Sample v. State

• Decision Date: 11 September 2013
• Docket Number: No. 02–11–00292–CR.,02–11–00292–CR.
• Citation: 405 S.W.3d 295
• Parties: James SAMPLE, Appellant v. The STATE of Texas, State.
• Court: Texas Court of Appeals

405 S.W.3d 295

James SAMPLE, Appellant

v.The STATE of Texas, State.

No. 02–11–00292–CR.

Court of Appeals of Texas, Fort Worth.

June 13, 2013.

Discretionary Review Refused Sept. 11, 2013.

Chris Raesz, Chris Raesz, P.C., Denton, TX, for Appellant.

Paul Johnson, Criminal District Attorney, Charles E. Orbison, Assistant Criminal District Attorney, Chief Appellate Division, Andrea R. Simmons, Anthony James Paul, Justin Jones, Assistant Criminal District Attorney, Denton, TX, for The State.

Panel: GARDNER, McCOY, and MEIER, JJ.

OPINION

ANNE GARDNER, Justice.

Introduction

Appellant James Sample appeals his conviction and sentence for felony driving while intoxicated (DWI).¹ In three issues, he contends that the trial court erred by (1) denying his motion to suppress evidence, (2) denying his motion to quash the indictment, and (3) imposing cruel and unusual punishment. We affirm.

Background Facts and Procedural History

Lauren Staten and Amy Frazier had been to Denton for ice cream and on their way home stopped at Hunter's convenience store in Sanger. While they were still in the car, Appellant pulled up in a white and yellow van that he parked very close and perpendicular to them. He climbed out of the van, told the girls that they did not belong there, and stumbled into the store. Amy thought he looked “very drunk.” She stayed in the car while Lauren, after some hesitation, entered the store to buy cigarettes.

Inside, Appellant approached Lauren in a way she found offensive. Noting that “his eyes weren't right,” she guessed he was “on a good amount of drugs.” When she rebuffed his advances, he pulled up his shirt, called her names, and made racial remarks. Watching from the car in the parking lot, it appeared to Amy that Appellant was yelling at Lauren and that her friend was getting upset.

Lauren left the store without making a purchase. Appellant continued to harass her as he followed her into the parking lot. Finally, after Lauren warned him that she was calling the police, he climbed into the van and left.

The girls called 911. Officers arrived and were taking the girls' statements in the parking lot when the girls exclaimed that Appellant's van was passing by. Officer Stoney Ward promptly pulled the van over.

Officer Ward recognized Appellant from previous encounters and could tell that he had been drinking. Appellant smelled strongly of alcohol, his eyes were red, his speech slurred, and his mannerisms lethargic. The officer observed an open beer bottle in the van as well as spilled liquid on the floorboard that smelled of alcohol.

Officer Ward administered field-sobriety tests, concluded that Appellant was intoxicated, and arrested him for DWI.

Checking Appellant's criminal history revealed two prior DWI convictions, so Officer Ward took Appellant to Denton Regional Hospital for a mandatory blood draw.

Appellant did not cooperate at the hospital—shouting obscenities to hospital staff and officers—and he had to be forcibly restrained before the phlebotomist could draw a blood specimen. The specimen was sent to the Department of Public Safety Crime Laboratory in Garland for analysis. Results showed that the specimen had a blood-alcohol concentration of 0.19 grams of alcohol per 100 milliliters of blood—almost two-and-a-half times the legal limit.

The grand jury returned an indictment charging Appellant with felony DWI, enhanced by two prior misdemeanor DWI convictions and two prior felonies—retaliation and felony assault.² On the morning of the first day of trial, Appellant moved to quash the indictment on the grounds that one of the jurisdictional DWIs is void because Appellant pled guilty in that case without counsel and without waving a jury trial.

At a hearing on the motion to quash, Appellant testified at first that he did not remember whether he had refused court-appointed counsel. But he later admitted that he had refused counsel so he could represent himself. He also testified that he had filled out paper work indicating that he understood the dangers and disadvantages of representing himself but that he had chosen to do so regardless. He further testified that he did not really remember signing any documents waiving a jury trial.

When the State produced the judgment from Appellant's prior conviction, Appellant acknowledged that he was the named defendant. The State's fingerprint expert confirmed that the fingerprints on the face of the judgment matched Appellant's. The judgment also indicates on its face that Appellant “intelligently, knowingly, and voluntarily waived the right to counsel, and waived the right to trial by jury.” The trial court denied the motion to quash, and the case went to trial.

