Opinion
No. 05-11-01070-CR
07-24-2012
LOGAN PAULSEN, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued July 24, 2012
On Appeal from the County Court at Law
Rockwall County, Texas
Trial Court Cause No. CR10-0876
OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Bridges
Logan Ryan Paulsen appeals his driving while intoxicated conviction. A jury convicted appellant, and the trial court sentenced him to ninety days' confinement in county jail and a $900 fine. The trial court suspended imposition of appellant's sentence and placed him on community supervision for two years. In three issues, appellant argues the trial court erred in denying his motion to suppress, failing to instruct the jury under article 38.23 of the code of criminal procedure, and overruling his objection to certain statements made by the prosecutor. We affirm the trial court's judgment.
Rockwall police officer John Arrowood testified he was on duty in the Harbor area in Rockwall at about 1:00 a.m. on May 23, 2010. Arrowood testified the Harbor was an area where he would conduct a lot of investigations and arrests "centered around alcohol." Arrowood noticed a vehicle driving through a parking lot "in the middle" of a row between parked cars. Normally, Arrowood testified, drivers would drive on one side or the other "just like on a regular road," but the vehicle was "splitting it, so actually nobody could go around him." Arrowood thought the driver was possibly "trying to process the distance between the cars," so he followed. As Arrowood got behind the vehicle, it "started speeding up going through the parking lot." Arrowood considered this unsafe because at that time of the morning people were leaving the bars and late movies and walking through the parking lot. The vehicle "made a right turn, he almost hit the curb, and then he swung it way out." Arrowood believed the driver was intoxicated, and he turned on his lights and initiated a traffic stop.
The vehicle pulled into a parking spot, "kind of parked at an angle." Arrowood got out of his patrol car and made contact with appellant, the driver of the vehicle. Arrowood "could smell alcoholic beverage coming from the vehicle." Appellant's speech was slurred, and he admitted he had been drinking when Arrowood asked. Arrowood had appellant perform field sobriety tests, which led Arrowood to believe appellant was intoxicated. Arrowood arrested appellant for driving while intoxicated. Appellant agreed to submit a blood sample, and Arrowood took appellant to the hospital where a blood sample was taken.
At trial, the judge denied appellant's motion to suppress. At the charge conference, appellant requested a paragraph "addressing the issue of a lack of reasonable suspicion for the traffic stop in this case." The State responded that it appeared appellant was basing his request on article 38.23 of the code of criminal procedure. The State argued there were no additional facts offered by appellant and nothing to contradict the facts in evidence. Therefore, the State argued, the instruction appellant requested was not warranted. The trial court denied appellant's request. In his closing arguments, appellant's counsel raised the issue of whether appellant's blood sample had been contaminated because appellant's blood alcohol level, .18, was inconsistent with his ability to operate a motor vehicle. During closing argument, the prosecutor responded that "if defense counsel was so concerned about contaminated blood, they could have tested it themselves, but they didn't." Appellant objected that this statement was "Improper closing argument," and the trial judge overruled the objection. The jury convicted appellant, and this appeal followed.
In his first issue, appellant argues the trial court erred in failing to suppress the evidence stemming from Arrowood's stop of appellant's vehicle. Specifically, appellant argues Arrowood lacked reasonable suspicion to stop his vehicle. We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion, using a bifurcated standard. See Martinez v. State, 348 S.W.3d 919, 92-23 (Tex. Crim. App. 2011); Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); see also State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006) (trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement). The trial court is the sole trier of fact and the judge of witness credibility and weight to be given to witness testimony. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
We give almost total deference to the trial court's findings of historical fact that are supported by the record and to mixed questions of law and fact that turn on an evaluation of credibility and demeanor. See Martinez, 348 S.W.3d at 923; Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); see also Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006) (deferential standard of review applies to trial court's determination of historical facts when that determination is based on videotape recording). If the trial judge makes express findings of fact, we view the evidence in the light most favorable to his ruling and determine whether the evidence supports those factual findings. Valtierra, 310 S.W.3d at 447. We review de novo the trial court's determination of the law and its application of law to facts that do not turn upon an evaluation of credibility and demeanor. Martinez, 348 S.W.3d at 923; Carmouche, 10 S.W.3d at 327. We will uphold the trial court's ruling on the motion if that ruling was supported by the record and was correct under any theory of law applicable to the case. See Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).
A law enforcement officer may stop and briefly detain a person for investigative purposes on less information than is constitutionally required for probable cause to arrest. Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010). Reasonable suspicion must be founded on specific, articulable facts that, when combined with rational inferences from those facts, would lead the officer to conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Crain, 315 S.W.3d at 52. There is no requirement that a traffic regulation is actually violated; it is sufficient to show that the officer reasonably believed that a violation was in progress. Cook v. State, 63 S.W.3d 924, 929 (Tex. App.-Houston [14 Dist.] 2002, pet. ref'd). Reasonableness is measured in objective terms by examining the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 39 (1996). We review the legal question of whether the totality of circumstances is sufficient to support an officer's reasonable suspicion de novo. Madden v. State, 242 S.W.3d 504, 517 (Tex. Crim. App. 2007). The time of night, proximity to a bar district where police have made numerous DWI arrests, and the officer's training and experience are relevant and appropriate considerations when doing a totality of the circumstances review to determine whether or not reasonable suspicion exists. Foster, 326 S.W.3d at 613-14.
