No. 06-06-00164-CR
January 26, 2007
March 1, 2007 DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 34287-B
Before MORRISS, C.J., CARTER and MOSELEY, JJ. Memorandum Opinion by Justice MOSELEY
BAILEY C. MOSELEY Justice
A jury found Robin Dewayne Fried guilty of driving while intoxicated (DWI) — subsequent offense. See Tex. Penal Code Ann. § 49.04 (Vernon 2003) (defining crime of DWI), § 49.09 (Vernon Supp. 2006) (outlining penalties for subsequent offenses). The jury assessed Fried's punishment at thirteen years' imprisonment. Fried now appeals, raising four points of error. Finding no reversible error in the proceedings below, we affirm.
I. Jury Instruction
In his first point of error, Fried contends the trial court submitted an erroneous instruction to the jury regarding his right to refuse to submit a breath specimen when requested by the police officer on the night of Fried's arrest. "A jury charge must distinctly set forth the law applicable to the case and set out all of the essential elements of the offense." Martin v. State, 200 S.W.3d 635, 639 (Tex.Crim.App. 2006) (citing Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 1981)). The jury instruction at issue in this case informed the jury that, "You are instructed that you may consider the defendant's refusal to submit to a breath test, if he did, as evidence of intoxication in this case." Fried objected to the instruction, but articulated no specific justification for opposing the instruction. The trial court overruled Fried's general objection and included the instruction in its jury charge. "Rule 33.1 of the Texas Rules of Appellate Procedure provides that, as a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely and specific request, objection, or motion." Griggs v. State, No. PD-0727-05, 2007 Tex. Crim. App. LEXIS 99, at *9 (Tex.Crim.App. Jan. 31, 2007). In this case, Fried's general objection was insufficient to apprise the trial court of the alleged error now raised on appeal. Accordingly, this issue has not been preserved for appellate review. Cf. Rogers v. State, 105 S.W.3d 630 (Tex.Crim.App. 2003) (objection raised failed to articulate basis; alleged charge error not preserved). II. State's Closing Argument at Punishment
In his second point of error, Fried contends the State's closing argument during the punishment phase of the trial was improper and harmful. The State's closing argument at issue included the following: [The State]: Misdemeanor after misdemeanor after misdemeanor. Do I get loud and passionate? Yes, I do. I don't apologize for that, because I think defendants ought to be treated the same way they treat their victims, and we're all the victims of this crime. Now, here, you punish the actor and you punish the crime. You consider all of this. Of course, Mr. Cone didn't spend much time talking about it, because he'd just [as] soon you forget, turn the chart around, don't remember all the DWI offenses that [Fried has] committed, not only in this county, Harrison County, Marion County. This is what I ask you to do. And you're right, let's start with the high end, okay? Let's start with 20 years. Give him credit off that sentence for accepting responsibility in this case. Well, we can't do that, because yesterday when I read that indictment, "Did you or did you not commit this offense on March 25th, 2006?" He's not guilty. [Defense Counsel]: Your Honor, he has an absolute right to plead not guilty. To hold that against him is not fair. THE COURT: I sustain. Disregard it. [The State]: Still at 20. Let's talk about rehabilitation, okay. Probation, prison. Is there any demonstration in this evidence which you can reasonably deduce from this evidence that has shown you anything that has changed him? You can't. We're still at 20. To preserve error in a jury argument, a party must object to the argument and pursue that objection to an adverse ruling, even to the point, if necessary, of requesting the trial court to declare a mistrial. Mathis v. State, 67 S.W.3d 918, 926-27 (Tex.Crim.App. 2002); Cockrell v. State, 933 S.W.2d 73 (Tex.Crim.App. 1996). In this case, the trial court sustained Fried's objection to the State's closing argument. The trial court, though, granted relief that was greater than that which was requested by instructing the jury — sua sponte — to disregard the State's argument. Fried made no further objection, and he failed to pursue his objection to an adverse ruling. Accordingly, Fried has failed to preserve the alleged error for appellate review. III. Evidentiary Sufficiency
