William Allen Vanderwall v. The State of Texas--Appeal from County Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-99-029-CR

WILLIAM ALLEN VANDERWALL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court

Navarro County, Texas

Trial Court # 45421

O P I N I O N

William Allen Vanderwall was charged with, and found guilty of, driving while intoxicated. The jury assessed punishment at 180 days in jail and a fine of $750.00. The trial court suspended the punishment and placed Vanderwall on community supervision for two years.

Vanderwall appeals his conviction and brings three issues for review. Because he does not ask for a review of the sufficiency of the evidence, a factual recitation is not necessary. We affirm.

Challenge for Cause

In his first issue, Vanderwall argues that the trial court erred in failing to excuse a venireman for cause after the venireman demonstrated a bias against him. Specifically, Vanderwall contends that, because venireman Franks expressed he would weigh heavily a breath test refusal against a defendant, Franks was biased against him.

A challenge for cause is an objection to a juror which alleges that some fact renders the juror unfit or incapable to serve on a jury. Tex. Code Crim. Pro. Ann. art. 35.16(a) (Vernon 1989). The State or the defendant may make a challenge for cause if the venireman has a bias or prejudice in favor of or against the defendant. Id. (a)(9). It has long been held that to preserve a complaint on this issue, Vanderwall must demonstrate on the record:

1.that he asserted a clear and specific challenge for cause,

2.that he used a peremptory challenge on the complained-of venireman,

3.that all his peremptory challenges were exhausted,

4.that his request for additional strikes was denied, and

5.that an objectionable juror sat on the jury.

Cannady v. State, 11 S.W.3d 205, 208 (Tex. Crim. App. 2000), cert. filed; Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996); Harris v. State, 790 S.W.2d 568, 581 (Tex. Crim. App. 1989); Demochette v. State, 731 S.W.2d 75, 83 (Tex. Crim. App. 1986).

Vanderwall followed all of the requirements except one. He did not show, and cannot show, that his request for additional strikes was denied because he did not request any additional strikes. Thus, his complaint has not been preserved. Issue one is overruled.

Extraneous Offense

In his second issue, Vanderwall complains that the trial court erred in allowing the State to present evidence of his driver s license suspension due to his refusal to take a breath test. Vanderwall contends this suspension is an extraneous offense. He argues that the evidence is not admissible under Rule 404(b) because he requested notice of its use and the State did not notify him of its intent to use the license suspension. See Tex. R. Evid. 404(b).

Vanderwall filed what he termed Defendant s Request for Notice of Extraneous Offenses. It was addressed, To the Honorable Judge of Said Court. Vanderwall attached an order requesting the trial court to either grant his request, deny his request or grant the request in part. A certificate of service was also attached certifying that the District Attorney s Office was served with the document. On the day of trial, and calling the request his standard Motion for Request of Extraneous Offenses, Vanderwall presented the document to the trial court in conjunction with a motion in limine. He never received a ruling on the request, only an acknowledgment of the motion in limine.

The State s duty to provide reasonable notice under Rule 404(b) of its intent to introduce certain extraneous offenses is only triggered by a timely request by the defendant. Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim. App. 1998); Espinosa v. State, 853 S.W.2d 36, 39 (Tex. Crim. App. 1993). But, when a document filed by a defendant asks for trial court action, it is not a request for notice which would trigger the State s duty under Rule 404(b); it is a motion. See, Simpson v. State, 991 S.W.2d 798, 801 (Tex. Crim. App. 1998); Espinosa, 853 S.W.2d at 39. Cf. Mitchell, 982 S.W.2d at 427. If such a motion is filed, the defendant must secure a ruling on the motion to trigger the State s notice requirements under Rule 404(b). Espinosa, 853 S.W.2d at 39. See also, Mitchell, 982 S.W.2d at 427; Simpson v. State, 991 S.W.2d at 801.

Vanderwall s request was a motion which sought trial court action. He did not secure a ruling on that motion. Thus, the notice provisions of Rule 404(b) were not triggered. The trial court did not err in admitting the evidence. Issue two is overruled.

Improper Argument

In his third issue, Vanderwall contends that the trial court erred in denying his motions for mistrial after objections for improper argument by the State were sustained.

Jury arguments are proper if they fall within the following four categories: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to the argument of opposing counsel, and (4) plea for law enforcement. Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973).

