Opinion
No. 13-01-666-CR
Opinion Delivered and Filed June 30, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the County Court At Law No. 1 of Cameron County, Texas.
Before Justices HINOJOSA, CASTILLO, and GARZA.
OPINION
A jury convicted appellant Enrique Valenzuela of driving while intoxicated (DWI). Valenzuela received a six month jail sentence, suspended for twelve months for community supervision. We affirm.
See TEX. Pen. CODE ANN. § 49.04 (Vernon 2003).
I. ISSUES PRESENTED
In his first issue, Valenzuela asserts he was entitled to a new trial because the State, during the motion for new trial hearing, did not prove harmlessness of its failure to turn over dispatch logs. In his second, third, fourth, and fifth issues, Valenzuela complains of improper jury argument. In his sixth issue, Valenzuela asserts the trial court abused its discretion by not ordering the Spanish to English translation of the audio portion of the DWI videotape.II. BACKGROUND
The State called two police officers to testify. Valenzuela testified in his own defense and called two other witnesses. Valenzuela also called the arresting officer. The arresting officer was sergeant Martin Salinas, Jr., a police officer with the Port Isabel Police Department. Salinas testified he was on patrol during the graveyard shift on September 27, 2000, when he observed Valenzuela driving a white Jaguar on a public highway, and traveling at a high rate of speed. Radar clocked the car's speed at 49 miles per hour in a 30 mile-per-hour zone at about 2:00 a.m. When approaching an intersection, Valenzuela took a wide left turn from the inside lane, rather than the turning lane, without slowing down. Salinas observed Valenzuela's vehicle travel against traffic onto the shoulder and accelerate. Salinas testified he observed Valenzuela commit numerous traffic violations, including the following: (1) speeding; (2) making an illegal left turn; (3) traveling against traffic on an eastbound lane; (4) traveling against traffic on a northbound lane; and (5) failing to maintain a single marked lane. As Salinas proceeded after the vehicle, he clocked it traveling 98 miles per hour, and still accelerating. Valenzuela did not immediately stop, although Salinas signaled him to stop with the patrol car's flashing lights and siren. When he did stop, Valenzuela parked partially on the traffic lane and shoulder. Salinas further testified that Valenzuela: (1) lost his balance while walking; (2) admitted he had a few drinks; (3) slurred his speech; (4) had red, bloodshot eyes; (5) had a strong odor of alcohol on his breath; (6) said he was the owner of a business either to intimidate the officer or impress him; (7) failed the horizontal gaze nystagmous test; and (8) refused a breath test. Salinas did not administer any other field sobriety tests because he was concerned Valenzuela might fall and hurt himself. When called by Valenzuela, Salinas testified he knew of no person other than police officer Juan Cantu who administered a field sobriety test. Police officer Juan Cantu testified he administered field sobriety tests on Valenzuela at the booking station. Although Valenzuela understood English, Cantu began the testing in English but changed to Spanish when Valenzuela requested it. Cantu testified that Valenzuela's test performance was unsatisfactory. The trial court admitted the videotape of the testing. In his defense, Valenzuela testified he was part owner of a bar and grill and participated in its operation. On the day he was arrested, he arrived at his place of business at about 9:00 p.m., ate, and drank four beers. He met with an English-speaking businessman there, and, after Valenzuela helped calculate and complete the bank deposit and close the restaurant, the two left in one vehicle. Valenzuela made the night bank deposit, and the two proceeded to view property in which the businessman was interested. Valenzuela took him to his hotel, where the two visited a while longer. Valenzuela left, admittedly, in a rush to get home. Valenzuela testified that after being stopped, Salinas violently removed him from his vehicle by his shirt. Valenzuela testified he agreed to do sobriety tests on videotape to show that he was in perfect condition. He testified that he suffered from heart problems, diabetes, and had a malformation of his feet. Valenzuela's orthopedic surgeon, Dr. Oliver Achleitner, testified he examined Valenzuela on May 4, 2001. He testified that Valenzuela had problems with his feet that would affect his balance. Valenzuela's employee Gustavo Morales testified he observed Valenzuela at the restaurant throughout the time Valenzuela was there. Morales testified Valenzuela was not intoxicated when he left the restaurant. The jury returned a verdict of guilty. The trial court assessed punishment at six months' confinement in jail probated for one year, and a fine of $650.00. The trial court ordered Valenzuel to take a twelve-hour DWI class within sixty days.III. STATE'S FAILURE TO PRODUCE DISPATCH LOGS