Dist.] 2010, pet. ref'd); see Hougham v. State, 659 S.W.2d 410, 414 (Tex. Crim. App. 1983). We conclude appellant's objection that the prosecutor was making an "improper argument" is insufficient to preserve error in this case because it is a general objection and the trial court made no statements that would indicate it understood the nature of the objection. Tex. R. App. P. 33.1; Miles, 312 S.W.3d at 911. We overrule appellant's third issue.
Here, Arrowood was on duty at 1:00 a.m. in an area where a lot of alcohol related offenses had occurred. Arrowood saw appellant driving "in the middle" of a row of parked cars as if "trying to process the distance between the cars." Appellant sped up when Arrowood got behind him, and appellant made a right turn, almost hit the curb, and "swung it way out." Based on his observations, Arrowood believed appellant was intoxicated, and he initiated a traffic stop. Considering the totality of the circumstances including the location, the time of night, Arrowood's experience, and appellant's driving, we conclude Arrowood had reasonable suspicion to stop and briefly detain appellant in order to investigate the possibility that appellant was driving while intoxicated. See Foster, 326 S.W.3d at 613-14; Cook, 63 S.W.3d at 929. Accordingly, the trial court did not err in overruling appellant's motion to suppress. See Armendariz, 123 S.W.3d at 404. We overrule appellant's first issue.
In his second issue, appellant argues the trial court erred in failing to instruct the jury under article 38.23 of the code of criminal procedure. A defendant's right to the submission of jury instructions under article 38.23(a) is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible. Madden, 242 S.W.3d at 509-10. The terms of the statute are mandatory, and when an issue of fact is raised, a defendant has a statutory right to have the jury charged accordingly. Id. at 510. The only question is whether under the facts of a particular case an issue has been raised by the evidence so as to require a jury instruction. Id. Where no issue is raised by the evidence, the trial court acts properly in refusing a request to charge the jury. Id.
There are three requirements that a defendant must meet before he is entitled to the submission of a jury instruction under article 38.23(a): (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) that contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Id. There must be a genuine dispute about a material fact. Id. If there is no disputed factual issue, the legality of the conduct is determined by the trial judge alone, as a question of law. Id. And if other facts, not in dispute, are sufficient to support the lawfulness of the challenged conduct, then the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence. Id. The disputed fact must be an essential one in deciding the lawfulness of the challenged conduct. Id. To raise a disputed fact issue warranting an article 38.23(a) jury instruction, there must be some affirmative evidence that puts the existence of that fact into question. Id. at 513.
Appellant argues the issue is whether Arrowood conducted a valid stop of appellant. Appellant states "the question is whether the driving facts Officer Arrowood observed are indications of intoxication as he claimed as the justification for the stop." Appellant argues that "whether the driving facts indicated intoxication is a factual issue that [appellant] was entitled to have the jury consider." At trial, appellant made the similar request the "jury should have the opportunity to consider the issue of a lack of reasonable suspicion in their deliberations." But the jury cannot "wrestle with" the legal determination of whether certain facts do or do not constitute "reasonable suspicion." Id. (citing Garza v. State, 126 S.W.3d 79, 86 (Tex. Crim. App. 2004) (stating "That appellant 'disagrees with the conclusion that probable cause was shown as a matter of law' is not the same as appellant controverting the facts . . . . The question of whether the search was legal is a question of law, as none of the circumstances surrounding the search were controverted by appellant."). Similarly, here appellant does not controvert any of the facts surrounding the stop. Instead, appellant argues the facts as Arrowood described them do not support the conclusion that Arrowood had reasonable suspicion to stop appellant. This attack on the legal issue of whether Arrowood had reasonable suspicion does not raise a disputed fact issue warranting an article 38.23(a) jury instruction. Madden, 242 S.W.3d at 513. Accordingly, the trial court did not err in refusing to give such an instruction. See id. at 518 (holding appellant not entitled to article 38.23(a) instruction concerning whether officer had reasonable suspicion to continue appellant's detention because no evidence raised disputed fact issue material to admissibility of challenged evidence). We overrule appellant's second issue.
In his third issue, appellant argues the prosecutor's statement that "if defense counsel was so concerned about contaminated blood, they could have tested it themselves" improperly shifted the burden of proof. At trial, appellant objected to the remark by saying "improper closing argument." To preserve an issue for appeal, a timely objection must be made that states the specific ground for the objection, if the specific ground is not apparent from the context. Tex. R. App. P. 33.1; Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006). A general or imprecise objection may be sufficient to preserve error for appeal, but only if the legal basis for the objection is obvious to the court and to opposing counsel. Buchanan, 207 S.W.3d at 775. Ordinarily, an objection to "improper argument" is too general to preserved error. Miles v. State, 312 S.W.3d 909, 911 (Tex. App.-Houston [1
We affirm the trial court's judgment.
DAVID L. BRIDGES
JUSTICE
Do Not Publish
Tex. R. App. P. 47
111070F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
LOGAN PAULSEN, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-01070-CR
Appeal from the County Court at Law of Rockwall County, Texas. (Tr.Ct.No. Cr10- 0876).
Opinion delivered by Justice Bridges, Justices Francis and Lang participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 24, 2012.
DAVID L. BRIDGES
JUSTICE