Opinion
No. 05-08-01134-CR
Opinion Filed October 20, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Court at Law No. 2 Collin County, Texas, Trial Court Cause No. 004-85184-07.
Before Justices FRANCIS, O'NEILL, and LANG.
MEMORANDUM OPINION
Orlan Noel Walker appeals the trial court's judgment convicting him of driving while intoxicated. Following his plea of not guilty, the trial court sentenced him to 90 days in jail, probated for eighteen months and a $1000 fine. Walker raises three issues on appeal, arguing: (1) the trial court erred when it sustained the State's objection to his jury argument about corroboration, (2) the trial court erred when it overruled his objection to the State's jury argument regarding witness credibility, and (3) the curative instruction given by the trial court after sustaining his objection to the State's argument was insufficient. For the reasons below, appellant's three issues are decided against him. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment.
I. FACTUAL PROCEDURAL BACKGROUND
Officer Richard Saliba, a member of the Dallas Police Department, testified he was on patrol on the night of February 20, 2007 when he witnessed Walker's vehicle drive over the curb on Frankford Road at Dallas Parkway as the car attempted to make a u-turn. According to his testimony, it appeared as though "the vehicle almost lost control." When "the vehicle abruptly changed directions and entered the middle lane of the southbound lanes of the Dallas Parkway," Saliba activated his overhead lights and siren. Saliba testified he had to hit his siren "four or five" times before Walker stopped his vehicle. After Walker stopped, Saliba asked him for his license and proof of insurance. He testified it was "difficult to initially communicate" with Walker because he "occasionally slurred his words." Saliba requested Walker step out of his vehicle. Thereafter, he performed the Horizontal Gaze Nystagmus test, walk and turn and one-leg stand tests on Walker. Saliba testified Walker exhibited a "number of clues" of intoxication and arrested him based on his observations. Walker testified at trial and asserted he was "not a big drinker." He testified on the night of the arrest he attended a retirement party where he had two drinks, but he "didn't quite finish the first one-or the second one." He also stated he consumed prescription medications on the night of the arrest as required by his doctor. He recounted driving to a fast food restaurant after the party because he did not want his medication to upset his stomach. He asserted that Officer Saliba was "lying" because the police were not at the intersection of Frankford and Dallas Parkway. Rather, according to his testimony, the police followed him from the fast food restaurant's parking lot to Frankford and Dallas Parkway. Moreover, Walker testified he did not hit the curb when he made the u-turn. He asserted Saliba did not turn on his siren and flashed his lights only once before he stopped his vehicle. On cross examination, when questioned about Saliba's testimony, Walker testified Saliba was "lying" and "perjured himself" about the course of events. In jury argument, defense counsel argued the credibility of Saliba and noted that his testimony was uncorroborated. In the first part of jury argument the following exchange occurred:[Defense]: At the very least he could corroborate this story . . . Proof beyond a reasonable doubt requires corroboration, folks. To convince somebody beyond a reasonable doubt, you need more than one person's word to convict someone of a crime.
[State]: Objection. That's a mischaracterization of the law, Your Honor.
[Court]: Sustained.
[State]: That also assumes facts not in evidence.
[Court]: Sustained.Thereafter, the defense questioned the veracity of Saliba's testimony and asked the jury to make a credibility determination:
[Defense]: For all we know Officer Saliba could have gotten on the stand and said that Orlan Walker was standing on his head outside the car . . . if he says Orlan was standing on his head and Orlan says no, I wasn't, who do you believe?The State did not object to this argument. However, in the State's closing argument, the prosecutor responded to the credibility argument by asking the jury if Saliba would "risk his entire career and perjure himself with this man." Defense counsel objected to the State's argument as improper opinion, but the trial court overruled the objection. After a one day trial, the jury found Walker guilty of the offense as charged. The trial court assessed punishment at 90 days in jail, probated for 18 months and a $1000 fine. Walker timely filed this appeal.
