COURT OF
APPEALS
SECOND
DISTRICT OF TEXAS
FORT WORTH
NO. 2-02-441-CR
KEVIN DUANE TALKINGTON APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM COUNTY CRIMINAL COURT NO.
9 OF TARRANT COUNTY
MEMORANDUM OPINION1
Appellant
Kevin Duane Talkington appeals his conviction for misdemeanor driving while
intoxicated (“DWI”), which was enhanced by a prior DWI conviction. A jury
found him guilty as charged, and the court sentenced him to sixty days’
confinement in the Tarrant County Jail and a $750 fine. Appellant raises eleven
points.2 We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because
sufficiency of the evidence is not at issue, we need only briefly discuss the
facts of this case. On January 1, 2002, Corporal Shawn Holt and Officer Ralph
Salazar, of the Haltom City Police Department, noticed Appellant pull out of a
parking lot in front of the Cowtown Country nightclub. The officers followed
Appellant and observed him weave within the lane and make a quick right turn
from the left lane, without signaling a proper distance before turning. The
officers followed the car as it pulled in front of a house.
Officer
Salazar approached the car and spoke with Appellant. The officer noticed that
Appellant’s eyes were “very bloodshot” and that there was a strong odor of
alcohol coming from both Appellant and his vehicle. Appellant’s speech was
also slurred. When asked, Appellant told Officer Salazar that he drank “three
or four” beers that night.
Appellant
did poorly on the horizontal gaze nystagmus, walk-and-turn, and one-leg stand
field sobriety tests he agreed to perform. After being taken to the intoxilyzer
room and read his statutory DWI warnings, Appellant refused to submit a breath
sample or to perform any further sobriety testing. See Tex. Transp. Code Ann. § 724.015 (Vernon Supp. 2004). In a
post-arrest search of Appellant’s vehicle, the officers found a three-quarters
full, open bottle of vodka under the front passenger seat, with the neck of the
bottle facing toward the driver’s side. Both officers opined that Appellant
had lost the normal use of his mental and/or physical faculties at the time he
operated his vehicle due to the ingestion of alcohol. After hearing and
considering all of the evidence presented, a jury found Appellant guilty as
charged.
PROBABLE CAUSE
In
his first point, Appellant complains that “[t]he trial court erred . . . in
overruling [his] objection to the stop, detention, arrest and search of the
Appellant and his property and to the seizure of such property [because they]
were not justified nor supported by probable cause.” Appellant did not,
however, present this argument to the trial court. To preserve a complaint for
our 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. Tex. R. App. P. 33.1(a)(1); Mosley v.
State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert.
denied, 526 U.S. 1070 (1999). Accordingly, we will not consider
Appellant’s complaints in his first point because they are not properly before
us. We overrule point one.
ADMISSION OF VODKA BOTTLE
In
his second point, Appellant argues that the trial court abused its discretion by
admitting the partially filled bottle of vodka found in his car because it was
not relevant, constituted extraneous offense evidence, and was substantially
more prejudicial than probative. See Tex. R. Evid. 401, 403, 404. We review a
trial court’s decision to admit evidence under an abuse of discretion
standard. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App.), cert.
denied, 534 U.S. 855 (2001). We will not reverse a trial court’s ruling
concerning the admission of evidence unless that ruling falls outside the zone
of reasonable disagreement. Id.
As
the State points out, Corporal Holt testified without objection on direct
examination that after Appellant’s arrest, he and other officers searched
Appellant’s car and found “one bottle of McCormick vodka that was
approximately three-quarters full . . . underneath the right front passenger
seat” and which had been opened. On cross-examination, Corporate Holt
testified that he had not checked the bottle for fingerprints, and when asked
whether he thought the bottle “necessarily ha[d] anything to do with the facts
of this case,” he responded, “I don’t know.” Both officers testified,
however, that they detected a strong smell of alcohol in Appellant’s car and
on his breath. Moreover, neither officer ruled out the possibility that
Appellant had consumed vodka in addition to the beer he admitted drinking on the
night he was arrested. Based on this testimony and the other evidence of
Appellant’s intoxication, we cannot say that the vodka bottle was barred by
rules 401, 403, or 404(b) or that the trial court abused its discretion in
admitting the vodka bottle. See Tex.
