Reset A A Font size: Print

Court of Appeals of Texas, Dallas.


No. 05–10–00956–CR

Decided: November 16, 2011

Before Justices FitzGerald, Francis, and Lang–Miers


Opinion By Justice FitzGerald

A jury convicted appellant Martin Glenn Bridges, Jr. of unauthorized use of a motor vehicle and of driving while intoxicated-third conviction or more.   In three points of error, appellant complains of the trial judge's dismissal of two veniremembers, the trial judge's limitations on appellant's cross-examination of a witness, and the trial judge's admission of appellant's complete driving record into evidence.   We affirm.

I. Background

Trial evidence showed that shortly before midnight on November 28, 2008, appellant was driving a pick-up truck in Terrell, Texas.   Terrell police officer Michael Sims heard the tires of the truck squeal and observed appellant fail to signal as he turned off a street.   Sims then observed appellant slightly veer off the roadway and make another turn without signaling.   Sims then turned on his emergency lights, and appellant pulled over.   Appellant told Sims that he did not have a driver's license, and he showed signs of intoxication.   When appellant refused to perform field sobriety tests, Sims arrested him.   The State presented evidence that appellant later refused to submit to a blood test.   Other evidence showed that the pick-up truck was registered in the name of appellant's stepmother, that it was in the custody and control of appellant's father, and that appellant's father reported the pick-up truck as stolen the next day.

Appellant was indicted for operating a motor vehicle without the owner's consent and for operating a motor vehicle in a public place while intoxicated after two or more prior convictions for driving while intoxicated.   A jury convicted him of both offenses, and appellant was sentenced to two years' imprisonment on the unauthorized-use count and sixty years' imprisonment on the count of driving while intoxicated-third conviction or more.

II. Analysis

A.  Dismissal of veniremembers

In his first point of error, appellant argues that the trial judge erred by dismissing two specific veniremembers.   The trial judge struck one of those veniremembers for cause and ruled that the other was disqualified based on a prior arrest for theft.   Appellant contends that there were no proper statutory grounds for either ruling.

The State argues that even if we presume error, appellant has failed to show harm.   We agree.   Under Texas law, “the erroneous excusing of a veniremember will call for reversal only if the record shows that the error deprived the defendant of a lawfully constituted jury.”  Jones v. State, 982 S.W.2d 386, 394 (Tex.Crim.App.1998).   Thus, the Jones court refused to reverse the defendant's conviction, even though it concluded that the trial judge had erred by granting the State's challenge of a particular veniremember for cause.   Id. at 390, 394.   As the court of criminal appeals later reiterated, a party who complains that the trial judge erroneously excused a veniremember must show that the error deprived the defendant of a jury composed of qualified individuals.  Gray v. State, 233 S.W.3d 295, 301 (Tex.Crim.App.2007);  see also Salazar v. State, 38 S.W.3d 141, 153 (Tex.Crim.App.2001) (“Any error in excusing [veniremember] Robertson was harmless because appellant has not shown that this denied him a fair and impartial jury.”).   Appellant does not argue that the jury was not composed of qualified individuals.   Our review of the record and briefs reveals nothing to indicate that the jury was not lawfully qualified.   Thus, we conclude that the error, if any, was harmless.

We overrule appellant's first point of error.

B. Limitations on cross-examination

In appellant's second point of error, he argues that the trial judge erred by limiting appellant's cross-examination of the arresting police officer, Michael Sims, on two separate occasions.   First, the trial judge refused to allow appellant to ask Sims a question about Sims's own bad driving record.   Second, the trial judge refused to allow appellant to cross-examine Sims about field sobriety tests.

1. Arresting officer's driving record

The context of appellant's first complaint is this:  On cross-examination, Sims acknowledged that he had been in two auto accidents in 2007 and that he had damaged a police car on a third occasion when he drove it into a field and the car set the grass on fire.   Then Sims agreed with appellant that it would not be safe for an officer to accelerate to a high speed in a residential neighborhood to make a routine traffic stop.   Then Sims testified that he could not remember whether he had accelerated to a high speed in order to make his traffic stop of appellant.   When Sims testified that he could not remember, appellant's counsel asked him, “However, you have previously been involved in traffic accidents because of your behavior?”   The State objected that the question was improper under Texas Rule of Evidence 608(b), appellant responded that the question was proper to undermine Sims's credibility as an officer, and the trial judge sustained the objection.   On appeal, appellant argues that the question was proper to show Sims's own bad driving record and thus show “faulty judgment by the officer.”   He relies on Rule 611, which provides that a witness “may be cross-examined on any matter relevant to any issue in the case, including credibility.”  Tex.R. Evid. 611(b).

