Hawkins v. State

• Decision Date: 11 March 1998
• Docket Number: No. 09-96-180,09-96-180
• Citation: 964 S.W.2d 767
• Parties: Richard Lawrence HAWKINS, Appellant, v. The STATE of Texas, Appellee. CR.
• Court: Texas Court of Appeals

Page 767

964 S.W.2d 767

Richard Lawrence HAWKINS, Appellant, v. The STATE of Texas, Appellee.

No. 09-96-180 CR.

Court of Appeals of Texas,

Beaumont.

Submitted Jan. 8, 1998.

Decided March 11, 1998.

Bevil B. Wright, Wright & Wright, Silsbee, for appellant.

James A. Clark, Crim. Dist. Atty., Inez Knight, Asst. Crim. Dist. Atty., Woodville, Erik E. Cary, Special Asst. Crim. Dist. Atty., Austin, for state.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

WALKER, Chief Justice.

Richard Lawrence Hawkins appeals his conviction for driving while intoxicated. After the completion of a jury trial, the trial court assessed punishment at 72 hours' confinement in the Tyler County Jail and a $1400 fine. The court suspended the sentence and placed Hawkins on community supervision for 2 years. Hawkins raises three points of error on appeal.

Point of error one contends: "The trial court erred in not granting defendant's motion for an instructed verdict and [sic] after the state had rested its case in chief." A point of error regarding the failure to grant a motion for instructed verdict is normally a challenge to the legal sufficiency of the evidence to sustain the conviction. Cook v. State, 858 S.W.2d 467, 470 (Tex.Crim.App.1993). In this instance, however, Hawkins is complaining not of the legal sufficiency of the evidence used to convict him, but of the State's failure to secure a blood or urine specimen to determine Hawkins' alcohol concentration as requested by Hawkins while he was detained at the Tyler County Jail.

The facts of this case are, to say the least, egregious. Grahme Jones, a game warden, observed Hawkins driving into Martin Dies Park at 1:00 a.m., administered field sobriety tests which indicated Hawkins was intoxicated, and called in Ty Nowlin of the Tyler County Sheriff's office. The officers arrested Hawkins and brought him to the county jail, where they met Department of Public Safety troopers Bobby Risch and Denman Dunkin. Hawkins agreed to take a breath test, but the officers could not make the intoxylizer work. Hawkins testified he asked for a blood test, and none of the officers denied it. The officers did not take Hawkins to the hospital for a blood test. Hawkins testified the officers stated "It was too late to go across to the hospital." The officers did not seem to recall Hawkins's request for a blood test, although Jones paradoxically testified a blood test was not performed because Hawkins was belligerent. Since no scientific tests of any kind were performed, Hawkins had no objective evidence with which to refute the officers' opinions regarding his inebriated state.

On appeal, Hawkins argues his federal and state rights to due process were violated by the officers' failure to act upon his request for a blood test. U.S. CONST. amend. XIV; TEX. CONST. art. I, § 19. Although he invokes both state and federal constitutions, Hawkins confines his argument and authorities to the Due Process Clause of the United States Constitution. Therefore, we will limit our analysis to the federal constitution. Hawkins argues he is entitled to acquittal under Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) (bad faith failure to preserve potentially useful evidence), California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (failure to preserve exculpatory evidence), and United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982)(denial of access to favorable material evidence), because the law enforcement officers acted in bad faith in not permitting Hawkins to give a blood sample.

Hawkins argued to the jury that the absence of a blood test or other scientific measure of intoxication cast reasonable doubt upon the officers' credibility, but at no time in the course of the proceedings before the trial court did he seek any relief from the trial court for the due process violation arising from the officers' refusal to take Hawkins to the hospital for a blood test. No motion to suppress the State's evidence appears in the record, nor did he move to dismiss the indictment, or object to the officers' testimony, file a pre-trial writ of habeas corpus, or include his due process claim as a ground in his motion for new trial. The officers' testimony suffice as proof of intoxication for purposes of establishing the legal sufficiency of the evidence, and Hawkins did not present his due process claim as an independent ground for instructing a verdict of acquittal. In fact, defense counsel noted in her argument to the jury: "It is my opinion that you shouldn't convict just on evidence of a police officer, but you should be able to have the opportunity to give samples of your breath or your blood or urine .... [but t]hat is not the law of the State of Texas." Hawkins did not present his claim to the trial court; therefore, we must determine whether he waived error.