In his third and fourth points of error, Fried contends the evidence is legally and factually insufficient to support his conviction. In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In a factual sufficiency review, we view all the evidence in a neutral light and determine whether the evidence supporting the verdict is so weak that the jury's verdict is clearly wrong and manifestly unjust or whether the great weight and preponderance of the evidence is contrary to the verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006); see also Johnson, 23 S.W.3d at 7; Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). A person commits the crime of DWI if he operates a motor vehicle in a public place while not having the normal use of his mental and/or physical faculties because he has ingested alcohol, a controlled substance, a drug, a dangerous drug, or any combination of those items. Tex. Penal Code Ann. § 49.01(2) (Vernon 2003) (defining "intoxication"), § 49.04. The only contested issue at trial was whether Fried was intoxicated at the time he operated a motor vehicle. Suzanne Hardee, the arresting officer, testified she saw Fried's car drift left and right within the marked lane on several occasions. Hardee also witnessed that vehicle drift from the outside northbound lane into the inside northbound lane. In her continued testimony, Hardee described to the jury how she witnessed Fried make a "[w]ide right turn" into the oncoming lane of traffic when Fried's vehicle turned off of High Street onto Nelson Street near downtown Longview. Finally, just before Hardee made the traffic stop, Fried drifted into the lane of oncoming traffic and came "[t]oo close" to hitting another vehicle traveling toward Fried. When Hardee made contact with Fried, she could smell alcohol coming from his breath. Hardee asked Fried to perform several field sobriety tests, including the Horizontal Gaze Nystagmus (HGN) test. For the HGN test, Hardee testified that Fried's eyes did not equally track the stimulus during the administration of this test, that Fried's eyes did not pursue the stimulus smoothly, and exhibited nystagmus at maximum deviation in both eyes. Thus, Hardee concluded that Fried had failed the HGN test by exhibiting six clues (out of a possible six), suggesting intoxication. Fried also performed the "[w]alk and turn" test, which Hardee testified Fried failed, and the "one leg stand" test, which Hardee said Fried refused to perform. Based on his performance during these field sobriety tests, Hardee concluded Fried had lost the normal use of his mental or physical faculties due to the ingestion of alcohol. Later, when requested to provide a specimen of his breath for the purpose of testing it for alcohol concentration, Fried refused to provide a specimen. On cross-examination, Fried attempted to discredit the officer's administration of each of the field sobriety tests. For example, with the HGN test, Fried's cross-examination suggested Hardee may have held the stimulus at a distance greater than the required twelve to fifteen inches from Fried's nose, thus calling into question the validity of Fried's "failure." She also admitted that the scientific research suggested HGN had only about a seventy-seven percent accuracy in predicting intoxication. Fried also pointed out that the National Highway Transportation Safety Administration standard for the "[w]alk and turn" test requires officers to ask certain questions of the suspect (such as whether Fried had any problems with his feet or legs which might prevent him from performing that particular test), some of which Hardee did not ask. These divided attention span sobriety tests were also not administered on the recommended flat surface, but were instead performed on a gravel parking lot. In addition to the field sobriety tests, Hardee reported that she smelled alcohol on Fried's breath and that she had seen him drive in and out of his traffic lane several times; she also opined that Fried's alcohol consumption had caused him to lose the normal use of his mental or physical faculties for purposes of driving his automobile. Regardless of whether the jury gave any credence to the officer's assessment of Fried's performance during the field sobriety tests or whether it did not, the jury heard other uncontested evidence from which it could have determined that the State had met its burden of proof in this case. Thus, the evidence is legally sufficient to support the jury's verdict. Moreover, we cannot say that the jury's verdict is so against the great weight of contrary evidence or that the jury's verdict is manifestly unjust under these circumstances. Accordingly, we also conclude the evidence is factually sufficient to support the verdict. Fried's remaining points of error are overruled. For the reasons stated, we affirm the trial court's judgment.