Opinion
No. 04-06-00501-CR
Delivered and Filed: July 11, 2007. DO NOT PUBLISH.
Appeal from the 218th Judicial District Court, Frio County, Texas, Trial Court No. 05-08-00104-CRF, Honorable Donna S. Rayes, Judge Presiding.
CATHERINE STONE, Justice, KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice.
Alfonso Ramirez appeals his conviction for driving while intoxicated (felony) following a jury trial as to guilt with the punishment assessed by the court. Ramirez pled true to the enhancement allegations in the indictment. The trial judge found Ramirez was a habitual offender and sentenced him to thirty years in prison. Ramirez asserts the trial court erred in denying his motion to suppress, in allowing evidence before the jury regarding field sobriety tests, and in purportedly considering unadjudicated "bad acts" during sentencing. For the reasons discussed below, we affirm the judgment.
FACTUAL BACKGROUND
Department of Public Safety Trooper Jeff Evans received a radio call from dispatch asserting that an unidentified informant reported there had been an "altercation" at a grocery store in Dilley, Texas. Purportedly, the person involved in the altercation had threatened someone with a "firearm," was "heavily intoxicated," and was now traveling north on Interstate Highway 35 ("IH35") towards San Antonio. Trooper Evans testified he received a description of the vehicle including a possible make, color, and license plate number. He also acquired some information from the dispatcher that led him to believe the informant might be following the suspect. Trooper Evans and his partner proceeded to IH35 to intercept the vehicle. While traveling south, Trooper Evans saw the suspect vehicle traveling in the opposite direction as reported by the informant. Trooper Evans made a u-turn and followed the vehicle later determined to be driven by Ramirez. Trooper Evans testified at the suppression hearing and at trial that shortly after he began to follow Ramirez, he observed Ramirez drive on the improved shoulder of the highway. Trooper Evans decided to initiate a traffic stop for this violation. Trooper Evans activated his on-board video camera to record the traffic stop and activated his emergency lights. When Ramirez failed to respond after traveling some distance, Trooper Evans also sounded his siren and Ramirez then pulled his vehicle to the shoulder of the highway. Because the dispatcher reported the suspect might have a firearm, both troopers approached vehicle with their weapons drawn. Trooper Evans requested Ramirez exit the vehicle and then "patted him down" for weapons. After finding no weapons, Trooper Evans began to question Ramirez about his travel plans. Both troopers noticed an open container of beer in the vehicle. Trooper Evans decided to administer field sobriety tests to Ramirez. Following the tests, Trooper Evans determined that all six clues were present on the horizontal gaze nystagmus test and that Ramirez exhibited signs of intoxication during the one-legged stand and walk and turn tests. Ramirez was arrested for driving while intoxicated and transported to the Frio County jail where he refused to take the breath test.MOTION TO SUPPRESS Stop and Arrest
In the first part of point of error one, Ramirez asserts the "[t]rial court abused its discretion when it denied the motion to suppress the stop and arrest of the Appellant. . . ." In particular, Ramirez complains the stop was based solely on the anonymous informant and contends an anonymous tip cannot justify his initial detention. However, as discussed below, the trial judge was free to believe testimony that the stop was based on a traffic violation. See Tex. Transp. Code. Ann. § 545.058 (Vernon 1999). Thus, Ramirez's complaint is without merit. We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We give almost total deference to a trial court's determination of historical facts supported by the record, especially when the fact findings are based on an evaluation of the witnesses' credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000); Guzman, 955 S.W.2d at 89. We review de novo the court's application of the law of search and seizure to those facts. Ross, 32 S.W.3d at 856. While the initial information that caused the troopers to search for Ramirez's vehicle was provided by an anonymous source, Trooper Evans testified at the hearing on the motion to suppress as well as at trial that Ramirez was stopped based on the traffic violation. Although Ramirez's counsel vigorously challenged this testimony, the trial court is free to assess the credibility of the witnesses. See id. Because Ramirez failed to request any findings of fact and conclusions of law, we presume findings to support the trial court's decision. See State v. Cullen, 195 S.W.3d 696, 698 (Tex.Crim.App. 2006) (citing Ross, 32 S.W.3d at 855). Based on the record and the applicable standard of review, the trial court did not err in denying the motion to suppress.Statements of the Accused