In his first issue, Valenzuela asserts the trial court should have granted the motion for new trial because: (1) the prosecutor did not comply with court-ordered discovery by failing to turn over police dispatch logs; and (2) the State failed to show evidence of harmlessness. The State acknowledges its affirmative duty to disclose exculpatory or impeachment evidence that is material to guilt or punishment under Brady v. Maryland, 373 U.S. 83, 87 (1963) ("A prosecutor has an affirmative duty to turn over material, favorable evidence to the defense."). However, the State argues Valenzuela failed to: (1) show how the outcome of the trial would have been different; and (2) preserve error. The parties do not dispute: (1) the State did not provide Valenzuela the dispatch log; and (2) Valenzuela found out about the dispatch log for the first time during Salinas' testimony. Valenzuela limits his first issue to the argument that, at the motion for new trial, the State failed to show harmlessness under Crawford v. State, 934 S.W.2d 744 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd.).A. The Record
Valenzuela argues that we should order a new trial because the State did not carry its burden to show harmlessness. The issue of the dispatch logs arose during defense cross-examination of Salinas, the arresting officer. During cross-examination, Salinas testified that officer Pete Zuniga was dispatched to the scene to transport Valenzuela to the city jail. Salinas testified he did not document in his report Zuniga's presence at the scene, but the Port Isabel police department kept a patrol log which would reflect Zuniga's dispatch to the scene. The following ensued:[Defense Counsel]: Is it a record generated by PIPD?
[Salinas]: It's a log, patrol log.
[Defense Counsel]: There's a patrol log on this?
[Salinas]: Anytime any officer does anything on duty and they call to the dispatch, they log down what's going on or what that officer does.
[Defense Counsel]: But that's not here in the DA's file, is it?
[Salinas]: I don't know, sir.
[Defense Counsel]: Who would have this log out there? Who is the person that has that?
[Salinas]: That would be the City of Port Isabel. You may speak with Lt. Marchan and I'm sure he could get you a copy.According to Valenzuela, under Crawford, the proper harmless error analysis for failure to disclose allegedly exculpatory material is to assume that the damaging potential of the evidence was fully realized. He argues that trial counsel's testimony during the motion for new trial hearing establishes harm. The State responds in the context of a Brady complaint. At the motion for new trial hearing, Valenzuela's trial counsel testified that the State should have turned over the dispatch logs under the trial court's discovery order. In short, trial counsel testified that the dispatch logs were necessary for impeachment. Based on this argument, we construe Valenzuela's issue liberally, as we must. See TEX. R. APP. P. 38.9. Because Valenzuela complains that the State did not disclose favorable impeachment evidence, we construe Valenzuela's issue as a complaint under Brady for the State's failure to provide favorable evidence that he could have used for impeachment of the testifying officers.
B. Standard and Scope of Review
The primary duty of all prosecuting attorneys is to see that justice is done, not merely to seek convictions. Tex. Code Crim. Proc. Ann. art. 2.01 (Vernon Supp. 2004-05). Prosecutors are prohibited from suppressing facts or secreting witnesses who may establish the innocence of the accused. Id. A defendant in a criminal case must be granted a new trial when evidence tending to establish the defendant's innocence has been intentionally withheld, thus preventing its production at trial. TEX. R. APP. P. 21.3(e). The State violates due process when it suppresses evidence in its possession favorable to an accused when the evidence is material, either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000); see also Little v. State, 991 S.W.2d 864, 866 (Tex.Crim.App. 1999); McFarland v. State, 928 S.W.2d 482, 511 (Tex.Crim.App. 1996) (per curiam). The failure to produce material evidence favorable to an accused constitutes a probability sufficient to undermine confidence in the outcome of the proceeding. Thomas v. State, 841 S.W.2d 399, 404 (Tex.Crim.App. 1992). Where the trial court grants a motion for discovery, and the State fails to disclose evidence ordered disclosed by the trial court, the evidence should not be admitted if it is offered by the State during the trial. Lindley v. State, 635 S.W.2d 541, 543 (Tex.Crim.App. [Panel Op.] 1982). To prevail on a Brady claim when the State's disclosure is tardy, the defendant must show that the late disclosure prejudiced him. Wyatt, 23 S.W.3d at 27. The defendant must show a reasonable probability that, had the State disclosed the evidence to the defense earlier, the proceeding would have had a different outcome. Id. Impeachment evidence is considered exculpatory evidence. Ex parte Richardson, 70 S.W.3d 865, 872 (Tex.Crim.App. 2002). Our review of a prosecutor's alleged failure to disclose exculpatory evidence requires us to: (1) employ a materiality standard rather than a constitutional harmless-error standard in evaluating the evidence; and (2) determine the materiality of the evidence in light of all other evidence properly introduced at trial. Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App. 2002). We consider any adverse effect that the prosecutor's non-disclosure might have had on the preparation or presentation of the accused's case. Thomas, 841 S.W.2d at 405. We assess the possibility that an adverse effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor's failure to disclose. Id. To make this determination, we examine the alleged error in the context of the overall strength of the State's case. Id.C. The Law Applicable to the State's Duty to Disclose Exculpatory Evidence 1. Preservation of Error
