Jerry Glenn Walker v. The State of Texas--Appeal from 114th District Court of Smith County

NO. 12-04-00271-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JERRY GLENN WALKER, APPEAL FROM THE 114TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Jerry Glenn Walker appeals his conviction for boating while intoxicated, for which he was sentenced to imprisonment for nine years and fined five thousand dollars. Appellant raises two issues on appeal. We affirm.

Background

Appellant was boating on Lake Palestine when he was stopped by Texas Department of Parks and Wildlife Senior Warden Larry Hand and Warden Joe Carter. Hand proceeded to perform a water safety inspection, during which he verified that there were sufficient approved floatation devices on board, that a fire extinguisher was on board and in working order, and that there was a registration card for the boat on board. During the inspection, Hand boarded Walker s boat and inspected Walker for signs of intoxication. One of the officers asked if Walker had been drinking, to which Walker responded that he had consumed some champagne. Hand then asked for permission to open an ice chest located in the boat. When Hand opened the ice chest, he found an open, half-full champagne bottle. Thereafter, Hand conducted a series of exercises to discern whether Walker might be under the influence of alcohol. Hand and Carter then took Walker ashore and conducted further field sobriety tests. Ultimately, Hand arrested Walker for investigation of boating while intoxicated.

Walker was subsequently indicted for boating while intoxicated. Hand testified on the State s behalf at trial. During the State s direct examination of Walker, the following exchange occurred with regard to the one of the exercises conducted by Hand:

Q. You said you were looking for particular things. How many total clues are you looking for in the horizontal gaze nystagmus test?

A. The horizontal gaze nystagmus has a total of three clues in each eye, and I observed six clues.

Q. So you saw all six clues?

A. Yes, ma am.

Q. How many clues, according to your training and experience, do you need to have as an indicator of alcohol?

A. At least four clues indicates possible presence of alcohol above a .08 level.

[APPELLANT S COUNSEL]: I m going to object, Your Honor, to that insertion to the comparison.

THE COURT: The court sustains the objection.

Q. Yes, ma am. Six clues four clues is four clues indicates a possible intoxication?

A. Four clues indicates possible intoxication.

[APPELLANT S COUNSEL]: I m going to object to that, Your Honor. If I might take the witness on [voir dire].

During the ensuing voir dire examination, Hand testified that the horizontal gaze nystagmus (HGN) test is not designed to determine the level of intoxication, but rather indicates whether there is some kind of depressant or intoxicant in the system. The trial court ruled that Hand could not use the HGN test to establish a specific blood-alcohol level, but could express that the results of the HGN test indicate his opinion of intoxication. Thereafter, the following exchange occurred:

[APPELLANT S COUNSEL]: We would ask that the Court instruct the jury, since this .08 has come up to the jury .

THE COURT: I m not going to instruct the jury. I ve sustained your objection when he expressed a .08. The last question they were asking him doesn t have to do with the .08.

So as long as you focus yourself and the State focuses itself within the guidelines of the case law, ask a specific question that is admissible under Texas law, and I ll let him answer it.

[APPELLANT S COUNSEL]: We would ask that the Court instruct the State s witnesses not to refer to a blood alcohol level to their test.

THE COURT: I m going to grant an in limine with respect to that, and the State is not to have any of their witnesses correlate a blood alcohol level to any of the HGN test.

The jury returned to the courtroom and the State continued its examination of Hand, in pertinent part, as follows:

Q. And by observing clues in this case you observed all six clues. Did you have an opinion as to whether or not the defendant was intoxicated in this case based on that HGN?

A. Based on what I observed and my experience, I believe that the individual was intoxicated.

Following the close of evidence and jury argument, the jury assessed Appellant s punishment at imprisonment for nine years and a five thousand dollar fine. The trial court sentenced Appellant accordingly, and this appeal followed.

Admissibility of Evidence

In his first issue, Appellant argues that the trial court erred in not instructing the jury to disregard Hand s testimony that the HGN test results for Appellant indicated a blood-alcohol level above 0.08.[1] The preferred method to raise a complaint to the trial court is for a party to (1) make a timely objection, (2) request an instruction from the court to have the jury disregard the objectionable testimony, and (3) move for a mistrial if an instruction to disregard is not sufficient to cure the error. See Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004). However, the essential requirement is a timely, specific request that the trial court refuses. Id.

