No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS INOCENCIO M. VILLASENOR, APPELLANT THE STATE OF TEXAS, APPELLEE

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1 No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS The State requests oral argument if Appellant argues. 5th Court of Appeals FILED: 4/8/11 14:00 Lisa Matz, Clerk INOCENCIO M. VILLASENOR, APPELLANT v. THE STATE OF TEXAS, APPELLEE On appeal from the County Criminal Court No. 3 of Dallas County, Texas in Cause No. M STATE S BRIEF Counsel of Record: CRAIG WATKINS MICHAEL J. SANDLIN CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY DALLAS COUNTY, TEXAS STATE BAR NO FRANK CROWLEY COURTS BUILDING 133 N. RIVERFRONT BLVD., LB-19 DALLAS, TEXAS (214) (214) fax Attorneys for the State of Texas

2 TABLE OF CONTENTS INDEX OF AUTHORITIES... iii STATEMENT OF THE CASE... 1 STATEMENT OF FACTS... 1 SUMMARY OF ARGUMENT....4 ARGUMENT... 4 RESPONSE TO ISSUE Appellant was not denied the right to present a defense. PRAYER 14 CERTIFICATE OF SERVICE..15 ii

3 INDEX OF AUTHORITIES Cases California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). 5 Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). 5 Flores v. State, 871 S.W.2d 714 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 926, 115 S.Ct. 313, 130 L.Ed.2d 276 (1994)... 7, 8, 13 Holmes v. State, 323 S.W.3d 163 (Tex. Crim. App. 2010) (op. on reh g).. 9 Holmes v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006)... 5 Jimenez v. State, 32 S.W.3d 233 (Tex. Crim. App. 2000). 7, 11 Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)... 5 Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002). 8, 9, 12 Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005)...7, 11 Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008), cert. denied, U.S., 130 S.Ct. 53, 175 L.Ed.2d 43 (2009) Upton v. State, 853 S.W.2d 548 (Tex. Crim. App. 1993) Wright v. State, 28 S.W.3d 526 (Tex. Crim. App. 2000), cert. denied, 531 U.S. 1128, 121 S.Ct. 885, 148 L.Ed.2d 793 (2001). 7, 11 iii

4 Statutes TEX. R. APP. P. 33.1(a)(1)(A) 7, 11 TEX. R. APP. P. 44.2(a)...9, 12, 14 TEX. R. APP. P. 44.2(b) 9, 12, 14 TEX. R. EVID.103(a). 8, 11, 13 iv

5 TO THE HONORABLE COURT OF APPEALS: The State of Texas submits this brief in reply to the brief of Appellant, Inocencio M. Villasenor. STATEMENT OF THE CASE Appellant was charged by an information with driving while intoxicated and pleaded not guilty. (RR2: 64). Appellant was found guilty by a jury. (RR3: 107). Punishment was assessed by the court at 150 days in the Dallas County jail, probated for 18 months, with a $700 fine. (RR3: 108). STATEMENT OF FACTS Richardson Police Officer Shawn Harris testified he was on patrol on June 30, 2007, when he came into contact with Appellant. (RR2: 67-70). Harris, who was observing traffic from a bridge, watched Appellant driving a Dodge truck below him on Highway 75. (RR2: 70-71). Appellant was straddling the lane dividers between the right lane and the right center lane for several hundred yards as he drove north. (RR2: 71). Harris then entered his marked patrol car and followed Appellant from a distance of a few car lengths. (RR2: 71-72). Harris saw Appellant cross the lane divider five more times. (RR2: 72, 73). Harris considered Appellant s driving to be unsafe. (RR2: 72-73). After Harris activated his overhead emergency lights, Appellant pulled over. (RR2: 73). Upon speaking with Appellant, Harris noticed that Appellant s eyes were watery and bloodshot. (RR2: 73-74). Additionally, Appellant s speech was slurred and Harris smelled the odor of an alcoholic beverage on or about Appellant s person. (RR2: 74, 75-76). Appellant said he had been drinking earlier at a party in Farmers Branch. 1

