Juan J. Viramontes v. State

• Court: Court of Appeals of Texas
• Decided: July 26, 2000
• Docket: 04-99-00706-CR
• Status: Published

Opinion

99-00706 Viramontes v State of Texas.wpd No. 04-99-00706-CR Juan J. VIRAMONTES, Appellant v. The STATE of Texas, Appellee From the County Court at Law No. 6, Bexar County, Texas Trial Court No. 682549 Honorable M'Liss Christian, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: July 26, 2000

AFFIRMED

Juan Viramontes appeals his conviction for driving while intoxicated (DWI). In a single issue, Viramontes complains the trial court erred in allowing "back door" evidence of information that was subject to a prior suppression order. We affirm the judgment of the trial court.

Factual and Procedural Background

At three o'clock in the morning, San Antonio Police Officer Carlos Ortiz observed Viramontes swerve into an opposite lane of traffic at a high rate of speed. Officer Ortiz proceeded to follow Viramontes, suspecting he was intoxicated. After Ortiz saw Viramontes run through a red light and fail to yield at an intersection, he stopped Viramontes and detected the strong smell of alcohol, slurred speech, and other signs of intoxication. Thereafter, Ortiz administered the Romberg balance test, the walk and turn test, the leg lift test and nose touch test, and observed Viramontes perform poorly on all of the field sobriety tests. After Viramontes refused to take a breath intoxilyzer test, Ortiz arrested Viramontes for driving while intoxicated.

At the downtown police substation, a videotape was taken of Viramontes' demeanor. Officer Jose Trevino operated the video camera and perceived Viramontes to be intoxicated. Trevino testified that he asked Viramontes to stand in a green square in the video room but instead Viramontes chose to lean against a wall, an action indicative of intoxication.

At a pre-trial hearing, Viramontes filed a motion to suppress the post-arrest videotape on the grounds that he invoked his right to counsel during his arrest. The court granted a motion to suppress only the audio portion of the videotape. During the testimony of Officer Trevino, Viramontes argued the trial court improperly permitted the State to inquire about the substance of the audio portion of the videotape.

Discussion

In a single issue, Viramontes complains the trial court erred in permitting the State to inquire about the substance of the suppression order through "back door" evidence. Specifically, Viramontes contends the State improperly alluded to Viramontes' invocation of counsel contained in the audio portion of the videotape. The admission or exclusion of evidence is within the sound discretion of the trial court. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). We review the trial court's ruling on the evidence under an abuse of discretion standard. Id.

In support of his argument, Viramontes directs this court to the following exchange:

STATE: Officer, without going into what may or may not have been said in the room, when the Defendant walked into the room, was he speaking English or Spanish?

DEFENSE COUNSEL: Judge, I'm going to object. I don't think it's

admissible.

COURT: Overruled.

****

STATE: And during this time, were you able to make any observations of the Defendant while he was in the video room?

OFFICER TREVINO: Well, I could make the observation that he was not coherent of what I was asking him at times. He was not using proper Spanish language as he said he did know. His demeanor, his stance, as far as he stood there, how he talked about the situation that he was in.

STATE: I'm sorry, without going into what he said.

DEFENSE COUNSEL: I have to object again to this whole line of questioning. I think it's improper.

STATE: Now, without going into what was said, why did you speak - - why did you go into Spanish after the first minute?

DEFENSE COUNSEL: Judge, I'm going to object. I would like a running object to this entire line of questioning. I think it's improper.

Although Viramontes contends the trial court erred in admitting the testimony, an examination of the foregoing excerpts reveals Viramontes waived any alleged error. None of defense counsel's objections were specific or timely to preserve error for appellate review, and are therefore waived. See Tex. R. App. P. 33.1; Miranda v. State, 813 S.W.2d 724, 737 (Tex. App. -San Antonio 1991, pet. ref'd)(noting that a general objection preserves nothing for appellate review).

In any event, the record reveals the State's numerous attempts to avoid any testimony concerning the audio portion of the video dialogue between Viramontes and Officer Trevino. Additionally, the court counseled the jury to disregard any alleged statements made by Viramontes during the video session, which likely cured any potential error. See Livingston v. State, 739 S.W.2d 311, 335 (Tex. Crim. App. 1987)(recognizing error in admission of improper testimony may generally be cured by instruction to disregard). While defense counsel objects to Trevino's testimony regarding Viramontes' demeanor and stance in the video room, the officer's perceptions of Viramontes' behavior were not subject to the suppression order; therefore, we cannot hold the trial court abused its discretion in admitting the testimony. Accordingly, we overrule Viramontes' sole issue and affirm the judgment of the trial court.

Catherine Stone, Justice

DO NOT PUBLISH