Freeman v. State

• Decision Date: 24 September 2013
• Docket Number: No. 14–12–00077–CR.,14–12–00077–CR.
• Citation: 413 S.W.3d 198
• Parties: Clyde James FREEMAN, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

413 S.W.3d 198

Clyde James FREEMAN, Appellant

v.The STATE of Texas, Appellee.

No. 14–12–00077–CR.

Court of Appeals of Texas, Houston (14th Dist.).

Sept. 24, 2013.

Michael T. Griffin, Conroe, for Appellant.

Jason Larman, Conroe, for Appellee.

Panel consists of Justices BROWN, CHRISTOPHER, and McCALLY.

OPINION

SHARON McCALLY, Justice.

A jury convicted appellant of felony driving while intoxicated (DWI), and the trial court assessed punishment at forty years' confinement. Appellant challenges his conviction in five issues, contending that the trial court erred by (1) releasing a defense witness from his subpoena; (2) denying appellant's request for a jury instruction on misdemeanor DWI; (3) failing to properly charge the jury on prior DWI convictions with a limiting instruction; (4) improperly commenting on appellant's guilt in the jury charge; and (5) denying appellant's motion to suppress the results of a breath test. We affirm.

I. Background

Courtney Philpott testified that she was working at a diner in Magnolia on September 19, 2009, when appellant entered the diner and placed a to-go order. She testified that appellant was being loud and smelled of alcohol. He told her, “I've been drinking all day. I'm probably drunk.” While appellant sat in his vehicle and waited for his order, Philpott saw him drinking from a glass alcohol bottle. She knew he was drunk. After appellant left, and with the encouragement of other customers in the diner, she called the police to report the possibly intoxicated driver.

Corporal Jose Lopez of the Magnolia Police Department testified that on September 19, 2009, he was in his patrol vehicle when he received a call over the radio of a person that was intoxicated at a diner. Around the time he heard the call on the radio, he observed appellant's car several vehicles in front of him swerve and have trouble maintaining a lane. Appellant was driving partially in the center turn lane that separated the northbound and southbound lanes of Magnolia Boulevard. When Lopez activated the lights and sirens on his patrol vehicle, appellant made a right turn without signaling, almost causing an accident with the vehicle behind him. Appellant turned into the parking lot of a convenience store, and he parked a little bit sideways, taking up two parking spaces.

By the time Lopez stopped his vehicle beside appellant's car, another officer had entered the convenience store to retrieve appellant. The officers brought appellant outside. Lopez noticed a very strong odor of alcohol emanating from appellant; appellant's speech was slurred; and he had significant trouble maintaining his balance. Lopez conducted an HGN test to check if appellant's eyes would “track properly.” Appellant's eyes did not track properly, which indicated to Lopez that appellant was possibly impaired. Thus, Lopez administered two standardized field sobriety tests—the “walk and turn” and “one-legged stand.” On the first test, Lopez observed seven clues of intoxication; on the second, Lopez observed three. On each test, two positive clues indicate intoxication.

Appellant was arrested, and Lopez informed appellant of his Miranda rights. While inventorying the vehicle, the officers found a glass bottle containing a liquid that smelled like alcohol. Appellant said it was vodka.

Lopez asked appellant whether he would give a breath or blood sample, and appellant said, “Fuck you.” Lopez understood that response to be a refusal to a breath test. Lopez said, “You know we're going to take blood from you,” and appellant told him to take it. Lopez testified that he did not read to appellant the “DIC–24” statutory warnings at the scene,¹ but he did read the warnings after transporting appellant to jail. Lopez again asked appellant if he would take a breath test, and appellant consented. Glenn Merkork, a forensic scientist, testified that appellant blew 0.225 on the intoxilyzer, which was between two and three times the per se definition of intoxication of 0.08.

Mark Wright testified that he was a latent print examiner with the Montgomery County Sheriff's Office. He compared appellant's fingerprint with unknown fingerprints in State's Exhibit 7, which included two judgments of conviction for driving while intoxicated. He testified that appellant's known print matched the two ink prints in Exhibit 7.

The jury found appellant guilty of felony driving while intoxicated, which required proof that appellant had been previously convicted twice of any offenses related to the operation of a motor vehicle while intoxicated. SeeTex. Penal Code Ann. §§ 49.04; 49.09(b)(2). The court sentenced appellant to forty years' confinement, and this appeal followed.