6 (RR2: 74). Appellant stated he had drunk five beers, was a little drunk, and knew that five beers was over the limit. (RR2: 74). Harris looked into the backseat of Appellant s truck and saw an open bottle of beer in the cup holder. (RR2: 74). At the time of the stop, Harris field training officer, Officer Hooten, was with him. (RR2: 75). Officer Hooten observed Harris when he conducted the field sobriety tests. (RR2: 96). Harris called another officer to the scene, which is standard procedure when field sobriety tests are going to be performed. (RR2: 74-75). Once backup Officer Baumert arrived, the three officers returned to Appellant s vehicle and asked him to step out of it. (RR2: 75). Field sobriety tests conducted between the rear of Appellant s vehicle and the front of Harris squad car were captured on video. (RR2: 76, 97-98; State s Exhibit 2). Harris stated that the field sobriety tests are standardized tests and that he is certified to administer them. (RR2: 76-77). Harris testified that a person who is intoxicated does not perform well on the tests. (RR2: 77). The walk-and-turn test and the one-legged stand test are divided-attentions tests. (RR2: 77). These two tests, which are not complex, are designed to divide a person s mental and physical faculties, as they would be divided while driving. (RR2: 77). Harris explained the tests to Appellant. (RR2: 77). Appellant did not indicate any physical or mental problems that would prevent him from performing them. (RR2: 77). The first test administered to Appellant was the horizontal gaze nystagmus. (RR2: 78). Harris testified he had performed this test hundreds of times. (RR2: 83-84). Nystagmus is the involuntary jerking of the eye, which occurs naturally and cannot be controlled. (RR2: 78-79). Horizontal gaze nystagmus becomes visible to the naked eye when 2

7 enhanced by alcohol. (RR2: 78-79). In performing the test, Harris looked for three clues in each eye. (RR2: 79-80). Four out of the maximum of six clues indicate possible intoxication of a person. (RR2: 83). In the instant case, Appellant exhibited all six clues. (RR2: 83). The second test was the walk-and-turn test. (RR2: 84). Harris explained that the starting position occurs when the person imagines a straight line in front of him and places his left foot on the line and then puts his right foot heel-to-toe in front of it. (RR2: 84). The person stays in that position until he is told to begin. (RR2: 84). At that point, the officer gives instructions about the test and demonstrates it. (RR2: 84). The purpose of the test is to divide mental and physical faculties. (RR2: 84-85). Harris gave Appellant instructions and demonstrated how the test was to be performed. (RR2: 85). Appellant was to take nine heel-to-toe steps, then turn around and take nine more heel-totoe steps. (RR2: 85). When asked how Appellant performed on the test, Harris stated that Appellant was unable to maintain his balance while listening to instructions. (RR2: 86). During the walking phase of the test, Appellant stopped while walking to steady himself, placed his heel more than ½ inch from his toe, stepped off the line, and made an improper turn. (RR2: 86). Two out of eight clues indicate intoxication, and Appellant exhibited five clues. (RR2: 87). The third test was the one-leg stand. (RR2: 87). Two clues indicate intoxication, and Appellant exhibited two clues. (RR2: 88). There had been other instances where Harris pulled people over, conducted field sobriety tests, and let them leave. (RR2: 91). In the instant case, Harris formed the 3

8 opinion that Appellant was intoxicated. (RR2: 91-92). Harris arrested Appellant for driving while intoxicated. (RR2: 92). Harris explained that he arrested Appellant based on the totality of the investigation, which included Appellant s driving (unable to maintain a single lane and going into other people s lanes), Harris contact with Appellant, Appellant s slurred speech, and the odor of alcohol on or about Appellant s person. (RR2: 92). Harris was also of the opinion that Appellant was not safely operating a motor vehicle and could not safely operate a motor vehicle. (RR2: 93, ). SUMMARY OF ARGUMENT Appellant brings one issue on appeal. Appellant contends the trial court prevented defense counsel at trial from presenting a defense by sustaining objections to counsel s cross-examination. Appellant failed to preserve his complaint on appeal. Alternatively, Appellant was not prevented from presenting his defense. Finally, any error was harmless. ARGUMENT RESPONSE TO ISSUE Appellant was not denied the right to present a defense. Appellant contends that the trial court denied him the right to present a defense by sustaining objections to defense counsel s cross-examination of Officer Harris. Appellant notes four instances in which the trial court sustained the prosecutor s objections to defense counsel s cross-examination. Appellant has failed to preserve this issue for appeal. Alternatively, Appellant was not prevented from presenting a defense. 4

9 Finally, any error was harmless. Appellant s issue should be overruled. The U.S. Constitution, through the Fourth and Sixth Amendments, guarantees criminal defendants a meaningful opportunity to present a complete defense. Holmes v. South Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986)). Criminal defendants are entitled to call witnesses in their behalf and to cross-examine witnesses who have testified for the government. California v. Trombetta, 467 U.S. 479, 486, n.6, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). To deprive an accused of the right to crossexamine the witnesses against him is a denial of the Fourteenth Amendment s guarantee of due process of law. Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Cross-examination regarding walk-and-turn test On cross-examination, Officer Harris testified that at the time of the offense, he was in his second or third week of field training, after having finished his six months of academy work. (RR2: ). Harris explained that another officer must accompany a new officer for three months of field training for evaluation purposes and to make sure things are being done correctly. (RR2: 103). Harris was evaluated weekly and was supervised throughout the training period. (RR2: ). Defense counsel had Harris step down to demonstrate the walk-and-turn test, using defense counsel as the subject. (RR2: 115). When defense counsel stated that he was off balance when he stood with one foot in front of the other, the prosecutor objected that defense counsel was testifying. (RR2: ). The trial court dismissed the jury for the 5

