Ramon Martinez Martinez v. State

• Court: Court of Appeals of Texas
• Decided: February 27, 2003
• Docket: 01-02-00475-CR
• Status: Published

Opinion

Opinion issued February 27, 2003

In The

Court of Appeals

For The

First District of Texas

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                                           NOS. 01-02-00475-CR

                                                     01-02-00476-CR

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RAMON MARTINEZ MARTINEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Criminal Court at Law No. 5

Harris County, Texas

Trial Court Cause Nos. 1083620 & 1099665

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MEMORANDUM OPINION

          A jury found appellant, Ramon Martinez Martinez, guilty of the misdemeanor offenses of driving while intoxicated and failure to stop and give information, which were tried together. In each case, the trial court assessed appellant’s punishment at 180 days confinement, suspended the sentence, and placed appellant on community supervision for one year.

          In his sole issue, appellant contends that he was denied effective assistance of counsel in violation of the Sixth Amendment. We affirm.

Factual Background

          On October 20, 2001 at about 1:30 a.m., Julian Lopez was driving his car, with two passengers, on Old Galveston Road in Harris County, Texas. As they drove past the Apollo nightclub, another car, later identified as a purple Chevrolet Camaro, while exiting the nightclub’s parking lot, struck Lopez’s car head-on. Lopez testified that although he was unable to see the driver of the other car because his view was obstructed by an air bag that deployed inside his car, he did see only one person, a man wearing a red flannel shirt and dark pants, running from the other car after the collision. When appellant was later apprehended and brought back to the scene, Lopez identified him as the man he saw running from the other car.

          Joseph Chaffee, the backseat passenger in Lopez’s car, identified appellant at trial as the man that he saw get out of the driver’s side of the Camaro after the collision and run toward the nightclub. He testified that, on the night of the collision, appellant was wearing a long-sleeved, red striped shirt and black pants.

          South Houston Police Officer Alfonso Alvarez testified that he was the first officer to arrive at the scene, and he saw that the Camaro was “obviously” on the wrong side of the road at the time of the collision. Chaffee described the driver of the Camaro to Officer Alvarez, who communicated the description to other officers by radio.

          Officer Alvarez also testified, without objection, that he spoke with an unidentified female witness who told him that she saw the collision and the driver of the Camaro “jump out” of his car and run toward the back of the nightclub. According to Officer Alvarez, after appellant was apprehended and brought back to the scene, the witness identified appellant as the driver of the Camaro.

          South Houston Police Officer James Meadows testified that, after he received Officer Alvarez’s description of the driver of the Camaro, he spotted appellant, who fit the description, running and then crouching behind a fence about one block from the scene. Appellant was wearing a red shirt and black pants. When he took appellant into custody and back to the scene, Officer Meadows smelled a strong odor of alcohol on appellant’s breath and noted appellant’s speech was slurred.

          When Officer Meadows returned appellant to the scene, Officer Alvarez noted that appellant was wearing a red striped shirt and black pants, smelled strongly of alcohol, had red bloodshot eyes, was staggering, and had slurred speech. Officer Alvarez then administered a Horizontal Gaze Nystagmus (HGN) test on appellant to determine if he was intoxicated. Officer Alvarez testified that appellant demonstrated six “clues” and failed the HGN test. Officer Alvarez further testified that failing the HGN test “is like 88 percentile that if they fail that test and they give all clues, those six strong clues, that he is going to be intoxicated.” Based on his observations of appellant, Officer Alvarez formed the opinion that appellant had lost the normal use of his mental and physical faculties. According to Officer Alvarez, appellant refused to perform any more tests or answer any questions, and Alvarez then took appellant to the Houston Police Department’s central station for booking.

          Houston Police Officer Anthony Mock testified that, at the police station, appellant refused to give a sample of his breath. Officer Mock also testified that he smelled a strong odor of alcohol on appellant’s breath and that, in his opinion, based on his observations of appellant, appellant appeared to be intoxicated.

