Brad Joseph Fenn v. State

Opinion issued

July 7, 2011

In

The

Court of

Appeals

For

The

First District

of Texas

————————————

NO. 01-10-00383-CR

———————————

BRAD JOSEPH FENN , Appellant

V.

THE

STATE OF TEXAS , Appellee

On Appeal from the County

Court at Law No. 2

Fort Bend County, Texas

Trial Court Case No. 130635

MEMORANDUM OPINION

A

jury found appellant, Brad Joseph Fenn, guilty of driving while intoxicated. [1] The trial court sentenced appellant to 45

days in jail and assessed a $2,000 fine.

In one issue, appellant contends that the trial court erred by

overruling his objection to a remark made by the State during closing

argument.

We

affirm.

Background [2]

While

on patrol, Officer L. Stockholm of the Sugarland Police Department observed

appellant driving his truck faster than the other traffic on Highway 59. Using her in-car radar, Officer Stockholm

determined that appellant was traveling 91-miles-per hour in a 65-mile-per hour

zone. She also saw appellant’s truck

weaving inside and outside of his lane.

Officer Stockholm activated her emergency lights to pull appellant

over. Appellant put his blinker on and

pulled over to the side of the freeway.

The on-board video camera in Officer Stockholm’s patrol car recorded the

stop.

Officer

Stockholm approached the passenger side of appellant’s truck. She asked appellant for his driver’s license

and his insurance information. Appellant

took out his wallet and began fumbling through it. Officer Stockholm noticed that appellant could

not properly pull the cards from his wallet and appeared to have difficulty

with his fine motor skills. Appellant eventually

gave Officer Stockholm the requested information.

Officer

Stockholm also noticed that appellant’s speech was slurred and his eyes were

glassy and bloodshot. Officer Stockholm

asked appellant if he had been drinking alcohol that night, and he responded

that he had not.

Officer

J. Burns of the Sugarland Police Department arrived to assist Officer Stockholm

in the stop. Officer Stockholm told Officer

Burns that she had not noticed an odor of alcohol when speaking with appellant

but explained to Officer Burns that she had been speaking to appellant from the

passenger side window of appellant’s truck.

Officer

Burns approached the truck on the driver’s side and spoke to appellant through

the open window. Officer Burns asked

appellant to get out of the vehicle. The

officer patted appellant down for weapons and noticed that appellant was

somewhat unsteady on his feet. When

Officer Burns asked him if he had been drinking, appellant replied that he had

drunk one or one-and-one-half beers.

Officer

Stockholm administered field sobriety tests to appellant, including the

walk-and-turn and one-leg stand tests. The

officer observed that appellant exhibited six out of eight clues of

intoxication on the walk-and-turn test and three out of four clues on the

one-leg-stand test. At that point, Officer

Stockholm arrested appellant for driving while intoxicated. Appellant refused to take a breathalyzer

test.

Appellant was charged with

the offense of driving while intoxicated.

In his opening statement at trial, appellant stated that the evidence

would show that he suffers from a medical condition called femoral anteversion. He told the jury that because of this

condition, “he sticks his feet out.”

Appellant explained that he could not properly perform the field

sobriety tests because of this condition.

Officer Stockholm testified

that when she instructed appellant to put his feet together for the

one-leg-stand test, she noticed that appellant’s “toes were sticking out.” Officer Stockholm testified that when she told

appellant to put his feet together, appellant “mumbled something about ‘those

are my feet,’ but he never explained anything further.” She stated that appellant’s speech was quite

slurred. Officer Stockholm confirmed

that appellant never mentioned that he had a medical condition that prevented

him from placing his feet together as he had been instructed. No other evidence was admitted that expressly

showed that appellant suffered from femoral anteversion.

In

addition to Officers Stockholm’s and Burns’s testimony, the videotape showing

the stop of appellant’s vehicle, the officers’ interaction with appellant,

appellant’s performance of the field sobriety tests, appellant’s arrest, and

his refusal to take the breathalyzer test was admitted into evidence. Appellant did not testify at trial.

