Bridges Jr., Martin Glenn v. The State of Texas

 
AFFIRM; Opinion issued November 16, 2011
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-10-00956-CR
............................
MARTIN GLENN BRIDGES, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law No. 2
Kaufman County, Texas
Trial Court Cause No. 27656CC2
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OPINION
Before Justices FitzGerald, Francis, and Lang-Miers
Opinion By Justice FitzGerald
 
A jury convicted appellant Martin Glenn Bridges, Jr. of
unauthorized use of a motor vehicle and of driving while
intoxicated-third conviction or more. In three points of error,
appellant complains of the trial judge's dismissal of two veniremembers,
the trial judge's limitations on appellant's cross-examination of a
witness, and the trial judge's admission of appellant's complete driving
record into evidence. We affirm.
I. Background
Trial evidence showed that shortly before midnight on November
28, 2008, appellant was driving a pick-up truck in Terrell, Texas.
Terrell police officer Michael Sims heard the tires of the truck squeal
and observed appellant fail to signal as he turned off a street. Sims
then observed appellant slightly veer off the roadway and make another
turn without signaling. Sims then turned on his emergency lights, and
appellant pulled over. Appellant told Sims that he did not have a
 
driver's license, and he showed signs of intoxication. When appellant
refused to perform field sobriety tests, Sims arrested him. The State
presented evidence that appellant later refused to submit to a blood
test. Other evidence showed that the pick-up truck was registered in the
name of appellant's stepmother, that it was in the custody and control
of appellant's father, and that appellant's father reported the pick-up
truck as stolen the next day.
Appellant was indicted for operating a motor vehicle without the
owner's consent and for operating a motor vehicle in a public place
while intoxicated after two or more prior convictions for driving while
intoxicated. A jury convicted him of both offenses, and appellant was
sentenced to two years' imprisonment on the unauthorized-use count and
sixty years' imprisonment on the count of driving while
intoxicated-third conviction or more.
II. Analysis
A.Dismissal of veniremembers
In his first point of error, appellant argues that the trial
judge erred by dismissing two specific veniremembers. The trial judge
struck one of those veniremembers for cause and ruled that the other was
disqualified based on a prior arrest for theft. Appellant contends that
there were no proper statutory grounds for either ruling.
The State argues that even if we presume error, appellant has
failed to show harm. We agree. Under Texas law, “the erroneous excusing
of a veniremember will call for reversal only if the record shows that
the error deprived the defendant of a lawfully constituted jury.” Jones
 
v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998). Thus, the Jones
court refused to reverse the defendant's conviction, even though it
concluded that the trial judge had erred by granting the State's
challenge of a particular veniremember for cause. Id. at 390, 394. As
the court of criminal appeals later reiterated, a party who complains
that the trial judge erroneously excused a veniremember must show that
the error deprived the defendant of a jury composed of qualified
individuals. Gray v. State, 233 S.W.3d 295, 301 (Tex. Crim. App. 2007);
see also Salazar v. State, 38 S.W.3d 141, 153 (Tex. Crim. App. 2001)
(“Any error in excusing [veniremember] Robertson was harmless because
appellant has not shown that this denied him a fair and impartial
jury.”). Appellant does not argue that the jury was not composed of
qualified individuals. Our review of the record and briefs reveals
nothing to indicate that the jury was not lawfully qualified. Thus, we
conclude that the error, if any, was harmless.
We overrule appellant's first point of error.
B.Limitations on cross-examination
In appellant's second point of error, he argues that the trial
judge erred by limiting appellant's cross-examination of the arresting
police officer, Michael Sims, on two separate occasions. First, the
trial judge refused to allow appellant to ask Sims a question about
Sims's own bad driving record. Second, the trial judge refused to allow
appellant to cross-examine Sims about field sobriety tests.
1.Arresting officer's driving record
The context of appellant's first complaint is this: On
 