          Appellant was next taken to a videotape room where Houston Police Service Officer Paul Witherington, a civilian employee of the Houston Police Department’s traffic and accident division, asked appellant to perform some motor skills exercises while being videotaped. Appellant was asked to estimate a time lapse of 30 seconds with his eyes closed and his head tilted back, perform a one-leg stand, and perform a straight-line exercise. Appellant stated that he was recovering from burn injuries on his legs and that his injuries might affect his performance of the exercises. After the videotape was played at trial, Witherington testified that, in his opinion, appellant did not follow the instructions for the tests “too well.” Specifically, Witherington indicated that appellant performed the one-leg stand incorrectly after the officer demonstrated the exercise for appellant, appellant incorrectly estimated a time lapse of 30 seconds after only 13 seconds, and appellant counted to 30 seconds aloud when the correct procedure was to count silently.

          The videotape revealed that, although appellant admitted that he had consumed three 12-ounce cans of beer that evening, he denied that he had operated a motor vehicle. Appellant also denied that he had been involved in a collision and stated that he had been walking “about 30 minutes” when he was stopped by police. The State also introduced into evidence, without objection, a photograph taken at the police station showing appellant wearing a striped shirt.

          Appellant presented the testimony of Lucio Quintero, who rents a room from and lives with appellant. Quintero testified that, on the night in question, appellant had only consumed one beer in the three hours they spent together barbequing at their residence. At about 10:00 p.m. that evening, Quintero let Raul Escobar borrow Quintero’s Camaro, which he had purchased from appellant’s brother, to go to the store to purchase more meat for the barbeque. Quintero saw appellant get in the passenger seat of the car and leave with Escobar.

          Felicitas Garza and Escare Diaz testified that they saw appellant outside the nightclub between 1:00 and 1:30 a.m. Garza testified that, as she and Diaz were leaving the nightclub, she saw appellant get out of the passenger side of a purple car in the parking lot. When appellant asked Garza and Diaz for “a light” and a cellular phone, he did not appear intoxicated. Diaz testified that they directed appellant to a phone behind the nightclub. Both Garza and Diaz testified that appellant was wearing a brown shirt.

          Appellant testified that, after he left his house with Escobar to go to the store, they drove around South Houston until sometime after 11:00 p.m. and then went to the nightclub. Appellant testified that Escobar “was the only driver–I mean, he was the only one that drove most of the night.” Appellant further testified that he and Escobar went into the nightclub, where appellant had only a soft drink, and then left after about 30 minutes. Appellant testified that Escobar was driving the Camaro when they left the nightclub.

          Appellant testified that, after the collision, he got out of the car and approached a man and a woman to ask them if they had a cellular phone so he could report the accident. When they told him they did not, appellant asked the man and woman if the phone on the side of the nightclub was working and they said that it might. Appellant then asked them for a light for a cigarette. Appellant did not find any working phones on the side of the nightclub and proceeded down the street to locate a phone but was stopped by a policeman and handcuffed. Appellant also denied that he was wearing a red striped shirt the night of the collision and testified that he was wearing a brown shirt without stripes. When asked whether his burn injuries affected his ability to perform the sobriety tests at the police station, appellant testified “I’m not sure, I’m not a doctor.”

          On cross-examination, appellant testified that he had been at the club for “about 30 minutes or so,” but he could not account for the discrepancy between the time that he testified he arrived at the club, 11:00 p.m., and the time he was observed outside the club by Garza and Diaz, between 1:00 and 1:30 a.m. Appellant also conceded that, after the collision, he never checked to see if anyone was hurt in the other car.

Ineffective Assistance of Counsel

          In his sole issue, appellant contends that he was denied his constitutional right to effective assistance of counsel because his trial counsel (1) failed to timely object to and preserve error regarding hearsay testimony and (2) failed to object to testimony concerning a correlation between appellant’s performance on the HGN test and his blood-alcohol content.

          To prove a claim of ineffective assistance of counsel, an appellant must demonstrate that counsel’s representation fell below an objective standard of reasonableness based on prevailing professional norms, and that, but for counsel’s errors, there is a reasonable probability the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064-65, 2068 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). A “reasonable probability” is defined as a probability sufficient to undermine confidence in the outcome. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Appellant has the burden to prove a claim of ineffective assistance of counsel by a preponderance of the evidence. Id. An appellant must satisfy both prongs of the Strickland test, or the claim of ineffective assistance will fail. 466 U.S. at 697; 104 S. Ct. at 2052; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

          In assessing whether a defendant received effective assistance of counsel, we must look to the particular circumstances of each case and the totality of the representation. Thompson, 9 S.W.3d at 813. A strong presumption exists that counsel’s performance fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. At 2065; Thompson, 9 S.W.3d at 813. Absent evidence in the record of counsel’s reasons for the challenged conduct, a strategic motivation for counsel’s conduct is often assumed if any is possible under the circumstances. Garcia, 57 S.W.3d at 440. An appellate court will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in such conduct. Id.