R. Evid. 401, 403, 404(b); Salazar, 38 S.W.3d at 153-54; see
also Perry v. State, 991 S.W.2d 50, 52 (Tex. App.—Fort Worth 1998, pet.
ref’d) (listing the presence of alcohol in the defendant’s car, among other
evidence, as proof of the defendant’s guilt of DWI). Accordingly, we overrule
Appellant’s second point.
JURY ARGUMENT
In
his fourth through eleventh points, Appellant argues that the trial court erred
in overruling his objections to various portions of the State’s jury argument.
To be permissible, the State’s jury argument must fall within one of the
following four general areas: (1) summation of the evidence; (2) reasonable
deduction from the evidence; (3) answer to argument of opposing counsel; or (4)
plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94-95 (Tex.
Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v.
State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973).
In
his fourth point, Appellant complains that the following remark from the
State’s jury argument was outside the record: “Officer Salazar indeed finds
out later that they weren’t expecting him that night.” The State
acknowledges that this statement was outside the record, but it argues that the
trial court’s failure to sustain Appellant’s objection constituted harmless
error. See Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999)
(holding that error exists when facts not supported by the record are
interjected in the argument), cert. denied, 531 U.S. 837 (2000).
If
a jury argument exceeds the bounds of proper argument, the trial court’s
erroneous overruling of a defendant’s objection is not reversible error unless
it affected the appellant’s substantial rights. Tex. R. App. P. 44.2(b); Martinez v.
State, 17 S.W.3d 677, 692-93 (Tex. Crim. App. 2000); Mosley, 983
S.W.2d at 259. In determining whether the appellant’s substantial rights were
affected, we consider: (1) the severity of the misconduct (i.e., the prejudicial
effect of the prosecutor’s remarks), (2) curative measures, and (3) the
certainty of conviction absent the misconduct. Martinez, 17 S.W.3d at
692-93; Mosley, 983 S.W.2d at 259. In reviewing the entire record, we
agree with the State that the error was harmless because the prejudicial effect
of the State’s remark was minimal, the State did not repeat or emphasize the
comment, and the certainty of conviction was great in light of the evidence
adduced during trial. See Tex. R.
App. P. 44.2(b); Martinez, 17 S.W.3d at 692-93; Mosley, 983
S.W.2d at 259. We overrule point four.
In
his fifth point, Appellant contends that the trial court erred in overruling his
objection to the State’s jury argument consisting of “[n]ow he gets in [the
intoxilyzer room] and sees [a] camera and says, I’m not going to do anything
for you, okay, because I don’t want to show anybody anything. Not just the
officers, but you all.” Appellant argues that the preceding argument was
improper because the State commented upon his post-arrest silence and his
failure to testify at trial. We disagree.
The
State is permitted to comment upon a defendant’s refusal to take a breath test
or his refusal to perform a sobriety test on videotape. See Emigh v. State,
916 S.W.2d 71, 73 (Tex. App.—Houston [1st Dist.] 1996, no pet.); Jordan v.
State, 897 S.W.2d 909, 912-13 (Tex. App.—Fort Worth 1995, no pet.). Here,
the State reminded the jury of the video they had seen during trial showing
Appellant’s arrival at the intoxilyzer room and his refusal to give a breath
sample or to perform any sobriety tests, and the State reiterated that Appellant
told the officers they should have had his field sobriety tests on camera. As
such, the State was summarizing the evidence before the jury and therefore did
not engage in improper jury argument. See Emigh, 916 S.W.2d at 73;
Jordan, 897 S.W.2d at 912-13. We also conclude that the State’s remarks
were not improper comments on Appellant’s post-arrest silence. See id.;
Jones v. State, 795 S.W.2d 171, 174 n.3 (Tex. Crim. App. 1990); McCambridge
v. State, 712 S.W.2d 499, 505-06 (Tex. Crim. App. 1986). We overrule point
five.
In
his sixth and seventh points, Appellant asserts that the trial court erred in
overruling two objections during the following portion of the State’s jury
argument:
[STATE]:
. . . . Do you see disability? At one point, he tells them about a bunion on his
leg. You think that maybe if he had a fake leg, bad back, MS, anything, he might
mention that because he’s going to bring up a bunion? But he doesn’t tell
you there’s anything wrong with him. Is he normal? Yes, he’s normal. He’s
as normal as the rest of us. There’s nothing about him --
[DEFENSE
COUNSEL]: I object. I object. That’s a comment on the defendant’s silence at
trial.
THE
COURT: Overruled.
[STATE]:
There is nothing about him that make’s [sic] him unable to do these tests.