During

closing argument, appellant again asserted that he suffered from a medical

condition affecting his feet. In its

closing statement, the State argued that the totality of the evidence,

including appellant’s speeding and weaving on the freeway, his slurred speech,

the odor of alcohol noted by Officer Burns, his poor performance of the field

sobriety tests, and his refusal to take the breathalyzer test, indicated that

he was driving while intoxicated. The

State also pointed out that appellant had not offered any evidence that confirmed

that he suffered from femoral anteversion.

In

responding to the defense’s argument that the jury should not find an innocent

man guilty, the State made the following argument:

I’m just as concerned you are going to find a person who

is guilty of DWI not guilty. I’m just as

concerned of that. I don’t want it to be

an indictment of Officer Stockholm. I

want the video to suggest that what Officer Stockholm — and I think it does — that what the two of them [the officers] did out

there on the road was gather all the evidence they needed to convict a guy who

was wasted, but that had it within him to as soon as he knew he had been pulled

over by the cops to slow up, stay within himself, try not to say too much.

At that point, the defense stated, “Objection, your

Honor. It’s a comment on the Defendant’s

failure to make a statement at the scene, his Fifth Amendment right.” The State responded, “I’m not talking about

trial, Judge. I’m talking about at the scene

on the video. It’s not a comment on the

Fifth Amendment.” The trial court

overruled appellant’s objection.

The

jury found appellant guilty of the offense of driving while intoxicated. Appellant and the State reached an agreement

as to the sentence, and the trial court assessed punishment at 45 days in jail

and a $2,000 fine. This appeal

followed.

In one issue,

appellant asserts that the trial court erred by overruling his objection to the

prosecutor’s closing statement “referring to Appellant’s exercise of his right

against self-incrimination,” which violated “Appellant’s rights under Article

I, Section 10 of the Texas Constitution, the Fifth Amendment of the U.S.

Constitution, and Art. 38.08 [of the Texas Code of Criminal Procedure].” See U .S. Const . amend V; Tex. Const . art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005).

Preservation of Statutory and State Constitutional Challenges

To preserve error for appellate

review, an appellant must make a timely, specific objection and obtain an

adverse ruling. See Tex. R. App. P.

33.1(a); Simpson v. State , 119 S.W.3d

262, 268 (Tex. Crim. App. 2003). Except

for complaints involving systemic (or absolute) requirements, or rights that

are waivable only, none of which are involved here, all other complaints,

whether constitutional, statutory, or otherwise, are forfeited by failure to

comply with Rule of Appellate Procedure 33.1(a). See

Mendez v. State , 138 S.W.3d 334, 338 (Tex. Crim. App. 2004). Moreover, an appellant’s complaint on appeal

must comport with the objection made at trial; otherwise, the appellant has

preserved nothing for review. See Tex.

R. App. P. 33.1(a); Turner v.

State , 87 S.W.3d 111, 117 (Tex. Crim. App. 2002) (holding appellant failed to preserve error concerning prosecutor’s

closing argument when appellate complaint did not comport with objection made

at trial).

To avoid forfeiture of a complaint

on appeal, the complaining party must inform the trial court of what relief he seeks

and why he believes he is entitled to it, and he must make his point clearly

enough that the trial court can understand him when it is in the proper

position to address the complaint. See Clarke v. State , 270 S.W.3d 573, 580

(Tex. Crim. App. 2008). An appellant

fails to preserve a state constitutional complaint for our review when his

objection invokes only federal Fifth Amendment right to silence protection. See

Heidelberg v. State , 144 S.W.3d 535 , 542 – 43 (Tex. Crim. App. 2004) (holding that objection

based on Fifth Amendment was not sufficient to preserve complaint on appeal

that rights to post-arrest silence under Texas Constitution had been violated).

