Liscum, Samantha v. The State of Texas--Appeal from Co Crim Ct at Law No 2 of Harris County

Affirmed and Memorandum Opinion filed August 18, 2005

Affirmed and Memorandum Opinion filed August 18, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00176-CR

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SAMANTHA LISCUM, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1205227

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M E M O R A N D U M O P I N I O N

Appellant Samantha Liscum was convicted of driving while intoxicated. In five issues, appellant argues that the trial court erred by (1) overruling appellant=s objection to improper jury argument, (2) imposing an illegal sentence by ordering appellant to serve more than thirty days in jail as a condition of probation, and (3B5) violating appellant=s constitutional rights to a jury trial and due process of law by entering a finding of true to the open container enhancement paragraph. We affirm.

Background

On November 19, 2003, Officer George Miller of the Houston Police Department observed appellant drive onto a curb after leaving a restaurant parking lot in west Houston. Officer Miller followed appellant onto the Katy Freeway and observed more erratic driving by appellant. After pulling her over, Officer Miller smelled alcohol on appellant=s breath and noticed appellant=s eyes were glassy and her speech was slurred. After appellant refused to perform any field sobriety tests, Officer Miller arrested appellant. Additionally, while conducting an investigation at the scene, Officer Miller found two open wine bottles on the passenger-side floorboard in appellant=s car.

A jury convicted appellant of driving while intoxicated. After finding two enhancements to be true, including one for possessing an open container of alcohol, the trial court sentenced appellant to one year in jail, probated for two years. As a condition of probation, the trial court sentenced appellant to 180 days in the New Choices Program at the Harris County Jail. This appeal followed.

Improper Jury Argument

In her first issue, appellant argues that the trial court committed reversible error by overruling her objection to the State=s improper jury argument. Officer Miller first observed appellant when she hit a curb with her car after leaving the parking lot of a Mexican restaurant. Referring to the restaurant, the prosecutor made the following statement during closing argument:

It=s El T[i]empo Mexican Restaurant, home of the famous margaritas. What you can infer is that [appellant] took off and went there, maybe she met Nicole, maybe she didn=t and they got loaded to drown out her sorrow.

Appellant objected to the statement as being outside the record, and the trial court overruled appellant=s objection.

The approved general areas of jury argument are (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Appellant argues that the prosecutor=s argument does not fall within any of these approved areas because there was no evidence presented that appellant consumed margaritas or other alcoholic beverages at the Mexican restaurant. The State concedes that there was no direct evidence that appellant consumed margaritas at the restaurant; therefore, we will assume, without deciding, that the argument was inappropriate.

Assuming that the trial court should have sustained appellant=s objection, we must determine whether the error warrants reversal. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Erroneous rulings related to jury argument are generally treated as nonconstitutional error under Rule 44.2 of the Texas Rules of Appellate Procedure. Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000). Rule 44.2(b) provides that nonconstitutional errors that do not affect substantial rights must be disregarded. Tex. R. App. P. 44.2(b). In assessing harm under that standard for improper jury argument, we must balance the following three factors: (1) severity of the misconduct, (2) curative measures, and (3) the certainty of conviction absent the misconduct. Martinez, 17 S.W.3d at 692B93. Also, in analyzing the first factor, we assess the severity of the misconduct in conjunction with the prejudicial effect of the improper comments. Hawkins v. State, 135 S.W.3d 72, 78 (Tex. Crim. App. 2004).

There were no curative measures taken in the instant case because the trial court overruled appellant=s objection. Thus, the second factor weighs in appellant=s favor. However, the other two factors weigh heavily against appellant. Appellant=s boyfriend testified that at dinner earlier in the night he and appellant each drank wine; he also testified that they attended a show together and that both had a mixed drink at the show. Thus, the prosecutor=s argument was not the only suggestion that appellant had been drinking on the night of the offense. Further, Officer Miller testified that he first noticed appellant=s car after it hit a curb, and when he pulled appellant over, he smelled a strong odor of alcohol and observed that her eyes were glassy and speech was slurred. Finally, there was the video from Officer Miller=s car that showed appellant=s erratic driving and showed the wine bottles that Officer Miller recovered from appellant=s car. Accordingly, the first factor weighs in the State=s favor because the prosecutor=s comment likely did not have much prejudicial effect on appellant=s case given the evidence against her. Similarly, the third factor also weighs in the State=s favor because of the likelihood of appellant=s conviction even without the prosecutor=s argument.

After balancing the three factors, we find that any error associated with the prosecutor=s argument was harmless. We overrule appellant=s first issue.

