Brian Charles Stehling v. The State of Texas--Appeal from County Court at Law No. 3 of Collin County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00621-CR
Brian Charles Stehling, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 3 OF COLLIN COUNTY
NO. 3-81846-92, HONORABLE JOHN O. BARRY, JUDGE PRESIDING

Appellant Brian Charles Stehling was convicted in a jury trial of the misdemeanor offense of driving a motor vehicle in a public place while intoxicated. Act of May 27, 1983, 68th Leg., R.S., ch. 303, 3, 1983 Tex. Gen. Laws 1568, 1575 (Tex. Rev. Civ. Stat. Ann. art. 6701l-1(b), since amended and codified at Tex. Penal Code Ann. 49.04 (West 1994)). The jury assessed appellant's punishment at confinement for eighteen months and a fine of $2,000.00. Appellant presents nine points of error in which he complains of (1) the prosecutor's jury argument, (2) the admission in evidence of a redacted copy of his motion alleging double jeopardy, (3) the denial of effective assistance of counsel, and (4) his deprivation of double jeopardy protection. We will affirm the judgment.

Department of Public Safety Trooper Kent Paluga stopped and arrested appellant on United States Highway 75 at about 11:00 p.m., on April 26, 1992. Officer Paluga stopped appellant for driving eighty-one miles an hour in a sixty-five-mile-an-hour zone, and for weaving out of his lane of traffic. Appellant could not perform several field sobriety tests, and he appeared to Officer Paluga to be intoxicated. Two other officers observed appellant after his arrest and testified that in their opinion appellant was intoxicated. Appellant did not testify, but he offered the testimony of his friend and fellow salesman, Steve Hawkins. Earlier on the night of appellant's arrest, Hawkins was with appellant from 5:45 p.m. until 10:45 p.m. During this time the pair attended a concert, and appellant ate sandwiches and "consumed four beers." In Hawkins's opinion, appellant was not intoxicated when they parted. On cross-examination, Hawkins testified, without objection, about what appellant had told him concerning appellant's arrest and detention.

In his first point of error, appellant argues that at the guilt-innocence phase of his trial the prosecutor impermissibly commented on appellant's failure to testify when she argued: "I have brought you all the evidence I have. This was a salesman. He tried to sell his bill of goods through his friend to y'all." Appellant's objection that the prosecutor's argument was a comment on appellant's failure to testify was overruled. Comments on a defendant's failure to testify violate the right and privilege against self-incrimination granted by the federal and state constitutions and a mandatory state statute. U.S. Const. amends. V, XIV; Tex. Const. art. I, 10; Tex. Code Crim. Proc. Ann. art. 38.08 (West 1979). See Nickens v. State, 604 S.W.2d 101, 104 (Tex. Crim. App. 1980). In this instance, the prosecutor's argument is not a direct comment on appellant's failure to testify. For an indirect statement to constitute a comment on a defendant's failure to testify, the language of the statement must be either manifestly intended, or of such character that the jury would naturally and necessarily take it to be a comment on the defendant's failure to testify. Livingston v. State, 739 S.W.2d 311, 337 (Tex. Crim. App. 1987); Scott v. State, 867 S.W.2d 148, 152 (Tex. App.--Austin 1993, no pet.). It is not sufficient that the language might be construed as an implied or indirect allusion to a defendant's failure to testify. Montoya v. State, 744 S.W.2d 15, 35 (Tex. Crim. App. 1987); Scott, 867 S.W.2d at 152. It is of no legal consequence that Hawkins's testimony to which the prosecutor referred was elicited on cross-examination. There were no objections to the testimony; it was admissible. See Mathes v. State, 765 S.W.2d 853, 856 (Tex. App.--Beaumont 1989, pet. ref'd). In a similar situation in which a prosecutor commented on a witness's testimony concerning what a defendant had told the witness about the commission of the offense, the Court of Criminal Appeals held the argument was not a comment on the defendant's failure to testify. See Robison v. State, 888 S.W.2d 473, 489-90 (Tex. Crim. App. 1994).

We conclude that the prosecutor's statement was not manifestly intended, or of such character that the jury would naturally and necessarily take it to be a comment on the defendant's failure to testify. That the language might be construed as an implied or indirect allusion to appellant's failure to testify is not sufficient to require reversal. In this case the prosecutor's statement on its face refers to the testimony of appellant's witness Hawkins, not to appellant's failure to testify. Appellant's first point of error is overruled.

Appellant consolidates for argument five points of error in which he asserts that the trial court erred in admitting in evidence State's Exhibit Eleven, appellant's redacted double jeopardy motion. He argues that the admission of this evidence denied him a fair trial when the prosecutor argued that this evidence proved appellant had admitted his guilt, had admitted his intoxication, and had admitted the charge in this case was true.