Also in his first point of error, Ramirez complains the trial court erred in "allowing evidence obtained in violation of Miranda, Articles 38.22 and 38.23 Texas Code of Criminal Procedure and Article 1, Sections 9 and 10 of the Texas Constitution." In his brief, however, Ramirez fails to point to specific instances in the record where such evidence was used during his trial. Thus, Ramirez has failed to properly brief this issue. See Tex. R. App. P. 38.1(h) (stating that brief must contain clear and concise argument for contentions made with appropriate citations to authorities and record). An appellate court is not required to make an independent, unguided search of the record for evidence supporting a party's position or to determine the validity of an issue. Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 283 (Tex. 1994); Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197, 201 (1955); see Tex. R. App. P. 38.1(h). Accordingly, we hold Ramirez has waived any complaint by failing to properly brief this issue. See Ripkowski v. State, 61 S.W.3d 378, 381 (Tex.Crim.App. 2001) (holding appellant waived error by failing to comply with Rule 38.1(h) of the Texas Rules of Appellate Procedure), cert. denied, 539 U.S. 916 (2003). Furthermore, during trial Ramirez stated he had "no objection" when the State offered into evidence the videotape recording of the traffic stop and field sobriety tests conducted at the time of the arrest. Thus, even if any statements made on the videotape were obtained in violation of Miranda, the Code of Criminal Procedure, or the Texas Constitution, Ramirez waived error as to the admission of any such statements by failing to object to the admission of the videotape. See, e.g., Moraguez v. State, 701 S.W.2d 902, 904 (Tex.Crim.App. 1986) (recognizing that defendant waives error previously preserved by adverse ruling on motion to suppress when at trial he affirmatively states he has "no objection" to admission of same evidence).FIELD SOBRIETY TESTS
In his second point of error, Ramirez avers the trial court abused its discretion by allowing testimony relating to the horizontal gaze nystagmus (HGN) and field sobriety tests (FST) "in violation of Rule 702 of the Texas Rules of Evidence." Prior to trial, Ramirez filed a pleading entitled "DEFENDANT'S MOTION IN LIMINE TO PROHIBIT POLICE OFFICER OPINION TESTIMONY ON RELIABILITY, ACCURACY AND RESULTS OF STANDARDIZED FIELD SOBRIETY TESTS UNDER R. 702, TEX.R.EVID." (emphasis added). In response, the trial court entered an order requiring the State to approach the bench and obtain a ruling on the admissibility of any such evidence before placing it before the jury. However, the trial record indicates Trooper Evans testified as to the administration and results of the HGN test and the FST without any further ruling of the court. Furthermore, Ramirez made no objection to the testimony as it was received by the jury. A ruling on a motion in limine is a preliminary ruling and generally preserves nothing for appellate review. Geuder v. State, 115 S.W.3d 11, 15 (Tex.Crim.App. 2003). "For error to bepreserved with regard to the subject matter of the motion in limine it is absolutely necessary that an objection be made at the time when the subject is raised during trial." Id. at n. 11 (quoting Gonzales v. State, 685 S.W.2d 47, 50 (Tex.Crim.App. 1985)). Additionally, Rule 33.1 of Texas Rules of Appellate Procedure requires a party to make a timely objection to the receipt of such evidence to preserve the issue for appellate review. See Tex. R. App. P. 33.1. Because the motion in limine failed to preserve any error for appellate review, and there was no objection raised at trial to the complained of testimony, the second point of error is overruled.PUNISHMENT ERROR
In his last point of error Ramirez complains the "[t]rial court abused discretion when it considered `bad act' unadjudicated offense evidence in assessing Appellant's punishment, in violation of Article 37.07(g) of the Texas Code of Criminal Procedure, and in violation of the 6th Amendment to the United States Constitution and Article 1, Section 10 of the Texas Constitution." Specifically, Ramirez contends the trial court considered the information relayed by the anonymous tipster regarding the allegation of an altercation involving a firearm in setting his sentence. In his brief, Ramirez asserts the trial judge "was very specific that the Dilley altercation, where intoxication and a weapon was alleged, by an unknown person, would be considered." At the sentencing hearing, Ramirez's trial counsel made various objections to the pre-sentence report. The attorney noted the pre-sentence report contained information concerning purported arrests relating to Ramirez but failed to report dispositions of those arrests. He disputed the accuracy of the report as to those arrests and then directed the court's attention to a comment contained in the report purportedly attributed to Ramirez by the author of the report: ATTORNEY FOR RAMIREZ: There's [a] statement that says: "Alfonso stated he was not stopped for being drunk but because his cousin reported him for shooting someone." He says he never told anybody that and that that's [sic] not what happened. He didn't shoot anybody. Denies shooting anybody. Never did anything to hurt anybody the day he was arrested for this particular offense. Your Honor, those are the objections. We object to the Court considering those statements and that part of the criminal history as part of the pre-sentence investigation. Despite Ramirez's characterization of the court's comments, the record reflects the following response from the trial judge:COURT: The Court is not going to consider any of the offenses for which the disposition is stated as unknown and the Court heard the testimony with regard to the reason for Mr. Ramirez being stopped and that relates to this sentence. I heard the evidence and it wasn't anything in the evidence to indicate that the defendant was actually the person involved in the altercation. All I'm considering is what was heard in the trial with regard to that.(emphasis added). A fair reading of the foregoing compels this court to conclude it is quite clear the trial court did not believe the evidence adduced during trial supported a belief that Ramirez was the person involved in the purported altercation in Dilley. Furthermore, Ramirez's complaint on appeal does not comport with his objection at trial and thus any error is not preserved. See, e.g., Guevara v. State, 97 S.W.3d 579, 583 (Tex.Crim.App. 2003) (citing Ibarra v. State, 11 S.W.3d 189, 197 (Tex.Crim.App. 1999), cert. denied, 531 U.S. 828 (2000)). Accordingly, Ramirez's third point of error is overruled.