We conclude that appellant failed to preserve error because he failed to make an offer of proof.   See Ford v. State, 305 S.W.3d 530, 532–33 (Tex.Crim.App.2009) (holding that error preservation is a “systemic requirement” that courts of appeals should always address).   Under Texas Rule of Evidence 103, error may not be predicated on the exclusion of evidence unless the substance of the evidence was made known to the court by offer or was apparent from the context within which the questions were asked.   See Tex.R. Evid. 103(a)(2).   We cannot tell from the context whether Sims would have agreed or disagreed that his prior auto accidents were caused by his behavior.   Nor does this kind of questioning fall into the narrow exception to Rule 103(a)(2) for certain subject matters that affect witness credibility such as “malice, ill feeling, ill will, bias, prejudice, or animus.”  Holmes v. State, 323 S.W.3d 163, 169 (Tex.Crim.App.2009).   Because we do not know what Sims's response to appellant's question would have been, we cannot review appellant's complaint.

Even if appellant had preserved error, and assuming for the sake of argument that the trial judge's ruling was erroneous, we would conclude that any error was harmless.   By the time of the ruling in question, appellant had already successfully cross-examined Sims about some of the details of his two prior traffic accidents.   Whether Sims would have agreed or not that those accidents were caused by his behavior would have added little or nothing to appellant's apparent theory that Sims was not a credible witness because he was not a good driver.   The topic had nothing to do with whether appellant took the pick-up truck without its owner's permission, and we do not see its bearing on the credibility of Sims's testimony as to whether appellant was driving while intoxicated.   Thus, the exclusion of the evidence did not affect appellant's substantial rights.   See Tex.R.App. P. 44.2(b);  Taylor v. State, 268 S.W.3d 571, 592 (Tex.Crim.App.2008) (error affects substantial rights if it had a substantial and injurious effect in determining the jury's verdict).

2. Field sobriety tests

Appellant's second complaint is that the trial court did not allow him to cross-examine Sims about field sobriety tests.   On cross-examination, Sims confirmed that appellant refused to submit to a sobriety test.   Appellant's counsel then asked Sims, “[W]hat is the typical test that you're referring to when we talk about a standardized field sobriety [sic]?”   The trial judge sustained the State's relevance objection to this question.   Soon thereafter the jury was excused, and there was an extended bench conference during which appellant's counsel argued that he should be allowed to question Sims about what a sobriety test is and about his credentials and certification to administer sobriety tests.   When the trial resumed, appellant cross-examined Sims about whether sobriety tests at the police station are video recorded and whether Sims had breath-test equipment in his squad car when he arrested appellant, and then he moved on to other topics.

On appeal, appellant does not explain exactly what testimony the trial judge improperly prevented him from introducing.   He argues generally that he should have been allowed to question Sims “about field sobriety tests,” that he should have been allowed “to delve further into this topic,” and that he wanted to “flesh out” the topic of field sobriety testing that the State had first broached.   Appellant's complaint is not preserved because again the record contains no offer of proof demonstrating what testimony appellant would have elicited.  “Thus, we are unable to judge the admissibility of the excluded evidence or determine whether the trial court abused its discretion by excluding it.”  Holmes, 323 S.W.3d at 171.   Appellant failed to preserve error.

3. Conclusion

We overrule appellant's second point of error.

C. Admission of appellant's driving record

In his third point of error, appellant complains about the trial judge's decision to admit into evidence the entirety of State's Exhibit 9, which is a certified copy of appellant's driving record.   Specifically, appellant contends that Exhibit 9 contains evidence of extraneous offenses and bad acts by appellant beyond the prior DWI convictions that were elements of a charged offense.   Appellant argues that the admission of Exhibit 9 in its entirety violated Texas Rule of Evidence 404(b) and, in the alternative, Rule 403.1  He also argues that the parts of Exhibit 9 proving other bad acts were not relevant at all, which would implicate Rule 402's dictate that “[e]vidence which is not relevant is inadmissible.”  Tex.R. Evid. 402.

