Opinion
No. 13-01-798-CR
Memorandum Opinion delivered and filed July 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 319th District Court of Nueces County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and CASTILLO.
MEMORANDUM OPINION
A jury convicted appellant David R. Thompson of driving while intoxicated. The trial court assessed punishment at ten years confinement in the Institutional Division of the Texas Department of Criminal Justice, probated for ten years. This appeal ensued. In two issues, Thompson complains that the prosecution: (1) twice elicited testimony from a peace officer that Thompson had refused to answer questions after his arrest; and (2) knowingly presented perjured testimony to the jury. The trial court has certified that this is not a plea bargain case, and Thompson has the right of appeal. See TEX. R. APP. P. 25.2(a)(2). We affirm.
I. FACTUAL SUMMARY
This is a memorandum opinion not designated for publication. The parties are familiar with the facts. We will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. See TEX. R. APP. P. 47.4. Nueces County Deputy Constable Donald Hatch was patrolling in the vicinity of Gypsy Road in Corpus Christi, Texas during the early morning hours. He noticed a white GMC Yukon sports utility vehicle. The vehicle appeared to be speeding. The deputy initiated a traffic stop. He investigated further. He arrested Thompson for driving while intoxicated. Thompson testified during the culpability phase of the trial. He denied being intoxicated on the date of his arrest. He admitted to drinking two beers over the course of several hours. He acknowledged he had served prison time for a prior driving-while-intoxicated offense. He testified he was on parole for that offense. He conceded he had an alcohol problem.II. POST-ARREST SILENCE
In his first issue, Thompson asserts he was denied due process of law when the prosecution twice elicited testimony from Deputy Hatch that Thompson had refused to answer questions after his arrest. The State responds that Thompson failed to preserve error and opened the door to the questions. In any event, the State argues, the trial court cured any error by instructing the jury to disregard the evidence.A. Preservation of Error
To preserve a complaint for appellate review, a party must present a timely request, objection, or motion to the trial court stating the specific grounds for the desired ruling if the specific grounds were not apparent from the context. TEX. R. APP. P. 33.1(a); Blue v. State, 41 S.W.3d 129, 131 (Tex.Crim.App. 2000). Generally, a party's failure to timely and specifically object at trial waives error. See Blue, 41 S.W.3d at 131. Specifically, a timely objection is required to preserve error in the admission of evidence. TEX. R. APP. P. 33.1(a); Dinkins v. State, 894 S.W.2d 330, 355 (Tex.Crim.App. 1995). In this situation, the proper method to preserve error is to: (1) object timely; (2) request the trial court to instruct the jury to disregard any objectionable evidence; and (3) move for a mistrial based on admission of the evidence. Coe v. State, 683 S.W.2d 431, 436 (Tex.Crim.App. 1984). Further, one should object at the earliest opportunity, or as soon as the ground for objecting becomes apparent. Johnson v. State, 803 S.W.2d 272, 291 (Tex.Crim.App. 1990), overruled on other grounds, Heitman v. State, 815 S.W.2d 681, 685 (Tex.Crim. App. 1991); Guzman v. State, 521 S.W.2d 267, 269 (Tex.Crim. App. 1975). "The most important procedure is to press the specific objection to the point of obtaining an adverse ruling, be that to the objection, the request for an instruction, or the motion for mistrial." Fuller v. State, 827 S.W.2d 919, 926 (Tex.Crim.App. 1992); Lusk v. State, 82 S.W.3d 57, 60 (Tex. App.-Amarillo 2002, pet. ref'd). An accused may waive even constitutional rights. See Saldano v. State, 70 S.W.3d 873, 891 (Tex.Crim.App. 2002) (finding waiver of 14th amendment right); see also Jenkins v. State, 912 S.W.2d 793, 815 (Tex.Crim.App. 1995) (op. on reh'g) (finding waiver of 6th and 14th amendment rights). Nonetheless, rule 103(d) of the rules of evidence authorizes us in a criminal case to "take notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court." TEX. R. EVID. 103(d). "Some rights are widely considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system." Blue, 41 S.W.3d at 131 (quoting Marin v. State, 851 S.W.2d 275, 278 (Tex.Crim.App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997)). "A principal characteristic of these rights is that they cannot be forfeited. That is to say, they are not extinguished by inaction alone." Blue, 41 S.W.3d at 131. Instead, an accused must expressly relinquish a fundamental right. Id. The right to remain silent is not so fundamental as to require the special protection of relieving the appellant of the necessity of an objection. Wheatfall v. State, 882 S.W.2d 829, 836 (Tex.Crim.App. 1994); Smith v. State, 721 S.W.2d 844, 855 (Tex.Crim.App. 1986). Objection is required to preserve the issue. Wheatfall, 882 S.W.2d at 836; Smith, 721 S.W.2d at 855.B. The Record
Thompson's first complaint is premised on the State's direct examination of Deputy Hatch:[Prosecutor]: Now, when you arrived at the police station, was that in Port Aransas?
[Hatch]: Yes, it was, the Port Aransas law enforcement center.
[Prosecutor]: Did the Defendant want to cooperate with you as far as answering any questions?
[Hatch]: No, the Defendant refused to answer any questions that I asked him.