Illegal Sentence

In her second issue, appellant argues that the trial court assessed an illegal sentence in violation of article 42.12, section 12(a) of the Code of Criminal Procedure by ordering appellant to serve more than thirty days in jail as a condition of probation. The trial court ordered appellant to serve 180 days in the Harris County Jail in order to participate in the New Choices Program, which apparently is an alcohol rehabilitation program. Appellant did not object to this condition of probation during the sentencing proceedings.

Appellant characterizes the 180-day confinement period as an illegal sentence, but the Court of Criminal Appeals has expressly held that a condition of probation is part of the judgment and not part of the sentence. Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999). Further, an award of probation is not a right, but a contractual privilege, and conditions thereof are terms of the contract entered into between the trial court and the defendant. Id. at 534. Conditions not objected to are affirmatively accepted as terms of the contract. Id. By entering into the contractual relationship without objection, a defendant affirmatively waives any rights encroached upon by the terms of the contract. Id. A defendant who benefits from the contractual privilege of probation, the granting of which does not involve a systemic right or prohibition, must complain at trial to conditions he finds objectionable. Id.

Because appellant did not object to the 180-day confinement condition of probation, she has affirmatively accepted it as part of the probation contract. Appellant has therefore not preserved this issue for review. See id. at 534B35 & n.10 (A[S]uch defects must be timely objected to in order to be raised on appeal.@). Appellant did complain of this condition in a later filed motion for new trial; however, because appellant had the opportunity to object at sentencing and did not,[1] the motion for new trial also does not preserve this issue for review. See Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999) (finding appellant=s complaint that trial court did not conduct separate punishment hearing had not been preserved for review by motion for new trial where appellant had opportunity to object and present evidence prior to sentencing but did not). Accordingly, appellant=s second issue is overruled.[2]

Open Container Finding

In her fourth and fifth issues, appellant argues that because the trial court rather than a jury found the open container enhancement to be true, appellant=s constitutional rights to a jury trial and due process of law were violated. In her third issue, appellant argues that the trial court erred by denying her motion for new trial based on the alleged violation of her right to a jury trial. In all three issues, the basis of appellant=s contentions is that the open container question should have been submitted to the jury because the minimum term of confinement increaseswith a true finding.[3] However, appellant elected to have the trial court assess punishment rather than the jury. Therefore, it was within the province of the trial court, as trier of fact, to determine the truth of the allegations contained in the open container enhancement paragraph. McDonald v. State, 863 S.W.2d 541, 545 (Tex. App.CHouston [1st Dist.] 1993, no pet.); see also Adams v. State, 40 S.W.3d 142, 146 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d) (noting that when trial court is finder of fact at punishment stage of trial, trial court has authority to make affirmative finding as to use of deadly weapon if alleged in the indictment). Accordingly, appellant was not denied the right to a jury trial or denied due process, and the trial court did not err in denying appellant=s motion for new trial. We overrule appellant=s third, fourth, and fifth issues.

We affirm the judgment of the trial court.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed August 18, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] After announcing appellant=s sentence and conditions of probation, the trial court asked, AAnything else from the Defense?@ Appellant=s counsel replied, ANo, sir.@

[2] Appellant relies on Hollie v. State, 962 S.W.2d 302 (Tex. App.CHouston [1st Dist.] 1998), pet. dism=d, improvidently granted, 984 S.W.2d 263 (Tex. Crim. App. 1999), in support of her argument that the 180-day confinement condition is illegal. Hollie does hold that a term of confinement as a condition of probation that exceeds what is authorized by law renders the excessive portion of the sentence void and that the issue could be raised at any time. Id. at 304. However, Hollie was decided before Speth, which holds that a condition of probation is not part of the sentence and, if disagreed with, must be objected to at trial. Speth, 6 S.W.3d at 532, 534. Accordingly, insofar as Hollie conflicts with Speth, Hollie is no longer good law.

[3] The minimum term of confinement for a conviction of driving while intoxicated increases from three days to six days if the driver had an open container of alcohol in his immediate possession at the time of the offense. Tex. Pen. Code Ann. ' 49.04 (Vernon 2003). Based on this increase, appellant also argues that under Apprendi v. New Jersey, 530 U.S. 466 (2000), the trial court cannot make a fact finding on the open container issue because it increases appellant=s minimum sentence. Appellant, however, has misconstrued Apprendi, which holds, among other things, that A[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.@ Id. at 490 (emphasis added). Apprendi, therefore, does not govern appellant=s case.