A timely objection is one that is made at the earliest possible opportunity, as soon as the grounds for the objection become apparent. See Polk v. State, 729 S.W.2d 749, 753 (Tex. Crim. App. 1987); Montelongo v. State, 681 S.W.2d 47, 57 (Tex. Crim. App. 1984). A timely objection enables the judge to insulate the jury from any tainted or improper evidence or, at least, permits the judge to cure quickly whatever taint might have occurred. See Polk, 729 S.W.2d at 753. Requests for instructions to disregard must also be timely made. See, e.g., Moore v. State, 999 S.W.2d 385, 403 (Tex. Crim. App. 1999) (request for instruction to disregard witness statement made at the end of testimony not timely); Cunningham v. State, 848 S.W.2d 898, 905 (Tex. App. Corpus Christi 1993, pet. ref d).

In Cunningham, the prosecutor misstated its burden of proof during jury argument. See Cunningham, 848 S.W.2d at 904. The defendant objected, and the trial court sustained the defendant s objection. Id. At the conclusion of the prosecutor s argument, a bench conference was held, during which the defendant requested that the court instruct the jury to disregard the prosecutor s objectionable statement. Id. at 904 05. The trial court declined to so instruct the jury. Id. at 905. The court of appeals held that although the defendant timely objected, his request for an instruction to disregard was not timely. Id.

In the case at hand, Appellant objected to Hand s statement that [a]t least four clues indicates possible presence of alcohol above a .08 level. The trial court sustained Appellant s objection. See Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994).[2] The State then asked Hand whether four clues indicates possible intoxication, at which point, Appellant sought to conduct a voir dire examination of Hand. At the conclusion of the voir dire examination, the trial court ruled that Hand could not use the HGN test to establish a specific blood-alcohol level, but could express that the results of the HGN test indicate his opinion of intoxication. At this point, Appellant sought to have the trial court instruct the jury in light of the fact that Hand had referenced a specific blood-alcohol level. However, the trial court interrupted Appellant, stating that the last question the State posed had nothing to do with the specific blood-alcohol level.

Appellant was required to make his request for an instruction to disregard at the earliest possible opportunity as soon as the grounds therefor had become apparent. See Polk, 729 S.W.2d at 753; Montelongo, 681 S.W.2d at 57; see also Moore v. State, 999 S.W.2d at 403; Cunningham v. State, 848 S.W.2d at 905. The grounds for Appellant s request for an instruction to disregard were apparent at the time the trial court sustained his objection to Hand s testimony regarding the correlation of the HGN test with blood-alcohol level. By the time Appellant made his request for an instruction to disregard, the State had asked another question, which Hand had answered, and to which Appellant had lodged an objection and conducted a voir dire examination of Hand. We hold that Appellant s request was not timely. Therefore, Appellant failed to preserve error. See Tex. R. App. P. 33.1(a). Appellant s first issue is overruled.

Prosecutorial Misconduct

In his second issue, Appellant contends as follows:

When prosecutors deliberately and intentionally commit repeated violations of Court orders during a trial with seeming impunity, when they self-testify about alleged facts never before presented to a jury, and when they blatantly and improperly lead their own friendly witnesses during trial, at what point does irreversible error toward a defendant finally occur?

Appellant next concedes that he did not object to every instance in which prosecutors asked blatantly leading questions of their own friendly witnesses. However, Appellant argues that error was preserved because he did object several times during the course of the trial, and the trial judge almost always sustained [his] objections. Appellant further notes that the trial court neither struck nor instructed the jury to disregard the objectionable testimony.

We have reviewed the record in accordance with the citations provided by Appellant in support of his second issue. In no instance where the trial court sustained his objection did Appellant make a motion to strike the objectionable testimony or request that the court instruct the jury to disregard the same. Appellant cites Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) for the proposition that the trial court undoubtedly had a duty to order the jury to disregard what it had heard. Yet, Ovalle does not place any such duty on a trial court absent a motion or request on the part of the objecting party. Id. Appellant has not raised any cogent argument concerning any objections overruled by the trial court. We hold that Appellant failed to preserve error. See Tex. R. App. P. 33.1(a). Appellant s second issue is overruled.

Disposition

Having overruled Appellant s issues one and two, we affirm the trial court s judgment.

SAM GRIFFITH

Justice

Opinion delivered November 16, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)

[1] We have construed Appellant s first issue liberally in the interest of justice. Appellant s verbatim statement of issue one is as follows:

Did reversible error occur at trial when the State impermissibly encouraged or otherwise permitted a law enforcement officer to testify before a jury that Horizontal Gaze Nystagmus (HGN) test results of the Appellant specifically indicated the possible presence of alcohol above a .08 level?

[2] In Emerson, the court held that a witness may not use the HGN evidence to quantify the defendant s blood-alcohol level. Id. However, the court noted that HGN test results are admissible as evidence that the defendant was under the influence of alcohol so long as such evidence is not correlated to a precise blood-alcohol level. Id.