on the evidence presented. Thus, the measures adopted to cure the improper argument favor a finding of harmless error. As to the third factor, while there is ample evidence supporting the verdict, there is some evidence on which a rational jury could have concluded the State failed to meet its burden. The State did present persuasive evidence Duvall had been driving while intoxicated. Duvall admitted drinking. He informed Earnest he had drunk "about three beers" that night. Earnest said he smelled a "deep chest odor of alcohol" from Duvall, contrasting that to an odor from an open container of an alcoholic beverage. He further found unopened containers of alcohol in Duvall's vehicle. While Heather Woodruff, an employee of America Medical Response, treated Duvall for his injuries, she noticed an odor of alcohol. Cofer testified Duvall had slurred speech and "was not exactly steady on his feet." Cofer also stated there was a "general mall [sic] odor about the situation that tended to make me think that alcohol was involved." Earnest testified he observed all six clues of intoxication when he performed the HGN test. Further, Duvall refused to submit a specimen of his breath into the intoxilyzer or to perform either the walk-and-turn or the one-legged stand sobriety tests. Thus, the State presented considerable evidence Duvall was driving while intoxicated. Duvall's conviction was not absolutely certain. Neither Cofer nor Watson noticed an odor of alcohol on the defendant. Cofer testified Duvall had slurred speech and "was not exactly steady on his feet," but does not remember smelling any alcohol when he talked with Duvall. Watson testified he did not smell any alcohol, but admitted his primary concern was the welfare of Duvall. Although Woodruff and Earnest did notice an odor of alcohol, the fact the other witnesses did not detect such odor could create doubt as to how strong the odor was. Duvall did fail the HGN test according to Earnest. However, evidence indicates the test was not performed "exactly" as the officer was trained. Duvall was a sixty-nine-year-old man who had just been in a severe car accident. We cannot conclude Duvall's conviction was certain. While there is significant evidence indicating Duvall was intoxicated, a conviction was not a foregone conclusion. The third factor does not clearly weigh for or against a finding of harmless error. After carefully balancing the foregoing factors, we conclude the error to be harmless in this case. We affirm the judgment of the trial court.
See Burns v. State, 556 S.W.2d 270, 285 (Tex.Crim.App. 1977); Collins v. State, 548 S.W.2d 368, 377 (Tex.Crim.App. 1976); Garza v. State, 783 S.W.2d 796, 800 (Tex. App.-San Antonio 1990, no pet.). But see Tompkins v. State, 774 S.W.2d 195, 217-18 (Tex.Crim.App. 1987), aff'd per curiam, 490 U.S. 754 (1989).
See Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim. App. 1996); Duncantell v. State, 563 S.W.2d 252, 258 (Tex.Crim. App. 1978); January v. State, 811 S.W.2d 631, 632 (Tex. App.-Tyler 1991, pet. ref'd).