10 day and instructed defense counsel that he could ask questions but could not become a witness in front of the jury by saying that a test was easy or hard. (RR2: ). The trial court told defense counsel that he could call someone else to testify. (RR2: 118). The following day at trial, defense counsel asked the trial court to allow him to continue with the demonstration. (RR3: 4). The trial court agreed but told counsel to remember my instructions about your testifying. (RR3: 4). Defense counsel asked Harris to go through the walk-and-turn instructions again. (RR3: 4). Harris began reciting the instructions, which included the question, Do you understand? (RR3: 4). Defense counsel answered, Yes. (RR3: 4). The trial court interjected that the officer could give instructions but that defense counsel was not to respond. (RR3: 5). Defense counsel agreed. (RR3: 5). Once Harris finished the instructions, defense counsel stated that, When I do your test, if I do it and I m just going to go through the motions. (RR3: 5). The prosecutor objected to any demonstration of the test by the Defense attorney. It s essentially his nonverbal testimony as to whether or not he can perform the test. (RR3: 5). The trial court sustained the objection. (RR3: 6). Defense counsel then had Officer Harris give detailed testimony regarding the walk-and-turn test. (RR3: 6-15). Appellant contends these two instances were examples of the trial court abusing its discretion in prohibiting defense counsel from providing a more thorough understanding of the walk-and-turn test. (App. Br. at 5-6). Initially, Appellant s issue should be overruled because it has not been preserved for review. To preserve a complaint for appellate review, the complaining party must 6

11 have lodged a timely and specific objection, motion, or request to the trial court that stated the grounds for the ruling sought by the requesting party with sufficient clarity to make the trial court aware of the complaint and the specific underlying grounds, unless the specific grounds were apparent from the context. TEX. R. APP. P. 33.1(a)(1)(A); Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005). Even claims involving constitutional rights and the constitutionality of statutes are subject to being waived for appellate review if they are not preserved in the trial court by compliance with the preservation of error rules. See Jimenez v. State, 32 S.W.3d 233, 235 (Tex. Crim. App. 2000); Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000), cert. denied, 531 U.S. 1128, 121 S.Ct. 885, 148 L.Ed.2d 793 (2001). When an appellant has denied the trial court any opportunity to rule on the complaint advanced later on appeal by having failed to advance that complaint below, nothing exists for the appellate court to review relative to that complaint because there is no ruling from the trial court for the appellate court to assess. See Flores v. State, 871 S.W.2d 714, 720 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 926, 115 S.Ct. 313, 130 L.Ed.2d 276 (1994). In the instant case, Appellant failed to make the trial court aware of the complaints he now makes on appeal. At trial, Appellant made no complaint at all when the trial court instructed counsel not to speak in response to instructions that Officer Harris repeated from speaking with Appellant on the side of the road. Defense counsel simply responded, Okay, when the trial court instructed him not to speak. In the second instance, the trial court sustained the State s objection that defense counsel s demonstration was nonverbal testimony. Defense counsel had no response at all. 7

12 Because counsel did not make the trial court aware of his concern that he was being prevented from presenting a defense and because it was not apparent from counsel s actions, nothing exists for this Court to review. See Flores, 871 S.W.2d at 720; TEX. R. EVID.103(a) (error may not be predicated upon a ruling that excludes evidence unless a substantial right of the party is affected and the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.). Alternatively, the trial court did not abuse its discretion in sustaining the State s objections to defense counsel s cross-examination during Officer Harris testimony regarding the walk-and-turn test. The jury was presented with a thorough understanding of the walk-and-turn test through the testimony of Officer Harris and the introduction of State s Exhibit 2, which was a video recording that included the field sobriety tests performed by Appellant at the scene. The video clearly shows Appellant performing the walk-and-turn test after being instructed by Officer Harris. (State s Exhibit 2: 4:26:56 4:30:19). The trial court s ruling was only to prevent defense counsel at trial from becoming a witness, not to prevent counsel from presenting evidence about the walk-andturn test. The trial court did not abuse its discretion. See Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002) (noting that the exclusion of a defendant s evidence will be constitutional error only if the evidence forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense. ). Finally, if the trial court erred in sustaining the complained-of objections to defense counsel s cross-examination regarding the walk-and-turn test, the error was 8

