In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-15-00061-CR ____________________
ANDY RICHARD STROUSE, Appellant
V.
THE STATE OF TEXAS, Appellee _______________________________________________________ ______________
On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 13-08-09050 CR ________________________________________________________ _____________
MEMORANDUM OPINION
Following a jury trial that resulted in his conviction for driving while
intoxicated, a felony, Andy Richard Strouse appeals, arguing (1) the trial court
erred by failing to suppress all of the evidence that police obtained in searching his
truck, all the evidence regarding what he said to the police the evening of his
arrest, and the results of his blood test; (2) insufficient evidence was admitted in
his trial to show, beyond reasonable doubt, that he was intoxicated when he
operated his truck; (3) insufficient evidence was admitted in his trial to prove that
1 he used or exhibited a deadly weapon when committing the offense; (4) his counsel
rendered ineffective assistance; and, (5) the trial court’s decision to give him a
forty-year sentence imposed a cruel and unusual punishment that violated his
constitutional rights.
In its brief, the State concedes that insufficient evidence was admitted during
the trial to support the jury’s finding that Strouse used or exhibited a deadly
weapon when he committed the offense. However, as to the remaining issues, we
conclude that Strouse failed to properly preserve his complaints for our review or
that his complaints are without merit. Accordingly, we modify the trial court’s
judgment, and we delete the deadly-weapon finding; in all other respects, the trial
court’s judgment, as modified in the appeal, is affirmed.
Admission of Evidence
In issue one, Strouse argues that in the guilt-innocence phase of his trial, the
trial court erred by allowing the State to introduce the evidence found by the police
following their search of his truck, any testimony regarding the statements that he
made to the investigating officers regarding whether he had recently been driving,
and the results of a blood draw that showed Strouse had ingested
methamphetamine. According to Strouse, all of this evidence should have been
excluded from the jury because the searches were done without warrants and
because, given that he was intoxicated, he could not have validly given the police 2 permission to search his truck or to draw his blood. In response, the State argues
that Strouse failed to object to all but two of the exhibits, State’s Exhibits 11 and
12,1 which were admitted over his objections in the trial. Additionally, the State
argues that when Strouse lodged objections to Exhibits 11 and 12 at trial, there was
not yet any evidence showing that he was unable “to comprehend his decision to
allow law enforcement to search his vehicle to the extent that such consent was
rendered involuntary.”
Strouse did not ask that the trial court conduct a suppression hearing
regarding the various exhibits that he complains the trial court erred by admitting
in his trial.2 Additionally, Strouse was required to lodge contemporaneous
objections each time the State offered the evidence that he addresses in his appeal,
1 State’s Exhibit 11 consists of a photograph of a jar and its contents that police removed from Strouse’s truck. State’s Exhibit 12 consists of a photograph of a butane lighter, which the police removed from the cab of the truck. 2 Strouse did not object to the admission of the consent form he signed that gave his permission to collect and submit a specimen of his blood for testing, to the test results on the contents of material in the jar that showed the jar contained trace amounts of methamphetamine, or to the lab results that showed Strouse had methamphetamine in his blood. In his appeal, Strouse also argues that the statement he made to police at the scene, indicating that he had recently driven his truck, was inadmissible. According to Strouse, the statement is the product of a pre-Miranda custodial interrogation that occurred in violation of state law. See generally Tex. Code Crim. Proc. Ann. art. 38.22 (West Supp. 2015). However, during the trial, Strouse did not object to the admission of his statement on the grounds that it was inadmissible under the Texas Code of Criminal Procedure. See Tex. R. App. P. 33.1. 3 and he was required to object each time the evidence was admitted to preserve his
complaints about the various items of evidence he is complaining about in his
appeal. See Ethington v. State, 819 S.W.2d 854, 859 (Tex. Crim. App. 1991). In
Strouse’s case, the record shows that he never obtained a running objection to any
of the items of evidence that he contends were inadmissible. Additionally, with
respect to the objections Strouse made regarding Exhibits 11 and 12, his objections
are not the same as his appellate arguments, which assert the exhibits were
inadmissible because he was so intoxicated he could not have voluntarily
consented to any requests to conduct a search. Therefore, with respect to Exhibits
11 and 12, Strouse must show that the grounds for the arguments that he advances
in his appeal would have been apparent to the trial court from his objection at trial
that the contents in his truck represented the fruits of an illegal search. See Pena v.
