Elliott Elijah Pruitt v. The State of Texas--Appeal from County Court at Law of Nacogdoches County

NO. 12-04-00049-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ELLIOTT PRUITT, APPEAL FROM THE

APPELLANT

V. COUNTY COURT AT LAW OF

THE STATE OF TEXAS,

APPELLEE NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION

Elliott Elijah Pruitt appeals his jury conviction for driving while intoxicated. The trial court assessed punishment at ninety days of confinement in the county jail, probated for twelve months, and a $1,000.00 fine. Appellant asserts the trial court erred in allowing impermissible bolstering of a State s witness. We affirm.

Issue Presented

In his sole issue on appeal, Appellant contends the trial court erred in allowing the State to use prior consistent statements of the arresting officer that did not seek an answer, but rather repeated prior testimony, to enhance the witness s credibility in violation of Rule of Evidence 613(c). Appellant complains of the following colloquy between the prosecutor and the arresting officer:

[Prosecutor]: Okay. Was he able to perform the tests without these indications of intoxication?

[Witness]: No. He did not, sir.

[Prosecutor]: And we ve got to this point, his driving, the smell of alcohol, the glassy stare, the speech, the unsteady

[Defense counsel]: I will object to this. This question has obviously no other purpose than to bolster or reenforce previous testimony that the jury has heard.

[Prosecutor]: I haven t got to my question yet.

THE COURT: You may asked [sic] the question.

[Prosecutor]: You performed the HGN. There are six possible clues. All six were present. You administered this walk and turn. Can you tell the members of the jury what additional signs of intoxication you saw with regard to the walk and turn?

[Defense counsel]: I still object, because it obviously sets up to reinforce redundancy, which surely the jury can remember. The form of the question should be, did you perform any other test.

THE COURT: I ll instruct the County Attorney to move along and not repeat things.

Discussion

Appellant complains of the prosecutor s question, not testimony. Rule of Evidence 613(c) provides that a prior statement of a witness which is consistent with the testimony of the witness is inadmissible except as rebuttal testimony as provided in Rule 801(e)(1)(B). Tex. R. Evid. 613(c). Appellant relies solely on Rule 613(c) in support of his complaint and has not provided us with applicable authority.

Further, in order to preserve error for review, a timely and specific objection must be followed by an adverse ruling. Tex. R. App. P. 33.1(a); Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991). The record must clearly reflect that the trial judge in fact overruled the defendant s objection or error is waived. Id. Here, the court s instruction to the county attorney to move along and not repeat things did not constitute a conclusory or definite ruling adverse to the objection. Any error is waived. Id.; Rogers v. State, 653 S.W.2d 122, 127 (Tex. App.-Houston [1st Dist.] 1983, pet. ref d) (Held that admonition to stay inside the record and to proceed is not an adverse ruling.).

Assuming arguendo that the trial court s statement was a definite ruling, the context of the statement shows that the ruling was not adverse to the objection. The trial court s instruction appears to be tantamount to agreement with Appellant s complaint. Once the trial court sustains an objection, it becomes incumbent upon Appellant to request an instruction to disregard and make a motion for mistrial in order to preserve error. Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985); Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993). The only exception to this general rule occurs where an instruction to disregard would not have cured the harm. Harris v. State, 827 S.W.2d 949, 963 (Tex. Crim. App. 1992). This exception is limited to those instances in which the statement is clearly calculated to inflame the minds of the jurors and is of such character as to suggest the impossibility of withdrawing the impression produced on the jury s mind. Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987); Williams v. State, 916 S.W.2d 53, 57 (Tex. App. Houston [1st Dist.] 1996, no pet.). We do not believe the alleged objectionable questions were of such character that any error in allowing the jury to hear them could not have been effectively cured by an instruction to disregard. Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996). We overrule Appellant s sole issue.

Disposition

We affirm the trial court s judgment.

JAMES T. WORTHEN

Chief Justice

Opinion delivered April 29, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)