Opinion by: Sarah B. Duncan, Justice
Sitting: Catherine Stone, Justice
Paul W. Green, Justice
Sarah B. Duncan, Justice
Delivered and Filed: February 26, 2003
AFFIRMED
A jury found Ronald Curtis guilty of driving while intoxicated. He was sentenced to ninety days in jail, probated for two years, and fined $750.00. Curtis appeals, raising three points of error: (1) the evidence is factually insufficient; (2) the trial court erred in overruling his objection to the prosecutor's jury argument commenting on Curtis's failure to testify; and (3) the trial court erred in overruling his objection to the prosecutor's comment on Curtis's failure to produce evidence and witnesses. We affirm.
Factual and Procedural Background
At 2:00 a.m. on May 22, 1998, Officers Ling and Castillo, in separate marked patrol cars, were working traffic patrol at the 8100 block of Blanco. Ling saw a white pickup traveling at a high rate of speed and followed the truck northbound on Blanco. Ling testified that the driver, later identified as Ronald Curtis, drove aggressively and changed lanes through traffic. As Ling approached the intersection of Blanco and West Avenue, he turned on his overhead lights. Curtis seemed unaware of Ling's presence and did not stop.
Curtis attempted to turn onto West Avenue but locked up his brakes in the process. Ling testified Curtis seemed unable to control the speed of the vehicle, could not judge the intersection, and came within a few inches of striking a crosswalk pole. Curtis continued down West Avenue at a controlled rate of speed and then pulled into an apartment complex and keyed in the gate code. Ling left his vehicle and approached Curtis, asking him to step from the car. Curtis was surprised by Ling's presence. Officer Castillo arrived after Ling initiated the traffic stop.
Ling testified Curtis appeared calm and complied with his requests. However, Curtis seemed to brace himself against the car door and use it to push himself up out of the car. Curtis provided his driver's license and was questioned about how much he had to drink that evening. Curtis replied, "too much." Ling smelled alcohol on Curtis and asked to conduct the field sobriety tests. Curtis agreed; and Ling asked him to perform three tests: the Romberg balance test, the one-leg stand, and the walk-and-turn test. Ling testified Curtis failed all three tests. On the Romberg balance test, Curtis exhibited a three-inch side to side sway, a three-inch circular sway, and incorrectly estimated time. He was unable to complete the one-leg stand and was unable to follow instructions correctly during the walk-and-turn test. Curtis refused to take the Horizontal Gaze Nystagmus (HGN) test. Officer Ling testified that, before he administered the field sobriety tests, he did not have probable cause to believe Curtis was impaired. However, after observing Curtis' performance on the tests, Ling concluded Curtis was intoxicated and placed him under arrest for DWI and transported him to the magistrate's office. Upon arrival, Curtis was placed in a room with a video camera, read his rights, and asked to perform both a breathalyzer and the field sobriety tests on camera. Curtis refused.
Factual Sufficiency of the EvidenceIn his first point of error, Curtis complains the evidence is factually insufficient to support the jury's finding that Curtis was driving while intoxicated. We disagree.
Scope and Standard of Review
In reviewing a factual sufficiency challenge, we neutrally evaluate all the evidence, both for and against the finding of guilt, and reverse only if (1) the evidence is so weak as to be clearly wrong and manifestly unjust or (2) the verdict is against the great weight of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We must maintain appropriate deference to the jury's verdict by not substituting our own judgment for that of the fact finder. Our "evaluation should not intrude substantially upon the jury's role as the sole judge of the weight and credibility of witness testimony." Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001) (quoting Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832 (1997)).
Discussion
Curtis bases his factual insufficiency challenge on the following facts: Ling testified he did not have probable cause to believe Curtis was intoxicated before he administered the field sobriety tests; no other witness corroborated Ling's testimony regarding Curtis' poor performance on the field sobriety tests; Ling was biased; other factors may affect performance on field sobriety tests; and, in the videotape made at the station following Curtis's arrest, he demonstrated sobriety. However, taken as a whole, the evidence shows Curtis's abilities were impaired.
Ling initiated the traffic stop based on Curtis's reckless driving. Ling testified Curtis's eyes were bloodshot; and he smelled of alcohol. During the traffic stop, Curtis commented both on his consumption of "too much" alcohol and his inability to complete the one leg-stand ("I can't do this"). Based on experience and training, Ling believed Curtis was intoxicated after he failed the field sobriety tests. Contrary to Curtis's argument these essential portions of Ling's testimony are not contradicted by indisputable visual evidence on the videotape; nor do we find any evidence that Ling was biased in performing his duties. See Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000).
After examining all the evidence in a neutral light favoring neither side, we hold the jury's finding is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.
Jury ArgumentCurtis next contends the trial court erred in overruling his objections to the prosecutor's arguments at the guilt/innocence phase of trial. Curtis complains of the following closing argument:
Prosecutor: Let me make this clear that there was no evidence in this case at all, none at all, of there being any food, being any cell phone. And there's no evidence of any physical defects. He said- in opening statements defense attorney said that the defendant was with some friends. Where are these friends? Where are these friends coming in and saying, "I was with him"--
Defense counsel: Objection, Your Honor. He's commenting on the defendant's failure to testify and bringing witnesses on his own behalf. We're going to ask for a mistrial.
Court: Denied. Overruled.
Prosecution: ... Where are these doctors? Where are these medical records? There's nothing. There's no evidence of any physical defects. And the defendant never said anything. If you were asked to perform something when someone thought you were intoxicated would you not tell them that you had a hurt leg? Sinus medication, again, there's no evidence....