State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009); Tex. R. App. P. 33.1.
Generally, when an appellant’s trial objections are inconsistent with the
arguments that the appellant advances on appeal, the objections are deemed
insufficient to preserve the argument for purposes of the appeal, unless “the correct
ground of exclusion was obvious to the judge and opposing counsel[.]” Zillender v.
State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). For example, “a complaint
that could, in isolation, be read to express more than one legal argument will
generally not preserve all potentially relevant arguments for appeal.” Resendez v. 4 State, 306 S.W.3d 308, 314 (Tex. Crim. App. 2009). Likewise, “[w]hen the
objection is not specific, and the legal basis is not obvious, it does not serve the
purpose of the contemporaneous-objection rule for an appellate court to reach the
merits of a forfeitable issue that is essentially raised for the first time on appeal.”
Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006).
It is settled law that the police can conduct a search without probable cause
or a warrant when the defendant consents to the request made by police to allow
the search to occur. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). The
evidence before the trial court shows that Strouse never objected to the admission
of Exhibits 11 and 12 on the basis that the extent of his intoxication rendered his
consent involuntary. Because the trial court was not given the opportunity to rule
on the arguments concerning Exhibits 11 and 12 that he advances in his appeal, his
appellate arguments regarding these exhibits were not properly preserved for our
review. Moreover, with respect to Strouse’s remaining arguments, which complain
of the admission of the remaining exhibits, Strouse did not object when these
exhibits were offered into evidence during his trial, thereby forfeiting his right to
complain about their admission on appeal. Issue one is overruled.
Driving While Intoxicated
In issue two, Strouse argues the evidence is insufficient to show that he
operated the truck at a time when he was intoxicated. In response, the State argues 5 the jury could reasonably infer that Strouse had driven the truck during periods
when he was intoxicated from the evidence that showed Strouse admitted to an
officer investigating the case that he had been driving, and evidence that showed
Strouse was the only person seen with his truck after the truck appeared near the
end of a homeowner’s driveway. The State also contends that the jury could infer
that Strouse had operated the truck in an intoxicated state based on the evidence
showing that he pressed the truck’s brake, shifted gears, and turned the truck’s
engine off, even though when he did these things, the truck never moved.
When reviewing whether evidence in a criminal case is sufficient to support
a defendant’s conviction, we review all of the evidence in the light most favorable
to the verdict, and then determine whether, based on the evidence and reasonable
inferences from the evidence, rational jurors could have found that the defendant
committed the essential elements of the crime under a standard of beyond
reasonable doubt. See Roberts v. State, 273 S.W.3d 322, 326-27 (Tex. Crim. App.
2008) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). By reviewing the
evidence in the light most favorable to the verdict, the appeals court gives the jury
proper deference, which allows the jury to fulfill its responsibility to fairly resolve
any conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from the evidence that is before them in a trial. See Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007); see also Williams v. State, 235 S.W.3d 742, 6 750 (Tex. Crim. App. 2007). In reviewing a complaint challenging the sufficiency
of the evidence supporting a defendant’s conviction, it is not our role to substitute
our judgment for the factfinder’s when the factfinder’s conclusions are reasonable
based on the evidence that is admitted at trial. See Dewberry v. State, 4 S.W.3d
735, 740 (Tex. Crim. App. 1999).
Strouse argues that the evidence before the jury, for a variety of reasons,
fails to satisfy the corpus delicti rule. The corpus delicti rule concerns a matter that
is related to evidentiary sufficiency, and the rule applies in “cases in which there is
an extrajudicial confession.” Miller v. State, 457 S.W.3d 919, 924 (Tex. Crim.
