COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
MICHAEL ANDREW FOREMAN, §
No. 08-13-00042-CR
Appellant, §
Appeal from the
v. §
County Criminal Court No. 9 of
THE STATE OF TEXAS, §
Tarrant County, Texas
Appellee. §
TC#1196029
OPINION
Appellant Michael Andrew Foreman appeals his misdemeanor conviction for driving
while intoxicated. Appellant raises three issues on appeal, all involving alleged procedural errors.
He contends the trial court erred: (1) in allowing the arresting officer to testify there is a greater
likelihood of drivers being intoxicated after the bars close at 2:00 a.m.; (2) in failing to give an
Article 38.23 jury instruction on probable cause to arrest; and (3) in allowing the State to interject
facts not in the record during final argument. We hold that Appellant has waived any error
concerning the arresting officer’s testimony, that the trial court was not required to instruct the jury
because no fact issues were raised on probable cause, and that the State’s final argument
constituted a reasonable deduction from the evidence. According, we affirm.1
BACKGROUND
On March 25, 2010 at 2:40 a.m., Patrol Officer Seth Martin stopped Appellant for driving
with only one headlight. Appellant searched for but could not find his driver’s license, then said it
was in his jacket, which was not in the car. Officer Martin noticed a moderate smell of alcohol
and testified that Appellant’s speech was slurred, and that he was thick-tongued and “nearly
incoherent,” indicating intoxication. Appellant admitted he had been drinking “a few” at a club.
Officer Martin called in and verified Appellant was a licensed driver, and requested an officer be
dispatched to assist in performing a field sobriety test. Based on the odor of alcohol, Appellant’s
speech, his confusion whether he had his driver’s license, and his admission that he had been
drinking at a club, Martin suspected Appellant was driving while intoxicated. Martin arrested
Appellant when he refused to perform a field sobriety test. Martin noted that Appellant was
unsteady when he exited his car, and that Appellant’s eyes were red and his eyelids droopy.
Appellant refused to give a breath or blood specimen. At 5:00 a.m., Martin obtained a search
warrant for a blood specimen; the test results confirmed a 0.21 blood-alcohol concentration.
DISCUSSION
Officer Martin’s Testimony
In Issue One, Appellant contends the trial court erred in overruling his objection to Officer
Martin’s testimony that “there’s a greater likelihood of intoxicated drivers” after the bars close at
2:00 a.m.. Appellant contends there was no proffered basis for the officer’s opinion and the
testimony was not proper lay opinion.
1
This case was transferred from our sister court in Fort Worth, and we decide it in accordance with the precedent of
that court. TEX.R.APP.P. 41.3.
2
The following exchange occurred during the prosecutor’s examination of Officer Martin
on his probable cause:
Q. One thing I forgot to ask you earlier. The time of night
being 2:40 in the morning, is that of any significance to you?
A. Yes.
Q. And what significance is that?
A. It’s after the bars have been closed, or the clubs, there’s a
greater likelihood of intoxicated drivers.
Mr. Factor: I object. I object to that, Your Honor.
The Court: Overruled.
Appellant argues this testimony was improper because (i) it was an assertion of fact, not opinion,
(ii) it was offered without first developing a foundational basis to demonstrate its reliability, and
(iii) it was improper lay opinion offered without establishing it was based on Officer Martin’s
perception or experience. The State responds in part that Appellant failed to preserve error
because the defense attorney merely stated, “I object. I object to that,” without giving a legal
reason for his objection. We agree Appellant failed to preserve error.
To preserve error for appellate review, the Texas Rules of Appellate Procedure require the
record to show that the objection “stated the grounds for the ruling that the complaining party
sought from the trial court with sufficient specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context[.]” TEX.R.APP.P. 33.1(a)(1)(A); see
also TEX.R.EVID. 103(a)(1) (error may not be predicated on a ruling admitting evidence unless a
timely objection is made “stating the specific ground of objection, if the specific ground was not
apparent from the context”); Sample v. State, 405 S.W.3d 295, 300 (Tex.App. – Fort Worth 2013,
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pet. ref’d) (“To preserve a complaint for 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 if they
are not apparent from the context of the request, objection, or motion.”). The objecting party
must “let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly
enough for the judge to understand him at a time when the judge is in the proper position to do
something about it.” Clark v. State, 365 S.W.3d 333, 339 (Tex.Crim.App. 2012) (quoting Pena v.
State, 285 S.W.3d 459, 464 (Tex.Crim.App. 2009)). Even constitutional errors can be forfeited if
a party fails to properly object. Id.
The two main purposes of requiring a specific objection are to inform the trial judge of the
basis of the objection so that he has an opportunity to rule, and to allow opposing counsel to
remedy the error. Id. Specific objections “promote the prevention and correction of errors” so
that the parties and the judicial system “are not burdened by appeal and retrial.” Martinez v. State,
91 S.W.3d 331, 336 (Tex.Crim.App. 2002). Appellate courts may not reverse a trial court’s
ruling on any theory or basis that might have been applicable to the case, but was not raised. Id. at
336; Sample, 405 S.W.3d at 300 (“A reviewing court should not address the merits of an issue that
has not been preserved for appeal.”).