Because preservation "is a systemic requirement that a first-level appellate court should ordinarily review on its own motion," we will begin with the State's contention that Valenzuela did not preserve this issue for our review. See Jones v. State, 942 S.W.2d 1, 2 n. 1 (Tex.Crim.App. 1997) (en banc). Initially, to preserve a question for appellate review, it is the obligation of the complaining party to make a timely, specific objection. TEX. R. APP. P. 33.1(a). To be timely, the objection must have been made at the earliest possible opportunity. Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App. 1991) (en banc). In Marin, the Court of Criminal Appeals identified three categories of rights possessed by criminal defendants which are as follows: (1) absolute requirements and prohibitions which cannot be waived or forfeited; (2) rights which must be implemented unless expressly waived; and (3) rights which will be implemented only upon request. Marin v. State, 851 S.W.2d 275, 279-80 (Tex.Crim.App. 1993) (en banc); see Sanchez v. State, 120 S.W.3d 359, 366 (Tex.Crim.App. 2003) (en banc). The third category consists of "forfeitable" rights. Sanchez, 120 S.W.3d at 366. A party must insist upon the implementation of these rights by objection, request, motion, or some other behavior calculated to exercise the right in a manner comprehensible to the system's impartial representative, usually the trial judge. See id. The trial judge as an institutional representative has no duty to enforce forfeitable rights unless requested to do so. Id. Thus, when a defendant fails to assert his forfeitable rights at trial, no error attends failure to enforce them and none is presented for review on appeal. See id. We conclude that a defendant's right to Brady evidence is a forfeitable right. We also conclude that a Brady claim procedurally defaults where the accused fails to request a continuance. See Taylor v. State, 93 S.W.3d 487, 502 (Tex.App.-Texarkana 2002, pet. ref'd); see also Lindley, 635 S.W.2d at 544; Zule v. State, 802 S.W.2d 28, 33 (Tex.App.-Corpus Christi 1990, pet. ref'd). When the State's failure to disclose Brady material is discovered during trial, the accused is entitled to a recess to obtain production of the material, even if the defense did not make pretrial efforts to obtain it. Crawford v. State, 892 S.W.2d 1, 4 (Tex.Crim.App. 1994) (en banc). Nonetheless, the accused then must request a postponement or seek a continuance. Otherwise, the accused waives any complaint of surprise in the State's failure to disclose the material earlier. Lindley, 635 S.W.2d at 544; Zule, 802 S.W.2d at 33.2. The Criteria for Disclosure
A Brady violation occurs if: (1) the State failed to disclose evidence, regardless of the prosecution's good or bad faith; (2) the withheld evidence is favorable to the defendant; and (3) the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Ex parte Richardson, 70 S.W.3d at 870; Thomas, 841 S.W.2d at 404. The prosecution has no duty to turn over evidence not in its possession or not known to exist. State v. Blanco, 953 S.W.2d 799, 802-03 (Tex.App.-Corpus Christi 1997, pet. ref'd) (citing Hafdahl v. State, 805 S.W.2d 396, 399 n. 3 (Tex.Crim.App. 1990)). The prosecution does have a duty to learn of any favorable evidence known to others acting in the case on the State's behalf, including the police. Blanco, 953 S.W.2d at 802-03 (citing Kyles v. Whitley, 514 U.S. 419, 419 (1995)). Favorable evidence is any evidence, if disclosed and used effectively, that may make the difference between conviction and acquittal. Thomas, 841 S.W.2d at 404. Favorable evidence includes both exculpatory and impeachment evidence. Wyatt, 23 S.W.3d at 27; Thomas, 841 S.W.2d at 404; Taylor, 93 S.W.3d at 500. Exculpatory evidence is that which tends to justify, excuse, or clear the accused of fault or guilt. Wyatt, 23 S.W.3d at 27; Thomas, 841 S.W.2d at 404; Taylor, 93 S.W.3d at 500. Impeachment evidence is that which disputes, disparages, denies, or contradicts a witness's testimony. Thomas, 841 S.W.2d at 404. Evidence is material if it creates a probability sufficient to undermine confidence in the outcome of the proceeding. Id. Thus, to prevail on a Brady claim, an appellant must show that the State's non-disclosure or tardy disclosure prejudiced the defense. Little, 991 S.W.2d at 867. To show prejudice, an appellant must show a reasonable probability that the result of the proceeding would have been different had the State timely disclosed the evidence to the defense. Id. at 866. A "reasonable probability" is a "probability sufficient to undermine confidence in the outcome." Id. Thus, a due process violation has occurred if a prosecutor: (1) fails to disclose evidence; (2) favorable to the accused; (3) which creates a probability of a different outcome. Wyatt, 23 S.W.3d at 27 (citing U.S. v. Bagley, 473 U.S. 667, 682 (1985)). Evidence withheld by a prosecutor is "material" if there is "a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different." Id.D. Brady Analysis a. Preservation of Error
