Brad Joseph Fenn v. State

• Court: Court of Appeals of Texas
• Decided: July 7, 2011
• Docket: 01-10-00383-CR
• Status: Published

Opinion

Opinion issued July 7, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00383-CR

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BRAD JOSEPH FENN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 2

Fort Bend County, Texas

Trial Court Case No. 130635

MEMORANDUM  OPINION

          A jury found appellant, Brad Joseph Fenn, guilty of driving while intoxicated.[1]  The trial court sentenced appellant to 45 days in jail and assessed a $2,000 fine.  In one issue, appellant contends that the trial court erred by overruling his objection to a remark made by the State during closing argument. 

          We affirm.

Background[2]

          While on patrol, Officer L. Stockholm of the Sugarland Police Department observed appellant driving his truck faster than the other traffic on Highway 59.  Using her in-car radar, Officer Stockholm determined that appellant was traveling 91-miles-per hour in a 65-mile-per hour zone.  She also saw appellant’s truck weaving inside and outside of his lane.  Officer Stockholm activated her emergency lights to pull appellant over.  Appellant put his blinker on and pulled over to the side of the freeway.  The on-board video camera in Officer Stockholm’s patrol car recorded the stop.

          Officer Stockholm approached the passenger side of appellant’s truck.  She asked appellant for his driver’s license and his insurance information.  Appellant took out his wallet and began fumbling through it.  Officer Stockholm noticed that appellant could not properly pull the cards from his wallet and appeared to have difficulty with his fine motor skills.  Appellant eventually gave Officer Stockholm the requested information.  

          Officer Stockholm also noticed that appellant’s speech was slurred and his eyes were glassy and bloodshot.  Officer Stockholm asked appellant if he had been drinking alcohol that night, and he responded that he had not. 

          Officer J. Burns of the Sugarland Police Department arrived to assist Officer Stockholm in the stop.  Officer Stockholm told Officer Burns that she had not noticed an odor of alcohol when speaking with appellant but explained to Officer Burns that she had been speaking to appellant from the passenger side window of appellant’s truck. 

          Officer Burns approached the truck on the driver’s side and spoke to appellant through the open window.  Officer Burns asked appellant to get out of the vehicle.  The officer patted appellant down for weapons and noticed that appellant was somewhat unsteady on his feet.  When Officer Burns asked him if he had been drinking, appellant replied that he had drunk one or one-and-one-half beers. 

          Officer Stockholm administered field sobriety tests to appellant, including the walk-and-turn and one-leg stand tests.  The officer observed that appellant exhibited six out of eight clues of intoxication on the walk-and-turn test and three out of four clues on the one-leg-stand test.  At that point, Officer Stockholm arrested appellant for driving while intoxicated.  Appellant refused to take a breathalyzer test. 

Appellant was charged with the offense of driving while intoxicated.  In his opening statement at trial, appellant stated that the evidence would show that he suffers from a medical condition called femoral anteversion.  He told the jury that because of this condition, “he sticks his feet out.”  Appellant explained that he could not properly perform the field sobriety tests because of this condition. 

Officer Stockholm testified that when she instructed appellant to put his feet together for the one-leg-stand test, she noticed that appellant’s “toes were sticking out.”  Officer Stockholm testified that when she told appellant to put his feet together, appellant “mumbled something about ‘those are my feet,’ but he never explained anything further.”  She stated that appellant’s speech was quite slurred.  Officer Stockholm confirmed that appellant never mentioned that he had a medical condition that prevented him from placing his feet together as he had been instructed.  No other evidence was admitted that expressly showed that appellant suffered from femoral anteversion. 

          In addition to Officers Stockholm’s and Burns’s testimony, the videotape showing the stop of appellant’s vehicle, the officers’ interaction with appellant, appellant’s performance of the field sobriety tests, appellant’s arrest, and his refusal to take the breathalyzer test was admitted into evidence.  Appellant did not testify at trial.

          During closing argument, appellant again asserted that he suffered from a medical condition affecting his feet.  In its closing statement, the State argued that the totality of the evidence, including appellant’s speeding and weaving on the freeway, his slurred speech, the odor of alcohol noted by Officer Burns, his poor performance of the field sobriety tests, and his refusal to take the breathalyzer test, indicated that he was driving while intoxicated.  The State also pointed out that appellant had not offered any evidence that confirmed that he suffered from femoral anteversion. 

          In responding to the defense’s argument that the jury should not find an innocent man guilty, the State made the following argument:

I’m just as concerned you are going to find a person who is guilty of DWI not guilty.  I’m just as concerned of that.  I don’t want it to be an indictment of Officer Stockholm.  I want the video to suggest that what Officer Stockholm—and I think it does—that what the two of them [the officers] did out there on the road was gather all the evidence they needed to convict a guy who was wasted, but that had it within him to as soon as he knew he had been pulled over by the cops to slow up, stay within himself, try not to say too much. 