Appellant’s objection – “I object. I object to that” – failed to state any ground for the
objection. If Appellant had informed the trial court that Officer Martin’s opinion lacked a
foundational basis to show reliability, the trial court could have required, and the State could have
provided, that basis, thereby correcting any error. But, since Appellant failed to state any grounds
for the objection, he has waived error, and we cannot address the merits of the trial court’s ruling .2
2
Even if error had been preserved, and even if we were to assume the testimony was erroneously admitted, that error
would not be harmful. The erroneous admission of evidence rarely rises to the level of harmful error and generally
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Issue One is overruled.
Article 38.23 Instruction
In Issue Two, Appellant contends the trial court erred in failing to instruct the jury under
Article 38.23 concerning Officer Martin’s probable cause for arrest. TEX.CODE CRIM.PROC.
ANN. art. 38.23(a) (West 2005). Article 38.23 prohibits the admission of illegally-obtained
evidence and requires that, in any case where a fact issue is raised whether evidence was obtained
in violation of the Constitution or laws of the United States or the State of Texas, “the jury shall be
instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation
of the provisions of this Article, then and in such event, the jury shall disregard any such evidence
so obtained.” Id. Appellant concedes that Officer Martin made a lawful traffic stop, but asserts
he was entitled to an Article 38.23 instruction because “it is not clear that Officer Martin’s
suspicion” that Appellant was intoxicated “had ripened to probable cause at the time of the
arrest[.]”
The terms of Article 38.23 are mandatory, and when an issue of fact is raised, a defendant
has a statutory right to have the jury charged accordingly. Madden v. State, 242 S.W.3d 504, 510
(Tex.Crim.App. 2007). There are three requirements a defendant must meet before he is entitled
to an Article 38.23 instruction: (1) the evidence heard by the jury must raise an issue of fact; (2)
the evidence on that fact must be affirmatively contested; and (3) the contested factual issue must
be material to the lawfulness of the challenged conduct in obtaining the evidence. Id. Thus, a
defendant’s right to an Article 38.23 jury instruction is limited to disputed issues of fact that are
material to his claim of a constitutional or statutory violation that would render the evidence
must be disregarded because it is not significant enough to affect a substantial right. See TEX.R.APP.P. 44.2(b).
Here, any erroneous admission of the testimony would, in the end, be disregarded due to the overwhelming evidence
of guilt arising from Appellant having a blood-alcohol level over twice the legal limit several hours after his arrest.
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inadmissible. Id. at 509-10. A fact issue whether evidence was legally obtained may be raised
from any source, and that evidence may be strong, weak, contradicted, unimpeached, or
unbelievable. Garza v. State, 126 S.W.3d 79, 85 (Tex.Crim.App. 2004).
The State contends the trial court was not required to submit an Article 38.23 instruction to
the jury because there were no contested, material fact issues concerning Officer Martin’s
probable cause for arrest. We agree.
The record shows that Officer Martin’s suspicion that Appellant was intoxicated, and thus
his probable cause for Appellant’s arrest, arose from the following factors. During the legal,
uncontested traffic stop, Officer Martin observed that Appellant’s speech was slurred, that
Appellant was thick-tongued, and that Appellant was “nearly incoherent,” all of which were
indicators of intoxication. Officer Martin noticed a moderate odor of alcohol, which he could
smell outside the vehicle despite windy conditions. Appellant admitted he had been at a club and
had been drinking “a few.” When Officer Martin asked Appellant for his driver’s license,
Appellant first said he thought he had it, but was unable to find it, then decided his license was in
his jacket but discovered his jacket was not in the vehicle. Appellant also displayed an unusually
apologetic demeanor, repeatedly saying he was “sorry” when there was no reason to apologize.
Officer Martin was suspicious that Appellant was intoxicated based on the odor of alcohol, and on
Appellant’s speech, demeanor, indecision whether he had his driver’s license, and his admissions
that he was returning from a club and had been drinking. Based on these factors, Martin asked
Appellant to exit the vehicle and arrested him.
Appellant does not point to any evidence that disputes any of these factors. Our review of
the record also does not reveal any evidence contrary to Officer Martin’s testimony that
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Appellant’s speech was slurred, that Appellant was nearly incoherent, that there was an odor of
alcohol, that Appellant was confused whether he had his license, that Appellant displayed an
inappropriate apologetic demeanor, or that Appellant admitted he had been drinking. An Article
38.23 instruction must be included in the charge only if there is a factual dispute about how the
evidence was obtained. Garza, 126 S.W.3d at 85. To be entitled to an Article 38.23 instruction,
Appellant was required to show a factual dispute existed as to one or more of the factors Officer
Martin relied on in concluding he had probable cause to arrest Appellant for driving while
intoxicated. Appellant failed to show there was a factual dispute as to any of these factors.
Where no issue of fact is raised by the evidence, the trial court acts properly in refusing a request to
give the jury an Article 38.23 instruction. Madden, 242 S.W.3d at 510.