Here, appellant objected to the

State’s closing argument based only Fifth Amendment grounds; he did not object,

as he does now, that the remarks also violated his state constitutional and

statutory right to remain silent. Thus, appellant

preserved his complaint only as it relates to his Fifth Amendment right.

Fifth Amendment Right to Remain Silent

Appellant contends that, when the

prosecutor argued to the jury that appellant “[tried] not to say too much”

after he was stopped, it is apparent from the record that the prosecutor was commenting

on appellant’s post-arrest and pre-arrest silence. When the State comments on a defendant’s

post-arrest silence, it violates the Fifth Amendment prohibition against

self-incrimination. Doyle v. Ohio , 426 U.S. 610 , 617–618, 96 S. Ct. 2240 , 2244 – 45 (1976). Commenting on a defendant’s post-arrest

silence is akin to commenting on his failure to testify at trial because it

attempts to raise an inference of guilt arising from the invocation of a

constitutional right. Dinkins v. State , 894 S.W.2d 330, 356

(Tex. Crim. App. 1995).

The issue of whether a defendant

has similar Fifth Amendment protection for his pre-arrest silence has not been decided

by the United States Supreme Court or the Texas Court of Criminal Appeals. [3] See Salinas

v. State , No. 14–09–00395–CR, 2011 WL 903984, at *6 (Tex. App.—Houston

[14th Dist.] Mar. 17, 2011, no pet.) (discussing lack of governing authority on

issue). The Fourteenth Court of Appeals

in Salinas recently noted that the

federal circuit courts of appeal are split on the issue. Id. “The First, Sixth, Seventh, and Tenth

Circuits have held that pre-arrest, pre- Miranda

silence is not admissible as substantive evidence of guilt.” Id.

(citations omitted). “The Fifth, Ninth,

and Eleventh Circuits, on the other hand, have held that pre-arrest, pre- Miranda silence is admissible as

substantive evidence of guilt.” Id. (citations omitted). In Salinas ,

the court “agree[d] with the Fifth, Ninth, and Eleventh Circuits” and held that

“the Fifth Amendment has no applicability to pre-arrest, pre- Miranda silence used as substantive

evidence in cases in which the defendant does not testify.” Id. at

*7.

To resolve this appeal, however, we

need not decide whether the Fifth Amendment protection against

self-incrimination applies to pre-arrest silence. Even assuming the prosecutor’s comment was an

improper comment on appellant’s pre-arrest and post-arrest silence, any error in

the trial court’s overruling of appellant’s objection was harmless.

We apply a rule 44.2(a)

constitutional harm analysis to comments on a defendant’s invocation of his

right to remain silent and do not reverse unless we determine beyond a

reasonable doubt that the error contributed to the appellant’s conviction or

punishment. See Tex. R. App. P.

44.2(a); Williams v. State , 958

S.W.2d 186, 194 (Tex. Crim. App. 1997). Our

primary inquiry is what effect the error had, or reasonably may have had, on

the jury’s decision. Lair v. State , 265 S.W.3d 580, 590 (Tex.

App.—Houston [14th Dist.] 2008, pet. ref’d).

We consider (1) the source and

nature of the error, (2) the extent that it was emphasized by the State, (3)

the error’s probable collateral implications, (4) the weight a juror would

probably place on the error, and (5) whether declaring it harmless would likely

encourage the State to repeat it with impunity.

Harris v. State , 790 S.W.2d

568, 587 (Tex. Crim. App. 1989); Lair ,

265 S.W.3d at 590 – 91.

This requires us to evaluate the entire

record in a neutral, impartial, and even-handed manner, not in the light most

favorable to the prosecution. Harris , 790 S.W.2d at 586 ; Lair , 265 S.W.3d at 591 .

Here, the prosecutor’s complained-of

comment that appellant “[tried] not to say too much” after he was stopped

implicated appellant’s pre-arrest silence.