At that point, the defense stated, “Objection, your Honor.  It’s a comment on the Defendant’s failure to make a statement at the scene, his Fifth Amendment right.”  The State responded, “I’m not talking about trial, Judge.  I’m talking about at the scene on the video.  It’s not a comment on the Fifth Amendment.”  The trial court overruled appellant’s objection. 

          The jury found appellant guilty of the offense of driving while intoxicated.  Appellant and the State reached an agreement as to the sentence, and the trial court assessed punishment at 45 days in jail and a $2,000 fine.  This appeal followed.

          In one issue, appellant asserts that the trial court erred by overruling his objection to the prosecutor’s closing statement “referring to Appellant’s exercise of his right against self-incrimination,” which violated “Appellant’s rights under Article I, Section 10 of the Texas Constitution, the Fifth Amendment of the U.S. Constitution, and Art. 38.08 [of the Texas Code of Criminal Procedure].”  See U.S. Const. amend V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005).

Preservation of Statutory and State Constitutional Challenges

To preserve error for appellate review, an appellant must make a timely, specific objection and obtain an adverse ruling.  See Tex. R. App. P. 33.1(a); Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003).  Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only, none of which are involved here, all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule of Appellate Procedure 33.1(a).  See Mendez v. State, 138 S.W.3d 334, 338 (Tex. Crim. App. 2004).  Moreover, an appellant’s complaint on appeal must comport with the objection made at trial; otherwise, the appellant has preserved nothing for review.  See Tex. R. App. P. 33.1(a); Turner v. State, 87 S.W.3d 111, 117 (Tex. Crim. App. 2002) (holding appellant failed to preserve error concerning prosecutor’s closing argument when appellate complaint did not comport with objection made at trial).

To avoid forfeiture of a complaint on appeal, the complaining party must inform the trial court of what relief he seeks and why he believes he is entitled to it, and he must make his point clearly enough that the trial court can understand him when it is in the proper position to address the complaint.  See Clarke v. State, 270 S.W.3d 573, 580 (Tex. Crim. App. 2008).  An appellant fails to preserve a state constitutional complaint for our review when his objection invokes only federal Fifth Amendment right to silence protection.  See Heidelberg v. State, 144 S.W.3d 535, 542–43 (Tex. Crim. App. 2004) (holding that objection based on Fifth Amendment was not sufficient to preserve complaint on appeal that rights to post-arrest silence under Texas Constitution had been violated). 

Here, appellant objected to the State’s closing argument based only Fifth Amendment grounds; he did not object, as he does now, that the remarks also violated his state constitutional and statutory right to remain silent.  Thus, appellant preserved his complaint only as it relates to his Fifth Amendment right. 

Fifth Amendment Right to Remain Silent

Appellant contends that, when the prosecutor argued to the jury that appellant “[tried] not to say too much” after he was stopped, it is apparent from the record that the prosecutor was commenting on appellant’s post-arrest and pre-arrest silence.  When the State comments on a defendant’s post-arrest silence, it violates the Fifth Amendment prohibition against self-incrimination.  Doyle v. Ohio, 426 U.S. 610, 617–618, 96 S. Ct. 2240, 2244–45 (1976).  Commenting on a defendant’s post-arrest silence is akin to commenting on his failure to testify at trial because it attempts to raise an inference of guilt arising from the invocation of a constitutional right.  Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995). 

The issue of whether a defendant has similar Fifth Amendment protection for his pre-arrest silence has not been decided by the United States Supreme Court or the Texas Court of Criminal Appeals.[3]  See Salinas v. State, No. 14–09–00395–CR, 2011 WL 903984, at *6 (Tex. App.—Houston [14th Dist.] Mar. 17, 2011, no pet.) (discussing lack of governing authority on issue).  The Fourteenth Court of Appeals in Salinas recently noted that the federal circuit courts of appeal are split on the issue.  Id.  “The First, Sixth, Seventh, and Tenth Circuits have held that pre-arrest, pre-Miranda silence is not admissible as substantive evidence of guilt.”  Id. (citations omitted).  “The Fifth, Ninth, and Eleventh Circuits, on the other hand, have held that pre-arrest, pre-Miranda silence is admissible as substantive evidence of guilt.”  Id. (citations omitted).  In Salinas, the court “agree[d] with the Fifth, Ninth, and Eleventh Circuits” and held that “the Fifth Amendment has no applicability to pre-arrest, pre-Miranda silence used as substantive evidence in cases in which the defendant does not testify.”  Id. at *7.

To resolve this appeal, however, we need not decide whether the Fifth Amendment protection against self-incrimination applies to pre-arrest silence.  Even assuming the prosecutor’s comment was an improper comment on appellant’s pre-arrest and post-arrest silence, any error in the trial court’s overruling of appellant’s objection was harmless. 

