Fierro v. State
| Decision Date | 09 April 1998 |
| Docket Number | No. 03-96-00637-CR,03-96-00637-CR |
| Citation | 969 S.W.2d 51 |
| Parties | Harvey Galan FIERRO, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Richard J. Segura Jr., Law Office of Richard J. Segura Jr., Austin, for Appellant.
Ken Oden, County Attorney, Giselle Horton, Assistant County Attorney, Austin, for State.
Before YEAKEL, C.J., and KIDD and DAVIS, *JJ.
A jury convicted Harvey Galan Fierro of driving while intoxicated. See Tex. Penal Code Ann. § 49.04 (West 1994 & Supp.1998). He elected to have the trial court assess his punishment. The trial court sentenced him to a $1000 fine and confinement in the county jail for a period of ninety days, but probated
the confinement and $700 of the fine for two years. Fierro appeals his conviction by two points of error, complaining of the trial court's admission of a videotape taken shortly after Fierro's arrest and in granting the State's challenge for cause of a prospective juror. We will affirm the conviction.
In the predawn hours of March 21, 1994, a deputy sheriff observed Harvey Galan Fierro driving his vehicle over the speed limit and weaving in and out of his lane of traffic. The deputy stopped Fierro and observed that Fierro exhibited characteristics typical of an intoxicated person. The deputy arrested Fierro and transported him to the City of Austin police station.
At the station, the deputy asked Fierro to give a breath specimen. Fierro refused. Fierro also refused to perform sobriety tests, stating he wished to speak to an attorney and did not want to make any statements without one. After Fierro made this statement, the deputy asked Fierro if he wished to waive his rights and make a statement. Fierro refused to respond. These communications, which occurred over an approximately twenty-minute period, were videotaped.
The State charged Fierro by information with the offense of driving while intoxicated. Fierro filed a general motion to suppress evidence, which included the videotape recorded at the station. Fierro argued the trial court should suppress the tape because it revealed his repeated invocation of his right to counsel, and because the deputy did not honor Fierro's election to remain silent after he unequivocally invoked his right to counsel. The record reveals that the trial court held three pretrial hearings on the motion regarding the admissibility of the tape. No signed order appears in the clerk's record. However, the docket sheet, signed by the judge, indicates that the trial court suppressed the audio portion of the tape. It also indicates the State agreed to this order. Furthermore, the reporter's record reveals that the trial court suppressed the audio portion at a pretrial hearing and that the State agreed.
At trial, Fierro again objected to the trial court's refusal to suppress the video portion of the tape. Fierro further argued that showing the tape with no audio would prejudice him more than simply showing the entire tape with audio. Fierro contended the trial court should either suppress the entire tape or admit the entire tape, but not admit the video portion without audio. He argued that if (and only if) the court persisted in its decision to admit the video portion of the tape, the court should admit the audio as well. The court then stated its decision to admit the entire tape, audio included.
The State proceeded to present its case and indicated its intent to play the tape before the jury. At that time, Fierro stated he had "no objection" to the admission of the tape. However, immediately after this statement, the court removed the jury from the courtroom and acknowledged Fierro's intent to "put something on the record." Both Fierro and the court then alluded to the prior discussion about the admissibility of the tape. Following this discussion, the court allowed the State to play the tape, both audio and video, before the jury.
After hearing the State's entire case, the jury convicted Fierro of driving while intoxicated. See Tex. Penal Code Ann. § 49.04. Fierro appeals by two points of error. He contends the trial court erred in refusing to suppress the entire tape, including both audio and video portions. He also contends the trial court erred in dismissing a prospective juror upon the State's challenge for cause.