cross-examination, Sims acknowledged that he had been in two auto
accidents in 2007 and that he had damaged a police car on a third
occasion when he drove it into a field and the car set the grass on
fire. Then Sims agreed with appellant that it would not be safe for an
officer to accelerate to a high speed in a residential neighborhood to
make a routine traffic stop. Then Sims testified that he could not
remember whether he had accelerated to a high speed in order to make his
traffic stop of appellant. When Sims testified that he could not
remember, appellant's counsel asked him, “However, you have previously
been involved in traffic accidents because of your behavior?” The State
objected that the question was improper under Texas Rule of Evidence
608(b), appellant responded that the question was proper to undermine
Sims's credibility as an officer, and the trial judge sustained the
objection. On appeal, appellant argues that the question was proper to
show Sims's own bad driving record and thus show “faulty judgment by the
officer.” He relies on Rule 611, which provides that a witness “may be
cross-examined on any matter relevant to any issue in the case,
including credibility.” Tex. R. Evid. 611(b).
We conclude that appellant failed to preserve error because he
failed to make an offer of proof. See Ford v. State, 305 S.W.3d 530,
532-33 (Tex. Crim. App. 2009) (holding that error preservation is a
“systemic requirement” that courts of appeals should always address).
Under Texas Rule of Evidence 103, error may not be predicated on the
 
exclusion of evidence unless the substance of the evidence was made
known to the court by offer or was apparent from the context within
which the questions were asked. See Tex. R. Evid. 103(a)(2). We cannot
tell from the context whether Sims would have agreed or disagreed that
his prior auto accidents were caused by his behavior. Nor does this kind
of questioning fall into the narrow exception to Rule 103(a)(2) for
certain subject matters that affect witness credibility such as “malice,
ill feeling, ill will, bias, prejudice, or animus.” Holmes v. State, 323
S.W.3d 163, 169 (Tex. Crim. App. 2009). Because we do not know what
Sims's response to appellant's question would have been, we cannot
review appellant's complaint.
Even if appellant had preserved error, and assuming for the sake
of argument that the trial judge's ruling was erroneous, we would
conclude that any error was harmless. By the time of the ruling in
question, appellant had already successfully cross-examined Sims about
some of the details of his two prior traffic accidents. Whether Sims
would have agreed or not that those accidents were caused by his
behavior would have added little or nothing to appellant's apparent
theory that Sims was not a credible witness because he was not a good
driver. The topic had nothing to do with whether appellant took the
pick-up truck without its owner's permission, and we do not see its
bearing on the credibility of Sims's testimony as to whether appellant
was driving while intoxicated. Thus, the exclusion of the evidence did
 
not affect appellant's substantial rights. See Tex. R. App. P. 44.2(b);
Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008) (error
affects substantial rights if it had a substantial and injurious effect
in determining the jury's verdict).
2.Field sobriety tests
Appellant's second complaint is that the trial court did not
allow him to cross-examine Sims about field sobriety tests. On
cross-examination, Sims confirmed that appellant refused to submit to a
sobriety test. Appellant's counsel then asked Sims, “[W]hat is the
typical test that you're referring to when we talk about a standardized
field sobriety [sic]?” The trial judge sustained the State's relevance
objection to this question. Soon thereafter the jury was excused, and
there was an extended bench conference during which appellant's counsel
argued that he should be allowed to question Sims about what a sobriety
test is and about his credentials and certification to administer
sobriety tests. When the trial resumed, appellant cross-examined Sims
about whether sobriety tests at the police station are video recorded
and whether Sims had breath-test equipment in his squad car when he
arrested appellant, and then he moved on to other topics.
On appeal, appellant does not explain exactly what testimony the
trial judge improperly prevented him from introducing. He argues
generally that he should have been allowed to question Sims “about field
sobriety tests,” that he should have been allowed “to delve further into
this topic,” and that he wanted to “flesh out” the topic of field
 
sobriety testing that the State had first broached. Appellant's
complaint is not preserved because again the record contains no offer of
proof demonstrating what testimony appellant would have elicited. “Thus,
we are unable to judge the admissibility of the excluded evidence or
determine whether the trial court abused its discretion by excluding
it.” Holmes, 323 S.W.3d at 171. Appellant failed to preserve error.
3.Conclusion
We overrule appellant's second point of error.
C.Admission of appellant's driving record
In his third point of error, appellant complains about the trial
judge's decision to admit into evidence the entirety of State's Exhibit
9, which is a certified copy of appellant's driving record.
Specifically, appellant contends that Exhibit 9 contains evidence of
extraneous offenses and bad acts by appellant beyond the prior DWI
convictions that were elements of a charged offense. Appellant argues
that the admission of Exhibit 9 in its entirety violated Texas Rule of
Evidence 404(b) and, in the alternative, Rule 403. See Footnote 1 He
also argues that the parts of Exhibit 9 proving other bad acts were not
relevant at all, which would implicate Rule 402's dictate that
“[e]vidence which is not relevant is inadmissible.” Tex. R. Evid. 402.
The State contends that appellant did not preserve his Rule
404(b) argument for appellate review because he did not make a Rule
404(b) objection in the trial court. An appellant's argument on appeal
must comport with his objection at trial. See Reyna v. State, 168 S.W.3d
 
