Opinion
No. 04-15-00161-CR
02-24-2016
Deborah Lynn SALDAÑA, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR2455
Honorable Ray Olivarri, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice AFFIRMED
Appellant Deborah Lynn Saldaña was charged by indictment with felony driving while intoxicated. On October 16, 2013, a Bexar County jury returned a guilty verdict and the trial court sentenced Saldaña to four years confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a fine in the amount of $1,500.00. On appeal, Saldaña contends the prosecutor's comments, made during closing argument, called into question her right not to testify in violation of her state and federal constitutional rights. We affirm the trial court's judgment.
FACTUAL BACKGROUND
Saldaña was charged with felony DWI. As part of the indictment, the State also alleged Saldaña had previously been convicted of one prior felony DWI charge and two misdemeanor DWI charges. San Antonio Police Officer Melissa Arriaga testified that shortly after midnight on December 8, 2012, she was dispatched to a disturbance following a vehicle accident. When Officer Arriaga arrived, Saldaña was sitting in the driver's seat with the door closed. The officer further described a male individual standing outside the front passenger window "freaking out, scared, afraid for his child and panicking because he really thought the vehicle was going to hit him." The unidentified male further reported Saldaña was "highly intoxicated."
During Officer Arriaga's conversation with the witness, Saldaña proceeded to exit her vehicle and requested the officer call AAA to tow her vehicle. Officer Arriaga described Saldaña as "hysterical" and "she wasn't making any sense." Saldaña further exhibited a strong odor of alcohol, bloodshot eyes, and slurred speech. Saldaña told Officer Arriaga that she needed to use the restroom and as she walked off, Officer Arriaga described her as "swaying and moving back and forth. She couldn't keep steady balance." Officer Arriaga escorted Saldaña back to the police officer's vehicle, and Saldaña refused to perform any of the standardized field sobriety tests.
After Saldaña was arrested for DWI, she was transported to the police station. Officer Arriaga requested a breath sample and Saldaña consented. However, the sample provided by Saldaña was unusable.
During closing argument, the State argued as follows:
State: I also want to talk about [Saldaña's] statements. Deborah Saldaña on that evening when she talked to the officer, how many times had the officer testified that she said, "I can't get in trouble. I've been in trouble. I can't get in trouble. I can't. Can you give me a break? Can you just take me home and let me feed my dogs? I can't get in trouble. I've been in trouble before"?
We know she has priors. She knows she has priors. When she refuses to do the standardized field sobriety tests, one of those tools the officers use to determine whether someone is intoxicated, who's in control of that evidence? The defendant. The defendant is in control of that evidence and she knows the consequences of doing those field sobriety tests. She knows the consequences of giving a sufficient breath test sample. She knows the consequences.
When we talked in jury selection, why would someone refuse? She didn't say, Officer—
Defense Counsel: Your Honor, I object. That's not the law. She's entitled to refuse the test and it cannot be held against her under the law.
State: Your Honor, the refusal is part of the evidence and we can argue it.
Trial Court: All right. You can continue.
State: She didn't say to the officer when she asked her to perform this standardized field sobriety test, I'm sorry, I have a hurt knee or my back, I have a back injury, or I have a head injury that would prevent me from doing this. She said, No. No. I can't do them. Why? Because she knows the consequences. She knows the consequences of giving a sufficient sample.
On November 21, 2014, Saldaña was found guilty by a jury of felony driving while intoxicated. On February 1, 2015, the trial court sentenced Saldaña to four years confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a fine in the amount of $1,500.00.
DISCUSSION
A. Arguments of the Parties
In her sole complaint on appeal, Saldaña contends the State's arguments that she was "in control of" evidence was an impermissible comment on her failure to testify.
The State counters that Saldaña failed to preserve her sole issue for review. Moreover, even if properly preserved, the prosecutor's argument was entirely proper and not a comment on Saldaña's failure to testify.
B. Preservation for Appeal
In order to preserve any error based on improper jury argument, the defendant must object to the argument and pursue the objection until the trial court rules adversely. See TEX. R. APP. P. 33.1(a); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). The objection must be "a timely, specific request that the trial court refuses." Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004).
1. Object to the Argument
Rule 33.1(a)'s first prong requires trial counsel object to the arguable testimony or argument. TEX. R. APP. P. 33.1(a). During closing arguments, Saldaña's defense counsel objected as follows: "She's entitled to refuse the test and it cannot be held against her under the law." Saldaña's objection at trial appears to be based on a belief the jury could not hold the fact that Saldaña refused to submit to field sobriety tests against her. On appeal, however, Saldaña argues the prosecutor's statement was a comment on her failure to testify. We, therefore, conclude Saldaña's objection does not comport with her complaint on appeal and fails to satisfy the first prong of Rule 33.1(a). TEX. R. APP. P. 33.1(1); see also Bennett v. State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007) (noting to preserve complaint, party must convey substance of complaint to trial judge); Dreyer v. State, 309 S.W.3d 751, 755 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (noting defendant waived review of error when objection at trial was on different basis than his complaint on appeal); see also TEX. R. APP. P. 33.1(a) (noting to preserve error on appeal, record must show appellant made timely and specific objection that stated grounds for ruling).
2. Adverse Ruling
The second prong of Rule 33.1(a) requires a party to pursue her objection in the trial court until she obtains an adverse ruling. TEX. R. APP. P. 33.1(a); Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Zambrano v. State, 431 S.W.3d 162, 172-73 (Tex. App.—San Antonio 2014, no pet.). Saldaña's defense counsel lodged an objection and the State responded. The court's only response was "All right. You can continue."
Before complaining about improper jury argument on appeal, an accused must pursue her objection to an adverse ruling or she forfeits her right to complain about the argument on appeal. Zambrano, 431 S.W.3d at 172-73 (citing TEX. R. APP. P. 33.1(a)); see also Mathis v. State, 67 S.W.3d 918, 926-27 (Tex. Crim. App. 2002) (reiterating test set out in Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996)). Here, Saldaña failed to obtain a ruling on her objection and, thus, any complaint is not preserved for our review on appeal. TEX. R. APP. P. 33.1(a).
CONCLUSION
Because Saldaña failed to properly preserve error, we overrule Saldaña's sole issue on appeal and affirm the trial court's judgment.
Patricia O. Alvarez, Justice DO NOT PUBLISH