The record shows that after Salinas testified about the dispatch logs, cross-examination proceeded on other aspects of the State's case. The defense did not object to the non-disclosure or request a continuance. Rather, after the State rested its case during the culpability phase of the trial, the defense urged an oral motion for directed verdict, in part, because the "dispatch logs were not produced to defense counsel as requested as part of our motion for discovery in this case. They were ordered to bring these down here." The defense argued that since the dispatch logs were not produced, "[I]t's materially prejudiced the defense of my client in this case," and requested the trial court to dismiss on that basis. The trial court denied the motion. We conclude that when the State's failure to disclose Brady material was discovered during trial, Valenzuela did not preserve error. He did not object at trial and he did not request a postponement or continuance. TEX. R. APP. P. 33.1; Sanchez, 120 S.W.3d at 366; Lindley, 635 S.W.2d at 544; Zule, 802 S.W.2d at 33. Even if we construed Valenzuela's motion for directed verdict as an objection, he still did not preserve error. The Brady material requested was, according to trial counsel's testimony at the motion for new trial hearing, necessary for impeachment of the police officers. Valenzuela did not request a postponement or continuance. Sanchez, 120 S.W.3d at 366; Lindley, 635 S.W.2d at 544; Zule, 802 S.W.2d at 33.b. Motion for New Trial Evidence
Even if he had preserved error, we conclude that Valenzuela has still not met his burden under Brady, because he has not shown that: (1) the State suppressed evidence in its possession; or (2) a reasonable probability existed that, had the State disclosed the dispatch logs to the defense, his trial would have had a different outcome. Valenzuela filed a motion for new trial asserting, in part, Brady error. The purpose of the motion for new trial hearing is to fully develop the issues raised in the motion for new trial. Sandoval v. State, 929 S.W.2d 34, 36 (Tex.App.-Corpus Christi 1996, pet. ref'd). Valenzuela asserts the trial court erred in overruling his amended motion for new trial. Even though Valenzuela presented several grounds in the motion, he limited his evidence at the motion for new trial hearing to the prosecutor's argument in brief, and to ground six in the motion which states:6. The prosecutor presents error in not turning over to the defense the dispatch logs as directed by the court. When the state did not produce a crime-stopper's report as ordered, the state bore the burden of showing harmlessness. Crawford v. State, 934 S.W.2d 744 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd.).The sole witness at the motion for new trial hearing was Valenzuelas's trial counsel who testified he "had a motion for discovery and inspection of documents in the case" which he urged before trial. To his understanding, the judge "ordered everything to be produced." Trial counsel testified that: (1) the State should have turned over the dispatch logs under the trial court's discovery order; (2) he would have used the dispatch logs to impeach the testimony of Salinas because of inconsistencies in his testimony regarding the presence of another officer at the scene; and (3) Valenzuela was harmed by the non-disclosure of the dispatch log because of the inconsistencies in the State's evidence and (a) assuming the log showed a third officer on the scene, the jury could decide Salinas and Cantu, the testifying officers, were not credible, and (b) assuming the log showed a third officer was not on the scene, the jury could decide Salinas was not credible. He added:
I was insisting on progress notes from the police officers, that they be brought down. There was an officer who testified for the Port Isabel Police Department, when I had him on cross examination, that supposedly there was this possible third police officer. There were two officers that had testified, and there was a third one that he thought might have been out there at the scene with him.On cross-examination, he testified about dispatch logs that would have revealed the identity of this possible third police officer, and at that moment is when-when I found out about that, because in my opinion, it was part of the motion for discovery. I immediately asked the Court-in fact, I moved for a dismissal and also a mistrial, which were both denied. Counsel also testified that not obtaining the dispatch logs harmed Valenzuela because the logs would have revealed the identity of a third officer on the scene who counsel could have called to testify. Counsel explained, "Maybe he could have testified about whether or not this officer had performed or demonstrated field sobriety tests," and he could have testified about Valenzuela's state of mind or condition when stopped. The evidence shows that officer Salinas identified Pete Zuniga as the officer on the scene to transport Valenzuela. Officer Salinas testified that he saw Valenzuela's vehicle at a time when Salinas was talking with another officer, however, that officer was not at the scene of Valenzuela's arrest:
[Defense Counsel]: Okay. Now, on Texas Highway 100 and 48, you're over here at the corner. Are you by yourself or is there another police car talking to you?
