Andres Hernandez, III v. State

• Court: Court of Appeals of Texas
• Decided: April 29, 2004
• Docket: 08-03-00205-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

)

ANDRES HERNANDEZ, III,

) No. 08-03-00205-CR )

Appellant,

) Appeal from )

v.

) County Court at Law No. 2 )

THE STATE OF TEXAS,

) of El Paso County, Texas )

Appellee.

) (TC# CR87,149)

MEMORANDUM OPINION

Andres Hernandez III appeals his conviction for a subsequent offense of driving while intoxicated. A jury found him guilty and sentenced him to a fine of $1,300 and 180 days' confinement, probated for two years. At issue is the propriety of the trial court's restriction of voir dire.

FACTUAL SUMMARY

The information and complaint alleged that Appellant was intoxicated in that he did not have the normal use of his mental and physical faculties by reason of the introduction of alcohol into his body and that he had been a driving motor vehicle in a public place at the time. Appellant refused to take a breathalyzer test and the evidence against him consisted of his performance on the field sobriety tests. We affirm.

During voir dire, Appellant's attorney tried to ask venire member Nixon the following question, "How would you do standing on one leg late at night?" The judge responded that he was not concerned with how the jurors would do on any tests. Counsel finished voir dire and requested one additional peremptory challenge, which the court denied. Appellant exercised all of his peremptory strikes, striking Mr. Brahaney, Mr. Cox, and Mr. Dearen, and then objected to Mr. Hanks sitting on the jury. After the venire panel and the chosen jurors were released, the following exchange occurred:

[Defense Counsel]: Just for the record so everyone is aware, I did start to ask Mr. Nixon, Juror Number 1, with regard to the members of the jury panel how would he do holding his leg up standing on one leg late at night. I had intended to ask each member of the jury panel that question. If anyone had said, 'I would have done perfectly, no problem whatsoever,' the Defense likely would have exercised a peremptory challenge as to such person. But we felt and feel now that would be helpful to enabling the Defense to intelligently exercise as to peremptory challenges how the -- how the members of the jury panel would have done standing on one leg. That's all.

[The Court]: The Court ruled that that was not a relevant inquiry with regard to this trial and I will not revisit that issue. I will stick with my same ruling on that.

RESTRICTION OF VOIR DIRE

In his sole point of error, Appellant complains that the trial court disallowed his inquiry regarding field sobriety tests and how prospective jurors would perform. He contends that the question would have allowed him to intelligently exercise his peremptory challenges. We conclude, however, that the issue has not been preserved for our review.

Preservation of error through questioning of the entire venire can be demonstrated by a question addressed to the entire panel or by making a record showing the defendant's request to question all venire members. Thomley v. State, 987 S.W.2d 906, 910 (Tex.App.--Houston [1st Dist.] 1999, pet. ref'd). To preserve error for appellate review, a party must make a timely, specific objection at the earliest possible opportunity, obtain an adverse ruling from the trial court, and urge on appeal a complaint corresponding to the objection made at trial. See Tex.R.App.P. 33.1(a); Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App. 1998); Lusk v. State, 82 S.W.3d 57, 60 (Tex.App.--Amarillo 2002, pet. ref'd).

Appellant did not address the question to the entire jury panel but to a specific venireman. While he did advise the trial court that he had wanted to ask the question of the entire panel, he did not do so until after the jury was selected and excused. Consequently, the objection was not urged at the earliest possible opportunity and error has not been preserved.

We next address the issue in the context of a question addressed to only one prospective juror. To preserve error for denial of a proper question addressed to only one venire member, counsel must exercise a peremptory strike on the prospective juror in question, exhaust his peremptory strikes, and request an additional peremptory strike which is denied by the trial court. Here, counsel exhausted his peremptory strikes and requested an additional strike which was denied. However, counsel did not strike Mr. Nixon. As a result, error has not been preserved as to the specific venireman either.

Because we conclude error has been waived, we overrule the sole issue on appeal and affirm the judgment of the trial court below.

April 29, 2004

ANN CRAWFORD McCLURE, Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)