Windel Lloyd Wilson v. State

Opinion

                                                                NO. 12-04-00273-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

WINDEL LLOYD WILSON,            §                      APPEAL FROM THE

APPELLANT

V.        §                      COUNTY COURT AT LAW

THE STATE OF TEXAS,

APPELLEE   §                      HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION DENYING REHEARING

            Appellant filed a motion for rehearing, which is denied.  However, we withdraw our opinion of January 31, 2006 and substitute the following in its place.

            Appellant Windel Lloyd Wilson was convicted on a charge of driving while intoxicated, enhanced with one prior conviction of driving while intoxicated.  Appellant raises three issues complaining of improper introduction of evidence and improper argument by the State.  We affirm.

Background

            Appellant, during an all day boating trip at the lake, drank numerous beers and took Vicodin pills.  At the end of the day, he attempted to drive his vehicle and trailer to the boat ramp.  Damon Boswell, a police officer for the Gun Barrel City Police Department, stopped Appellant after observing him driving at a high rate of speed, pulling a trailer without lights, and crossing the center stripe of Highway 334 eight times over the course of a mile.  Three oncoming vehicles swerved to avoid a collision with Appellant.  After being stopped by Boswell, Appellant could not produce a driver’s license, appeared intoxicated, swayed while standing, and admitted to drinking beer during the day and taking two Vicodin pills.  Boswell detected the odor of alcohol on Appellant and observed a partially full open container of alcohol in Appellant’s vehicle.

            After a call from Boswell, Officer Terri Jones with the Gun Barrel City Police Department administered field sobriety tests to Appellant.  Appellant showed five of six clues on the horizontal gaze nystagmus and three clues on the walk and turn.  Boswell arrested Appellant for driving while intoxicated.  After transporting Appellant to jail, he read Appellant’s statutory rights to him, informing him of his right to refuse to give a blood or breath specimen for determining whether he is legally intoxicated.  Boswell also warned Appellant that if he refused to give a specimen, his motor vehicle license would be suspended for no less than ninety days and the fact that he refused a specimen for testing may be admissible at trial.  Appellant refused breath and  blood tests. 

            Appellant was charged by information with driving while intoxicated, enhanced by one prior conviction of driving while intoxicated.  See Tex. Pen. Code Ann. § 49.04(a) (Vernon 2003).  He pleaded not guilty to the original charge.  A jury convicted Appellant, and the court sentenced him to 365 days of confinement, probated for two years, and assessed a $2,000.00 fine.  This appeal ensued.

Reading From Police Report

      Appellant complains in his first issue that the trial court erroneously allowed Officer Boswell to read his police report to the jury without establishing a proper predicate. 

Evidentiary Ruling

            At trial, Boswell testified two times.  When he first testified, Appellant objected when it appeared that Boswell’s memory was not refreshed after reviewing his report and that he was essentially reading from it.  The trial court implicitly sustained his objection by telling the officer, “Testify from your memory please.”  Appellant continued to object at various times based on his belief that the officer was reading from the report, contending the report was hearsay.  The court overruled the objections.  At one point, the State asked Boswell to read “a small portion” from his report when he could not remember the number of times that Appellant’s vehicle had crossed the center line.  Appellant objected that the proper predicate had not been established for the officer to read from the report.  The trial court initially overruled that objection, but then instructed the prosecutor, “Identify what you’re asking the witness to refresh his memory from.”  Boswell reviewed the report and answered the question after refreshing his memory.

            Boswell admitted during cross examination that his memory was not clearly refreshed by his review of the report.  After questioning another Gun Barrel City Police Department officer,  the State recalled Boswell to testify.  The State asked Boswell if he was the person who wrote the incident report following Appellant’s arrest and if the report was made when he had a full and accurate recollection of the arrest.¹  Boswell replied affirmatively.  The State then asked him  to read portions of the incident report to the jury.  Before Boswell began reading, Appellant objected:

                        This officer has testified to these matters.  The document has been used to already refresh his memory.  We’re now going back.  We’re going to read the report now into the record.  The report is hearsay.  A police report is not admissible into evidence.  The document has been used to refresh his memory.  And all we’re doing now is just bolstering this witness.

The trial court overruled Appellant’s objections and granted a running objection.  However, Appellant’s complaint on appeal – no proper predicate – does not comport with his objections to the police report at trial.  See Jones v. State, 817 S.W.2d 854, 857 (Tex. App.–Houston [1st Dist.] 1991, no pet.).  Therefore, nothing is preserved for our review.   Appellant’s first issue is overruled.

Closing Argument

            In his second and third issues, Appellant complains that the State engaged in improper jury argument during closing argument.

Applicable Law

            Closing argument is to facilitate the jury in properly analyzing the evidence presented at trial so that it may arrive at a just and reasonable conclusion based on the evidence alone.  Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. 1980).  The permissible areas of jury argument include summation of the evidence, reasonable deduction from the evidence, an answer to argument of opposing counsel, and a plea for law enforcement.  Bell v. State, 724 S.W.2d 780, 802-03 (Tex. Crim. App. 1986).

            The law provides for a fair trial, free from improper argument by the prosecutor.  Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991).  If improper statements were made, an appellate court must determine whether the impropriety constitutes reversible error.  Herrera v. State, 915 S.W.2d 94, 97 (Tex. App.–San Antonio 1996, no pet.).  We view the improper statement in conjunction with the record as a whole and ascertain whether the statement was so prejudicial as to deny an appellant a fair trial.  Id.

Refusal to submit to intoxilyzer test

            In his second issue, Appellant argues that the State engaged in improper jury argument when it improperly shifted the burden of proof during closing argument.  Specifically, the prosecutor said in closing argument, “This means that instead of proving how much alcohol was in his system, he chose to keep that evidence from you and take a license suspension.”  The prosecutor was speaking of Appellant’s refusal to submit to an intoxilyzer test.  Appellant urges that this statement was improper jury argument, shifting  the burden of persuasion to him.

            We do not reach this issue because the State made the same argument later in its closing argument without defense objection.  Because Appellant did not object each time the State made the argument, nothing is preserved for appellate review.  See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).   Thus, we overrule Appellant’s second issue. 

Thoughts of other drivers

            In his third issue, Appellant asserts the State engaged in improper jury argument when it commented on the thoughts of the three drivers who swerved off the road to avoid a collision with Appellant.  Specifically, Appellant urges that the State’s comments were outside the evidence because the three drivers were not called to testify.

            In his closing argument, the prosecutor said, “Were those three drivers thinking that he [defendant] was sober and that he had full control of his mental and physical faculties?  No.”  Appellant objected to this statement.  However, the State contends that Appellant failed to preserve his complaint for review.  We agree.

            Before the prosecutor made the challenged comment, he made the following similar statement:

The three drivers that were driving down the road had to brake and steer to the side to avoid being hit.  If that’s not proof of being an intoxicated driver, I’d like for you to sit in those cars and be the one that almost got killed and tell me that that guy was not drunk.

This argument was presented without objection.  Because Appellant did not object each time the argument was made, nothing is preserved for appellate review.  See id.  Consequently, we overrule Appellant’s third issue.

Disposition

            Having overruled each of Appellant’s three issues, we affirm the judgment of the trial court.

                                                                                                    DIANE DEVASTO   

                                                                                                                 Justice

Opinion delivered March 22, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

                                    (DO NOT PUBLISH)

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¹ If a witness’s memory is not refreshed, a trustworthy document may be read to the jury if the statement was made or adopted by the witness, the statement correctly reflected the witness’s prior knowledge, and it was recorded at or near a time when the event was fresh in the witness’s memory.  See Tex. R. Evid. 803(5).