We apply a rule 44.2(a) constitutional harm analysis to comments on a defendant’s invocation of his right to remain silent and do not reverse unless we determine beyond a reasonable doubt that the error contributed to the appellant’s conviction or punishment.  See Tex. R. App. P. 44.2(a); Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997).  Our primary inquiry is what effect the error had, or reasonably may have had, on the jury’s decision.  Lair v. State, 265 S.W.3d 580, 590 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d).

We consider (1) the source and nature of the error, (2) the extent that it was emphasized by the State, (3) the error’s probable collateral implications, (4) the weight a juror would probably place on the error, and (5) whether declaring it harmless would likely encourage the State to repeat it with impunity.  Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989); Lair, 265 S.W.3d at 590–91.  This requires us to evaluate the entire record in a neutral, impartial, and even-handed manner, not in the light most favorable to the prosecution.  Harris, 790 S.W.2d at 586; Lair, 265 S.W.3d at 591.

Here, the prosecutor’s complained-of comment that appellant “[tried] not to say too much” after he was stopped implicated appellant’s pre-arrest silence.  Read in context, this somewhat oblique comment implied that appellant had the presence of mind not to say too much to the officers for the purpose of hiding his intoxication. 

The comment was only a minor portion of the prosecutor’s closing argument and was not repeated, mentioned, or emphasized.  Instead, the prosecutor focused on the evidence supporting a finding that appellant was guilty of driving while intoxicated.  Specifically, the evidence showed that appellant was weaving within and outside his lane while speeding down the freeway at 91-miles-per hour.  Officer Stockholm’s testimony indicated that appellant had difficulty removing his driver’s license and insurance card from his wallet, indicating a loss of fine motor control.  She stated that appellant’s speech was slurred and his eyes were bloodshot and glassy.  Officer Stockholm also described appellant’s performance on the field sobriety.  Officer Stockholm testified that appellant’s performance on the tests indicated to her that appellant was intoxicated. 

Officer Burton testified that he detected the odor of alcohol when speaking to appellant.  The evidence showed that appellant told Officer Stockholm that he had not been drinking, but then told Officer Burton that he had drunk one to one-and-one half beers. 

The trial court also admitted into evidence the videotape taken by the camera mounted in Officer Stockholm’s patrol car.  The video showed the stop of appellant’s vehicle, the officers’ interaction with appellant, appellant’s performance of the field sobriety tests, and his refusal to take the breathalyzer test.  The video corroborated much of the officers’ testimony.  In addition, the video served as powerful visual evidence of appellant’s performance of the field sobriety tests.  Among the most obvious of appellant’s bobbles while performing the tests is his failure to follow Officer Stockholm’s directions with regard to the number of steps to take when performing the walk-and-turn test.  The video also shows appellant losing his balance while performing that test and also during the one-leg-stand test.  

In his closing statement, the prosecutor also countered the defense’s argument that appellant performed poorly on the field sobriety tests because appellant suffers from a physical deformity.  The prosecutor pointed out that no express evidence was admitted to confirm such medical condition.  At the very end of his closing statement, the prosecutor pointed to appellant’s refusal to take the breathalyzer test, re-emphasized Officer Stockholm’s testimony, and called attention to the videotape, all as evidence from which the jury could find appellant guilty.  Given the totality of the prosecutor’s closing statement and the record as a whole, we conclude that a jury would not attribute much, if any, weight to the error associated with the complained-of comment.  Moreover, declaring the error harmless would not likely encourage the State to repeat it with impunity.

After a careful, neutral, and impartial review of the entire record, we conclude, beyond a reasonable doubt, that the trial court’s overruling of appellant’s objection to the prosecutor’s complained-of comment did not contribute to appellant’s conviction or punishment.  See Tex. R. App. P. 44.2(a).  Thus, we hold that any such error in the trial court’s ruling was harmless. 

We overrule appellant’s sole issue.

Conclusion

          We affirm the judgment of the trial court.

                                                                   Laura Carter Higley

                                                                   Justice

Panel consists of Justices Keyes, Higley, and Baker. [4]

Do not publish.   Tex. R. App. P. 47.2(b).

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[1]           See Tex. Penal Code Ann. § 49.04(a) (Vernon 2011).

[2]           The background facts are derived primarily from the testimony of the investigating police officers.

[3]           If a defendant testifies, his pre-arrest silence can be used to impeach him.  See Jenkins v. Anderson, 447 U.S. 231, 238–40, 100 S. Ct. 2124, 2129–30 (1980).  The use of pre-arrest silence to impeach does not violate the Fifth Amendment because “impeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial.”  Id. at 238, 100 S. Ct. at 2129.  Here, appellant did not testify.

[4]           The Hon. Caroline Baker, Judge of the 295th District Court of Harris County, participating by assignment.