[Salinas]: There was another officer there.
[Defense Counsel]: You guys are chit-chatting there on that corner?
[Salinas]: We're talking, yes, sir.
[Defense Counsel]: Okay. Who was the other officer you were talking to?
[Salinas]: Officer Johnny Cantu.
[Defense Counsel]: Did he in any way go out there with you on Highway 48 after [appellant] passed?
[Salinas]: Yes, he did.
[Defense Counsel]: He went out there with you?
[Salinas]: After the vehicle had been stopped.
[Defense Counsel]: Okay. Where is that noted in the report that he was out there with you?
[Salinas]: I'm not sure. I'd have to look at the report to see if it is.After counsel approached the witness, the cross-examination continued:
[Defense Counsel]: I mean, correct me if I'm wrong, but I looked at the reports and they show that this was a one-man stop by you two miles out on 48 and that Mr. Cantu gets in the picture on the video that the jury's going to see.
[Salinas]: Yes, sir. No, sir, it does not state that on there.
[Defense Counsel]: And it's your testimony now for the first time in front of the jury and that I find out about it, that now Mr. Cantu is out there at the scene on Highway 48, two miles out?
[Salinas]: He was asked to-I'm sorry. It was not Officer Johnny Cantu; it was Officer Pete Zuniga, and he was asked to go out there to transport the prisoner from my location to the city jail.
[Defense Counsel]: Does the report reflect that Pete Zuniga was out there at the scene?
[Salinas]: No, sir, it does not.
* * *
[Defense Counsel]: Would that have been important to have noted that?
[Salinas]: Not to me, sir.
[Defense Counsel]: It's not important to you to note down witnesses that might be out at the scene?
[Salinas]: Not at the time and not for that particular report.At trial, Cantu testified he administered sobriety tests at the police station and the testing was videotaped. Thus, the record establishes that Salinas arrested Valenzuela, Zuniga transported him, and that Cantu conducted sobriety tests at the station. The record also establishes that Valenzuela testified in his own defense. During his direct testimony, Valenzuela did not testify whether Zuniga performed field sobriety tests at the scene. Valenzuela's only testimony concerning the transport officer was that he told the transport officer about his medical conditions.
c. Disposition
We have concluded Valenzuela forfeited appellate review. Even so, to prevail on a Brady claim when the State's disclosure is tardy the defendant must show that the late disclosure prejudiced him. Wyatt, 23 S.W.3d at 27. The defendant must show a reasonable probability that, had the State disclosed the evidence to the defense earlier, the proceeding would have had a different outcome. Id. On this record, we conclude that Valenzuela has not met his burden under Brady because he has not shown that: (1) the State suppressed evidence in its possession; or (2) a reasonable probability existed that, had the State disclosed the dispatch logs to the defense earlier, Valenzuela's trial would have had a different outcome. Id. We overrule Valenzuela's first issue.IV. JURY ARGUMENT
In his second, third, and fourth issues presented, Valenzuela complains of improper prosecutor argument during the culpability phase of the trial. The State counters that the arguments were permissible. The defense argued first, followed by the State.A. Scope and Standard of Review
The law provides for and presumes a fair trial, free from improper argument by the prosecuting attorney. Borjan v. State, 787 S.W.2d 55, 56 (Tex.Crim.App. 1990) (en banc). An assertion of improper jury argument requires us to review the record in its entirety to determine whether any erroneous statements were made, and if so, whether they were so prejudicial as to deprive appellant of a fair and impartial trial. Willis v. State, 785 S.W.2d 378, 385 (Tex.Crim.App. 1989). There are four permissible areas of jury argument, which are as follows: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) response to the defendant's argument; and (4) plea for law enforcement. See Rocha v. State, 16 S.W.3d 1, 21 (Tex.Crim.App. 2000) (citing Lagrone v. State, 942 S.W.2d 602, 619 (Tex.Crim.App. 1997) (en banc), cert. denied, 522 U.S. 917); Wilson v. State, 938 S.W.2d 57, 59 (Tex.Crim.App. 1996) (en banc); Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988). A prosecuting attorney is permitted in his argument to draw from the facts in evidence all inferences which are reasonable, fair and legitimate, but he may not use the jury argument to place before the jury, either directly or indirectly, evidence which is outside the record. Borjan, 787 S.W.2d at 57 (citing Jordan v. State, 646 S.W.2d 946, 948 (Tex.Crim.App. 1983)). A prosecutorial remark concerning the harm defendant may do to others in the future has been upheld as a proper plea for law enforcement. Pineda v. State, 2 S.W.3d 1, 11 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd) (citing Stone v. State, 574 S.W.2d 85, 90 (Tex.Crim.App. [Panel Op.] 1978)). The use of an analogy to emphasize or explain evidence is acceptable. Broussard v. State, 910 S.W.2d 952, 959 (Tex.Crim.App. 1995). Closing arguments are allowed to explain evidence and answer the arguments of opposing counsel. Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App. 1973). Counsel is allowed wide latitude to draw inferences from the evidence, so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith. Gaddis, 753 S.W.2d at 398. Even if a prosecutor's jury argument is improper, an instruction by the trial judge to the jury to disregard the improper argument is usually sufficient to cure the error. See Gonzalez v. State, 115 S.W.3d 278, 284 (Tex.App.-Corpus Christi 2000, pet. ref'd). Even when arguments exceed the boundaries of the permissible groups, they will not constitute reversible error unless they are extreme or manifestly improper, violate a mandatory statute, or inject new facts harmful to the accused into the trial proceeding. Id. Reversible error occurs when a statement is so inflammatory that its prejudicial effect cannot reasonably be removed by such admonition. Id. The improper remarks must have been a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial. Id. Improper prosecutorial comments and misstatements are not constitutional errors. See Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). Thus, in cases concerning improper argument, the reviewing court looks to three factors to determine whether reversal is required under Texas Rule of Appellate Procedure 44.2(b), which are: (1) the severity or magnitude of the remarks; (2) the measures taken to cure the misconduct; and (3) the certainty of conviction absent the misconduct. Id. at 259.B. Preservation of Error
To preserve a question for appellate review, it is the obligation of the complaining party to make a timely, specific objection. TEX. R. APP. P. 33.1(a); Simpson v. State, 119 S.W.3d 262, 268 (Tex.Crim.App. 2003) (failure to object to the complained-of jury arguments forfeits the right to raise any alleged error on appeal). To be timely, the objection must be made at the earliest possible opportunity. Turner, 805 S.W.2d at 431. The party must pursue the objection to an adverse ruling. Id. A contemporaneous objection must occur each time the objectionable jury argument is made in order to preserve error. Cockrell v. State, 933 S.W.2d 73, 84 (Tex.Crim.App. 1996) (en banc); Barnes v. State, 70 S.W.3d 294, 307 (Tex.App.-Fort Worth 2002, pet. ref'd). A defendant's "right" not to be subjected to incurable erroneous jury argument is one of those rights that is forfeited by a failure to insist upon it. Cockrell, 933 S.W.2d at 89; see Sanchez, 120 S.W.3d at 366. An appellant's failure to object to the jury argument forfeits his right to complain about the argument on appeal. Cockrell, 933 S.W.2d at 89; Limas v. State, 941 S.W.2d 198, 203 (Tex.App.-Corpus Christi 1997, pet. ref'd). But an exception exists to the rule when a prosecutor's statement is so egregious that an instruction to disregard could not possibly cure the error. See Mendoza v. State, 840 S.W.2d 697, 699 (Tex.App.-Corpus Christi 1992, no pet.) (citing Willis v. State, 785 S.W.2d 378, 385 (Tex.Crim.App. 1989) (en banc)); see also Harris v. State, 784 S.W.2d 5, 12 (Tex.Crim.App. 1989) (en banc).C. Comparison to a Loaded Gun
In his second issue, Valenzuela complains of the prosecutor's closing argument:Ladies and Gentlemen, before I go, I want to let you all-give you a scenario. Remember this: a person who is driving while intoxicated is the same thing, Ladies and Gentlemen, as getting a gun and loading it and shooting it into a crowded street. You don't know if you're going to hit somebody, but there is a 99 percent chance you will; okay?Thank you for your time and your attention, and I encourage you to come back with the verdict of guilty. Defense counsel objected to the argument as violating rule 4.03 of the Texas Rules of Evidence and as an inflammatory statement to the jury. The trial court determined that the objection was untimely. We agree. To be timely, the objection must be made at the earliest possible opportunity. TEX. R. APP. P. 33.1(a)(1); Turner, 805 S.W.2d at 431. Valenzuela has forfeited our review of his issue. Cockrell, 933 S.W.2d at 89. Even if Valenzuela had preserved error, we conclude the argument was permissible. Valenzuela argues that the prosecutor's argument comparing him to a loaded gun was not based on the evidence, was inflammatory, could not be cured by instruction, and constituted fundamental error. The State responds