Opinion issued May 3, 2007
In The
Curt of Appeals
For The
First District of Texas
NO. 01-05-00345-CR
MICHAEL DEWAIN BOURDA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1267871
MEMORANDUM OPINION
A jury found appellant, Michael Dewain Bourda, guilty of driving while intoxicated and assessed his punishment at 75 days in jail and $1,000 fine. See Tex. Pen. Code Ann. §§ 12.22, 49.04 (Vernon 2003). We determine whether the trial court reversibly erred in sustaining the State's objection to a legitimate portion of defense counsel's closing argument. We affirm.
Background
In the early morning of November 4, 2004, appellant crashed his car into a truck and a metal fence. Officers Charles Allen and Michael Wick of the Houston Police Department responded to the accident and observed that appellant had a strong odor of alcohol, slurred speech, and bloodshot eyes. Appellant did not appear to be injured. Appellant told Officer Allen that he had not suffered any injuries in the accident, that he was not on any medications, and that he did not have any medical conditions. Officer Allen administered four field-sobriety tests to appellant: the horizontal-gaze-nystagmus ("HGN") test, (1) the one-leg-stand test, the walk-and-turn test, and the alphabet test. Appellant failed at least three of these field-sobriety tests. (2) Closing Argument
In his sole issue, appellant argues that the trial court erred in sustaining the State's objection to the following closing argument:
Defense counsel: [Officer Allen] said that head trauma could cause head injuries, could cause [the HGN] test to be compromised. Well, the second officer that got on the stand [Officer Wick] testified that the way that--well, in his opinion, that it is possible, due to the impact of the accident that [appellant] could have hit his head on the roof or could have hit his head on the dashboard.
State: Objection, Your Honor, assumes facts not in evidence.
Court: Sustained.
Defense counsel: Well, excuse me, if these things had possibly happened to [appellant], this test could be compromised. Like I said again, there was no testimony or indication from the officer that these tests was [sic] not compromised. There was no video, and he did not put on any testimony that said that these tests was [sic] conducted in ideal or near perfect situation.
Proper jury argument generally must encompass one of the following areas: (1) a summation of the evidence presented at trial; (2) a reasonable deduction drawn from that evidence; (3) an answer to the opposing counsel's argument; or (4) a plea for law enforcement. (3) Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999); Sandoval v. State, 52 S.W.3d 851, 857 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd). To determine whether a party's argument properly falls within one of these categories, we must consider the argument in light of the entire record. Sandoval, 52 S.W.3d at 857.
Officer Allen testified that there were a number of things that could cause a person to have a reaction to the HGN test other than alcohol, such as a major head injury or medical problems with his leg, back, neck, or head. Therefore, before administering the HGN test on appellant, Officer Allen determined that appellant was not disqualified from taking the HGN test for things such as medication, a medical condition, or a head injury. On direct examination, Officer Allen testified as follows:
State: What could cause a person to have H.G.N.?
Officer Allen: Well, there are a number of things that can cause a person to have H.G.N. and we try to eliminate those. No. 1, being a major head injury. And we ask them, do they have any medical problems, do they have anything wrong, as I like to say, with their leg, back, neck, head or anything. We also look for pupil size. We make sure that their pupils are relatively the same size. If one is smaller and one is extremely blown out, then that's indicative of a head injury, so they're not a good candidate for the test. There are certain types of medications, like I said, anything in the central nervous system depressant category can cause nystagmus. . . .
During cross-examination, Officer Wick testified that it was possible for appellant to have sustained a head injury in the accident:
Defense Counsel: And is it possible that a person that being jerked or pushed up, based with that type of force, could have bumped his head on the roof of the car if he didn't have a seat belt on?
Officer Wick: Yes.
Defense counsel: Okay. Is it possible to also say that he could have probably hit the dashboard with his head?
Officer Wick: It's possible, yes.
Defense counsel: So, it is possible, just by the mere--by what you saw that [appellant] could have had some type of head trauma?
Officer Wick: Yes.
Considering the above-quoted testimony of both officers, we agree with appellant's assessment that defense counsel's argument was within the bounds of permissible argument. See Wiltz v. State, 827 S.W.2d 372, 374 (Tex. App.--Houston [1st Dist.] 1992), rev'd on other grounds, 863 S.W.2d 463 (Tex. Crim. App. 1993). Accordingly, the trial court erred in sustaining the State's objection.
Appellant asserts that the error here is constitutional; the State contends that it is "other error." See Tex. R. App. P. 44.2(a), (b). We decline to resolve this controversy because the error is harmless under either harm standard. See Tex. R. App. P. 44.2(a), (b). Nevertheless, we shall examine harm under the more stringent analysis and reverse unless we can determine beyond a reasonable doubt that the error did not contribute to appellant's conviction or punishment. See Tex. R. App. P. 44.2(a). We examine the source of the error, the nature of the error, whether or to what extent it was emphasized by the State, its probable collateral implications, how much weight jurors probably placed on the error, and whether declaring the error harmless would encourage the State to repeat it with impunity. See Thompson v. State, 89 S.W.3d 843, 853 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd) (quoting Harris v. State, 790 S.W.2d 568, 587-88 (Tex. Crim. App. 1989)).