[DEFENSE
COUNSEL]: I object. Comment on -- It’s outside of the record and it’s also a
comment about his silence.
THE
COURT: Overruled. Y’all remember what the evidence was.
We
agree with the State that the trial court did not err when it overruled both of
these objections. In response to trial counsel’s argument that he did not know
what was normal for Appellant, the State argued that, despite Appellant’s
alleged bunion, he was normal and should have been able to perform the sobriety
tests. We conclude that the State’s argument properly commented upon
Appellant’s refusal on the videotape to perform further sobriety tests. See
Emigh, 916 S.W.2d at 73; Jordan, 897 S.W.2d at 912-13. Further, even
if the argument constituted a remark on Appellant’s silence at trial, we think
the argument can reasonably be construed to refer to Appellant’s failure to
present evidence of his disability through means other than that of his own
testimony and therefore was not improper. Fuentes v. State, 991 S.W.2d
267, 275 (Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999); Wolfe
v. State, 917 S.W.2d 270, 279 (Tex. Crim. App. 1996); Madden v. State,
799 S.W.2d 683, 700 (Tex. Crim. App. 1990), cert. denied, 499 U.S. 954
(1991). We overrule points six and seven.
In
his eighth point, Appellant directs us to another statement from the State’s
jury argument: “A bunion on your foot doesn’t make you incapable to do a
walk and turn.” Appellant argues that the trial court erred in overruling his
objection to this statement, contending that the State was presenting further
testimony and arguing outside the record. The jury viewed the tape of Appellant
performing the field sobriety tests and heard him tell the officers on two
occasions that he had a bunion on his left foot. We agree with the State that
the prosecutor’s statement constituted a fair, legitimate, and reasonable
inference drawn from the facts in evidence and that the trial court did not err
in overruling Appellant’s objection to the statement. See Barnes v. State,
70 S.W.3d 294, 308 (Tex. App.—Fort Worth 2002, pet. ref’d). Accordingly, we
overrule point eight.
In
his ninth point, Appellant maintains that the State improperly commented on his
failure to testify when it argued, “Because he doesn’t want y’all to know
whether or not he’s got this in him, plus the four beers, whether he’s got
just the four -- he doesn’t want you to know -- [.]“ He argues that the
trial court erred in overruling his objection. We disagree. Immediately before
the statement to which Appellant objected, the State reviewed Appellant’s
refusal to repeat the field sobriety tests in the intoxilyzer room and his
refusal to submit a breath sample. We conclude that the State then drew a
reasonable inference from Appellant’s actions, i.e., that he refused to submit
the breath sample because he did not want to reveal that he had consumed more
alcohol than the four beers he admitted drinking. See Gaddis v. State,
753 S.W.2d 396, 398 (Tex. Crim. App. 1988) (holding that the State’s argument
that a defendant refused to take a breath test “[b]ecause if he blows in the
machine, the game is over” was a reasonable and legitimate inference and
constituted proper argument). We overrule point nine.
Appellant
argues in his tenth and eleventh points3 that the
State engaged in improper jury argument when the prosecutor stated, “Yes,
Defense Counsel doesn’t have a burden, but once he chooses to, he doesn’t
get to create reasonable doubt by coming up with unreasonable ideas -- [.]“
Appellant contends that the trial court erred in overruling his objection to
this remark because the State’s argument was an impermissible strike at him
over the shoulder of his trial counsel. See McMurrough v.State, 995
S.W.2d 944, 947 (Tex. App.—Fort Worth 1999, no pet.) (stating that
“[s]triking at the defendant over the shoulders of his counsel is
impermissible”). We conclude that the trial court did not err in overruling
Appellant’s objection to this remark because the argument was not improper. See
Coble v. State, 871 S.W.2d 192, 205 (Tex. Crim. App. 1993) (holding that the
trial court did not err in allowing argument that defense counsel was arguing
“something ridiculous”), cert. denied, 513 U.S. 829 (1994); Tilbury
v. State, 890 S.W.2d 219, 224 (Tex. App.—Fort Worth 1994, no pet.)
(holding that the trial court did not err in allowing argument that defense
counsel tried to “manufactur[e] reasonable doubt” where there is none
because the argument did not accuse defense counsel of “manufacturing
evidence”). We therefore overrule Appellant’s tenth and eleventh points.
DEPRIVATION OF COUNSEL AND INEFFECTIVE ASSISTANCE OF
COUNSEL
In
his twelfth point, Appellant complains of two matters related to his
representation after sentencing. Appellant first asserts that the trial court
erred in failing to appoint counsel to represent him in a timely manner to
assist at a critical stage of the prosecution with the preparation and filing of
a timely and proper motion for new trial.