When the trial court sustains an objection and grants a request for an instruction for the jury to disregard but denies the motion for mistrial, the issue becomes whether the trial court erred in denying the mistrial. Carlock v. State, 8 S.W.3d 717, 723 (Tex. App. Waco 2000, no pet.); Faulkner v. State, 940 S.W.2d 308, 312 (Tex. App. Fort Worth 1997, pet. ref d). The trial court s decision is error only if the argument is extreme, manifestly improper, injects new and harmful facts into the case or violates a mandatory statutory provision and was thus so inflammatory that its prejudicial effect cannot be reasonably removed from the minds of the jury by an instruction to disregard. Carlock, 8 S.W.3d at 723; Washington v. State, 822 S.W.2d 110, 118 (Tex. App. Waco 1991), rev d on other grounds, 856 S.W.2d 184 (Tex. Crim. App. 1993). See also Trent v. State, 925 S.W.2d 130, 133 (Tex. App. Waco 1996, no pet.).

If the instruction cured any prejudicial effect // caused by the improper argument, the reviewing court should find that the trial court did not err. Carlock, 8 S.W.3d at 723-724. If the instruction did not cure the prejudicial effect, error results, and the reviewing court proceeds with a harm analysis. Id. at 724; Washington, 822 S.W.2d at 118.

The alleged offending arguments took place during the closing of the State s argument on guilt/innocence and the first is set out as follows:

State: Now, you saw this officer testify today. And I submit to you, you saw a trustworthy, credible, competent, and responsible officer.

Defense: Excuse me, Mr. Laird. Your Honor, at this time, I m going to object to improper closing argument, interjecting the prosecutor s own personal beliefs as to the credibility of a witness. It s improper closing arguments.

State: Witness credibility is a part.

Court: I m going to sustain the objection. The jury, though, can take from the witnesses what they want.

Defense: I m sorry. Briefly, Your Honor, at this point, I need to ask the Court to instruct the jury to disregard the prosecutor s last statement.

Court: I d ask the jury to disregard the last statement.

Defense: Thank you. And I make a Motion for Mistrial.

Court: Denied.

Defense: Thank you.

While evidence creating an inference that a witness is not trustworthy may be argued, it is error to argue the jury should believe a witness because the prosecutor does. Gardner v. State, 730 S.W.2d 675, 698 (Tex. Crim. App. 1987). The determination of the credibility of a witness is the job of the fact finder, not the prosecutor. Id.

In the argument preceding Vanderwall s first objection, the State responded to attacks from the defense regarding the credibility of the arresting officer by arguing that the jury should believe the officer. By arguing, I submit to you, you saw a trustworthy...officer, the prosecutor implied that he believed the officer to be trustworthy. Thus, the trial court properly sustained Vanderwall s first objection to the argument of the prosecutor. However, the remarks by the prosecutor were not so inflammatory that the prejudicial effect could not be reasonably removed from the juror s minds by an instruction to disregard. Therefore, the trial court s instruction cured the prejudicial effect of the first portion of the argument to which objection was made.

The second portion of argument objected to by Vanderwall is as follows:

State: Mr. Keathley mentions Chief Jordan, Becky Jordan. I didn t call her to testify. Why? She knew nothing about the case. She wasn t involved in any of the arrest reports. She wasn t the arresting officer. She was called out only to transport the defendant. She had nothing to add. I didn t call her. She had nothing to add. I think I asked her a couple of questions about the officer s trustworthiness, and you heard her say, You bet, he s trustworthy.

Defense: Excuse me, Your Honor. We re going to object to that. We objected; that was sustained.

Court: I ll sustain the objection, and I d ask the jury to disregard the last statement made by the counsel.

Defense: Thank you, Your Honor. We make a Motion for Mistrial.

Court: I ll deny that.

Defense: Thank you.

At this juncture, the State was summarizing testimony elicited from the police chief. The prosecutor s argument did not vouch either for the credibility of the police chief or for the credibility of the arresting officer through the chief. Although the chief s testimony had been objected to, it was not excluded from the jury s consideration by an instruction to disregard. Thus, the argument by the State was supported by the record and was a proper summary of the testimony. However, even if the argument was error, it was not so inflammatory that its prejudicial effect could not be reasonably removed from the juror s minds by an instruction to disregard. Therefore, the trial court s instruction to disregard cured the prejudicial effect, if any, and the motion for mistrial was properly denied.

Vanderwall s third issue is overruled.

Conclusion

Having overruled all of Vanderwall s issues, his conviction is affirmed.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed August 30, 2000

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