In his brief, Appellant does not assert there was any evidence contrary to any of the factors
Officer Martin relied on for probable cause to arrest; rather, Appellant argues that all of these
factors together did not rise to the level of probable cause to support a legal arrest. But, that is not
the test for obtaining an Article 38.23 instruction. If there are no disputed factual issues, the
legality of the conduct is determined by the trial judge alone, as a question of law, not by the jury as
a question of fact. Id. This is the lesson of Madden. An Article 38.23 instruction must decide a
disputed issue of historical fact, not a question of law, such as whether an officer had reasonable
suspicion to detain the defendant. Id. at 511-13. We hold that Appellant was not entitled to an
Article 38.23 jury instruction because there were no contested, material fact issues concerning any
of the factors giving rise to the probable cause for Appellant’s arrest. Issue Two is overruled.
The State’s Jury Argument
In his third issue, Appellant asserts the trial court committed reversible error when it
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overruled his objection that the State’s final jury argument in the guilt-innocence phase injected
facts outside the record. Officer Martin testified that he had travelled behind Appellant for about
two blocks before pulling him over, and agreed that was not sufficient time to observe any reckless
or bad driving. Appellant complains that in its final rebuttal argument, the State argued:
There’s no bad driving. He was behind him for two blocks. I
suspect, it’s reasonable to deduce, that if he had been behind him for
longer, he would see some bad driving … considering what his
alcohol concentration was. But he’s behind him for two blocks.
The standard of review for a trial court’s ruling on an objection asserting improper jury
argument is abuse of discretion. Whitney v. State, 396 S.W.3d 696, 703-04 (Tex.App. – Fort
Worth 2013, pet. ref’d). Generally, there are four proper areas of jury argument: (1) summation
of the evidence; (2) reasonable deductions from the evidence; (3) answers to an argument of
opposing counsel; and (4) pleas for law enforcement. Freeman v. State, 340 S.W.3d 717, 727
(Tex.Crim.App. 2011), cert. denied, 132 S.Ct. 1099 (2012) (citing Brown v. State, 270 S.W.3d
564, 570 (Tex.Crim.App. 2008)); Whitney, 396 S.W.3d at 704. The State contends in part that the
prosecutor’s argument was a proper, reasonable deduction from the evidence. We agree.
Considering that Appellant’s blood-alcohol level was more than twice the legal limit hours after
the traffic stop, it was a reasonable deduction that Officer Martin “would see some bad driving”
due to Appellant’s level of intoxication had he followed Appellant for more than two blocks.
Thus, the argument was proper jury argument.
Further, any possible error was harmless. A trial court’s erroneous overruling of a
defendant’s objection to improper jury argument is not reversible error unless it affected the
appellant’s substantial rights. TEX.R.APP.P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692-93
(Tex.Crim.App. 2000). To determine if an appellant’s substantial rights were affected, we
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balance the severity of the misconduct (i.e., the prejudicial effect of the prosecutor’s remarks), any
curative measures, and the certainty of conviction absent the misconduct. Freeman, 340 S.W.3d
at 728. The record reflects the complained-of argument was only a small portion of the State’s
entire jury argument, and the State did not directly repeat or emphasize that argument. The State
instead emphasized Officer Martin’s observations of Appellant and that the blood-alcohol testing
demonstrated Appellant’s substantial intoxication. Therefore, the remarks prejudiced Appellant
very little, if at all. Further, the evidence supporting the jury’s verdict was strong considering the
results of the blood-alcohol testing. This weighs heavily in favor of the State. Although no
curative measures were taken since Appellant’s objection was overruled, we conclude that, on this
record, any error in this argument had little, if any, influence on the jury’s verdict.
Moreover, even if the trial court had committed error, any error was cured because the
prosecutor later made a similar argument without objection:
Thank goodness the officer only followed him for two blocks and
didn’t let him continue on driving down the street. You can see on
that video there are at least two cars traveling in front of him.
Think [sic] goodness he didn’t have the opportunity to catch up to
those guys. Who knows what would have happened.
To preserve error, a party must object each time the objectionable matter is offered. See Smith v.
State, 842 S.W.2d 401, 406 (Tex.App. – Fort Worth 1992, pet. ref’d) (error in allowing argument
was cured because similar argument was allowed without objection both before and after contested
portion of argument); see also Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App. 2003) (an error
in the admission of evidence is cured where the same evidence comes in elsewhere without
objection).
We conclude that the prosecutor’s argument was proper because it was a reasonable
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deduction from the evidence, and that to the extent the trial court erred in overruling Appellant’s
objection, the error was harmless or was cured by Appellant’s failure to object to the subsequent
similar argument. Issue Three is overruled.
CONCLUSION
We conclude that Appellant waived any error in the admission of Officer Martin’s
testimony by failing to state any ground for his objection, that Appellant was not entitled to an
Article 38.23 jury instruction because there were no contested material fact issues on Officer
Martin’s probable cause to arrest, and that the prosecutor’s jury argument was a reasonable
deduction from the evidence or alternatively, any error was harmless or was cured by the
subsequent similar argument offered without objection. We affirm the trial court’s judgment.
STEVEN L. HUGHES, Justice
January 9, 2015
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
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