that the argument was a reasonable deduction from the evidence and a proper plea for law enforcement. We agree. Officer Salinas testified that while in pursuit, he clocked Valenzuela's speed at 98 miles per hour and climbing. During cross-examination, Salinas further testified that Valenzuela's speeds reached up to 111 miles per hour. The defense reminded the jury twice during closing argument that, in the videotape, Salinas told Valenzuela, "I clocked you doing 111" while "His report says 98." The defense also argued that the roadway was "not a very easy highway to drive on. It's a tough highway. The hills that you go over, the curves that you go through. . . ." The defense asked Salinas at trial, "And would it be safe to say that, had you stopped [Valenzuela], he would have made it home and we would never have been here today?" Salinas responded, "I wouldn't know." The defense asked, "A person who's driving and speeding would have to have enough control of their vehicle that they would not threaten anybody in another vehicle, correct?" Salinas responded, "Yes, sir." The defense further asked, "[Valenzuela] in this case did not force anybody off the road, did he?" Salinas responded, "No, sir." In the context of a jury trial on a charge of driving while intoxicated where evidence of excessive speed was not disputed and when Valenzuela admitted to drinking four beers before getting behind the wheel, the prosecutor's argument was permissible as a reasonable deduction from the evidence and a plea for law enforcement. See Rocha, 16 S.W.3d at 21. We overrule Valenzuela's second issue.
D. Wealth
In his third issue, Valenzuela states that the prosecutor's argument repeatedly referring to Valenzuela's wealth violated the provision of the state constitution guaranteeing due course of law, citing article I, sections 13 and 19. In context, the arguments are:"Hey, why did you stop me? I did nothing wrong. I did nothing wrong." He was unaware that he was driving 98 miles per hour. Is that normal use of your faculties, Ladies and Gentlemen? Is it, that you don't even notice that you're driving fast? Give me a break!Everything points to this individual being intoxicated that night. . . . I'm talking about the speeding; I'm talking about being non-responsive on his answers; I'm talking about the argumentative way [Valenzuela] was responding to [Salinas]. "I'm the owner of Bigo's. I know a lot of important people." What does that tell you? That he was trying to intimidate Mr. Salinas, that he thinks that he's above the law; and he has no respect for the law. Please! He wants you-you know "Once I talk to you, let me go because I'm this type of person. I'm the owner of Bigo's. I have money. I'm this and that." Give me a break! How important is he? He's on trial now. Defense counsel objected stating, "That's outside the record about whether he has money or doesn't have money." Valenzuela challenges the argument on state constitutional grounds. The objection on appeal does not comport with the objection at trial and, thus, nothing is presented for review. Miller v. State, 566 S.W.2d 614, 619 (Tex.Crim.App. 1978); see also Bell v. State, 938 S.W.2d 35, 54-55 (Tex.Crim.App. 1996) (en banc) (per curiam); Barley v. State, 906 S.W.2d 27, 37 (Tex.Crim.App. 1995) (en banc); Johnson v. State, 803 S.W.2d 272, 292 (Tex.Crim.App. 1990) (en banc); Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990) (en banc). Appellant did not present his appellate complaint to the trial court and has forfeited our review. TEX. R. APP. P. 33.1(a)(1)(A). Even if Valenzuela had preserved error, we conclude the argument was permissible as a response to the defense's closing argument,
This is a very important case, Ladies and Gentlemen. You know, this is not about money; this is about somebody's liberty. This is his day. This is [Valenzuela's] day today . . . There has [sic] been insinuations that [Valenzuela] is above the law. I submit to you that [Valenzuela] is not the one that thinks he's above the law; it's Martin Salinas who thinks he's above the law."Finally, the defense also argued:
They stop him, get him out, and he identifies him, asks him for his license in this case. Supposedly, — and we don't have any record of this, — supposedly, and you all determine the credibility, that [Valenzuela] says, "Oh, I'm the owner of [a bar and grill]. I know a lot of important people." Does that really make sense?At trial, Salinas testified that Valenzuela (1) asked him if he knew who he was, (2) said that he knew a lot of people, and (3) said he was the owner of the bar and grill. We conclude the prosecutor's argument was in response to the defense argument and a summation of the evidence. Thus, the argument was permissible. Rocha, 16 S.W.3d at 21. We overrule Valenzuela's third issue.