173, 179 (Tex. Crim. App. 2005). However, “an objection is not defective
merely because it does not cite a rule, statute, or specific case.”
Ford, 305 S.W.3d at 533. The question is whether the objection is
sufficiently clear to give the trial judge and opposing counsel an
opportunity to address and, if necessary, correct the purported error.
Id. The gist of a Rule 404(b) objection is that the offered evidence
proves other wrongful acts by a person that are relevant only to show
the person's character and, by extension, action in conformity with that
character. See Tex. R. Evid. 404(b). Appellant's counsel raised several
different objections to Exhibit 9 during a bench conference about its
admissibility, and at one point counsel argued that parts of Exhibit 9
should be “omitted” because they showed convictions and license
suspensions in appellant's driving record that were prejudicial and were
not elements of the charged offense of driving while intoxicated-third
conviction or more. He further asserted, “All it is going to do is show
that [appellant] had an extensive history with regards to his driving
record and may poorly reflect on [the jury's] decision in looking at the
evidence in this case.” We conclude appellant preserved his Rule 404(b)
objection. See Berry v. State, 233 S.W.3d 847, 857 (Tex. Crim. App.
2007) (holding that objection to “extraneous matters,” in context,
sufficed to preserved Rule 404(b) objection). He also satisfied the rule
that a party must object to specific parts of an exhibit that contains
 
both admissible and inadmissible evidence. See, e.g., Sonnier v. State,
 913 S.W.2d 511, 518 (Tex. Crim. App. 1995).
We review a trial judge's ruling on the admissibility of
evidence for abuse of discretion. Brito Carrasco v. State, 154 S.W.3d
127, 129 (Tex. Crim. App. 2005). Thus, we uphold the ruling if it is
reasonably supported by the record and is correct under any theory of
law applicable to the case. Id. In the amended indictment, the State
alleged four specific prior DWI convictions against appellant in support
of the charge of driving while intoxicated-third conviction or more.
Exhibit 9 is a 24-page document containing appellant's driving record.
It contains information tending to substantiate three of the four prior
DWI convictions alleged in the amended indictment, and appellant does
not argue that the information about the prior DWI convictions should
have been excluded. However, Exhibit 9 also contains (1) information
about appellant's several criminal convictions and driver's-license
suspensions for failure to maintain liability insurance; (2) information
about suspensions of his license for refusing to submit to breath or
blood testing after arrests for DWI; (3) notices that appellant's
driver's license would not be renewed for unspecified reasons; and (4)
several notices directed to appellant about surcharges due and owing to
the Texas Department of Public Safety for unspecified reasons.
We agree with appellant that the trial judge abused his
discretion by admitting Exhibit 9 in its entirety. The four categories
 
of information described in the previous paragraph of this opinion were
not relevant to the charged offenses of unauthorized use of a motor
vehicle and driving while intoxicated-third conviction or more.
Alternatively, if that information was relevant, it was relevant only to
show that appellant had a character for flouting the traffic laws of
Texas, and therefore that it is more likely that he committed the
offenses charged in this particular case. Under Rule 404(b), the
information was inadmissible for such a purpose. Thus, the trial judge
erred by admitting the complete driving record.
We further conclude, however, that the error was harmless.
Generally, the erroneous admission of evidence is evaluated under the
test found in Texas Rule of Appellate Procedure 44.2(b). See Casey v.
State, 215 S.W.3d 870, 884-85 (Tex. Crim. App. 2007); King v. State, 953
S.W.3d 266, 271 (Tex. Crim. App. 1997). Under that rule,
nonconstitutional errors are harmful only if they affect substantial
rights. Tex. R. App. P. 44.2(b). A substantial right is affected if an
error had a substantial and injurious effect or influence in determining
a jury's verdict. King, 953 S.W.2d at 271. A substantial right is not
affected if, after examining the record as a whole, the appellate court
has fair assurance that the error did not influence the jury, or had but
a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.
1998). We may consider several factors in determining whether an error
was harmful, such as the evidence introduced at trial, the nature of the
 
