COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00475-CR
PAUL WILLIAM PROVENCE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 6 OF TARRANT COUNTY
TRIAL COURT NO. 1254463
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MEMORANDUM OPINION 1
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Appellant Paul William Provence appeals his conviction for driving while
intoxicated (DWI). 2 In three issues, he argues that the trial court reversibly erred
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 49.04(a) (West Supp. 2014).
by denying his motion to suppress evidence on the basis of absent Miranda 3
warnings and by admitting an audio recording when it did not comply with article
38.22, section 3(a) of the code of criminal procedure. 4 Because appellant
forfeited these complaints by not sufficiently raising them and by not obtaining
rulings on them in the trial court, we affirm.
Background Facts
In late June 2010, Amber Akers, an ambulance driver and emergency
medical technician, drove on a highway in Arlington and noticed appellant driving
a truck erratically, speeding, and changing lanes without a signal. The truck and
ambulance came close to colliding several times. Eventually, the ambulance
crew compelled appellant to stop. When he did, the crew determined that it was
not safe to let him continue driving. With appellant’s consent to being further
evaluated by the ambulance crew, a firefighter drove appellant’s car, with
appellant in the passenger’s seat, to a Wal-Mart parking lot.
Appellant had slurred speech and an unsteady gait, and he gave
nonsensical answers to questions asked by the ambulance crew. The crew
determined that appellant might be intoxicated but did not believe that the
intoxication was related to drinking alcohol. Police arrived and asked appellant
what was wrong with him; he said that he had a brain injury from a motocross
3
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 1630
(1966).
4
See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a) (West Supp. 2014).
2
accident, and he mentioned taking prescription drugs. Appellant failed field
sobriety tests. A blood test taken later at a hospital showed that he had a high
concentration of alprazolam.
The State charged appellant with DWI. Appellant filed a motion to
suppress the results of a blood draw and a video recording of his detention in the
Wal-Mart parking lot. The trial court held a hearing on the motion to suppress
and denied it. Appellant pled not guilty. At trial, the court admitted a DVD
depicting (by video and audio) what occurred after the police arrived at the Wal-
Mart. 5 A jury found appellant guilty. The trial court assessed his punishment at
180 days’ confinement but suspended imposition of the sentence and placed him
on community supervision for twelve months. Appellant brought this appeal.
The Forfeiture of Appellant’s Complaints
In his first two issues, appellant argues that the trial court erred by denying
his motion to suppress and by admitting the audio component of the DVD
recording. With regard to the motion to suppress, which appellant discusses in
his first issue, he argues that law enforcement’s alleged failure to comply with
Miranda requires suppression of any statements he made. Concerning the audio
recording, appellant contends that an alleged failure to comply with article 38.22,
section 3(a) of the code of criminal procedure required the recording’s exclusion.
5
In front of the jury, appellant objected to the admission of this DVD
“because of the illegal stop and detention.” Appellant also objected to the
admission of another exhibit and to testimony on the basis of the alleged “illegal
stop.”
3
To preserve a complaint for our 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. Tex. R. App. P. 33.1(a)(1); Everitt v. State, 407 S.W.3d
259, 262–63 (Tex. Crim. App. 2013); Sanchez v. State, 418 S.W.3d 302, 306
(Tex. App.—Fort Worth 2013, pet. ref’d). Further, the trial court must have ruled
on the request, objection, or motion, either expressly or implicitly, or the
complaining party must have objected to the trial court’s refusal to rule. Tex. R.
App. P. 33.1(a)(2); Everitt, 407 S.W.3d at 263. And the request, objection, or
motion presented at trial must comport with the argument raised on appeal.
Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014), cert. denied, 135
S. Ct. 1158 (2015); Gilley v. State, 383 S.W.3d 301, 305 (Tex. App.—Fort Worth
2012), aff’d, 418 S.W.3d 114 (Tex. Crim. App.), cert. denied, 135 S. Ct. 57
(2014). Even constitutional issues may be forfeited for failure to object at trial.
See Yazdchi, 428 S.W.3d at 844. 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).
Relying on Miranda, appellant contends in his first issue that the trial court
erred by not suppressing evidence because the ambulance crew and Arlington
Police Department “violat[ed his] rights under the Fifth Amendment to the United
States Constitution.” In his written motion, appellant did not cite either the Fifth
Amendment or Miranda. Instead, he argued in part,
4
1. On or about June 19, 2010, the defendant’s vehicle was
stopped without a warrant, and his person was seized by an officer
of the Arlington Police Department.
2. The defendant was taken to the hospital for a blood draw
and months thereafter charged with Driving While Intoxicated, first
offense.
[3]. The defendant was arrested without any reasonable
suspicion that he was engaged in criminal activity. The evidence
that will be offered by the [S]tate was not discovered pursuant to a
reasonable investigative detention. The officer had no arrest
warrant, there were no exigent circumstances, and there was no
probable cause to believe the defendant was involved in criminal
activity. The arresting officer’s directions that the defendant conduct
certain “field sobriety tests[”] [were] not performed in accordance
with standardized protocols for the administration of such tests and
render[] any conclusions drawn from said tests meaningless. This
illegal stop and seizure violates the defendant’s rights under the
Fourth and Fourteenth Amendments to the United States
Constitution, Article 1, Section 9 of the Texas Constitution, and
Article 38.23 and Chapter 14 of the Texas Code of Criminal
Procedure.
