CRISANTO B. GARCIA v. THE STATE OF TEXAS--Appeal from County Court at Law No 2 of Cameron County

NUMBER 13-06-00636-CR

 

COURT OF APPEALS

 

THIRTEENTH DISTRICT OF TEXAS

 

CORPUS CHRISTI - EDINBURG

 

CRISANTO B. GARCIA, Appellant,

 

v.

 

THE STATE OF TEXAS, Appellee.

 

On appeal from the County Court at Law No. 2

of Cameron County, Texas.

MEMORANDUM OPINION

 
Before Chief Justice Valdez and Justices Benavides and Vela
Memorandum Opinion by Chief Justice Valdez

Appellant, Crisanto B. Garcia, appeals his conviction for driving while intoxicated. See Tex. Penal Code Ann. 49.04 (Vernon 2006). On appeal, appellant contends (1) that the trial court made an improper negative comment on appellant's Fifth Amendment right to remain silent, (2) the trial court erred in overruling his objection to the prosecutor's closing argument, and (3) the evidence is factually insufficient to support the jury's verdict. We affirm. (1)

I. Improper Comments

In his first issue, appellant contends that the trial court made improper negative comments on appellant's Fifth Amendment right to remain silent. (2) We hold that this issue was not preserved for review.

In order to preserve a complaint for appellate review, a party must have presented the trial court with a timely objection, or request, stating the specific grounds for the ruling he desires. Absent a timely objection, error is waived with regard to such issue. See Nelson v. State, 661 S.W.2d 122, 124, (Tex. Crim. App. 1983); Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim. App. 1980); Crocker v. State, 573 S.W.2d 190, 205 (Tex. Crim. App 1978). More specifically, the court in Nelson reiterated the necessity of objection during voir dire examination to preserve error on appeal. Nelson, 661 S.W.2d at 124.

As the court's record reflects and the appellant concedes, no objection was raised by defense counsel at the time the trial judge made any of the comments of which appellant complains. Both the prosecutor and defense counsel continued with the voir dire examination after the judge's comments. Thus, no objection was raised to the trial court's comments.

Appellant relies on Blue v. State in support of his contention that no objection is necessary to preserve such an error on appeal. 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (plurality op.). We conclude, however that this reliance is misplaced. In Blue, the court found that the judge's comments tainted the trial court's presumption of innocence before the venire and thus were fundamental errors of constitutional dimension requiring no objection. Id. at 132. However, the holding in Blue does not extend to the instant case. Id. at 131. As a concurring opinion in Blue makes clear, the holding is limited to those cases where the trial court itself was biased. Id. at 134. In the present case, the comments made by the trial court do not reference the defendant's guilt or innocence and show no indication of bias by the court. Id.; see Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). Therefore, we hold Blue is inapplicable and appellant was required to object in order to preserve error. See Nelson, 661 S.W.2d at 124.

Appellant failed to raise this issue in the trial court and has thus failed to preserve it for review. Tex. R. App. P. 33.1(a)(1). Appellant's first issue is overruled.

II. Improper Jury Argument

In his second issue, appellant claims the trial court erred by overruling his objection to the State's closing argument and in permitting the State to argue that a half bottle of whiskey was found in appellant's vehicle.

Appellant has provided no authority to support his contention that an improper jury argument was made. In accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). By raising the issue of an improper jury argument and failing to cite any authority to support his contention, if any, appellant has waived error on this issue. See Tufele v. State, 130 S.W.3d 267, 271 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd). We overrule appellant's second issue.

III. Factual Sufficiency

In his final issue, appellant complains that the evidence is factually insufficient to sustain his conviction. Specifically, appellant contends that evidence adduced at trial was insufficient to prove the element of loss of mental or physical faculties beyond a reasonable doubt. We disagree.

A. Standard of Review

In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).

B. Applicable Law and Analysis

The State was required to prove beyond a reasonable doubt that appellant was intoxicated while operating a motor vehicle in a public place. See Tex. Penal Code Ann. 49.04(a). "Intoxicated" means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, or a combination of two or more of those substances or any other substance into the body, or by having an alcohol concentration of 0.08 or more. See id. 49.01(2). Among other things, evidence of intoxication may include: (1) slurred speech; (2) bloodshot eyes; (3) the odor of alcohol on the person or on the breath; (4) an unsteady balance; and (5) a staggered gait. See Cotton v. State, 686 S.W.2d 140, 142 n.3 (Tex. Crim. App. 1985). The uncorroborated testimony of an arresting officer is sufficient to prove the element of intoxication. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979); Watkins v. State, 741 S.W.2d 546, 549 (Tex. App.-Dallas 1987, pet. ref'd).

The following evidence was presented at trial. Appellant was pulled over by State Trooper Juarez around 11:00 p.m. for driving with a burned out tail light. Trooper Juarez asked appellant to step out of his vehicle so that he could verify that his tail light was burned out. Appellant complied. Trooper Juarez decided to give appellant a written warning. As Trooper Juarez began to write out the warning, he noticed a strong smell of alcohol coming from appellant's breath. Trooper Juarez asked appellant whether he had been drinking. Appellant responded that he drank four or five beers throughout the day. Trooper Juarez then asked appellant to perform several sobriety test.

The first test administered by Trooper Juarez was the horizontal gaze nystagmus (HGN) test. Trooper Juarez testified that appellant's eyes did not equally track the stimulus during the administration of the test, that appellant's eyes did not pursue the stimulus smoothly, and exhibited nystagmus at maximum deviation in both eyes. Thus, Trooper Juarez concluded that appellant had failed the HGN test by exhibiting six clues (out of a possible six), suggesting intoxication. Appellant was also asked to perform the "walk and turn" test, but appellant failed to follow instructions or complete the test correctly, demonstrating seven out of eight clues of intoxication. Appellant then performed the "one leg stand" test, in which he demonstrated four (out of a possible four) clues of intoxication. Based on his performance during these field sobriety tests, Trooper Juarez concluded that appellant had lost the normal use of his mental or physical faculties due to ingestion of alcohol. Later, when requested to provide a specimen of his breath for the purpose of testing it for alcohol concentration, appellant refused to comply.

The State also presented the testimony of Trooper Martinez. Trooper Martinez assisted by inventorying appellant's vehicle. Trooper Martinez testified that he found an empty container of Budweiser beer in the center console of the vehicle, a six-pack of unopened beer, and a bottle of Buchanan's whisky on the front passenger side floorboard. Appellant did not present any evidence at the trial.

After objectively reviewing all of the evidence presented in this case, and applying the appropriate standard of review, we conclude the evidence is factually sufficient to support the verdict of guilt. See Watson, 204 S.W.3d at 415. Appellant's final issue is overruled.

IV. Conclusion

Accordingly, we affirm the judgment of the trial court.

 

ROGELIO VALDEZ

Chief Justice

 

Do not publish.

Tex. R. App. P. 47.2(b).

 

Memorandum Opinion delivered and filed

this the 28th day of August, 2007.

1. As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to explain the Court's decision and the basic reasons for it. See tex. R. App. P. 47.4

2. During voir dire, the trial judge discussed with the jury a defendant's right not to testify. She explained that appellant has the right to remain silent and that he cannot be convicted "for the sole reason that he did not testify." The trial judge further added, that when the jury deliberates, "[they] cannot mention that [appellant] must be hiding something, he must be guilty, otherwise, he would have testified." Finally, the trial court mentioned that appellant also has the right to testify and "give [the jury] his version of the facts of that day." Appellant argues that these comments cannot be justified as fair and impartial.