13 harmless. TEX. R. APP. P (a),(b). In Holmes v. State, 323 S.W.3d 163, (Tex. Crim. App. 2010) (op. on reh g), the Court of Criminal Appeals held that where the trial court disallowed cross-examination of the State s expert witness, there was a violation of the defendant s fundamental rights to a fair trial and examined harm under TEX. R. APP. P. 44.2(a), in which a judgment of conviction is to be reversed unless it is determined beyond a reasonable doubt that the error did not contribute to the conviction or punishment. In the instant case, Appellant was not prevented from cross-examining Officer Harris. Moreover, excluding a defendant s evidence is constitutional error only if the evidence is vital and exclusion effectively precludes the defendant from presenting a defense. See Potier, 68 S.W.3d at 665. In the instant case, the State argues that the lesser standard of Rule 44.2(b) that any other error, defect, irregularity, or variance that does not affect a substantial right must be disregarded applies. Using either standard, however, error was harmless. On the video, Appellant admits he is drunk, has drunk five beers at a party for his nephew (and later says four, five, or six beers), and just wants to go home. The officers saw another open beer bottle in a rear upholder, which Appellant later tried to conceal. Officer Harris testified that Appellant s truck unsafely crossed the line dividing traffic lanes at least six times. The video further shows that Appellant performed poorly on the field sobriety tests. Finally, defense counsel at trial agreed in closing argument that the video showed Appellant s tires crossing the lines two times. (RR3: 94). Any error in sustaining the State s objections to defense counsel s cross-examination did not contribute to Appellant s conviction or punishment under TEX. R. APP. P. 44.2(a) or (b). 9

14 Cross-examination regarding unsafe driving Appellant s next complaint is that the trial court abused its discretion when defense counsel cross-examined Officer Harris about unsafe driving. (App. Br. at 6-7). Prior to sustaining an objection from the prosecutor that defense counsel was asking about hypotheticals that had nothing to do with the case, defense counsel elicited from Officer Harris that Appellant was stopped for failure to maintain a single lane because: (1) Appellant failed to maintain a single lane as Harris observed him from an overpass, (2) Appellant failed to maintain a single lane at least an additional five times after Harris left the overpass and followed behind him, (3) Harris defined failure to maintain a single lane as driving outside the marked lane of travel in an unsafe movement, and (4) crossing the lane divider is an unsafe movement. (RR3: 25-27). Upon asking further questions about hypotheticals regarding whether another car was in the lane next to the car that crossed over the line, causing the driver of the unsuspecting vehicle to move in an evasive manner, the prosecutor made the objection that the trial court sustained. (RR3: 26-27). The trial court explained to defense counsel that he could ask if there were no other cars nearby and whether the officer felt it was unsafe in that matter and why, but counsel was not allowed to ask hypothetical questions that were not linked to the facts of the instant case. (RR3: 27). Defense counsel immediately proceeded to ask Officer Harris if any car was near Appellant that was threatened by Appellant s actions as he crossed the line five times, so as to make Appellant s actions unsafe. (RR3: 27). Harris answered that he believed there was a truck next to Appellant the first time that Appellant crossed over the line. 10

15 (RR3: 27-28). Harris stated that it was not a violation to move from side to side within a lane, but it is a violation to cross into the next lane in an unsafe manner. (RR3: 28-29). Harris agreed that it could be an unsafe manner if another vehicle was nearby. (RR3: 29). Appellant contends on appeal that the trial court abused its discretion because defense counsel was prohibited from probing Officer Harris understanding of unsafe driving, which might diverge from the jury s understanding. (App. Br. at 7). At trial, defense counsel stated that he was trying to show that there were no other cars at the time. (RR3: 27). This claim should be overruled because it has not been preserved for review. Appellant s request at trial was not specific and was not made with sufficient clarity to make the trial court aware of his complaint. Because counsel did not make the trial court aware of his concern, Appellant s complaint was not preserved for appellate review. See TEX. R. APP. P. 33.1(a)(1)(A); TEX. R. EVID.103(a); Reyna, 168 S.W.3d at 177; Jimenez, 32 S.W.3d at235; Wright, 28 S.W.3d at 536. Alternatively, defense counsel was not prevented from asking about Officer Harris understanding of unsafe driving and did ask the officer about unsafe driving. Prior to the State s objection, Officer Harris testified that (1) he watched Appellant driving from an overpass and later from following behind him, (2) Appellant crossed the line in an unsafe manner at least six times, and (3) the officer believed the first time that Appellant crossed the line, a truck was in the adjoining lane. After the State s objection about hypotheticals was sustained, defense counsel continued asking pertinent questions about Harris understanding of safe driving. Harris testified that he believed there was a truck next to Appellant the first time that Appellant crossed over the line and that it is not 11