The State contends that appellant did not preserve his Rule 404(b) argument for appellate review because he did not make a Rule 404(b) objection in the trial court.   An appellant's argument on appeal must comport with his objection at trial.   See Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App.2005).   However, “an objection is not defective merely because it does not cite a rule, statute, or specific case.”  Ford, 305 S.W.3d at 533.   The question is whether the objection is sufficiently clear to give the trial judge and opposing counsel an opportunity to address and, if necessary, correct the purported error.  Id. The gist of a Rule 404(b) objection is that the offered evidence proves other wrongful acts by a person that are relevant only to show the person's character and, by extension, action in conformity with that character.   See Tex.R. Evid. 404(b).  Appellant's counsel raised several different objections to Exhibit 9 during a bench conference about its admissibility, and at one point counsel argued that parts of Exhibit 9 should be “omitted” because they showed convictions and license suspensions in appellant's driving record that were prejudicial and were not elements of the charged offense of driving while intoxicated-third conviction or more.   He further asserted, “All it is going to do is show that [appellant] had an extensive history with regards to his driving record and may poorly reflect on [the jury's] decision in looking at the evidence in this case.”   We conclude appellant preserved his Rule 404(b) objection.   See Berry v. State, 233 S.W.3d 847, 857 (Tex.Crim.App.2007) (holding that objection to “extraneous matters,” in context, sufficed to preserved Rule 404(b) objection).   He also satisfied the rule that a party must object to specific parts of an exhibit that contains both admissible and inadmissible evidence.   See, e.g., Sonnier v. State, 913 S.W.2d 511, 518 (Tex.Crim.App.1995).

We review a trial judge's ruling on the admissibility of evidence for abuse of discretion.  Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex.Crim.App.2005).   Thus, we uphold the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case.   Id. In the amended indictment, the State alleged four specific prior DWI convictions against appellant in support of the charge of driving while intoxicated-third conviction or more.   Exhibit 9 is a 24–page document containing appellant's driving record.   It contains information tending to substantiate three of the four prior DWI convictions alleged in the amended indictment, and appellant does not argue that the information about the prior DWI convictions should have been excluded.   However, Exhibit 9 also contains (1) information about appellant's several criminal convictions and driver's-license suspensions for failure to maintain liability insurance;  (2) information about suspensions of his license for refusing to submit to breath or blood testing after arrests for DWI;  (3) notices that appellant's driver's license would not be renewed for unspecified reasons;  and (4) several notices directed to appellant about surcharges due and owing to the Texas Department of Public Safety for unspecified reasons.

We agree with appellant that the trial judge abused his discretion by admitting Exhibit 9 in its entirety.   The four categories of information described in the previous paragraph of this opinion were not relevant to the charged offenses of unauthorized use of a motor vehicle and driving while intoxicated-third conviction or more.   Alternatively, if that information was relevant, it was relevant only to show that appellant had a character for flouting the traffic laws of Texas, and therefore that it is more likely that he committed the offenses charged in this particular case.   Under Rule 404(b), the information was inadmissible for such a purpose.   Thus, the trial judge erred by admitting the complete driving record.

We further conclude, however, that the error was harmless.   Generally, the erroneous admission of evidence is evaluated under the test found in Texas Rule of Appellate Procedure 44.2(b).  See Casey v. State, 215 S.W.3d 870, 884–85 (Tex.Crim.App.2007);  King v. State, 953 S.W.3d 266, 271 (Tex.Crim.App.1997).   Under that rule, nonconstitutional errors are harmful only if they affect substantial rights.  Tex.R.App. P. 44.2(b).  A substantial right is affected if an error had a substantial and injurious effect or influence in determining a jury's verdict.  King, 953 S.W.2d at 271.   A substantial right is not affected if, after examining the record as a whole, the appellate court has fair assurance that the error did not influence the jury, or had but a slight effect.  Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998).   We may consider several factors in determining whether an error was harmful, such as the evidence introduced at trial, the nature of the evidence supporting the verdict, the character of the alleged error, the jury instructions, the State's theory and any defensive theories, closing arguments, voir dire, and whether the State emphasized the error.   See Motilla v. State, 78 S.W.3d 352, 355–58 (Tex.Crim.App.2002).   Error in the admission of evidence is also more likely to be harmless if other properly admitted evidence proves the same fact.   See Brooks v. State, 990 S.W.2d 278, 287 (Tex.Crim.App.1999).