As a prerequisite to presenting a complaint for review, the record must demonstrate the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; the record must further show the trial court either ruled or refused to rule over the complaining party's objection. TEX.R.APP. P. 33.1(a). In this case, the trial court would have been aware of the circumstances which give rise to the claim, but not that Hawkins sought any relief from the trial court for the violation of his constitutional rights.

It has long been the rule that constitutional errors may be waived or forfeited by the failure to make a timely and specific assertion of the right. Boulware v. State, 542 S.W.2d 677 (Tex.Crim.App.1976). More recently, the Court of Criminal Appeals recognized an accused possesses three distinct types of rights with regard to waiver: (1) absolute systemic rights which cannot be waived under any circumstances; (2) automatically implemented but waivable rights which require express waiver; and (3) forfeitable rights implemented only upon request by the litigants, which are otherwise waived. Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App.1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997). See also Ex parte McJunkins, 954 S.W.2d 39, 40 (Tex.Crim.App.1997).

Most constitutional claims cannot be raised on direct appeal unless they were timely presented to the trial court. Over the years, virtually every conceivable error of constitutional dimension has been held to be subject to procedural default. Among cases holding particular constitutional rights have been forfeited by non-assertion, we find: Gray v. Netherland, 518 U.S. 152, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) (due process-notice of intent to use evidence); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976) (grand jury composition); Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (trial in prison garb); Hatch v. State, 958 S.W.2d 813 (Tex.Crim.App.1997) (trial by jury of 12); Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1442, 137 L.Ed.2d 548 (1997) (jury argument); Jenkins v. State, 912 S.W.2d 793, 815 (Tex.Crim.App.1993) (confrontation)(opinion on reh'g); Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App.1995) (vague statute); Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App.1995) (due process-extraneous offense); Sterling v. State, 800 S.W.2d 513, 521 (Tex.Crim.App.1990) (due process-delayed magistratizing); Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App.1990) (confrontation); Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990) (revealing invocation of right to counsel); Mathews v. State, 768 S.W.2d 731 (Tex.Crim.App.1989) (peremptory challenges); Little v. State, 758 S.W.2d 551, 564 (Tex.Crim.App.1988) (involuntary confession); Perry v. State, 703 S.W.2d 668, 673 (Tex.Crim.App.1986) (due process-suggestive lineup); Rogers v. State, 640 S.W.2d 248, 265 (Tex.Crim.App.1981)(opinion on 2nd reh'g) (due process-conducting punishment hearing); Boulware v. State, 542 S.W.2d at 679 (excusal of venireperson) Hernandez v. State, 538 S.W.2d 127, 129 (Tex.Crim.App.1976) (illegally seized evidence); Lee v. State, 952 S.W.2d 894, 898-99 (Tex.App.--Dallas 1997, no pet.) (reporting religious activities); McGowan v. State, 938 S.W.2d 732, 736 (Tex.App.--Houston [14th Dist.] 1996, pet. granted) (statute unconstitutional as applied); Hall v. State, 937 S.W.2d 580, 586 (Tex.App.--Texarkana 1996, pet. ref'd) (accomplice witness instruction); Cole v. State, 931 S.W.2d 578, 580 (Tex.App.--Dallas 1995, pet. ref'd) (due process-stating reasons for adjudication); Wright v. State, 930 S.W.2d 131, 133 (Tex.App.--Dallas 1996, no pet.) (cruel and unusual punishment and equal protection); Cacy v. State, 901 S.W.2d 691, 698 (Tex.App.--El Paso 1995, pet. ref'd) (revealing invocation of constitutional rights); Terrell v. State, 891 S.W.2d 307, 311 (Tex.App.--El Paso 1994, pet. ref'd) (due process-illegal confession); Gillum v. State, 888 S.W.2d 281, 286 (Tex.App.--El Paso 1994, pet. ref'd) (due process-lying venireperson).

A few constitutional rights are so integral to the operation of the system that inaction will not result in waiver. Cases recognizing automatically implemented rights forfeited only by express waiver include: Marin v. State, 851 S.W.2d at 280 (10 day preparation for trial); Meek v. State, 851 S.W.2d 868, 870 (Tex.Crim.App.1993) (written waiver of jury trial); Goffney v. State, 843 S.W.2d 583, 585 (Tex.Crim.App.1992) (right to counsel).

Finally, the Court of Criminal Appeals has identified a separate class of rights which cannot be waived and the deprivation of which may be raised for the first time on appeal. Cases in which the court identified fundamental systemic rights include: Ieppert v. State, ...