At trial, after the State had concluded its case-in-chief on guilt-innocence and rested, Appellant urged for the first time an oral motion to suppress all evidence obtained after the stop, alleging that Officer Ward stopped him without reasonable suspicion. The trial court summarily denied the motion to suppress.

The defense rested without presenting evidence, the jury found Appellant guilty, and Appellant pled “true” to the notice of habitual-felony-offender status in the indictment.

Both sides offered evidence on punishment. The State presented Appellant's criminal history, which was substantial. State's Exhibits 10 through 33 included judgments of convictions spanning decades. In 1990, Appellant had been convicted of resisting arrest; in 1991, of criminal trespass and DWI; in 1992, assault and resisting arrest; in 1993, criminal trespass; in 1994, he was convicted twice of violating protective orders, once for assault, and once for resisting arrest; in 1996, he had four criminal trespass convictions and one assault; in 1997, assault-family violence, two criminal-trespass convictions, and harassment; in 1998, he was sentenced to five years in prison for retaliation; in 2004, another six years for assault-family violence; and in 2010, he picked up another conviction for assault-bodily injury. After deliberating on the issue of punishment, the jury assessed thirty-six years' confinement, and the trial court sentenced Appellant accordingly.

Motion to Suppress

In his first issue, Appellant claims that the trial court erred by denying his motion to suppress because Officer Ward lacked reasonable suspicion to justify the stop. The State replies that Appellant failed to preserve his complaint because he first raised it after the State had presented all the evidence he later sought to have suppressed—in fact, after the State had rested its case-in-chief at guilt-innocence. We agree with the State.

To preserve a complaint for review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion.³Tex.R.App. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333, 339 (Tex.Crim.App.2012); Clay v. State, 361 S.W.3d 762, 765 (Tex.App.-Fort Worth 2012, no pet.). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. Tex.R.App. P. 33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex.Crim.App.2011). A reviewing court should not address the merits of an issue that has not been preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex.Crim.App.2010) (op. on reh'g); Clay, 361 S.W.3d at 765.

An objection must be made as soon as the basis for the objection becomes apparent. Tex.R. Evid. 103(a)(1); Pena, 353 S.W.3d at 807;see Lackey v. State, 364 S.W.3d 837, 843–44 (Tex.Crim.App.2012) (discussing policies underlying the timeliness requirement); Saldano v. State, 70 S.W.3d 873, 889 (Tex.Crim.App.2002) (“We have consistently held that the failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence. This is true even though the error may concern a constitutional right of the defendant.” (citations omitted)); Reyes v. State, 361 S.W.3d 222, 228–29 (Tex.App.-Fort Worth 2012, pet. ref'd).

An exception to this requirement may occur when a trial judge instructs the parties before trial to withhold their objections until after the evidence has been presented. See Garza v. State, 126 S.W.3d 79, 84–85 (Tex.Crim.App.2004) (explaining that the holding “is not meant to apply in situations outside the special circumstances of this case”). Under normal circumstances, however, objecting after evidence is already admitted is untimely. See, e.g., Ratliff v. State, 320 S.W.3d 857, 861–62 (Tex.App.-Fort Worth 2010, pet. ref'd) (holding that appellant's failure to object at the time officer described evidence and explained how he found it was untimely and did not preserve error); Tell v. State, 908 S.W.2d 535, 544 (Tex.App.-Fort Worth 1995, no pet.) (holding that defendant's objection to officer's testimony after officer had already answered questions about objected-to evidence was untimely and did not preserve error); Thomas v. State, 884 S.W.2d 215, 216–17 (Tex.App.-El Paso 1994, pet. ref'd) (holding that appellant's objection to officers' testimony after they had testified was untimely and did not preserve error).

There is nothing in the record to indicate that any exception applies. Appellant did not file a pretrial motion to suppress and he did not object before or during the state's case-in-chief to the admissibility of any evidence officers obtained after the stop, and the trial court did not instruct him to withhold his objections until after the evidence came in. When Appellant finally did object, it was through an oral motion to suppress after the State had rested its case-in-chief. Appellant's motion to suppress—made after the State had presented all its evidence on guilt-innocence and rested—was untimely, and therefore preserved nothing for our review. SeeTex.R. Evid. 103(a)...