Audio tape evidence of a defendant invoking his right to counsel is not admissible as evidence of guilt of driving while intoxicated. Hardie v. State, 807 S.W.2d 319, 322 (Tex.Crim.App.1991) (citing Miffleton v. State, 728 S.W.2d 880, 884 (Tex.App.--Austin 1987), aff'd, 777 S.W.2d 76 (Tex.Crim.App.1989)). The audio portion of the tape reveals: (1) Fierro repeatedly stating his desire to remain silent until he speaks with an attorney and (2) the officer subsequently asking Fierro questions designed to elicit incriminating The crux of Fierro's argument, then, is that the trial court erred in refusing to suppress the video portion of the tape. The State proffers several arguments suggesting that Fierro did not preserve this issue for our review.
testimonial statements. For instance, the officer asked Fierro if he had been drinking alcoholic beverages, what kind, and how many. Fierro refused to answer these questions. Presumably for these reasons, the trial court granted Fierro's motion to suppress the entire audio portion of the tape. Fierro does not quarrel with the trial court's decision to suppress the audio portion. He did, however, conditionally waive his objection to the admissibility of the audio portion once it became apparent that the trial court intended to admit the video portion of the tape. He argues that the trial court's allegedly erroneous decision to admit the video portion compelled him to agree to admission of the audio portion as well.
First, the State argues Fierro limited his original motion to suppress the audio portion of the tape. We disagree. Fierro filed a general motion to suppress evidence that included, among many other things, the entire tape. His argument at the pretrial hearings on the motion suggested his main objection to admitting the tape concerned the audio portion. However, he maintained his objection to the admissibility of the video portion through the final pretrial hearing on his motion to suppress.
Second, the State contends Fierro failed to obtain a ruling on his pretrial motion. The docket entry, signed by the judge, and the reporter's record of the final hearing on the motion reveal the trial court ruled on the motion. See Tex.R.App. P. 33.1(c) (formerly Rule 53); Flores v. State, 888 S.W.2d 193, 195 (Tex.App.--Houston [1st Dist.] 1994, pet. ref'd) (); cf. Haley v. State, 811 S.W.2d 600, 602 (Tex.Crim.App.1991) (). In any event, early in the trial Fierro clearly articulated his objection to admitting the video without audio, and the court then alluded to and reiterated its prior ruling on the pretrial motion.
Third, the State contends Fierro waived his objection later at trial by affirmatively stating he had "no objection" to the admission of the tape. When a court overrules a pretrial motion to suppress evidence, the defendant need not subsequently object to the admission of the same evidence at trial to preserve error. E.g., Harris v. State, 656 S.W.2d 481, 485 (Tex.Crim.App.1983). However, the defendant waives his pretrial objection if he affirmatively asserts at trial that he has no objection to the admission of the evidence. Id.
The State acknowledged at oral argument that the trial court apparently believed that Fierro had preserved his complaint for our review. Moreover, the State misconstrues the events that occurred at trial. Fierro did not simply say "no objection" when the State presented the tape. It is apparent from the record that immediately after Fierro stated he had "no objection," or contemporaneously with his statement, he did something to indicate he really did have an objection. After Fierro uttered the words "no objection, Your Honor," the trial court sent the jury out of the courtroom and acknowledged that Fierro "wanted to put something on the record." Fierro then alluded to his previous objection and indicated his intent "to preserve error." He made these statements before the tape was played to the jury, immediately after the State presented the videotape for admission in evidence. Taking Fierro's statements in the context of the entire record, we conclude Fierro did not waive the alleged error by initially uttering in the presence of the jury that he had "no objection" to the admissibility of the videotape.
We conclude that Fierro preserved his objection to the admission of the video portion of the tape. Fierro believed that the trial court had committed error in denying his efforts to suppress the introduction of the videotape in its entirety. He was not "required to stand on his objection, to his prejudice, and hope that the trial court's [perceived] Next, the State contends Fierro failed to present a sufficient record for this Court to review the merits of his claim. The State directs our attention to two portions of the reporter's record that reveal the tape was stopped twice while the State presented it to the jury. The State suggests we conclude that some portions of the tape were not played to the jury, and that Fierro cannot establish harm because he cannot establish exactly which portions of the tape the jury viewed.
error was reversible on appeal." Sontag v. State, 841 S.W.2d 889, 892 (Tex.App.--Corpus Christi 1992, pet. ref'd).
We infer from the record that the jury considered the entire tape. The relevant portion of the reporter's record reads as follows:
[BY THE...
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