16 a violation to move from side to side within a lane, but it is a violation to cross into the next lane in an unsafe manner. (RR3: 27-29). The trial court did not abuse its discretion in instructing counsel to refrain from hypothetical questions that were not linked to the facts of the instant case. See Potier, 68 S.W.3d at 665. Finally, if the trial court erred in sustaining the complained-of objection to defense counsel s cross-examination regarding unsafe driving, the error was harmless. TEX. R. APP. P (a),(b). Officer Harris testified that Appellant s truck unsafely crossed the line dividing traffic lanes at least six times. Also, defense counsel agreed in closing argument that the video showed Appellant s tires crossing the lines two times. (RR3: 94). Any error in sustaining the State s objections to defense counsel s crossexamination during questioning about unsafe driving did not contribute to Appellant s conviction or punishment under TEX. R. APP. P. 44.2(a) or (b). Cross-examination regarding credibility of witness Appellant s final complaint is that the trial court abused its discretion when it sustained the State s objection when defense counsel cross-examined Officer Harris about whether judges and juries agreed with his assessments. (App. Br. at 7-8). During cross-examination, Officer Harris testified that he had made just under ten DWI arrests. (RR3: 32). Further, Harris had testified in two criminal trials and had testified a few times regarding motions to suppress. (RR3: 38). When counsel asked if juries and judges had always agreed with him, the prosecutor raised a relevancy objection, which the trial court sustained. (RR3: 38). 12

17 On appeal, Appellant argues that the history of an expert witness testimony is vital to credibility. (App. Br. at 8). This claim should be overruled because it has not been preserved for review. Defense counsel had no response to the trial court s ruling. Because counsel did not make the trial court aware of his concern, Appellant s complaint was not preserved for appellate review. See Flores, 871 S.W.2d at 720; TEX. R. EVID.103(a). Alternatively, the trial court did not abuse its discretion in sustaining the State s objection to defense counsel s cross-examination regarding whether judges and juries agreed with Officer Harris beliefs. The trial court sustained the State s objection on relevancy grounds. Defense counsel offered no explanation as to why the answer to his question was relevant. The trial court did not abuse its discretion. See Segundo v. State, 270 S.W.3d 79, (Tex. Crim. App. 2008), cert. denied, U.S., 130 S.Ct. 53, 175 L.Ed.2d 43 (2009) (holding defense counsel was not deprived of the right to present a defense by excluding alternative perpetrator evidence, when trial court excluded testimony by officer of hearsay statements by X about X s suspicions where defendant failed to show that X s suspicions were relevant or that hearsay was reliable). The jury, as the fact finder in the instant case, is the sole judge of conflicts in the evidence, the weight of the evidence, and the credibility of witnesses. Upton v. State, 853 S.W.2d 548, 552 (Tex. Crim. App. 1993). The jury, by its verdict of guilty, chose to believe the State s evidence and not evidence presented by the defense. Finally, any error was harmless. See TEX. R. APP. P 44.2(a),(b). The jury chose to believe the State s evidence offered by the police officers. Appellant admitted to the 13

18 officers that he was drunk, had drunk four to six beers, and just wanted to go home. The officers found an open beer bottle in Appellant s truck, which Appellant later tried to conceal. Officer Harris testified that Appellant s truck unsafely crossed the line dividing traffic lanes at least six times; defense counsel agreed that the video showed Appellant s tires crossing the lines twice. Any error in sustaining the State s objections to defense counsel s cross-examination did not contribute to Appellant s conviction or punishment under TEX. R. APP. P. 44.2(a) or (b). For these reasons, the trial court did not abuse its discretion, whether each of Appellant s allegations is considered separately or together, in ruling against defense counsel during portions of his cross-examination. Appellant s sole issue should be overruled. PRAYER The State prays that this Honorable Court will affirm the judgment of the trial court. Respectfully submitted, CRAIG WATKINS MICHAEL J. SANDLIN Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-1 Dallas, Texas

19 CERTIFICATE OF SERVICE (214) (214) fax A copy of this brief was served on Brian W. Portugal, attorney for Appellant, Dallas County Public Defender s Office, 133 N. Riverfront Blvd., LB 2, Dallas, TX 75207, on April 8, MICHAEL J. SANDLIN 15