When the appellant committed and was charged with the instant offense, he was serving a term of probation for a driving while intoxicated conviction in Dallas County. A motion to revoke probation in Dallas County was filed alleging that appellant had violated the terms of probation by committing the instant offense in Collin County. Appellant entered a plea of true in the revocation proceeding in Dallas County. The trial court in Dallas County did not revoke probation, but instead imposed additional and more rigorous conditions of probation, including incarceration in the county jail for thirty days. Prior to his trial in Collin County, appellant filed a motion contending that his trial for the instant offense was double-jeopardy barred. He alleged that he had already been punished for the instant offense because it had been alleged as the basis for revocation in Dallas County and had resulted in the imposition of the more harsh conditions of probation in Dallas County. The double jeopardy motion was, of course, overruled.

The prosecutor offered and the trial court admitted in evidence State's Exhibit Eleven, a redacted copy of the double jeopardy motion, which reads:

 
NO. 3-81846-92

STATE OF TEXAS IN THE COUNTY COURT

 

VS. AT LAW NO. 3 OF

 

BRIAN CHARLES STEHLING COLLIN COUNTY, TEXAS

 
MOTION

TO THE HONORABLE JUDGE OF SAID COURT:

 

Comes now BRIAN CHARLES STEHLING, Defendant in the above cause,

 

"That Defendant has violated the following

 

"(1) COMMIT NO OFFENSE AGAINST THE LAWS OF THIS OR ANY OTHER STATE OR THE UNITED STATES:

(On or about the 25th day of April, 1992, in Collin County, Texas, Brian C. Stehling did then and there drive and operate a motor vehicle in a public place in Collin County, Texas, to-wit: a street or highway while intoxicated, in that the defendant did not have the normal use of his mental and physical faculties by reason of the introduction of alcohol into defendant's body.)"

 

Your Defendant will show that on October 9, 1992, he pled true to the allegations

 

Respectfully submitted,

 

/s/ John T. McCully

JOHN T. MC CULLY

State Bar No. 13509000

 

ATTORNEY FOR DEFENDANT

 

I, BRIAN CHARLES STEHLING, having been duly sworn, upon oath, state that all the facts set out in the foregoing special plea are true.

 

/s/ Brian Charles Stehling

BRIAN CHARLES STEHLING, Defendant

 

STATE OF TEXAS

 

COUNTY OF DALLAS

 

SWORN TO AND SUBSCRIBED BEFORE ME by the said BRIAN CHARLES STEHLING, on this the 2nd day of March, 1993.

 

/s/ Myrna Ehlers

Notary Public, State of Texas

 

On several occasions during final argument, the prosecutor characterized Exhibit Eleven as a confession or admission of appellant's guilt. Appellant argues that "[t]he gross disfigurement of Appellant's 'Motion' improperly offered and relied on by the State as a confession, was patently unfair and wrong." Appellant's double jeopardy motion before redaction also included a statement that "I was charged with Driving while intoxicated in Collin County on April 26, 1992." Therefore, appellant continues to argue that he did not admit he was guilty of committing the Collin County offense. However, appellant concedes that: "For some reason, in the sworn 'Motion' is an assertion that appellant pleaded 'true' in Dallas County to committing the Collin County offense."

Appellant insists that even if Exhibit Eleven reflects a "confession," Rule 410 of the Texas Rules of Criminal Evidence prohibits the admission of pleas that are later withdrawn, as this one was by virtue of the Dallas prosecutor having withdrawn his motion to revoke. Appellant forgets that it was not the withdrawn motion in Dallas County that was admitted in evidence in this case. The portion of the motion admitted was appellant's motion urging double jeopardy in Collin County. In the double jeopardy motion appellant had incorporated the allegations of the Dallas County motion to revoke probation.

It was appellant who unilaterally, intending it for his benefit, filed the double jeopardy pleading. It was not a part of a negotiated plea of guilty or nolo contendere such as that contemplated by Rule 410. Therefore, that rule does not apply. See Abdel-Sater v. State, 852 S.W.2d 671, 673 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd); 1 Steven Goode, Olin Guy Wellborn III & M. Michael Sharlot, Guide to Texas Rules of Evidence: Civil and Criminal, 410.1 et. seq. (Texas Practice 2d ed. 1993).

