Thomas A. Sanchez v. The State of Texas--Appeal from County Court at Law No 9 of Bexar County

MEMORANDUM OPINION

No. 04-05-00766-CR

Thomas A. SANCHEZ,

Appellant

v.

The STATE of Texas,

Appellee

From the County Court at Law No. 9, Bexar County, Texas

Trial Court No. 890234

Honorable Oscar Kazen, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 8, 2006

AFFIRMED

Thomas A. Sanchez appeals the judgment convicting him of and sentencing him for driving while intoxicated. We affirm.

1. Sanchez first argues the trial court abused its discretion in denying his motion to suppress because Officer David Luevano lacked probable cause and reasonable suspicion to stop Sanchez's car. Officer Luevano testified that he stopped Sanchez in part because he made two lane changes to the left and one to the right without signaling. Sanchez argues that, because his lane changes were made safely, his failure to signal did not give Officer Luevano grounds to stop him. We disagree. A driver is required to "use the signal authorized by Section 545.106 to indicate an intention to ... change lanes," Tex. Transp. Code Ann. 545.104 (Vernon 1999); and an officer who observes a traffic violation is authorized to stop the vehicle. See Garcia v. State, 827 S.W.2d 937 (Tex. Crim. App. 1992).

2. Sanchez next argues the trial court erred in failing to suppress his statements to Officer Luevano after Sanchez was stopped but before he was arrested because the statements were the result of a custodial interrogation and he had not been advised of his rights. We again disagree.

Sanchez filed six motions to suppress, which the trial court considered before presentation of the evidence began. In one of these motions, Sanchez sought to suppress the audio portion of Officer Luevano's videotape of the encounter because, he argued, the tape as a whole is "the fruit[] of an illegal arrest and seizure"; Sanchez's "oral statements ... on the videotape were not made in compliance with Article 38.22, Section 3 of the Texas Code of Criminal Procedure"; and the tape "contains testimonial evidence taken as a result of custodial interrogation without the defendant receiving the Miranda warnings as required by Miranda v. Arizona, 384 U.S. 436 (1966); the Fifth, Sixth, and Fourteenth Amendments of the U.S. constitution; Article I, Section 10 of the Texas Constitution, and Article 38.22 of the Texas Code of Criminal Procedure." Although the trial court found Officer Luevano had reasonable suspicion to stop Sanchez and probable cause to arrest him and concluded the tape was not the fruit of an illegal stop or arrest, it also found that when Officer Luevano placed Sanchez under arrest after conducting field sobriety tests, he did not properly admonish Sanchez and concluded that article 38.22 of the Texas Code of Criminal Procedure had not been strictly complied with because Sanchez's waiver of his rights was not clear on the tape. Accordingly, the court suppressed the audio portion of the tape from the point that Officer Luevano handcuffed Sanchez and started to advise him of his rights. Sanchez did not express any dissatisfaction with this ruling or argue that the entire tape should be suppressed for any reason other than lack of reasonable suspicion for the stop. When the State offered the tape into evidence during Officer Luevano's testimony, Sanchez's counsel stated, "please note our prior objection." The following exchange then occurred outside the presence of the jury:

Court: [T]he reason I called them out is you said, "Please note our prior objection." I thought I had already granted your objection. I granted the suppression of the audio in the video. Is that what you're talking about?

Counsel: Yes, Your Honor, that, in addition to the suppression - you actually, I guess, looked at the tape in determining whether there was reasonable suspicion and probable cause.

Court: Oh, okay.

Counsel: To make sure that we're not waiving any of that.

Court: Sure. I got it. You're saying no matter what you think, there was no probable cause or reasonable suspicion. The mere submission of the tape is not acquiescent to that.

Counsel: Correct.

....

Court : [speaking to the witness] You're familiar with the fact that any of the admissions that he made after being placed under arrest, you can't speak to. In other words, everything he said after you placed him under arrest. .... [D]o you all recall how much was ascertained before he was placed under arrest?

Counsel: Well, Your Honor, there again, the fact that we're not - we're not acquiescing. We're still alleging, first of all, there was no reasonable suspicion, there was no probable cause, and therefore, we're asking the entire tape -

Court: Oh got that. I got that part.

Counsel: We want to make sure that's clearly on the record.

Sanchez did not argue, either during the suppression hearing or when the trial court specifically questioned him about the grounds for his objection, that the statements he made before the arrest should be suppressed because he was not advised of his rights as soon as Officer Luevano stopped him and the statements were a result of a custodial interrogation. We therefore hold that Sanchez's global statements in his motion to suppress are insufficient to preserve the argument he makes on appeal. See Tex. R. App. P. 33.1; Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005), cert. denied, 2006 WL 1666125 (U.S. Oct. 2, 2006). And, to the extent the ground for suppression that Sanchez argues on appeal is sufficiently raised in his written motion, we hold Sanchez waived and abandoned this ground by failing to present and argue it to the trial court when specifically questioned by the court about the bases for his objection.

3. Sanchez next argues the trial court denied his "due process and constitutional rights of cross examination and the right to present a defense." Sanchez failed to preserve this issue for appellate review by failing to object.

When the trial court suppressed the audio portion of the tape beginning at the point where Officer Luevano advised Sanchez of his rights, the court admonished Sanchez's counsel not to "even intimate[] that this officer did not give him or read him his rights. .... All of it doesn't come in because he didn't ask, 'Do you wish to give them up voluntarily?' But that's not the same as allowing the Defense to make issue and say that the officer didn't give him his rights. So I don't want to hear any of that because he did give him his rights. Fair enough?" Counsel responded "Okay." On appeal, Sanchez argues that precluding him from questioning the officer about his failure to properly obtain a waiver of his rights violated his right to cross-examine the officer and his right to present a defense. However, counsel did not object when the trial court gave its admonition, did not attempt to question the officer about these matters, and did not make an offer of proof. Accordingly, Sanchez failed to preserve error.

4. Finally, Sanchez argues the trial court abused its discretion in denying his motion for a mistrial based on improper argument in the State's closing. We disagree.

The charge instructed the jury that if it did not find beyond a reasonable doubt that Officer Luevano had reasonable suspicion based on articulable facts that Sanchez committed a traffic violation, it was to disregard the evidence obtained in violation of the stop and render a verdict of "not guilty." See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). In its closing, the State argued the standard of reasonable suspicion had been met and stated:

You're going to have a chance to go back and see the driving. And its not a high standard. You know, all I can tell you is, did the officer have a reasonable suspicion that a traffic offense occurred? Just like when any of us get pulled over for speeding or not using a turn signal or making an incorrect turn, we all hate it. I hate it when I get pulled over. But it doesn't make anything wrong. And Heaven forbid on another case Mr. Sanchez would have had a - or another individual would have had a dead body in his car. We wouldn't want that thrown out -

The trial court promptly instructed the jury to disregard the comment about the dead body and denied Sanchez's motion for a mistrial.

We presume a trial court's instruction to disregard was complied with by the jury. Wesbrook v. State, 29 S.W.3d 103, 116 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001). "Only when it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury being unfairly prejudiced against the defendant may a motion for mistrial be granted." Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996). The State's comment in this case was not so flagrant and offensive that the trial court's instruction to disregard was ineffective. See Wesbrook, 29 S.W.3d at 116. Accordingly, the trial court did not err in denying Sanchez's motion for a mistrial.

The trial court's judgment is affirmed.

Sarah B. Duncan , Justice

Do not publish