evidence supporting the verdict, the character of the alleged error, the
jury instructions, the State's theory and any defensive theories,
closing arguments, voir dire, and whether the State emphasized the
error. See Motilla v. State, 78 S.W.3d 352, 355-58 (Tex. Crim. App.
2002). Error in the admission of evidence is also more likely to be
harmless if other properly admitted evidence proves the same fact. See
Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999).
The following factors lead us to conclude that the erroneous
admission of Exhibit 9 was harmless. First, the evidence of appellant's
guilt was ample. On the charge of unauthorized use of a motor vehicle,
the verdict was supported by a police officer's unequivocal testimony
that appellant's father reported that appellant had taken his truck
without his permission and by the “auto theft affidavit” that was signed
by appellant's father and admitted into evidence at trial. Appellant's
father also testified at trial, unwillingly, and he testified that he
did not remember whether he gave appellant permission to drive the truck
that day or not, and that he did not remember signing the auto-theft
affidavit. The traffic stop and appellant's arrest were recorded on a
video that was admitted at trial, and on the recording appellant plainly
states that the truck is not his and that it belongs to his dad. On the
charge of driving while intoxicated-third conviction or more, the
verdict was supported by officer Sims's testimony that he smelled
alcohol when he pulled appellant over and that appellant was swaying and
 
had glossy eyes and slurred speech. Sims found an open and partially
empty beer container in the truck. Also, the video of the traffic stop
and appellant's arrest shows that appellant was not entirely coherent.
After appellant was handcuffed and put in the back seat of officer
Sims's squad car, appellant became belligerent and verbally abusive, and
he violently beat his own head against the plexiglass partition between
the front seat and back seat several times, further tending to show he
did not have the normal use of his mental faculties. Moreover, during a
later part of the recording in which appellant was off-camera, appellant
can be heard to say that he had drunk a couple of beers.
In light of the foregoing evidence, we conclude that the
erroneously admitted evidence would have had at most a slight influence
on the jury. Exhibit 9 revealed that appellant had several convictions
and license suspensions for driving without insurance, but the video of
the traffic stop informed the jury that appellant told Sims that his
driver's license was suspended because of “insurance.” Thus, the
documentary evidence of appellant's violations of legal insurance
requirements was partially duplicative of evidence already before the
jury via the video. The additional evidence in Exhibit 9 that appellant
had previously been adjudicated to have driven without insurance on
other occasions would not have substantially increased any prejudice to
appellant's case. Exhibit 9 also indicated that appellant had some
driver's-license suspensions for refusing to submit to breath or blood
 
testing after arrests for DWI. The admissible information in Exhibit 9
about appellant's four past convictions for DWI made the evidence of
appellant's past arrests for DWI cumulative and harmless. The evidence
that appellant had refused breath and blood tests in the past was
arguably somewhat prejudicial to appellant's defense because other
evidence showed that he refused to perform sobriety tests and refused to
submit to a blood test in the instant case. But in light of the evidence
of appellant's guilt, we conclude that the prejudicial effect of this
similarity would have been slight at most. The remaining contents of
Exhibit 9, such as general notices of nonrenewal of appellant's driver's
license and notices of surcharges that appellant owed for unspecified
reasons, would not have been particularly prejudicial to appellant's
defense.
It is also significant that the State did not emphasize the
extraneous offenses before the jury in any way. Exhibit 9 was admitted
into evidence after the last witness finished testifying in the first
phase of the trial, so no witness was asked to read any part of Exhibit
9 to the jury. The State referred to Exhibit 9 in closing argument, but
only as proof of appellant's prior DWI convictions, which were directly
relevant to an element of the charged offense of driving while
intoxicated-third conviction or more. The State did not mention the
extraneous offenses described in Exhibit 9.
After our review of the record, “[w]e have more than a fair
assurance that the error did not influence the jury or had just a slight
 
effect.” Motilla, 78 S.W.3d at 360. Consequently, we conclude that the
error was harmless and overrule appellant's third point of error.
III. Disposition
We affirm the trial court's judgment.
 
KERRY P.
FITZGERALD
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100956F.U05
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Footnote 1
Appellant also mentions Rule 405(b), which provides, “In cases in which
a person's character or character trait is an essential element of a
charge, claim or defense, proof may also be made of specific instances
of that person's conduct.” Thus, Rule 405(b) is a rule making evidence
admissible, not a rule requiring the exclusion of evidence. In any
event, the State does not argue that evidence of appellant's extraneous
offenses and bad acts was admissible under this rule.
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