App. 2015); Carrizales v. State, 414 S.W.3d 737, 743 (Tex. Crim. App. 2013). The
corpus delicti rule requires evidence outside the defendant’s confession to establish
that the defendant was guilty of the crime the jury convicted him of having
committed. Salazar v. State, 86 S.W.3d 640, 645 (Tex. Crim. App. 2002).
Nonetheless, the corpus delicti rule does not require the State to prove the identity
of the perpetrator of the crime; instead, the confession may be used to support the
conclusion that the defendant is the person who committed the crime. Gribble v.
State, 808 S.W.2d 65, 70 (Tex. Crim. App. 1990).
With respect to cases that involve the crime of driving while intoxicated, the
corpus delicti rule requires proof showing that someone operated a motor vehicle
in a public place while intoxicated. Layland v. State, 144 S.W.3d 647, 650-52 7 (Tex. App.—Beaumont 2004, no pet.). In Strouse’s case, the record contains the
testimony of witnesses, other than Strouse, that placed Strouse behind the wheel of
his truck at a time when the jury could have inferred that he was intoxicated. For
example, the evidence shows that Strouse’s truck was first noticed by a
homeowner in the street near the end of the homeowner’s driveway. The
homeowner, near whose driveway police found Strouse’s truck, called 911 around
6:00 p.m. to report that a truck had been parked near his driveway. The homeowner
indicated that he had not seen the truck approximately an hour before calling, so
the jury could have reasonably inferred that Strouse’s truck had only recently been
parked there before the homeowner saw it. The homeowner indicated in his
testimony that after noticing the truck, he watched a man, identified by others as
Strouse, get out of the driver’s side of the truck, stagger to the back, drop the
tailgate, and take a seat. The homeowner explained that he watched Strouse for
approximately thirty minutes, and that he then saw Strouse move around the truck,
first to the passenger side, then to the driver’s side. The homeowner testified that
he saw the truck’s brake lights come on after he saw Strouse return to the driver’s
seat of the truck. Fearing that Strouse might leave, and based on his perception that
Strouse was severely impaired, the homeowner called 911 a second time due to his
concern that Strouse had no “business behind the wheel of a vehicle.”
8 Deputy Jordan, the officer who investigated why the truck was parked in the
neighborhood, also provided testimony relevant to the jury’s finding that Strouse
operated the truck while in an intoxicated state. Deputy Jordan testified that when
he initially approached Strouse’s truck, Strouse appeared to be getting out of the
truck on the driver’s side. According to Deputy Jordan, when he first saw Strouse,
the truck’s engine was running and the engine of the truck was in neutral. Deputy
Jordan explained that he watched Strouse as he walked in an unsteady manner
around the back of the truck and toward the passenger side, while holding onto the
truck for support.
Strouse also testified in his defense during the trial. He indicated that he
woke up in the passenger seat, realized the truck was running, and he moved to the
driver’s seat where he pressed on the brake, put the truck into park, and turned the
truck’s engine off. The testimony of Strouse, the homeowner, and Deputy Jordan
supports the jury’s conclusion that someone, while intoxicated, operated the truck
in a public place. See Layland, 144 S.W.3d at 650-52.
Strouse also argues that the statement he made to one of the other officers
involved in the investigation should have been excluded because it was not
obtained legally. According to that officer, Strouse told him that he had been
driving. However, Strouse failed to challenge the admission of the officer’s
testimony about the statement when the statement was offered at Strouse’s trial. 9 Additionally, in conducting a legal sufficiency review, we are to consider all of the
evidence in the record. See Dewberry, 4 S.W.3d at 740.
From the combined force of the cumulative evidence, including the fact that
no other occupants of the truck were with Strouse when he was seen with his truck,
the jury could reasonably conclude, beyond reasonable doubt, that Strouse had
operated the truck on a public roadway at a time when he was intoxicated. See
Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995); see also Barton v.