II. JURY ARGUMENT
In his first issue, Walker argues the trial court erred by sustaining the State's objection to his jury argument about corroboration because the statement was not a misstatement of the law. The State responds Walker did not properly preserve this issue for appeal, and the trial court "did not err in sustaining the State's objection." In the second issue, Walker argues the trial court erred in overruling his objection to the State's argument about Officer Saliba's credibility. Finally, in the third issue, Walker argues the curative instructions the trial court gave to the jury after it sustained his objection to the State's argument regarding Walker's conduct were insufficient. The State responds the issue was not properly preserved for appeal because appellant did not object to the instructions at trial.A. Standard of Review
The standard of review for improper jury argument is abuse of discretion. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001).B. Applicable Law
The purpose of closing argument is to facilitate the jury's proper analysis of the evidence presented at trial so that it may arrive at a just and reasonable conclusion based on the admitted evidence alone. Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. 1980); Taylor v. State, 911 S.W.2d 906, 911 (Tex.App.-Fort Worth 1995, pet. ref'd). To be permissible, jury argument must fall within one of the following four general areas: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) an answer to the argument of opposing counsel, or (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). Arguments that exceed the bounds of these approved areas do not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). To be reversible error, the remarks must have been a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial. Id. An instruction to the jury to disregard the prosecutor's argument generally cures any error. See id.; Guidry, 9 S.W.3d at 154; Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995). The appellant must make the trial court aware of the complaint in order to preserve error on appeal. Tex. R. App. P. 33.1. More specifically, the record must show that "the complaint was made to the trial court by a timely request, objection or motion." Id. To preserve a jury argument error the "traditional and preferred procedure for a party to preserve error is to (1) object in a timely manner; (2) request an instruction to disregard; and (3) move for a mistrial if the instruction to disregard seems insufficient. . . ." Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007) (citing Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004)). Moreover, in order to preserve an issue for appeal, the appellant must raise all issues or points on appeal in their brief. Tex. R. App. P. 38.1 (h). Therefore, if the trial court's ruling can be sustained on an independent ground the appellant must challenge all of the grounds on appeal. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980) (defendant must challenge each ground on which the trial court relies on to rule against the defendant because one sufficient ground supports trial court's order); Sterling v. State, 791 S.W.2d 274, 278 (Tex. App.-Corpus Christi 1990 pet ref'd) (same). Furthermore, when a party makes a trial objection on one legal ground, the complaint on appeal must comport with the objection made at trial. See Willis v. State, 785 S.W.2d 378, 382-83 (Tex. Crim. App. 1989) ("point of error on appeal must correspond to precise objection made in the trial court."); Carty v. State, 178 S.W.3d 297, 305 (Tex. App.-Houston [1st Dist.] 2005, pet ref'd) (objection based on one ground does not preserve appellate review based on another ground).C. Application of Facts
1. Sustaining State's objection
In Walker's first issue, he asserts the trial court erred when it "sustained the State's objection to defense argument pointing out that an available State's witness had not testified and the State should have corroborated the officer who did testify." He contends the statement "was not an argument that the law requires corroboration and the argument was limited to the situation in this case." The record shows the State objected to the defense's argument on two separate grounds. However, Walker only assails one of the grounds, that being his argument was not a misstatement of the law. In addition to ruling that the statement was a misstatement of law, the trial court also sustained the state's objection that the argument assumed facts not in evidence. Walker did not challenge this ruling on appeal. Because the objection was sustained on an independent ground that Walker did not contest on appeal, he waived any error. See Tex. R. App. P. 38.1(h). Accordingly, we resolve his first issue against him.2. Overruling Defense's Objection
In his second issue, Walker argues the trial court erred in overruling his objection when the "prosecutor stated that the police officer would not risk his career by committing perjury." Walker asserts "this was an improper injection of the prosecutor's opinion of a witness's credibility into final argument." The State responds the "complained-of testimony was proper" because "it asked the jury to consider whether [the police officer] perjured himself but did not tell the jury what the prosecutor believed." During the State's closing statement, the prosecutor responded to the attack on the credibility of Officer Saliba and asserted: "Think about witness credibility here. Officer Saliba. Is he going to risk his entire career and perjure himself with this man?" The defense objected, contending the statement was an improper personal opinion. The court overruled the objection. The trial court's ruling was not error. Defense counsel had previously attacked the credibility of Officer Saliba through Walker's testimony and in closing argument. When the defense attacks the veracity of a witness, the prosecution may comment on the witness's credibility and the risk of committing perjury. Bryant v. State, 923 S.W.2d 199, 212 (Tex. App.-Waco 1996), pet ref'd, 940 S.W.2d 663 (Tex Crim. App. 1997) (State's argument that "to believe the defendant's story . . . you would have to believe that two peace officers . . . would come into this courtroom and give perjured testimony" was "proper" because risks of committing perjury are common knowledge and the defendant attacked the veracity of the State's witness); Vasquez v. State, 830 S.W.2d 829, 831 (Tex. App.-Corpus Christi 1992, writ ref'd) (State's argument that why would police officers "risk their careers, their lives, committing perjury" was "proper"). Therefore, we resolve Walker's second issue against him.3. Curative Instructions
In his third issue, Walker contends the trial court erred in the instruction it gave the jury after "properly sustain[ing]" his objection to the "improper argument implying that appellant would have committed further offenses had he not been stopped in time by the officers." Walker argues the instruction "was insufficient" because "the trial court did not order the jury to disregard the comment but `asked' the jury to do so." In pertinent part, the record shows the following exchange:[State]: Members of the jury, this man is guilty. He knew, or should have known for sure, that when you take Xanax and you take Stratera and you take Effexor and you combine it with alcohol, you're impaired. Intoxicated. Then he gets on our grounds and he drives down the road in this erratic manner. Thank God nothing else happened in this case.
[Defense]: Objection, Judge. That's improper argument.
[Court]: Sustained.
[Defense]: Ask the jury to disregard.
[Court]: Jury is asked to disregard the last sentence.After the court gave its instruction, Walker did not ask for relief. See Cruz, 225 S.W.3d at 548. Because Walker did not request further relief that was refused by the trial court, the issue is not properly preserved for appeal. Tex. R. App. P. 33.1. We resolve Walker's third and final issue against him.