Mark Roland Curtin v. The State of Texas--Appeal from County Court at Law No 1 of Nueces County

   NUMBER 13-04-630-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

MARK ROLAND CURTIN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the County Court at Law No.1

of Nueces County, Texas.

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

 Before Chief Justice Valdez and Justices Rodriguez and Garza

   Opinion by Chief Justice Valdez

Appellant, Mark Roland Curtin, was found guilty of driving while intoxicated (ADWI@) and sentenced to 90 days in county jail, probated for twelve months, and a $1,000.00 fine. On appeal, appellant argues the following: (1) the trial court erred in denying his challenge for cause against a prospective juror; (2) the trial court committed jury charge error; (3) the evidence was legally and factually insufficient; and (4) the State made an improper jury argument.

I. BACKGROUND

Appellant was arrested for DWI after he caused a traffic accident. Numerous police officers from the scene of the accident testified that they observed appellant to be intoxicated. Appellant=s breath test showed he had an alcohol concentration of 0.243. Appellant and his physician, Dr. Eugene Brown, contend that appellant suffered from traumatic amnesia at the time of the accident. The traumatic amnesia was allegedly caused when appellant was struck in the head by a bar patron earlier that evening. Appellant claims he involuntarily drank in excess because of the effects from the blow to his head.

II. CHALLENGE FOR CAUSE

By his first issue, appellant argues that the trial court erred in denying his challenge for cause against a prospective juror, George Werenskjold. Appellant contends that Werenskjold was biased against appellant because he stated that the defense of involuntary intoxication, which appellant was relying on, was Astupid.@

To preserve error on denied challenges for cause, an appellant must demonstrate on the record the following: (1) he asserted a clear and specific challenge for cause, (2) he used a peremptory challenge on the complained-of venireperson, (3) all his peremptory challenges were exhausted, (4) his request for additional strikes was denied, and (5) an objectionable juror sat on the jury. Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002).

The record shows that appellant failed to use a peremptory challenge on Werenskjold. Furthermore, he did not request any additional challenges. We conclude that appellant failed to preserve error on his denied challenge for cause. See id. We overrule appellant=s first issue.

III. JURY CHARGE ERROR

By his second issue, appellant argues that the trial court erred in the jury instruction in regards to involuntary intoxication. Appellant contends that the jury charge wrongfully placed the burden of proof on appellant by a preponderance of the evidence rather than on the State beyond a reasonable doubt. The State argues that appellant failed to raise a viable involuntary intoxication defense.

A person commits an offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. ' 49.04(a) (Vernon Supp. 2004-05). A person is intoxicated if he has an alcohol concentration of 0.08 or more. See id. ' 49.01(2)(B). Involuntary intoxication is a defense to criminal culpability.[1] However, the defense does not apply when as here, the defendant=s mental state is not an element of the alleged offense. See Nelson v. State, 149 S.W.3d 206, 210 (Tex. App.BFort Worth 2004, no pet.); Aliff v. State, 955 S.W.2d 891, 893 (Tex. App.BEl Paso 1997, no pet.). Proof of a culpable mental state is not required in prosecutions for intoxication offenses, including DWI. See Tex. Pen. Code Ann. ' 49.11(a). We conclude the defense of involuntary intoxication is not applicable to this case because the defendant=s mental state is not an element of the offense of DWI. See id.; Nelson, 149 S.W.3d at 210. We overrule appellant=s second issue.

IV. LEGAL AND FACTUAL SUFFICIENCY

By his third issue, appellant argues that the evidence is neither legally nor factually sufficient to support the verdict because the State did not rebut appellant=s evidence on the involuntary intoxication issue.

Appellant was not entitled to the intoxication defense; therefore, we conclude it is unnecessary to address appellant=s legal and factual sufficiency challenge. See Tex. R. App. P. 47.1. We overrule appellant=s third issue.

V. IMPROPER JURY ARGUMENT

By his fourth issue, appellant argues that the State twice engaged in improper jury argument. Appellant contends that the State committed improper jury argument when it (1) referred to newspaper editorials expressing the community attitude toward DWI cases, and (2) threatened the jury with the loss of their right to complain ever again about this crime if they acquitted the appellant.