E. Breath Test
In his fourth issue, Valenzuela asserts that the prosecutor's comment on his failure to take the breath test violated the Fifth Amendment to the U.S. Constitution and article I, section 10 of the Texas Constitution. Valenzuela challenges the prosecutor's argument:Now, the best evidence I've got, Ladies and Gentlemen, is this: If this man wants you to believe that he's the victim of this case, that he was wrongly accused, Ladies and Gentlemen, why didn't he take a breath test? If this man was so much above the law and he was out to get him, why didn't he take a breath test?
After the argument, the defense objected on the following grounds: (1) improper comment; (2) "past the point of other than commenting on his refusal"; and (3) "outside the record." The trial court overruled the objection. The argument on appeal does not comport with the objections at trial. Miller, 566 S.W.2d at 619. Valenzuela did not allow the trial court an opportunity to rule on the errors he presents on appeal. See id.; Tex.R.App.P. 33.1(a)(1)(A). Valenzuela forfeited our review.Even assuming that Valenzuela preserved error, the argument was permissible as a summation of the evidence. Rocha, 16 S.W.3d at 21. Officer Salinas testified that Valenzuela refused the breath test. Officer Cantu testified that sobriety testing in the controlled environment was delayed because Valenzuela agreed to take the breath test, was transported to the facility where he would take the breath test, and then changed his mind. The evidence showed that, ultimately, Valenzuela did not take the breath test. We overrule Valenzuela's fourth issue.
F. Thanking the Officers
In his fifth issue, Valenzuela complains of the prosecutor's argument thanking the officers for having made a good arrest as outside the record and bolstering. The prosecutor argued:The man was intoxicated. The man should not have been behind the wheel, Ladies and Gentlemen.
And before I close, finish, I just want to thank Officer Juan Cantu and Officer Martin Salinas for making a good arrest that night because they deserve the credit. They kept the streets safe for each and every one of you.
The trial court overruled the defense's objection. Prosecutorial argument which is outside the record and injects personal opinion is improper. Romo v. State, 593 S.W.2d 690, 694 (Tex.Crim.App. 1980). A prosecutor may argue opinions concerning the issues in the case so long as the opinions are based on the evidence in the record and do not constitute unsworn testimony. See Wolfe v. State, 917 S.W.2d 270, 281 (Tex.Crim.App. 1996). We conclude the complained of argument is permissible and not reversible.Officer Salinas pursued Valenzuela at speeds at least 98 miles per hour on a dangerous roadway. Officer Cantu accommodated Valenzuela's request to take the breath test by transporting him for the test and, upon Valenzuela's subsequent refusal, proceeded to conduct sobriety testing. Valenzuela testified at trial that: (1) Salinas pulled him out of the vehicle by the shirt; (2) Salinas did not perform field sobriety tests at the scene; and (3) Salinas was aggressive in addressing Valenzuela. During closing argument, the defense argued that Salinas acted as though he was above the law. The defense further argued, "You've got two officers saying two different things. Which one do you believe more?" We review, first, that part of the prosecutor's argument regarding the "good arrest," the officers "deserved credit," and "They kept the streets safe for each and every one of you." We conclude that the argument is permissible as a reasonable deduction from the evidence and a response to the defense argument. We conclude, however, the prosecutor's statement thanking the officers exceeded the scope of permissible argument. Even so, the argument does not constitute reversible error since the statement is not manifestly improper, does not violate a mandatory statute, or inject new and harmful facts into the trial proceedings. Borjan, 787 S.W.2d at 57. Even so, we proceed with a harm analysis. Tex.R.App.P. 44.2(b); Gonzalez, 115 S.W.3d at 285. A substantial right is affected when an error has a substantial, injurious effect or influence in determining the jury's verdict. Id. We have considered the Mosley factors, including the severity of the misconduct, curative measures and the certainty of the punishment assessed absent the misconduct. Mosley, 983 S.W.2d at 259. We cannot conclude the error is reversible. The prejudicial effect, if any, of the prosecutor's thanking the officers was nominal. The jury assessed a six month jail sentence. We cannot conclude that the prosecutor's remark had a substantial, injurious effect or influence on the jury's verdict. TEX. R. APP. P. 44.2(b). We overrule Valenzuela's fifth issue.