No. 05-10-00969-CR
Opinion Filed August 8, 2011. DO NOT PUBLISH TEX. R. APP. P. 47.
On Appeal from the County Criminal Court No. 3 Dallas County, Texas, Trial Court Cause No. MB07-44359-C.
Before Justices BRIDGES, LANG-MIERS, and MURPHY.
Opinion By Justice MURPHY.
Inocencio M. Villasenor appeals his conviction for driving while intoxicated, contending the trial court denied him his constitutional right to present a complete defense. We affirm the trial court's judgment.
Background
At 4:15 a.m. on June 30, 2007, a Richardson police officer observed a truck straddling the highway lane dividers. The officer followed the truck and witnessed the truck crossing over the lane divider five different times. At that point, the officer effected a stop of the truck, which appellant was driving. The officer noticed appellant's eyes were watery and bloodshot, his speech was slurred, and the officer smelled alcohol. Appellant told the officer he had consumed five beers and admitted being "over the limit." There also was an open beer container in the floorboard cup holder of the truck. The officer requested appellant exit his truck and conducted three standardized field-sobriety tests. Based on appellant's performance on these tests, the circumstances leading up to the traffic stop, and his interaction with appellant, the officer believed appellant had been driving while intoxicated and arrested appellant. The jury found appellant guilty, and the trial court assessed punishment at 150 days' confinement, probated eighteen months, and a $700 fine. This appeal followed. Discussion
In a single issue, appellant argues the trial court denied him the right to put on a complete defense. Specifically, appellant contends the "trial court repeatedly abused its discretion by prohibiting defense counsel from cross-examining the State's most important witness"-the arresting officer. Appellant then points to three instances that he argues, in combination, prohibited him from presenting a complete defense: when the trial court (1) prohibited defense counsel from demonstrating the walk-and-turn field-sobriety test; (2) prohibited defense counsel from inquiring into the arresting officer's understanding of unsafe driving; and (3) sustained the State's objection to defense counsel's questions regarding prior cases in which the arresting officer testified. Criminal defendants' constitutional rights to a meaningful opportunity to present a complete defense are grounded in the Fourteenth Amendment's Due Process Clause and the Sixth Amendment's Compulsory Process and Confrontation Clauses. Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009) (citing Crane v. Kentucky, 476 U.S. 683, 690 (1986)). Additionally, a trial court's "clearly erroneous ruling" excluding evidence may rise to the level of a constitutional violation if the evidence excluded is relevant and reliable and "forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense." Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002) (quoting Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002)). The State argues that appellant did not preserve his issue for appellate review. We agree. To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, unless the grounds are apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1)(A); Tex. R. Evid. 103(a)(1); Layton v. State, 280 S.W.3d 235, 238-39 (Tex. Crim. App. 2009). It is also well settled that the legal basis of a complaint raised on appeal cannot vary from that raised at trial. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004); see also Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). A reviewing court should not address the merits of an issue that has not been preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). Appellant's counsel never once objected or otherwise made the trial court aware that appellant's constitutional right to present a complete defense was violated. Instead, counsel either responded to the State's objection or elected not to continue his line of questioning without further comment. Because appellant's counsel did not argue that the exclusion of evidence would violate appellant's constitutional right to present a defense, he has failed to preserve his complaint for appellate review. See Anderson, 301 S.W.3d at 280 (deprivation of meaningful opportunity to present complete defense is right subject to forfeiture); see also Broxton, 909 S.W.2d at 918 (appellant forfeited claim he was denied right to present defense and right to due process and due course of law under federal and state constitutions because he failed to lodge proper objection at trial); see also Hayes v. State, 124 S.W.3d 781, 786-87 (Tex. App.-Houston [1st Dist.] 2003), aff'd, 161 S.W.3d 507 (Tex. Crim. App. 2005) (appellant failed to preserve complaint that exclusion of evidence denied constitutional right to due process by preventing presentation of complete defense because different argument raised at trial). Even if appellant had preserved his complaint that he was prevented from presenting a defense by the trial court's ruling on the State's objections, appellant has not shown the exclusion was in error. We review the trial court's exclusion of evidence for an abuse of discretion and will not disturb the trial court's decision if it lies within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g). Addressing first the restriction of appellant's counsel from demonstrating with commentary the walk-and-turn test, appellant argues the trial court abused its discretion because counsel "was prohibited from providing a more thorough understanding" of the test. Yet, the jury had before it the arresting officer's testimony as to how the test is administered; the defense counsel's physical demonstration of the test, albeit without counsel's commentary; and State's exhibit two: the video recording of appellant's various field-sobriety tests he performed prior to his arrest. The trial court's only restriction on appellant's presentation of evidence was to prevent defense counsel from becoming a witness. We conclude the trial court did not abuse its discretion by restricting defense counsel's testimony while demonstrating the walk-and-turn test. Appellant also complains that the trial court prohibited him from "probing" the arresting officer's understanding of unsafe driving "to demonstrate that [the arresting officer's] understanding might diverge significantly from the jury's understanding." Appellant questioned the arresting officer by using hypothetical questions. After the officer testified he believed "crossing the lane divider that he's not in" would be unsafe, counsel asked: "If you saw a car which had crossed the line without signaling and there was another car that was near to that car that actually moved away in an evasive manner, would that be unsafe to you?" The State objected to the hypothetical as not "relevant to this situation." Appellant's counsel responded, "I think basically what I wanted to show is that there were no other cars at the time-." The trial court then directed counsel simply to "ask him that and ask whether he felt it was unsafe in this matter and why it was unsafe. . . ." Appellant's counsel then proceeded to ask specific questions about the safety of appellant's lane change. Appellant has yet to explain how the hypothetical was relevant to the facts in evidence or in accordance with counsel's theory of the case. See Pyles v. State, 755 S.W.2d 98, 118 (Tex. Crim. App. 1988). We conclude the trial court did not abuse its discretion by sustaining the State's objection to a hypothetical unrelated to the evidence or a defensive theory. Finally, appellant contends the trial court abused its discretion by sustaining the State's relevance objection during appellant's cross-examination of the arresting officer. Appellant's counsel asked the arresting officer whether, during other criminal cases, "juries and judges always agreed with you in assessing of your case?" On appeal, appellant argues the trial court abused its discretion in sustaining the State's relevance objection because the arresting officer "had given significant expert testimony in the case" and the "history of an expert's witness's testimony is vital to the expert's credibility, and the defense was deprived of the opportunity to probe that history for the jury's benefit. . . ." Without deciding whether the arresting officer testified as an expert, rather than a lay witness, we address whether the trial court abused its discretion when it sustained the objection on grounds of "relevancy." In response to the State's objection, appellant offered no argument either at trial or on appeal as to the relevancy of (1) whether judges and juries in other cases had agreed with the officer's assessment of a case, (2) how the officer would know that information, or (3) how that "agreement" affected the officer's credibility in this case. See Segundo v. State, 270 S.W.3d 79, 101-02 (Tex. Crim. App. 2008) (no constitutional deprivation of presenting complete defense when appellant failed to show excluded statements were relevant or reliable). We conclude the trial court did not abuse its discretion by sustaining the State's relevancy objection. Appellant not only has failed to preserve his issue for appeal, but he has failed to show an abuse of discretion by the trial court, much less the exclusion of relevant and reliable evidence that "forms such a vital part of [his] case that exclusion effectively prelude[d] [him] from presenting a defense." Wiley, 74 S.W.3d at 405. We overrule appellant's sole issue. Conclusion
For the reasons stated above, we affirm the trial court's judgment.