Testimony Regarding Female Witness

          Appellant first argues that his trial counsel was ineffective for failing to timely object to and preserve error regarding testimony from Officer Alvarez about an unidentified female witness who, according to Alvarez, identified appellant as the driver of the Camaro. Appellant contends that such testimony was inadmissible hearsay, and that his trial counsel should have properly objected.

          Rule 801(e)(1)(c) provides that an out-of-court statement regarding the identification of a person, after the declarant perceived the person, is admissible if the declarant testifies and is subject to cross-examination concerning the statement. TEX. R. EVID. 801(e)(1)(c). Appellant argues that Officer Alvarez’s testimony was inadmissible because the unidentified female witness did not testify at trial and was not subject to cross-examination. Appellant also argues that his trial counsel erred, during the cross-examination of Officer Alvarez, by waiving the issue when he elicited further testimony concerning the identification.

          The unidentified female witness did not testify at trial. During the State’s direct examination of Officer Alvarez, appellant’s trial counsel repeatedly objected to Officer Alvarez’s testimony regarding statements made to him by the female witness. The trial court overruled trial counsel’s first three objections, all of which were based on hearsay grounds. Appellant’s trial counsel then made an unspecified “running” objection, presumably also on hearsay grounds. Appellant’s trial counsel then made an objection to Officer Alvarez’s testimony on the grounds that he was “summarizing,” which was sustained. Officer Alvarez then gave the following testimony regarding the unidentified female witness’s identification of appellant as the driver of the Camaro:

          Q:      Did she see the driver?

A:Yes. She said she saw the–once the vehicle struck the other car, the black Neon, that she saw the vehicle come kind of–after the blow had struck, it kind of, the vehicle came back; and she saw the guy, the driver, jump out.

Q: Now, did she later identify the defendant when he was brought back?

          A:      Yes, ma’am.

Q: And did she say that it was the same guy she saw as the driver?

A:She specifically said, there was no doubt in her mind that was him.

          [Appellant’s counsel]:     I will make a running objection.

          THE COURT:                 That is sustained.

          The record is unclear concerning the basis for trial counsel’s “running objection.” Further, to properly preserve an issue for appeal, an appealing party must make a timely, specific objection at the earliest possible opportunity and must pursue the objection to an adverse ruling, thereby exhausting any trial court remedies. Tex. R. App. P. 33.1; Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998). The proper method for pursuing an objection to an adverse ruling is to (1) make an objection, (2) request an instruction to disregard, and (3) make a motion for a mistrial. Koller v. State, 518 S.W.2d 373, 375-76 n.2 (Tex. Crim. App. 1975).

          Here, although the objection to the officer’s testimony was sustained, counsel should have pursued the objection to an adverse ruling to properly preserve possible error for review. See Dixon, 2 S.W.3d at 265. The record does not reflect trial counsel’s reasons, if any, for not requesting an instruction to disregard after the trial court sustained his objection concerning the identification testimony.

          During his cross-examination of Officer Alvarez, appellant’s trial counsel elicited the following testimony from Officer Alvarez:

          Q:      And at what point did you administer the HGN test?

A: When they already confirmed that was him. They all pointed –

          Q:      Who?

A:The witness and the actual – the witness pointed out that was him. She was positive, no doubt in her mind. That’s what she said.

Q:Okay. So based solely on that witness’ information, that’s the sole reason –

A: The witness and the other passenger also is the one that said that was him.

          It is well-established that the admission of the same evidence, without objection, waives any previously stated objections to the evidence. Massey v. State, 933 S.W.2d 141,143 (Tex. 1996). Thus, by eliciting hearsay testimony from Officer Alvarez, appellant’s trial counsel waived any error he may have preserved regarding such testimony.

