John Howard Lassere v. The State of Texas--Appeal from County Court at Law No 8 of Bexar County

No. 04-97-00873-CR
John Howard LASSERE,
Appellant
v.
The STATE of Texas,
Appellee
From County Court at Law No. 8, Bexar County, Texas
Trial Court No. 652,287
Honorable Karen Crouch, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 12, 1998

AFFIRMED

A jury convicted John Lassere of driving while intoxicated, and the trial court sentenced him to 150 days in jail plus a $1,500 fine. On appeal, Lassere complains the trial court erred by limiting cross examination of the arresting police officer. He also contends the prosecutor's closing argument was improper. Finding no reversible error, we affirm.

Background

Officer Katzfey stopped Lassere for making a right turn without a signal. The officer noticed Lassere's eyes were bloodshot, his speech was slurred, and he smelled of alcohol. Lassere also staggered and appeared to urinate on himself. Lassere failed several field sobriety tests, and he refused to take the "one-legged stand" test because he said he recently had hip replacement surgery. At the police station, Lassere refused to provide a breath sample and refused to be videotaped.

Cross Examination

In his second point of error, Lassere contends the trial court erred by restricting his cross-examination of Officer Field, who testified about Lassere's refusal to take a breath test. In rebuttal, the State argues that Lassere waived error and, alternatively, that the trial court did not err. We disagree with the State, but we find the trial court's error harmless.

A defendant has a constitutional right to confrontation and cross-examination, but this right is not absolute. Chambers v. Mississippi, 410 U.S. 284, 295 (1973). The trial court may properly limit the scope of cross-examination to prevent harassment, prejudice, confusion of the issues, harm to the witness, and repetitive or marginally relevant interrogation. Carroll v. State, 916 S.W.2d 494, 498 (Tex. Crim. App. 1996) (citing Delaware v. Van Arsdall, 475 U.S. 673, 682 (1986)). We examine the trial court's decision to limit cross-examination with the abuse of discretion standard. Love v. State, 861 S.W.2d 899, 903 (Tex. Crim. App. 1993). In applying this standard, we decide whether the trial court's decision was made without reference to any guiding rules or principles, or whether the decision was arbitrary or unreasonable. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

On direct examination, Officer Field testified that Lassere refused a breath test. On cross-examination, Lassere's counsel asked, "[I]sn't it true that there are several things that can affect the accuracy of breath tests?" The State objected on the basis of relevancy. Although defense counsel explained the question was relevant to show why Lassere might refuse the test, the trial court sustained the State's objection.

The State asserts error was waived because defense counsel did not make an offer of proof to show which "things" affect the accuracy of breath tests. An offer of proof was not required, however, because the evidence was not offered to show whether the test was, in fact, accurate. Instead, the evidence was offered to rebut the inference that Lassere refused the breath test because he knew he was guilty. See Thomas v. State, 723 S.W.2d 696, 718 (Tex. Crim. App. 1986) (Teague, J., dissenting) (explaining the usual reason for refusing to take the breath test and the State's reason for introducing it). Because the test's inaccuracy could explain Lassere's refusal to take it, the evidence was relevant. See id.; Moore v. State, 1998 WL 304493, *6 (Tex. App.--Houston [1st Dist.], June 11, 1998, no pet. h.). Furthermore, because the evidence could rebut Lassere's consciousness of guilt, it was more than marginally relevant. Thus, the trial court abused its discretion by excluding it.

To determine whether the trial court's error was harmful, we must assume the damaging potential of the cross-examination was fully realized. Shelby v. State, 819 S.W.2d 544, 547 (Tex. Crim. App. 1991) (citing Van Arsdall, 475 U.S. at 684). With that assumption in mind, we review (1) the importance of the witness's testimony in the State's case; (2) the cumulative nature of the testimony; (3) the presence or absence of corroborating and contradicting evidence; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the State's case. Id. Finally, we determine whether the error was harmless beyond a reasonable doubt. Id.

In this case, we assume that Officer Field would have established that Lassere declined the breath test because it was potentially inaccurate. Officer Field's testimony, however, was cumulative and less important than the testimony of Officer Katzfey who described Lassere's appearance at the time of the traffic stop. In addition, defense counsel vigorously cross-examined both officers, eliciting both corroborating and contradicting evidence. Given these facts and the strength of the State's case, we conclude the trial court's error was harmless beyond a reasonable doubt. Accordingly, we overrule Lassere's second point of error.

Closing Argument

In his first point of error, Lassere maintains the prosecutor's closing argument was improper. Specifically, Lassere contends the prosecutor injected harmful testimony about the social ramifications of drunk driving and improperly commented on his right to remain silent. In rebuttal, the State alleges that Lassere failed to preserve error and that the argument was proper. We agree with the State.

To be proper, jury argument must fall within the realm of summation of the evidence, reasonable deduction from the evidence, answer to argument of opposing counsel, and plea for law enforcement. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991). To preserve a complaint about jury argument, the defendant must make an objection, request an instruction to disregard, and move for a mistrial. Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993). A defendant's failure to pursue an adverse ruling forfeits his right to complain about the argument on appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).

Here, the prosecutor asked the jury to "protect the public from people who are out there in this condition." Lassere did not object and therefore did not preserve his complaint for our review. Nonetheless, we note that the prosecutor's remark was a proper plea for law enforcement. See Harvey v. State, 798 S.W.2d 373, 375 (Tex. App.--Beaumont 1990, no pet.).

The prosecutor also stated, "[D]runk driving is a very, very serious problem. Millions of people are killed and injured from drunk drivers. There's a lot of millions of dollars in property loss [sic], insurance rates go up. We have billboards. We have organizations that try to stop people like this." Defense counsel objected, and the court sustained the objection. Lassere, however, did not request a curative instruction and therefore waived error. We note that this error, if preserved, would be harmless. See Dewitt v. State, 763 S.W.2d 524, 526 (Tex. App.--El Paso 1988, pet. ref'd); Austin v. State, 712 S.W.2d 591, 593 (Tex. App.--Tyler 1986, no pet.).

Finally, the prosecutor referred to Lassere's refusal to take the "one-legged stand" test. The prosecutor said, "If the defense wanted to bring in evidence of a hip problem, they could have done so. They could have brought a doctor." Defense counsel objected on the basis that "[t]he evidence of his hip replacement is on the police report. The State also has his complete doctor's record." Although the trial court did not rule on the objection, it sua sponte admonished the jury to "remember the evidence as you've heard it. What the lawyers tell you is not evidence."

Lassere now complains the prosecutor's remark was an improper comment on his right to remain silent. Because this complaint does not comport with his trial objection, Lassere waived error on appeal. In addition, Lassere failed to pursue an adverse ruling. Nonetheless, we note the remark was not improper. See Sonnier v. State, 913 S.W.2d 511, 523 (Tex. Crim. App. 1995) (holding that a reference to the defendant's failure to produce evidence, other than his own testimony, is not an improper remark); Albiar v. State, 739 S.W.2d 360, 362-63 (Tex. Crim. App. 1987) (same). We therefore overrule Lassere's first point of error.

Conclusion

Having overruled Lassere's points of error, we affirm the trial court's judgment.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

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