IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
OCTOBER 28, 2004
______________________________
TEXAS DEPARTMENT OF PUBLIC SAFETY, APPELLANT
V.
LANCE LADELL COERS, APPELLEE
_________________________________
FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;
NO. 2002-593,443; HONORABLE PAULA LANEHART, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
OPINIONThe Texas Department of Public Safety appeals from a judgment directing the TDPS to rescind its suspension of Lance Ladell Coers's drivers license. We reverse.
BACKGROUND On May 24, 2002, TDPS Trooper Jandrew observed Lance Ladell Coers driving without the proper use of a safety belt. Based on this observation, Jandrew initiated a traffic stop of Coers and observed signs of intoxication. After Coers performed and failed field sobriety tests, Jandrew arrested him for driving while intoxicated and requested a breath sample. Coers refused. As a result of the refusal, Coers's driver's license was suspended. See Tex. Transp. Code Ann. § 724.035 (Vernon Supp. 2002). (1) Coers requested an administrative hearing. See Section 724.041.
Jandrew did not appear at the hearing, and the TDPS used Jandrew's report to establish that she had reasonable suspicion or probable cause to stop or arrest Coers. (2) Jandrew's report indicated that she stopped Coers for driving without a safety belt. Coers objected to that part of the report referencing his non-use of a safety belt on the basis that "use or non-use of a safety belt is not admissible evidence in a civil trial." Section 545.413(g). (3) The ALJ overruled Coers's objections and sustained the suspension of Coers's license. Section 724.043.
Coers appealed to the county court at law. See Section 524.041. The county court at law judge held that the ALJ erred in admitting evidence of Coers's non-use of a seatbelt in a civil trial and that absent the evidence of non-use of a seatbelt there was no evidence to show reasonable suspicion for the stop of Coers's vehicle. Judgment was rendered reversing the decision of the ALJ and ordering TDPS to rescind its suspension of Coers's driver's license.
The sole issue presented on appeal is whether the county court at law erred in ruling that evidence of Coers's non-use of a safety belt was not admissible in the administrative proceeding. (4)
Appellate standard of review for a trial court's interpretation of law is de novo. See In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994).
In construing a statute, our objective is to determine and give effect to the Legislature's intent. See National Liability and Fire Insurance Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000); Bridgestone/Firestone v. Glyn-Jones, 878 S.W.2d 132, 133 (Tex. 1994).
In Glyn-Jones, the manufacturer of a seatbelt asserted that the language now before us precluded the injured person in a civil products liability suit from introducing evidence that an allegedly defective seatbelt was in use at the time of injury. The Supreme Court addressed the Legislature's intent in regard to the language in question as it existed in Tex. Rev. Civ. Stat. Ann. art. 6701d, § 107C(j), the predecessor statute to Section 545.413(g):
Article 6701d, section 107C was enacted to mandate the use of seat belts and to provide a criminal penalty for the failure to wear a seat belt. The last sentence of the section states that "[u]se or nonuse of a safety belt is not admissible evidence in a civil trial."
Subsection (j) was included in section 107C in order to make clear that the sole legal sanction for the failure to wear a seat belt is the criminal penalty provided by the statute and that the failure could not be used against the injured person in a civil trial. (emphasis added).
Id. at 133-34. See also, St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 507 (Tex. 1997).
The Glyn-Jones Court could have simply said that the Legislature did not intend to preclude admission of evidence of seat belt usage in the type of case then under consideration. It did not do so. Although one could argue that the "sole legal sanction" language is dictum, we view the language to be the foundation on which the Court based its ruling. Accordingly, we will adhere to the Supreme Court's interpretation of legislative intent as expressed in Glyn-Jones. See In re K.S., 76 S.W.3d 36, 49 (Tex.App.--Amarillo 2002, no pet.); Rios v. Texas Commerce Bancshares, Inc., 930 S.W.2d 809, 816 (Tex.App.--Corpus Christi 1996, writ denied); Penick v. Christensen, 912 S.W.2d 276, 286 (Tex.App.--Houston [14th Dist.] 1995, writ denied). The language of Section 545.413(g) did not require the ALJ to exclude evidence of Coers's non-use of a seatbelt.
We have not ignored Coers's argument that after Glyn-Jones was decided the Legislature has revisited the statutory language now found in Section 545.413(g) and has added a specific exception for proceedings under Subtitle A or B, Title 5 of the Family Code. See fn. 2, infra. In effect, he argues the doctrine of expressio unius est exclusio alterius: the maxim that the expression of one implies the exclusion of others. See Mid-Century Ins. Co. of Texas v. Kidd, 997 S.W.2d 265, 273-74 (Tex. 1999). The doctrine, however, is an aid to determine legislative intent, not an absolute rule, id., just as are other aids to statutory interpretation such as the presumption that the Legislature acts with knowledge of prior court decisions and interpretations of statutory language. See Philips v. Baeber, 995 S.W.2d 655, 658 (Tex. 1999); Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex. 1975); Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 187 (Tex.1968). It is not necessary for us to analyze the statute by using such aids to statutory construction in face of the Supreme Court's clear determination of the Legislature's intent in Glyn-Jones that the Legislature intended the language of Section 545.413(g) to limit sanctions for failure to use a seatbelt to the criminal penalty provided by statute.
The judgment is reversed. The decision of the Administrative Hearings Law Judge is affirmed.