II. Sixth Amendment Claims

In his first issue, appellant contends that the court violated appellant's Sixth Amendment rights to compulsory process, confrontation, and cross-examination when the court released a defense witness over objection. The State contends that the witness's testimony was inadmissible under Rule 608 of the Texas Rules of Evidence, and appellant replies that the evidence was admissible under Rule 613.

A. Background

On the first day of witness testimony, Corporal Lopez testified in front of the jury about the facts of appellant's case until reaching the testimony concerning appellant's breath test. At that point, the trial court held a suppression hearing outside the jury's presence. During cross-examination in that hearing, Lopez responded “no” to whether he “ever had any problems with [his] own agency as far as being truthful with them.” Appellant's counsel indicated he had a witness who would contradict Lopez's answer. Appellant then called Sergeant Greg Valdez, Lopez's superior, and asked whether there had been prior incidents “where you made determinations that [Lopez] was not truthful.”Valdez testified there was “one incident that he was wrote up,” where Valdez believed Lopez was untruthful to him.² But Valdez also testified that there was never any finding that Lopez lied; the matter was neither referred for disciplinary action nor investigated; and it was dismissed.

At the end of the first day of trial, the court told Lopez and Valdez that they would be on call the following day, but Valdez told the court that he had nonrefundable airplane tickets to go on vacation that night. The court said it was inclined to release Valdez, and trial counsel said, “I would just have to object.” The court said it did not anticipate Valdez's testimony about Lopez being admissible, stating that the incident was “far afield and not related to this offense.” Nonetheless, the court suggested appellant could introduce the records of the incident even though they were hearsay, and the State said there was no problem with that. The court suggested further that another witness on the key incident could come in, or “we can read back his testimony.” The court released Valdez, noting that “[i]f it becomes an issue, then the State can call you back.”

The court also explained that if appellant wanted to attack Lopez's credibility with Valdez's testimony, the court would reverse its position and allow the State to elicit testimony concerning Lopez's prior arrest of appellant for DWI. Thus, during appellant's cross-examination of Lopez in front of the jury on the following day, appellant did not ask Lopez about the “untruthful” incident nor offer any evidence about that incident. On the third and final day of trial, after both sides had rested, appellant wanted to “make a record with a bill” concerning Valdez. Appellant contended that releasing Valdez violated the Compulsory Process Clause of the Sixth Amendment. Appellant did not mention the Confrontation Clause or Rule 613 of the Texas Rules of Evidence.

B. Preservation of Error

“Rule 33.1 of the Texas Rules of Appellate Procedure provides that an objection must be timely and sufficiently specific to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” Berry v. State, 233 S.W.3d 847, 857 (Tex.Crim.App.2007); seeTex.R.App. P. 33.1. “This rule ensures that trial courts are provided an opportunity to correct their mistakes at the most convenient and appropriate time—when the mistakes are alleged to have been made.” Hull v. State, 67 S.W.3d 215, 217 (Tex.Crim.App.2002). A defendant must let the trial court know what he wants and why he thinks himself entitled to it. See, e.g., Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992).

At no time during trial did appellant mention Rule of Evidence 613 or the Confrontation Clause or any words that would apprise the trial court of those bases for appellant's objection. Those contentions are not apparent from the context. Thus, appellant's general objection and bill did not preserve error for these appellate complaints. See Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App.2005) (objection that evidence should have been admitted for “credibility” did not preserve complaint based on the Confrontation Clause); Dixon v. State, 2 S.W.3d 263, 273 (Tex.Crim.App.1998) (objection that “only ‘final felony convictions may be used to impeach testimony’ ” did not preserve error under Rule of Evidence 613 concerning impeachment based on bias or motive); Shedden v. State, 268 S.W.3d 717, 735 (Tex.App.-Corpus Christi 2008, pet. ref'd) (motion to suppress urging a violation of the “right to confront the witnesses against them” did not preserve complaint based on Compulsory Process Clause).

Assuming without deciding that appellant's compulsory process complaint was apparent from the context at the time the court released Valdez,³ we will address the merits of that complaint.

C. Compulsory Process

“We review complaints concerning limitations on the right to compulsory process under an abuse-of-discretion standard.” Lawal v. State, 368 S.W.3d 876, 886 (Tex.App.-Houston [14th Dist.] 2012, no pet.) (citing Drew v. State, 743 S.W.2d 207, 225 n. 11 (Tex.Crim.App.1987))...