State, 882 S.W.2d 456, 458 (Tex. App.—Dallas 1994, no pet.). We conclude the
evidence before the jury allowed the jury to conclude, beyond reasonable doubt,
that Strouse had operated his truck while intoxicated. We overrule issue two.
Deadly-Weapon Finding
In issue three, Strouse contends the evidence is insufficient to support the
jury’s deadly-weapon finding. In response, the State concedes that it failed to
produce sufficient evidence showing that the truck had been used as a deadly
weapon.
To sustain a deadly-weapon finding in a case involving a vehicle, the
evidence must show that the defendant used the vehicle in a way that it placed
others in actual danger of death or serious bodily injury. Brister v. State, 449
S.W.3d 490, 494-95 (Tex. Crim. App. 2014). Evidence showing that a driver
operated a vehicle while intoxicated, without more, is insufficient to support a 10 jury’s finding that a driver used the vehicle as a deadly weapon. Id. In this case, for
example, there is not any evidence of any near miss collisions with any other
objects that were either on or off the road. On appeal, the appeals court is required
to delete a deadly-weapon finding from the judgment if it is not supported by
legally sufficient evidence. Gutierrez v. State, 741 S.W.2d 444, 445 (Tex. Crim.
App. 1987). We sustain issue three with respect to Strouse’s complaint about the
jury’s deadly-weapon finding.
Ineffective Assistance of Counsel
In issue four, Strouse contends that he received ineffective assistance of
counsel during trial. Strouse asserts that his trial counsel was deficient because
counsel allowed the State to ask leading questions of various witnesses. According
to Strouse, by allowing the State to present its case through leading questions, the
State presented its case in a dramatic way. Additionally, Strouse complains that his
trial counsel failed to develop a plausible defensive theory, and compounded that
problem by asking to re-open by calling Strouse as a witness. When he testified,
Strouse explained that on the morning before he was arrested, he had taken
prescription sleeping pills, and on the night before the arrest, he had taken
methamphetamine. In his appeal, Strouse argues that this evidence supports the
jury’s conclusion that he was intoxicated. Strouse also complains counsel lacked
knowledge about methamphetamines, failed to cross-examine the State’s expert 11 witnesses regarding the effect of methamphetamine and sleeping pills, failed to
present a witness to explain to the jury the effect of these drugs, and failed to do
anything “to subject the State’s case to meaningful, adversarial testing.” Strouse
concludes that his trial counsel had no conceivable strategy to defend him against
the charges the State brought against him.
In response, the State notes that the record is silent regarding the reasons
why Strouse’s case was presented to the jury in the manner at issue. According to
the State, the choices that Strouse criticizes trial counsel for making possibly
represent reasonable options between different legitimate trial strategies, given the
facts available to defend Strouse in the case.
To show that trial counsel was ineffective, Strouse must demonstrate that
trial counsel’s performance was deficient because it fell below an objective
standard of reasonableness, and he must show that but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 687 (1984). On appeal, we “analyze the reasonableness
of counsel’s conduct on the facts of the particular case, viewed at the time of the
conduct.” Okonkwo v. State, 398 S.W.3d 689, 693 (Tex. Crim. App. 2013). Once
the appellant identifies the acts or omissions of counsel that he claims were
ineffective, the court reviewing the case must “determine whether, in light of all
the circumstances, the acts or omissions were outside the wide range of 12 professionally competent assistance.” Id. When the record indicates that counsel
never was provided an opportunity to explain the conduct that his former client
challenges in the appeal, we generally must assume that the explanation counsel
would have given likely related to the strategy employed in presenting the case.
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
In Strouse’s case, Strouse did not file a motion for new trial; consequently,
the record before us is silent concerning whether the complaints Strouse levels at
trial counsel represented reasonable choices between different possible strategies.
Because Strouse’s trial attorney was not given an opportunity to explain the
choices he made in defending Strouse, we are unable to evaluate Strouse’s claim
that his representation was constitutionally ineffective. See Rylander v. State, 101
S.W.3d 107, 111 (Tex. Crim. App. 2003).