We
agree with the State that this case is controlled by Kane v. State, 80
S.W.3d 693 (Tex. App.—Fort Worth 2002, pet. ref’d). As we stated in Kane,
“Following sentencing, when trial counsel does not withdraw and is not
replaced by new counsel, a presumption exists that trial counsel continued to
effectively represent the defendant during the time for filing a motion for new
trial.” Id. at 695 (citing Smith v. State, 17 S.W.3d 660, 662
(Tex. Crim. App. 2000); Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim.
App. 1998) (op. on reh’g), cert. denied, 525 U.S. 1181 (1999)). Here,
the trial court sentenced Appellant on October 29, 2002. While Appellant’s
retained counsel did not file a motion for new trial, notice of appeal, or
motion to withdraw,4 Appellant, acting pro se,
timely filed a notice of appeal on October 29, a motion for new trial and notice
of appeal on October 30, and a notice of appeal on November 7.
Similar
to Kane, Appellant’s pro se filings “demonstrate that his retained
trial counsel informed him of at least some of his appellate rights and support
the proposition that [his] trial counsel continued to effectively represent him
post-sentence.” Id. (citing Smith, 17 S.W.3d at 662-63; Oldham,
977 S.W.2d at 363). We cannot conclude that Appellant rebutted the presumption
that trial counsel continued to represent him effectively during the time for
filing a motion for new trial, and we hold that Appellant was not deprived of
counsel during that time. See Smith, 17 S.W.3d at 662-63; Oldham,
977 S.W.2d at 363; Kane, 80 S.W.3d at 695.
Appellant
next argues that his trial counsel rendered ineffective assistance of counsel by
failing to file a motion for new trial or seeking “to withdraw or have
court-appointed counsel substituted for him during a critical stage of the
prosecution”—the time for filing a motion for new trial. See Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984) (establishing
a two-pronged test for ineffective assistance claims); Thompson v. State,
9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We rejected this exact argument in Kane.
80 S.W.3d at 695-96. As in Kane, the record before us does not show that
Appellant has rebutted the presumption that the representation Appellant
received during the time for filing a motion for new trial was adequate, i.e.
the presumption that he received advice about the merits of trial counsel filing
a motion for new trial but rejected the option. Id. at 696 (citing Smith,
17 S.W.3d at 662-63; Oldham, 977 S.W.2d at 363); see also Thompson,
9 S.W.3d at 814 (stating that claims of ineffective assistance must be firmly
rooted in the record). Because Appellant has not shown that his trial
counsel’s performance was deficient, as he must under the first Strickland
prong, we hold that he has not met his burden of establishing that trial counsel
rendered ineffective assistance.5 Strickland,
466 U.S. at 687, 104 S. Ct. at 2064; Kane, 80 S.W.3d at 696. Accordingly,
we overrule point twelve.
CONCLUSION
Having
overruled all of Appellant’s points, we affirm the trial court’s judgment.
DIXON
W. HOLMAN
JUSTICE
PANEL A: CAYCE,
C.J.; LIVINGSTON and HOLMAN, JJ.
DO NOT PUBLISH
Tex. R. App.
P. 47.2(b)
DELIVERED: January 22, 2004
NOTES
1.
See Tex. R. App. P. 47.4.
2. In his brief, Appellant lists twelve points; however, he
does not label one as his third point. We will refer to his eleven points as he
has designated them.
3. Appellant’s tenth and eleventh points state the same
complaint with respect to the same portion of the State’s jury argument.
4. On December 13, 2002, we received a letter from
Appellant’s trial counsel informing us that he had not been retained or
appointed to represent Appellant in this appeal. Nothing in the record, however,
suggests that the trial court was made aware that it might be necessary to
review the appointment of counsel until we abated Appellant’s appeal and
remanded the case in March 2003.
5. The court of criminal appeals has stated that “the
record on direct appeal will generally ‘not be sufficient to show that
counsel’s representation was so deficient as to meet the first part of the Strickland
standard’ as ‘[t]he reasonableness of counsel’s choices often involves
facts that do not appear in the appellate record.’” Rylander v. State,
101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (citation omitted). Thus, the court
has indicated that “an application for a writ of habeas corpus is the more
appropriate vehicle to raise ineffective assistance of counsel claims.” Id.