The following factors lead us to conclude that the erroneous admission of Exhibit 9 was harmless.   First, the evidence of appellant's guilt was ample.   On the charge of unauthorized use of a motor vehicle, the verdict was supported by a police officer's unequivocal testimony that appellant's father reported that appellant had taken his truck without his permission and by the “auto theft affidavit” that was signed by appellant's father and admitted into evidence at trial.   Appellant's father also testified at trial, unwillingly, and he testified that he did not remember whether he gave appellant permission to drive the truck that day or not, and that he did not remember signing the auto-theft affidavit.   The traffic stop and appellant's arrest were recorded on a video that was admitted at trial, and on the recording appellant plainly states that the truck is not his and that it belongs to his dad.   On the charge of driving while intoxicated-third conviction or more, the verdict was supported by officer Sims's testimony that he smelled alcohol when he pulled appellant over and that appellant was swaying and had glossy eyes and slurred speech.   Sims found an open and partially empty beer container in the truck.   Also, the video of the traffic stop and appellant's arrest shows that appellant was not entirely coherent.   After appellant was handcuffed and put in the back seat of officer Sims's squad car, appellant became belligerent and verbally abusive, and he violently beat his own head against the plexiglass partition between the front seat and back seat several times, further tending to show he did not have the normal use of his mental faculties.   Moreover, during a later part of the recording in which appellant was off-camera, appellant can be heard to say that he had drunk a couple of beers.

In light of the foregoing evidence, we conclude that the erroneously admitted evidence would have had at most a slight influence on the jury.   Exhibit 9 revealed that appellant had several convictions and license suspensions for driving without insurance, but the video of the traffic stop informed the jury that appellant told Sims that his driver's license was suspended because of “insurance.”   Thus, the documentary evidence of appellant's violations of legal insurance requirements was partially duplicative of evidence already before the jury via the video.   The additional evidence in Exhibit 9 that appellant had previously been adjudicated to have driven without insurance on other occasions would not have substantially increased any prejudice to appellant's case.   Exhibit 9 also indicated that appellant had some driver's-license suspensions for refusing to submit to breath or blood testing after arrests for DWI. The admissible information in Exhibit 9 about appellant's four past convictions for DWI made the evidence of appellant's past arrests for DWI cumulative and harmless.   The evidence that appellant had refused breath and blood tests in the past was arguably somewhat prejudicial to appellant's defense because other evidence showed that he refused to perform sobriety tests and refused to submit to a blood test in the instant case.   But in light of the evidence of appellant's guilt, we conclude that the prejudicial effect of this similarity would have been slight at most.   The remaining contents of Exhibit 9, such as general notices of nonrenewal of appellant's driver's license and notices of surcharges that appellant owed for unspecified reasons, would not have been particularly prejudicial to appellant's defense.

It is also significant that the State did not emphasize the extraneous offenses before the jury in any way.   Exhibit 9 was admitted into evidence after the last witness finished testifying in the first phase of the trial, so no witness was asked to read any part of Exhibit 9 to the jury.   The State referred to Exhibit 9 in closing argument, but only as proof of appellant's prior DWI convictions, which were directly relevant to an element of the charged offense of driving while intoxicated-third conviction or more.   The State did not mention the extraneous offenses described in Exhibit 9.

After our review of the record, “[w]e have more than a fair assurance that the error did not influence the jury or had just a slight effect.”  Motilla, 78 S.W.3d at 360.   Consequently, we conclude that the error was harmless and overrule appellant's third point of error.

III. Disposition

We affirm the trial court's judgment.


FN1. Appellant also mentions Rule 405(b), which provides, “In cases in which a person's character or character trait is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person's conduct.”   Thus, Rule 405(b) is a rule making evidence admissible, not a rule requiring the exclusion of evidence.   In any event, the State does not argue that evidence of appellant's extraneous offenses and bad acts was admissible under this rule..  FN1. Appellant also mentions Rule 405(b), which provides, “In cases in which a person's character or character trait is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person's conduct.”   Thus, Rule 405(b) is a rule making evidence admissible, not a rule requiring the exclusion of evidence.   In any event, the State does not argue that evidence of appellant's extraneous offenses and bad acts was admissible under this rule.


Copied to clipboard