A. Source of Error
The State objected to a defense argument that accurately reflected testimony given by State's witnesses, as assuming facts in evidence. The trial court sustained the State's objection.
B. Nature of Error
The testimony being argued by defense counsel was itself speculative in the sense that the officers were asked only if it were possible that appellant could have hit his head and, if appellant had had head trauma, whether that fact could that have caused a different result on the HGN test. There had been no evidence of any head trauma. To the contrary, the evidence was that appellant had told the officers that he was not injured and the officers observed no sign of injury. Thus, the prosecutor and the trial court erred by mistaking speculative evidence as no evidence. There had been no objection by the State regarding the speculative nature of the testimony; thus, it was in evidence. By sustaining the State's objection based on assuming facts not in evidence, the trial court negated the evidence defense counsel had developed, regardless of how speculative that evidence was.
C. Emphasis by State
The prosecutor made no argument referring to head injuries or the lack thereof. There was no emphasis of the error by the State.
D. Probable Collateral Implications
It is difficult to see any collateral implications when the jury was not instructed
to disregard and defense counsel continued his argument by repeating, without objection, that if these things had happened to appellant, the HGN test would have been compromised. See Wiltz, 827 S.W.2d at 374 (under harm standard akin to that of Texas Rule of Appellate Procedure 44.2(a), holding that error in sustaining State's objection to closing argument was harmless because trial court did not instruct jury to disregard argument); Drake v. State, 860 S.W.2d 182, 186 (Tex. App.--Houston [14th Dist.] 1993, pet. ref'd) (similar holding); see also Culton v. State, 95 S.W.3d 401, 406-07 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd) (holding that error in sustaining State's objection to appellant's closing argument was cured because appellant made essentially same argument later without objection); Rische v. State, 746 S.W.2d 287, 291 (Tex. App.--Houston [1st Dist.] 1988, no pet.) (similar holding; also noting that court did not instruct jury to disregard defense argument).
E. Weight Jurors Would Place on Error
There are several reasons that jurors would not have placed any weight on the error. First, as pointed out above, the jury was not instructed to disregard defense counsel's argument, which he essentially repeated without objection. Second, defense counsel's argument was related only to one of the four field-sobriety tests that Officer Allen had administered. Appellant failed several of those tests, not solely the HGN test. Defense counsel thoroughly argued to the jury that the other field-sobriety tests could have been inaccurate for other reasons. (4) Third, after the trial court sustained the State's objection, defense counsel argued to the contrary of his position that appellant's physical and mental faculties had been impaired in the accident and described appellant as "perfectly normal" the night that appellant was arrested. (5)
F. Effect of Declaring Error Harmless
Appellant argues that declaring the error here harmless would encourage objections to arguments highlighting all facts prejudicial to the State's case. We see the situation here as unusual, a case in which the State and trial court mistook speculative evidence for no evidence. Had the State objected to argument emphasizing actual prejudicial evidence, we doubt that the trial court would have been prone to sustain.
G. Resolution
Because we have found no possible harm under even the more stringent harm analysis, we hold that the error here was harmless. See Tex. R. App. P. 44.2(a).
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Tim Taft
Justice
Panel Consists of Justices Taft, Alcala, and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).
1. The horizontal-gaze-nystagmus ("HGN") test measures a person's involuntary
physiological reaction to alcohol. When a person consumes alcohol, it causes
the tiny eye muscles to move slowly, which causes the eye to have a bouncing
or twitching movement.
2. Appellant contends that he passed one of the field-sobriety tests. The State
does not dispute appellant's contention; however, it is unclear from the record
which, if any, of the field-sobriety tests that appellant passed.
3. While the first three categories are as applicable to defense jury arguments as
to State's jury arguments, the fourth category is more applicable to State's jury
arguments. The defense analog might be a plea for leniency or mercy.
4. For example, appellant argued that the one-leg-stand and the walk-and-turn
tests were confusing because it was not clear when the tests started, which was
one of the reasons that Officer Allen provided for appellant's failing them.
5. Appellant argued in closing arguments:
In fact, the only direct evidence that we had to show [appellant's] mental and physical state on that day was the video shown to you when [appellant] was in the video room. I don't know what you saw, but I saw a gentleman walking in that room, perfectly normal, without the assistance of anybody, perfectly capable of walking in by himself. I saw a gentleman that when he was told to stand up in a particular spot stood there still. He had that black line that came behind his head from the wall, never swayed. I saw a gentleman that when he was asked his name, with no hesitation, with no slurred speech, said his name. I saw a gentleman that when he was asked the origin of his name, with no hesitation said French. I saw a gentleman that when he was asked if you want to continue the test said, no, without hesitation, no slurred speech and normal. I saw a gentleman that after the interview was concluded and was asked to walk out of the room, walked out of the room with no assistance and normally.