For instance, with respect to Strouse’s complaint regarding leading
questions, if the evidence would have been admitted anyway, it is possible that
allowing leading questions might constitute a sound strategy. Wheeler v. State, 433
S.W.3d 650, 655 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). With respect to
Strouse’s criticism regarding counsel’s failure to compel a witness to appear for
trial, we cannot tell whether the decision was a matter of trial strategy, given a
record that contains nothing to explain why the witness was not called or what the
witness would have said. See Brown v. State, 866 S.W.2d 675, 678 (Tex. App.— 13 Houston [1st Dist.] 1993, pet. ref’d). Additionally, Strouse provided the court with
no explanation of what a plausible defense strategy should have been given the
facts in his case, nor does he explain how another strategy would have altered the
result that he achieved. See Rylander, 101 S.W.3d at 110-11. Moreover, we are
unable to speculate about these matters. Id.
Given the undeveloped state of the record, the proper procedure requires that
we overrule issue four without prejudice to Strouse’s right to raise his
ineffectiveness claims in a post-conviction writ. See Robinson v. State, 16 S.W.3d
808, 813 n.7 (Tex. Crim. App. 2000). We overrule issue four.
Cruel and Unusual Punishment
In issue five, Strouse contends his forty-year sentence represents a cruel and
unusual punishment that violates the Eighth and Fourteen Amendments. According
to Strouse, his sentence is greatly disproportionate to the nature of his crime. The
State contends that Strouse failed to preserve error on this issue.
Generally, a defendant forfeits complaints about a sentence being cruel and
unusual if such complaints were not raised at trial. Diamond v. State, 419 S.W.3d
435, 440 (Tex. App.—Beaumont 2012, no pet.); see also Garza v. State, 435
S.W.3d 258, 260-61 (Tex. Crim. App. 2014). The record reflects that Strouse did
not object to his sentence when it was pronounced and that he did not object to the
length of his sentence in any post-trial motions. Therefore, the record shows that 14 the trial court was never asked to rule on any complaint that the sentence it
imposed was disproportionate as compared to the nature of Strouse’s crime. We
conclude that Strouse failed to preserve for appeal the complaints that he raises
about his sentence. See Tex. R. App. P. 33.1(a). We overrule issue five.
Nonetheless, even if Strouse had preserved the complaint he raises regarding
the length of his sentence, his complaint has no merit. “A sentence is grossly
disproportionate to the crime only when an objective comparison of the gravity of
the offense against the severity of the sentence reveals the sentence to be extreme.”
Harris v. State, 204 S.W.3d 19, 29 (Tex. App.—Houston [14th Dist.] 2006, pet.
ref’d). The record before us reflects that Strouse was indicted as a habitual
offender; the evidence shows that he has prior felony convictions for forgery and
attempted murder. His criminal record includes other prior convictions as well, for
theft, burglary of a building, failure to identify, and evading arrest. He has also
been convicted in four other cases for driving while intoxicated.
Under recidivism statutes, the defendant’s sentence is based not merely on
the defendant’s most recent offense, but it is also based on the propensities the
defendant has demonstrated over a period of time showing that the fact he was
previously punished for crimes failed to deter his additional criminal behavior. Id.
Given his status as a habitual offender, the evidence in the record does not support
Strouse’s argument that his sentence was unconstitutionally harsh. 15 Conclusion
In light of our resolution of Strouse’s challenge to the jury’s deadly-weapon
finding, we strike the affirmative deadly-weapon finding and the language in the
judgment reciting that “[t]he Court FINDS Defendant used or exhibited a deadly
weapon during the commission of a felony offense or during immediate flight
therefrom or was a party to the offense and knew that a deadly weapon would be
used or exhibited.” In all other respects, the trial court’s judgment, as modified, is
affirmed.
AFFIRMED AS MODIFIED.
________________________________ HOLLIS HORTON Justice
Submitted on November 30, 2015 Opinion Delivered July 13, 2016 Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.