Failure to TestifyCurtis first argues the prosecutor's statements are comments on Curtis's failure to testify on his own behalf. We disagree.
The prosecution may not comment directly or indirectly on a defendant's silence or failure to testify at trial. See Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001); U.S. Const. amend. V; Tex. Const. art. I § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979). However, if the remark does not fault the defendant for exercising his right not to testify, a prosecutor may comment on a defendant's failure to produce witnesses and evidence. Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000). In examining the prosecution's comment, we must first determine if it was intended to be a comment on the defendant's failure to testify or if the comment was of such a character that the jury would naturally take it to be a comment on the defendant's failure to testify. Bustamante, 48 S.W.3d at 765; Patrick v. State, 906 S.W.2d 481, 490 (Tex. Crim. App. 1995), cert. denied, 517 U.S. 1106 (1996). A remark that calls attention to the absence of evidence that only the defendant can supply will result in reversal; however, if the language can reasonably be construed to refer to the defendant's failure to produce evidence other than his own testimony, the comment is not improper. Patrick, 906 S.W.2d at 491. Indirect or implied allusions to a defendant's failure to testify do not violate the defendant's rights. Id. at 490-91.
Curtis complains of the prosecution's statement that "the defendant never said anything." However, Curtis failed to object to this statement at trial and thus has waived his right to complain on appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173 (1997). (1)
Curtis also complains of the prosecutor's reference to the possible presence of a cell phone, food, or a physical disability. However, the record reveals these comments were in rebuttal to defense counsel's attacks on the reliability of the field sobriety tests and Ling's observations. On cross-examination, defense counsel questioned Ling about other possible causes of reckless driving, the appearance of driving while intoxicated, and a person's inability to perform field sobriety tests. These alternatives included talking on a cell phone, eating a hamburger, and having physical limitations. Both the State and Curtis continued this line of questioning through cross-examination, redirect, and re-cross. Curtis argues that no one other than himself could have provided evidence that he was talking on a cell phone, eating while in his car, or was suffering from physical defects. We disagree.
Curtis failed to produce evidence to support his alternate theories. Curtis specifically cross-examined Ling on his search of Curtis's vehicle and, although Ling provided testimony on the contents of Curtis's vehicle, Ling testified he did not recall the presence of half-eaten hamburgers or fast-food wrappers. Furthermore, evidence of Curtis's personal possessions could have been provided by a police inventory log. Likewise, medical records or doctor's testimony could have been offered as to proof of a physical limitation. Because the prosecutor's comments can reasonably be construed to refer to Curtis's failure to produce evidence other than his own testimony, we hold the trial court did not err in overruling the objection.
Other Improper Jury ArgumentCurtis next argues the prosecutor's statements that no friends were called to testify regarding Curtis's whereabouts before his arrest impermissibly shifted the burden of proof and the production of witnesses to the defense. Specifically, Curtis argues the prosecutor engaged in an improper argument by interjecting harmful and prejudicial unsworn evidence to the jury. We again disagree.
There are four permissible areas of jury argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) pleas for law enforcement. Jackson, 17 S.W.3d at 673; Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992), cert. denied, 510 U.S. 829 (1993). An argument that exceeds these bounds is error and will result in reversal if, in the light of the record as a whole, the argument is extreme or manifestly improper, violates a mandatory statute, or injects new facts, harmful to the accused, into the trial. Felder, 848 S.W.2d at 95. A prosecutor may, however, comment on a defendant's failure to present any witnesses or evidence on his behalf or to call certain particular competent and material witnesses to testify about character, reputation, or other relevant matters. See Albiar v. State, 739 S.W.2d 360, 362-63 (Tex. Crim. App. 1987). The State may further argue the reason for such failure is that any such testimony would be unfavorable to his defense. Id. at 363; Carrillo v. State, 566 S.W.2d 902, 912 (Tex. Crim. App. [Panel Op.] 1978).
Curtis argues that by suggesting to the jury that other witnesses could have provided evidence as to Curtis's whereabouts before the stop, the prosecutor improperly presented new facts not in evidence. The State, in reply, contends the argument was proper as a response to Curtis's opening statement that Curtis had been out with friends before the traffic stop. We hold the prosecutor's subsequent comments on the failure of "friends" to testify were invited by the opening statements of defense counsel. See Powell v. State, 63 S.W.3d 435, 439 (Tex. Crim. App. 2001) (holding it is within trial court's discretion to admit extraneous evidence to rebut defensive theory raised in the defendant's opening statement); see also Albiar, 739 S.W.2d at 363 (holding prosecutor may comment in closing arguments on defendant's failure to call competent and material witnesses, if the witnesses were available to testify but not called by the defendant, and defendant's failure to produce available evidence justifies inference that it would have been unfavorable to the defendant); Torres v. State, 552 S.W.2d 821, 825 (Tex. Crim. App. 1977) (holding the prosecutor may comment on the defendant's failure to call competent and material witnesses and may also argue that the reason for such failure is that any such testimony would have been unfavorable to his defense). Moreover, any error in overruling the objection was harmless. In light of the entire record, the probable effect of these comments was minimal to none. It is improbable, absent these comments, the jury would have reached a different conclusion. See Orona v. State, 791 S.W.2d 125, 130 (Tex. Crim. App. 1990); Harris v. State, 790 S.W.2d 568, 586 (Tex. Crim. App. 1989).
The trial court's judgment is affirmed.
Sarah B. Duncan, Justice
Do not publish
1. We note that this statement, when read in context, does not refer to Curtis's failure to testify at trial but to his failure to inform Officer Ling of any conditions that would affect his ability to perform the field sobriety tests during the traffic stop.