[Prosecutor]: In other words, the Defendant did not want to cooperate with anything?
At that point, defense counsel requested a bench conference:
[Defense Counsel]: Judge, my defendant has a constitutional right to remain silent. She just — she just commented and asked the officer questions regarding his exercise of his constitutional rights to remain silent.
[Prosecutor]: Not in a DWI case. In DWI cases, they're allowed to ask certain questions and I've got all the predicate down, Your Honor, but I will proceed.
The Court: Okay. If he says that he was uncooperative, then I'll allow you going to just continue. But with regard to uncooperative I guess but without leading. . . .
[Defense counsel]: Well, Judge, my objection is she just commented and had the officer comment on his exercising his Fifth Amendment right to remain silent. And that's objectionable, the jury should be instructed to disregard that and I ask for a mistrial.
[Prosecutor]: Your Honor, we're getting into the fact that he refused the breath test, and I'm certainly able to go into that.
[Defense counsel]: The breath test is not what I'm talking about. She asked him if he refused to ask [sic] questions, and that is what Miranda is about and that is what the Fifth Amendment is about, and she commented on it in front of the jury and she had the officer comment on it. I object and ask for an instruction to disregard and I make a motion for a mistrial based on that.The trial court then instructed the jury to "disregard any comments or statements that were made by the officer and/or attorney in regards to that." It denied Thompson's motion for mistrial. Next, defense counsel cross-examined Hatch as to whether the precincts where he worked have mobile video units or video facilities inside the station. Hatch responded, "No, they do not." When defense counsel asked if the Nueces County jail has video facilities, Hatch responded, "Yes, it does." Thompson complains of the following exchange during the prosecutor's redirect:
[Prosecutor]: Okay. Just for argument sake, would you have been able to videotape him anyway?
[Hatch]: More than likely not. He had already refused any questions, and normally when —
[Defense counsel]: Your Honor, same objection that I made previously on this issue. Counsel should have instructed her witness not to say that.During another bench conference, defense counsel stated that this was the second time the prosecutor "or her witness has talked about his refusal to testify" in direct violation of Thompson's right to remain silent. The trial court ruled, "Well, the jury has already been instructed and I've already ruled on that, so just let's move along." Thompson did not re-urge his request for a limiting instruction. He did not move for a mistrial.
C. Analysis
The record shows that the prosecutor's question to Hatch on direct examination regarding Thompson's cooperation in answering questions was asked and answered before defense counsel objected. We hold that Thompson did not preserve his objection to Hatch's testimony on direct examination regarding Thompson's post-arrest silence. See Guzman, 521 S.W.2d at 269 (finding error waived when accused did not object until three objectionable questions were asked and answered). In any event, an effective instruction to disregard cures any harm flowing from a comment on an accused's post-arrest silence. Waldo v. State, 746 S.W.2d 750, 754 (Tex.Crim.App. 1988). We presume that an instruction to disregard is effective unless the facts of the case "suggest the impossibility of withdrawing the impression produced on the minds of the jury[.]" Id. (quoting Hatcher v. State, 65 S.W. 97, 98 (Tex.Crim.App. 1901)). This is not such a case. Further, defense counsel did not request a second instruction to disregard or move for a mistrial after Hatch's nonresponsive answer on redirect. We hold that Thompson waived any error in Hatch's answer to the prosecutor's question on redirect regarding his ability to videotape Thompson. See Fuller, 827 S.W.2d at 926. We overrule Thompson's first issue. We turn to his contention that the prosecution elicited perjured testimony.III. PERJURED TESTIMONY
In his second issue, Thompson asserts he was denied due process of law when the prosecution knowingly presented perjured testimony to the jury. The State acknowledges that the 14th amendment prohibits it from knowingly using perjured testimony to obtain a conviction. See Vasquez v. State, 67 S.W.3d 229, 239 (Tex.Crim.App. 2002). The State also concedes that knowledge of perjured testimony is imputed to the State. Thus, the State agrees, due process prohibits prosecutors from presenting testimony that any member of the "prosecution team," including police officers, investigators, and prosecutorial personnel, knows to be false. Ex parte Fierro, 934 S.W.2d 370, 372 n. 2 (Tex.Crim.App. 1996). However, the State argues, Thompson bears the burden of showing actual perjured testimony. Thompson asserts that the ultimate resolution of this issue rests on whether the violation was material and, if material, how harmful it was. He argues that the misrepresentation materially affected the jury's decision to convict him.A. The Alleged Perjury
Thompson filed a motion for new trial asserting, in part, that Hatch made material misrepresentations to the jury regarding the non-availability of video facilities in Port Aransas. Thompson attached an affidavit from a private investigator to demonstrate that Hatch had access to video equipment to record Thompson's performance of field sobriety tests. The affidavit states:As part of my duties, I interviewed three attorneys: Cecil Starcher, Scott Ellison, and Douglas Tinker, who informed me that they have tried DWI cases from Port Aransas where the arresting agency videotaped the accused performing field sobriety tests. Additionally, I spoke with Port Aransas Chief of Police, Don Perkins, who informed me that Port Aransas officers, have access to video cameras for their investigative duties.