A. Preservation of Error

To preserve error for appellate review, the record must show that (1) the complaining party made a timely and specific request, objection, or motion; and (2) the trial judge ruled on the request, objection, or motion, either expressly or implicitly, or he refused to rule and the complaining party objected to that refusal. See Tex. R. App. P. 33.1. The record reflects that appellant failed to object to the alleged improper argument regarding the jury losing their right to complain of this crime ever again; therefore, appellant has failed to preserve that issue for review. However, appellant has properly preserved his argument regarding the newspaper editorials reflecting the community attitude toward DWI cases because the court implicitly overruled his timely and specific objection. See id.

B. Standard of Review

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: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement. Wilson v. State, 938 S.W.2d 57, 59 (Tex. Crim. App. 1996); Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). An argument which exceeds these bounds is error, but only becomes subject to reversal if, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial. Felder v. State, 848 S.W.2d 85, 94 95 (Tex. Crim. App. 1992); Everett v. State, 707 S.W.2d 638, 640 (Tex. Crim. App. 1986).

To determine if the prosecutor made an improper jury argument, the reviewing court must consider the entire argument in context B not merely isolated instances. See Rodriguez v. State, 90 S.W.3d 340, 364 (Tex. App.BEl Paso 2001, pet. ref'd). The State may make a proper plea for law enforcement, including arguing the relationship between the jury's verdict and the deterrence of crime in general, arguing that juries should deter specific crimes by their verdicts, and arguing the impact of the jury's verdict on the community. Borjan v. State, 787 S.W.2d 53, 55 56 (Tex. Crim. App. 1990); Rodriguez, 90 S.W.3d at 365.

C. Analysis

During closing arguments, the State attempted to emphasize the importance of convictions in DWI cases in general. The following exchange then took place:

State: You read in the paper about this offense. You read the editorials in the newspaper about how people are complaining about how the juries are too laxed [sic] -

Appellant: Well, I=m going to object to that, Your Honor.

State: It=s a plea to law enforcement, Judge.

Appellant: What the people are writing letters to the editor and what citizens are concerned about?

State: Plea to law enforcement.

The Court: He can make a plea to law enforcement.

Appellant: I don=t mind him making a plea to law enforcement, but I have an objection of him saying what=s in the editorial page.

State: Nothing but a plea to law enforcement.

The Court: Go ahead. Continue.

We see from the record that the trial judge considered the State=s brief statement regarding community sentiment an allowable plea for law enforcement. A plea for law enforcement is a permissible area of jury argument. See Wilson, 938 S.W.2d at 59; Gaddis, 753 S.W.2d at 398. Here, it is clear from context that the State was attempting to convince the jury to act as the voice of the community, which constitutes a plea to law enforcement and does not constitute an improper appeal to community expectations. See Rodriguez, 90 S.W.3d at 365. We conclude the State did not commit improper jury argument. See Willis, 785 S.W.2d at 385.

Furthermore, if we had found the statement to be improper, it would still not be subject to reversal. After considering the argument and the record as a whole, we see the argument is not extreme or manifestly improper, nor violative of a mandatory statute, and does not inject new facts harmful to the accused into the trial. See Felder, 848 S.W.2d at 94-95; Everett, 707 S.W.2d at 640. Therefore, even if we were to conclude the jury argument was improper, we would conclude it was not harmful to the accused. We overrule appellant=s fourth issue.

V. CONCLUSION

The judgment of the trial court is affirmed.

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P.47.2(b).

Memorandum Opinion delivered and filed

this 16th day of February, 2006.

[1] Involuntary intoxication is a defense to criminal liability for offenses requiring a culpable mental state when it is shown that (1) the accused has exercised no independent judgment or volition in taking the intoxicant, and (2) as a result of his intoxication, the accused did not know that his conduct was wrong or was incapable of conforming his conduct to the requirement of the law he allegedly violated. Torres v. State, 585 S.W.2d 746, 749 (Tex. Crim. App. 1979); Nelson v. State, 149 S.W.3d 206, 210 (Tex. App.BFort Worth 2004, no pet.); Aliff v. State, 955 S.W.2d 891, 893 (Tex. App.BEl Paso 1997, no pet.).