....
[5]. The defendant was stopped but the officer had no
personal knowledge of any offense nor any reasonable suspicion [at
the] time of the stop. As a result, certain evidence that the [S]tate
will offer at trial was acquired without the defendant’s voluntary
consent, and the defendant did not intelligently, voluntarily, and
knowingly consent to doing the field sobriety tests and/or to the
videotaping of the field sobriety test at the scene of the arrest[.] The
admission of the statements and acts of the defendant and also of
the seized and derivative evidence would violate the defendant’s
statutory and constitutional guarantees. See the Sixth and
Fourteenth Amendments to the United States Constitution, Article 1,
Section 10 of the Texas Constitution, Articles 1.05 and 1.27 of the
Texas Code of Criminal Procedure, and Sections 724.011, 724.015,
724.031, 724.016, Tex. Transp. Code Ann. . . . [Emphasis added.]
5
Several months later, appellant filed a brief in support of his motion to
suppress, in which he argued that he had been improperly seized by the
“ambulance crew” and that since he was in custody, he should have received
Miranda warnings. He argued, “Because the Defendant was in custody and
never given his Miranda rights and because police interrogated and [videotaped]
Defendant without affording him his Miranda rights, the Defendant prays that the
Honorable Court grant the Defendant’s Motion to Suppress and suppress the
fruits of said video . . . and blood draw.” At a hearing on the State’s motion for
continuance of a hearing on the motion to suppress, appellant again cited
Miranda as a basis of his motion.
Three months later, however, at the hearing on appellant’s motion to
suppress, he never mentioned Miranda or the Fifth Amendment as the grounds
for his motion. Instead, at the beginning of that hearing, the following exchange
occurred:
THE COURT: . . . This is a motion to suppress only on the
stop and the arrest of this Defendant; is that correct?
[THE STATE]: Yes, Your Honor.
THE COURT: And it is a warrantless arrest; is this correct?
[THE STATE]: That’s true, Your Honor. And just to talk about
the scope more, my understanding was it’s a unique stop. So the
stop -- and I don’t feel the motion would be -- it would be prudent to
carry the motion through the probable cause to arrest if we’re
focusing on the stop. Is that my understanding of the motion?
[DEFENSE COUNSEL]: Well, there’s everything through
because everything was obtained illegally because the thing is the
6
stop, because it was basically a citizen’s arrest. . . . And then the
police, as you saw from watching the video, arrived afterwards. So
depending on whether it’s a detention or an arrest is the first thing --
well, first we need to determine if it was a legal stop, then whether it
was a detention or arrest. [Emphasis added.]
After the court received testimony from Akers, the State rested as to the
suppression motion, and the following colloquy occurred between the trial court
and defense counsel:
THE COURT: [The State] is resting on the stop itself. Do you
have any further evidence on the stop?
[DEFENSE COUNSEL]: No, Your Honor. I will rest on the
stop.
The parties then argued the merits of the motion, with appellant contending only
that the ambulance crew improperly stopped appellant while he was driving. The
court ruled on the record, “Motion to Suppress on the stop is denied.” 6
[Emphasis added.] The trial court’s conclusions of law did not mention the Fifth
Amendment or Miranda but instead concerned Akers’s authority to make a
citizen’s arrest.
Therefore, based on our careful review of the record, we conclude that
appellant did not ultimately present an argument based on the Fifth Amendment
and Miranda to the trial court for a ruling and that the trial court did not make
such a ruling. Similarly, although appellant focuses on language within article
38.22 in his second issue, he did not argue article 38.22 as a ground for
6
Furthermore, on the bottom of appellant’s brief in support of his motion to
suppress, the trial judge wrote, “Motion to Suppress – Denied on STOP.”
7
exclusion of the audio recording at any time in the trial court. Thus, we hold that
appellant forfeited these complaints, and we overrule his first two issues. See
Tex. R. App. P. 33.1(a); Yazdchi, 428 S.W.3d at 844; Reyes v. State, 361
S.W.3d 222, 229–31 (Tex. App—Fort Worth 2012, pet. ref’d) (analyzing the
protections afforded by the Fifth Amendment and article 38.22 and reciting that
these protections are neither systemic nor absolute requirements that need not
be preserved to be raised on appeal); Banargent v. State, 228 S.W.3d 393, 401–
02 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).
In his third issue, appellant complains that the alleged errors discussed in
his first two issues call for reversal under the standards for constitutional and
nonconstitutional harm. See Tex. R. App. P. 44.2(a)–(b). Because appellant
forfeited the complaints raised in his first and second issues and because his
third issue depends on the success of his arguments in his first and second
issues, we overrule his third issue. See id.; Peake v. State, 792 S.W.2d 456, 459
(Tex. Crim. App. 1990) (“Since we have determined appellant failed to preserve
any error for review, the court of appeals erred in addressing any harm from this
alleged error.”).
8
Conclusion
Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 2, 2015
9