Read in context, this somewhat oblique comment implied that appellant

had the presence of mind not to say too much to the officers for the purpose of

hiding his intoxication.

The comment was only a minor

portion of the prosecutor’s closing argument and was not repeated, mentioned,

or emphasized. Instead, the prosecutor

focused on the evidence supporting a finding that appellant was guilty of driving

while intoxicated. Specifically, the

evidence showed that appellant was weaving within and outside his lane while

speeding down the freeway at 91-miles-per hour.

Officer Stockholm’s testimony indicated that appellant had difficulty

removing his driver’s license and insurance card from his wallet, indicating a

loss of fine motor control. She stated

that appellant’s speech was slurred and his eyes were bloodshot and

glassy. Officer Stockholm also described

appellant’s performance on the field sobriety.

Officer Stockholm testified that appellant’s performance on the tests

indicated to her that appellant was intoxicated.

Officer Burton testified that he

detected the odor of alcohol when speaking to appellant. The evidence showed that appellant told

Officer Stockholm that he had not been drinking, but then told Officer Burton

that he had drunk one to one-and-one half beers.

The trial court also admitted into

evidence the videotape taken by the camera mounted in Officer Stockholm’s

patrol car. The video showed the stop of

appellant’s vehicle, the officers’ interaction with appellant, appellant’s

performance of the field sobriety tests, and his refusal to take the

breathalyzer test. The video corroborated

much of the officers’ testimony. In

addition, the video served as powerful visual evidence of appellant’s

performance of the field sobriety tests.

Among the most obvious of appellant’s bobbles while performing the tests

is his failure to follow Officer Stockholm’s directions with regard to the

number of steps to take when performing the walk-and-turn test. The video also shows appellant losing his

balance while performing that test and also during the one-leg-stand test.

In his closing statement, the

prosecutor also countered the defense’s argument that appellant performed

poorly on the field sobriety tests because appellant suffers from a physical

deformity. The prosecutor pointed out

that no express evidence was admitted to confirm such medical condition. At the very end of his closing statement, the

prosecutor pointed to appellant’s refusal to take the breathalyzer test,

re-emphasized Officer Stockholm’s testimony, and called attention to the

videotape, all as evidence from which the jury could find appellant guilty. Given the totality of the prosecutor’s

closing statement and the record as a whole, we conclude that a jury would not

attribute much, if any, weight to the error associated with the complained-of

comment. Moreover, declaring the error

harmless would not likely encourage the State to repeat it with impunity.

After a careful, neutral, and

impartial review of the entire record, we conclude, beyond a reasonable doubt,

that the trial court’s overruling of appellant’s objection to the prosecutor’s complained-of

comment did not contribute to appellant’s conviction or punishment. See Tex. R. App. P . 44.2(a). Thus, we hold that any such error in the

trial court’s ruling was harmless.

We overrule appellant’s sole issue.

Conclusion

We

affirm the judgment of the trial court.

Laura

Carter Higley

Justice

Panel consists of Justices

Keyes, Higley, and Baker. [4]

Do not publish. Tex. R. App. P. 47.2( b).

[1] See Tex.

Penal Code Ann . § 49.04(a) (Vernon 2011).

[2] The background facts are derived

primarily from the testimony of the investigating police officers.

[3] If a defendant testifies, his

pre-arrest silence can be used to impeach him. See Jenkins v. Anderson , 447 U.S. 231 ,

238–40, 100 S. Ct. 2124 , 2129 – 30

(1980). The use of pre-arrest silence to

impeach does not violate the Fifth Amendment because “impeachment follows the

defendant’s own decision to cast aside his cloak of silence and advances the

truth-finding function of the criminal trial.” Id .

at 238, 100 S. Ct. at 2129 . Here,

appellant did not testify.

[4] The Hon. Caroline Baker, Judge of the 295th

District Court of Harris County, participating by assignment.