          Assuming that appellant’s trial counsel’s performance was deficient for failing to properly preserve error concerning, and then eliciting, the above-referenced hearsay testimony, the record indicates that the State presented other evidence at trial identifying appellant as the driver of the Camaro. Lopez, the driver of the car struck by the Camaro, identified appellant as the man he saw wearing a red shirt and dark pants running from the Camaro after the accident. Chaffee, the backseat passenger in Lopez’s car, identified appellant at trial as the man he saw get out of the driver’s side of the Camaro following the accident and run toward the nightclub. Chaffee also testified that, on the night of the collision, appellant was wearing a long-sleeved, red striped shirt and black pants. Moreover, appellant’s own testimony that he was not the driver of the Camaro at the time of the collision was impeached by (1) his statements to Public Service Officer Witherington that he was not involved in any automobile collision and had been walking for “about 30 minutes” when he was apprehended and (2) the photograph, taken at the police station, of appellant wearing a striped shirt, contrary to his trial testimony.

          In light of this evidence, we cannot conclude that there is a reasonable probability that, but for trial counsel’s errors the result of the proceeding would have been different.

Testimony Regarding HGN Test

          Appellant also contends that his defense counsel was ineffective in failing to object to Officer Alvarez’s testimony correlating appellant’s performance on the HGN test to a specific blood-alcohol content.

          An officer may testify about a defendant’s performance on an HGN test, however he may not correlate the defendant’s performance to a precise blood alcohol content. Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994). Therefore, an officer may testify concerning the qualitative results of the HGN test, but not the quantitative results. Id.; Youens v. State, 988 S.W.2d 404, 406 (Tex. App.—Houston [1st Dist.] 1999, no pet.). An officer may testify that, in his opinion, a suspect was under the influence of alcohol, but may not testify to that suspect’s exact blood-alcohol content. Youens, 988 S.W.2d at 406. The testimony at issue here is Officer Alvarez’s statement correlating appellant’s poor performance on the HGN test that “it’s like an 88 percentile that he is already above .08.”

          In Youens, the defendant was involved in a car collision, and the officer who came to the scene of the collision smelled alcohol on the defendant’s breath. 988 S.W.2d at 405. When the officer noticed the defendant “fumble” with her wallet, he became suspicious of the defendant’s sobriety. Id. The officer then administered three field sobriety tests, including the HGN test, and the defendant failed all three tests. Id. At trial, the officer testified that if the defendant had been given an intoxilizer at the time of the offense, her blood alcohol concentration “would have been at least .10.” Id. at 405-06. This Court held that, although the officer should not have given his opinion about the defendant’s quantitative blood alcohol content based on the HGN test, the defendant’s objection at trial was not specific enough to preserve error for review. Id. at 406.

          As in Youens, appellant’s trial counsel should have objected to Officer Alvarez’s testimony correlating appellant’s failure on the HGN test to a high probability of a specific blood-alcohol content. However, the record indicates that the State presented additional evidence regarding appellant’s intoxication on the night of the collision. Officers Alvarez, Meadows, and Mock all testified that appellant smelled of alcohol. Officer Alvarez noted that appellant had red, bloodshot eyes, was slurring his speech, and was staggering. Officer Meadows also noted that appellant’s speech was slurred. Officer Mock testified that he thought appellant was intoxicated when he arrived at the police station. Public Service Officer Witherington testified that appellant performed poorly on the motor-skill exercises at the police station. Appellant also admitted that he had consumed three beers on the night of the collision.

          Assuming appellant’s trial counsel was deficient in failing to object to Officer Alvarez’s testimony regarding a correlation between appellant’s performance on the HGN test and a specific blood-alcohol content, given the other evidence of appellant’s intoxication presented, we cannot conclude that there is a reasonable probability that, but for counsel’s deficient performance, the results of the proceeding would have been different. Therefore, we hold that appellant has not met the second prong of the standard set forth in Strickland to prevail on his claim of ineffective assistance of counsel.

          We overrule appellant’s sole issue.

Conclusion

          We affirm the judgments of the trial court.

                                                                        Terry Jennings

                                                                        Justice

Panel consists of Justices Hedges, Jennings, and Alcala.

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