Brewer v. State
| Decision Date | 21 February 2014 |
| Docket Number | NO. 03-10-00076-CR,03-10-00076-CR |
| Parties | Sean Christopher Brewer, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
ON REMAND
FROM THE COUNTY COURT AT LAW NO. 7 OF TRAVIS COUNTY
NO. C-1-CR-08-223109, HONORABLE ELISABETH ASHLEA EARLE, JUDGE PRESIDING
A jury found appellant Sean Christopher Brewer guilty of misdemeanor driving while intoxicated, and the trial court assessed his punishment at one year's confinement in the county jail, suspending imposition of that sentence and placing him on community supervision for two years. See Tex. Penal Code § 49.04(a); Tex. Code Crim. Proc. art. 42.12, §§ 3, 13.
On original submission, we reversed the trial court's judgment of conviction and remanded the case for a new trial. In addressing appellant's first five points of error complaining that the trial court commented on appellant's right not to testify, a majority of the panel concluded that the trial court violated appellant's privilege against self-incrimination by directly commenting on appellant's failure to testify and, further, committed reversible error by denying appellant's request for an instruction to the jury to disregard the comment. See Brewer v. State, No. 03-10-00076-CR, 2011 WL 3890365, at *4-6 (Tex. App.—Austin Aug. 31, 2011) (). On further appeal by the State, the court of criminal appeals concluded that appellant's complaint concerning the trial court's comment on his failure to testify had not been properly preserved for appellate review. See Brewer v. State, 367 S.W.3d 251, 253 (Tex. Crim. App. 2012). The court reversed our judgment and remanded the case for consideration of appellant's remaining claims of error. Id. On remand, we will affirm the judgment of conviction.
BACKGROUND
Sometime between two and two-thirty in the morning on December 14, 2008, appellant rear-ended Kyle Blackburn's vehicle while Blackburn was stopped at a red light at the intersection of 12th Street and Rio Grande Street in Austin. The accident caused Blackburn's car to hit the vehicle immediately in front of her, also stopped at the red light. Blackburn testified that the collision caused both front air bags to deploy and "totaled" her car. Both Blackburn and her passenger, William Worthy, testified that they were hit "without any warning" and did not hear any "screeching" of brakes. Officer Michael Ridge, who investigated the accident, testified that he did not notice any skid marks or other indications that appellant applied his brakes before the collision.
Immediately after the collision, Blackburn called 911 and exited her car to make sure the occupants of the other cars were uninjured. Blackburn testified that appellant remained in his car with the engine running until the police arrived and that he did not talk to anyone or answer anyone's questions. Worthy testified that prior to the arrival of the police, appellant and his passenger, Clay Powers, were "fumbling around with something" and that Powers, carrying a bag, exited appellant's vehicle, walked behind a nearby building, and returned to the car without the bag. A backpack containing marijuana was later recovered by police from behind the building. Powers admitted that the backpack and its contents were his. Police also found a plastic bag containing atrace of white powder believed to be cocaine residue in Powers's pocket during a search incident to his arrest for possession of marijuana.
After arriving at the scene, Officer Ridge spoke with all the parties involved in the collision and collected insurance information. The officer observed that appellant's balance was "a little off" when retrieving his insurance documents and that he had to use the car's door to assist him. Ridge testified that appellant exhibited signs of intoxication, including an odor of alcohol, watery, glassy eyes, slightly slurred speech, and a "confused" story regarding the events of the evening. Ridge also testified that appellant, who was employed as a chef, told Ridge that he had taken a nap at 7:00 p.m., began drinking at his house two hours after his nap, and continued drinking on 6th Street. Appellant refused to participate in any field-sobriety tests, although he did attempt to stand as instructed while the officer explained the walk-and-turn test before reiterating his refusal after he stepped off the line while trying to place one foot in front of the other. Appellant was arrested for driving while intoxicated. He refused to provide a breath or blood sample.
A jury trial was held in which Blackburn, Worthy, and Ridge testified for the State. The State also introduced a video recording of the investigation from Officer Ridge's dashboard camera, depicting appellant's interaction with Ridge and refusal of the field-sobriety tests.
Powers then testified for the defense, stating that appellant was unaware that Powers possessed the drugs recovered from his backpack after the accident. Appellant also called his stepfather, Michael Kovich, as a witness. Appellant expected Kovich to testify that appellant's behavior and mannerisms as depicted on the video recording were consistent with appellant's everyday demeanor and did not indicate intoxication. The State objected to Kovich's testimony onrelevance grounds, and the trial court sustained the objection. After making an offer of proof of Kovich's testimony, the defense rested. The State offered no rebuttal evidence.
During the State's closing jury argument, the prosecutor argued that the defendant had been "hiding" throughout the case. Appellant objected, claiming that the statement was an improper comment on his failure to testify. The trial court overruled the objection. After more than five hours of deliberation and a supplemental charge from the court,1 the jury found appellant guilty of driving while intoxicated.
Appellant elected to have the trial court assess his punishment. The court sentenced appellant to one year in the county jail, suspended imposition of the sentence, and placed him on community supervision for two years. In addition, the court assessed a $4,000 fine, of which $3,000 was suspended. Appellant moved for a new trial, arguing, among other things, that the presiding judge lacked the proper certification as a visiting judge and that Kovich's testimony should have been admitted as expert testimony. The trial court denied appellant's motion for new trial, and appellant brought this appeal.
DISCUSSION
In the remaining points of error not addressed in our prior opinion, appellant complains about improper jury argument by the prosecutor, the exclusion of his stepfather'stestimony, the admission of evidence of the passenger's drug possession, and the denial of his motion for new trial.
Jury Argument
During closing argument of the guilt-innocence phase, the prosecutor argued that appellant was "hiding." Appellant objected, complaining that the prosecutor was commenting on his choice not to testify. In response, the prosecutor explained that she was referring to appellant's conduct on the dash-cam video. Appellant then asked the court for "a limiting instruction." The trial court overruled the objection and denied appellant's request that the jury be instructed to disregard the prosecutor's comment.2
According to appellant, the prosecutor's argument that he was "hiding" was an impermissible reference to the fact that he did not testify at trial, thereby violating his privilege against self-incrimination. In points of error seven, eight, and nine, appellant argues that the trial court erred in overruling his objection.3 In his tenth point of error, he complains about the court's refusal to instruct the jury to disregard the comment.
Standard of Review
We review a trial court's ruling on an objection to improper jury argument for an abuse of discretion. Nzewi v. State, 359 S.W.3d 829, 841 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd); see Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010) (). A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990); see also McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005) ().
Objection to Prosecutor's Comment
The law provides for, and presumes, a fair trial free from improper argument by the State. Ex parte Lane, 303 S.W.3d 702, 712 (Tex. Crim. App. 2009) (citing Long v. State,823 S.W.2d 259, 267 (Tex. Crim. App. 1991)). Proper jury argument must generally fall within one of four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) responses to argument of opposing counsel; and (4) pleas for law enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011); Jimenez v. State, 240 S.W.3d 384, 407 (Tex. App.—Austin 2007, pet. ref'd). The fact that a defendant did not testify does not fall into any of these categories and may not be the subject of comment by the prosecution. Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001).
A comment on a defendant's failure to testify violates both the state and federal constitutions as well as Texas statutory law. Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011); see U.S. Const. amend. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. art. 38.08; see also Griffin v. California, 380 U.S. 609, 615 (1965). However, the implication that the State's comment referred to the defendant's failure to testify must be a clear and necessary one. Randolph, 353 S.W.3d at 891; Bustamante, 48 S.W.3d at 767. If the language might...
To continue reading
Request your trial