If the pleading were admissible, the State could redact and introduce any portion of the pleading. The appellant, if he desired, was free to offer any other part of the document. Tex. R. Crim. Evid. 106. Appellant offers no reasons other than his "t'aint fair" argument to show that State's Exhibit Eleven was inadmissible. The redacted pleading admitted in evidence was an admission of guilt--strong evidence that appellant committed the offense charged. It was probative and relevant. Tex. R. Crim. Evid. 401, 402. It was not excludable on special grounds. Tex. R. Crim. Evid. 403. Appellant's own statements made in a filed pleading were admissible as admissions by a party-opponent. Tex. R. Crim. Evid. 801(e)(2)(A); see Bell v. State, 877 S.W.2d 21, 24 (Tex. App.--Dallas 1994, pet. ref'd); McDuffie v. State, 854 S.W.2d 195, 209 (Tex. App.--Beaumont 1993, pet. ref'd). Because the exhibit was properly admitted in evidence the prosecutor properly and legitimately argued based on this evidence. Points of error two, three, four, five, and six are overruled.

In his seventh point of error, appellant urges that the prosecutor improperly bolstered the testimony of the arresting officer by arguing "If he [Officer Paluga] gets up here and lies, it could be perjury and he could lose his job." It is impermissible to attempt to bolster the credibility of a witness by unsworn testimony. Menefee v. State, 614 S.W.2d 167, 168 (Tex. Crim. App. 1981). However, a prosecutor may answer argument of opposing counsel. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973).

Appellant's counsel argued:

 

Let's talk about Corporal Paluga. He came in and testified from a report. Another officer came in and testified from the report made by Corporal Paluga, another Texas Highway Patrol.

 

Another officer came in, the Sheriff's deputy came in, and he testified from notes that he made that Paluga told him to make because Paluga said, you're going to be called on to testify.

 

Well, now, how did Paluga know that?

Paluga's -- according to his testimony, he's filed 1,000 to 1,500 DWI's, and only testified 20 times. How did he know this was going to be -- going to be called upon to testify?

 

I'll tell you how he knew, 'cause he had a weak case. Had a very weak case.

 
* * * * *

Now, everything that happened at the scene, the failing of the tests, the failing to turn, all this you have to take Paluga's word for it. You just have to take Corporal Paluga's word for it, because, you see, that night, dadgummit, that little camera on that patrol car wasn't working that night. Isn't that a shame? So, dadgummit, we just have to take your word for it.

 
* * * * *

I submit to you that he, Mr. Stehling, and Corporal Paluga had a personality conflict at the scene. I believe that. And Corporal Paluga, now, he's trying to, you know, protect his arrest. He made an arrest. He's trying to protect his arrest.

 

He's got these other officers coming in and saying, yeah, they saw this, they saw that.

 
* * * * *

So, now, Corporal Paluga kind of deprived y'all of a little evidence there. He didn't want to take a breath test.

 
* * * * *

Trooper Paluga did indeed offer and told him he wouldn't -- no matter what, he wasn't going to get -- he wasn't getting off. Okay.

 

We conclude that the complained-of prosecutor's argument was a legitimate argument responding to appellant's counsel's argument. The prosecutor's argument was invited. No error is presented. Harkey v. State, 785 S.W.2d 876, 881-82 (Tex. App.--Austin 1990, no pet.); see also Sosa v. State, 841 S.W.2d 912, 916 (Tex. App.--Houston [1st Dist.] 1992, no pet.); Wartel v. State, 830 S.W.2d 757, 761-62 (Tex. App.--Houston [1st Dist.] 1992, no pet.). Appellant's seventh point of error is overruled.

In point of error eight, appellant argues that he was denied effective assistance of counsel "should this Court conclude that Appellant failed properly to object to the errors raised in points of error Two through Seven." Because we have not overruled any of these points of error on the basis of counsel's failure to object, appellant's point of error eight is without merit and is overruled.

In his ninth point of error, appellant asserts that his prosecution violates constitutional prohibitions against double jeopardy and that the trial court erred in overruling his jeopardy motion because the conduct for which he was convicted had previously been the basis for severe punishment in the Dallas County revocation proceeding. The Court of Criminal Appeals has held that the double jeopardy provisions of the Texas and the United States constitutions are not offended when evidence used in a successful or unsuccessful attempt to revoke "regular" probation or deferred adjudication probation is later used to prosecute the defendant in a different case. Chambers v. State, 700 S.W.2d 597, 599 (Tex. Crim. App. 1985); see Ex parte Tarver, 725 S.W.2d 195, 197 (Tex. Crim. App. 1986); Davenport v. State, 574 S.W.2d 73, 75 (Tex. Crim. App. 1978); State v. Nash, 817 S.W.2d 837, 840 (Tex. App.--Amarillo 1991, no pet.); Johnson v. State, 749 S.W.2d 513, 514 (Tex. App.--Houston [1st Dist.] 1988, no pet.). Appellant's point of error nine is overruled.

 

The trial court's judgment is affirmed.

 

Carl E. F. Dally, Justice

Before Chief Justice Carroll, Justices Davis* and Dally**

Affirmed

Filed: August 30, 1995

Do Not Publish

 

* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. 74.003(b) (West 1988).

 

** Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. 74.003(b) (West 1988).