Phil Johnson
Chief Justice
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NO. 07-09-00148-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MAY 19, 2010
SCOTT A. WHEELER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
____________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2007-418,302; HONORABLE BRADLEY S. UNDERWOOD, PRESIDING
Memorandum Opinion
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Scott A. Wheeler appeals his conviction of sexual assault of a fourteen-year-old girl[1] by contending 1) the trial court erred in denying his motion to suppress because his confession was not voluntary, 2) the evidence was legally and factually insufficient to establish the location of the assault, and 3) he was harmed by the prosecutors closing argument. We disagree and affirm the judgment.
Issue 1 Voluntariness of Confession
After taking a polygraph examination, appellant gave a written statement to police in which he admitted having consensual sexual relations with the complainant. Appellant seems to be arguing that his confession was involuntary, despite having been Mirandized at the time, because it was given while he was in custody. We overrule the issue.
Before us is one of those arguments where we can but only shake our collective heads and say what? We know of no authority holding that a confession is involuntary simply because it was made while the speaker (who had been Mirandized) was in custody. More importantly, appellant cites us to no such authority. And, to the extent that the tact undertaken by appellant is one that incorporates an implied request for us to write new law on the subject, we leave that to other governmental bodies, such as the legislature or our Court of Criminal Appeals. Thus, appellants first issue is overruled.
Issue 2 Sufficiency of the Evidence
Next, appellant argues that the evidence was legally and factually insufficient to establish that the offense occurred in Lubbock County as alleged in the indictment. We overrule the issue.
Appellant admitted, in his confession, that he had sex with the victim at his friends house. A sheriffs deputy testified that the friend alluded to by appellant was Ricky Daniels. Other evidence, which appellant does not question, illustrates that Ricky Daniels lived in Lubbock County. Assuming arguendo that the legal and factual sufficiency analysis applicable here is that used when assessing whether the State established the elements of the offense, the foregoing is some evidence upon which a rational jury could conclude beyond reasonable doubt that the crime occurred in Lubbock County. That the victim said she was assaulted at a locale other than Daniels residence simply created an issue of fact and credibility for the jury to decide. It could have legitimately doubted the accuracy of her comments about the location given that she was intoxicated (high on drugs) at the time and opted to believe appellant. And, its doing so would not be wrong or manifestly unjust.
Issue 3 Jury Argument
Finally, appellant complains of several instances of allegedly improper jury argument. They consist of the prosecutor supposedly vouching for the credibility of the complainant and striking at appellant over the shoulder of defense counsel. The issue is overruled.
Regarding two of the alleged instances of vouching for the credibility of the complainant, appellant objected to both and each objection was sustained. The trial court also instructed the jury to disregard the comments; however, it refused to grant a mistrial.[2] We presume that the jury followed the instruction to disregard. Brock v. State, 275 S.W.3d 586, 591-92 (Tex. App.Amarillo, 2008, pet. refd). Moreover, nothing in the record indicates that it did not. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). Parenthetically, we note that appellant was acquitted of one charge made against him by the complainant.
As for the third instance of purported vouching, the prosecutor argued: [a]nd if [the complainant] was being consistent with her history today, she would have taken the easy way out, but [the complainant] is a different person. The trial court overruled appellants objection to that comment. We note that a prosecutor may permissibly summarize the evidence. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2075, 173 L. Ed. 2d 1139 (2009). Although appellant argues that the prosecutor was personally assuring the jury that the complainant had changed, she herself testified at trial that she had lied in the past but she had changed for the sake of her young son because she did not want him to be a liar. Thus, the remark was arguably a summation of the testimony given by the complainant. Therefore, the trial court did not abuse its discretion in overruling the objection. See York v. State, 258 S.W.3d 712, 717 (Tex. App.Waco 2008, pet. refd) (stating that abuse of discretion is the standard of review).
Appellant also refers to a remark he deems as an effort to strike at him over the shoulder of his counsel. The remark was:
But the law does not just protect the good children, sometimes the troubled ones. The defendant has confessed to this offense. Have we come to a place in our society that if youre willing to sling enough mud that you can get away with the crimes that you admit to?
The objection was overruled. Appellant argues that the statement must refer to his defense counsel because he did not testify at trial.
Argument that strikes at a defendant over the shoulders of defense counsel is improper. Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995). That is not the ilk of the comment at bar for several reasons. First, it does not refer to defense counsel personally as opposed to the nature of the defense presented by counsel. Second, argument made in response to argument of counsel is proper, Cole v. State, 194 S.W.3d 538, 546 (Tex. App.Houston [1st Dist.] 2006, pet. refd), and appellants counsel repeatedly attempted to label the victim as a liar. We believe that the statement of the prosecutor can be legitimately viewed as a response to appellants accusations. Consequently, the trial court did not abuse its discretion in overruling the objection. See id. at 545-46 (holding that the statement that law enforcement officers know better than the defense attorney when fingerprint testing should be done was not objectionable when it was a response to closing argument that the police had not done their jobs by dusting for fingerprints).
Finally, we cannot forget appellants confession to committing the crime. That alone tends to vouch more for the credibility of the complainant than any utterance by the prosecutor. We further couple this with the fact that appellant was acquitted of one count and the overall nature of the appellate record and cannot but conclude that no harm resulted from the comments at issue, assuming arguendo that they were improper.
Having overruled all of appellants issues, the judgment is affirmed.
Brian Quinn
Chief Justice
Do not publish.
[1]Appellant was charged with two counts of sexual assault. One count involved the penetration of the complainants vagina by appellants penis while the second count involved the contact of appellants penis with the complainants mouth. Appellant was acquitted of the second count.
[2]Appellant further complains that one of those statements (she has told you the truth) was apparently on a slide presentation. Appellant requested the State to make a copy of that statement for inclusion in the record although it does not appear in the record. We note that the trial court did not actually order the State to do so. Furthermore, as noted above, an instruction to disregard was given to the jury.