                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-11-00642-CR
                           ____________________

                    TIMOTHY SCOTT WEEKS, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee

_______________________________________________________              ______________

                On Appeal from the County Court at Law No. 5
                        Montgomery County, Texas
                         Trial Cause No. 10-259081
________________________________________________________             _____________

                                    OPINION

      A jury found Timothy Scott Weeks guilty of boating while intoxicated.

Weeks challenges the denial of his motion to suppress, the jury selection process,

and a ruling on an objection to the prosecutor’s closing argument.

      We conclude that the complaint about the stop and detention was not

presented to the trial court for a ruling. But even if the issue is considered

preserved for appellate review, no error occurred. The stop was authorized by


                                         1
statute and the warden had reasonable suspicion for the brief investigative

detention. On the objection that was made at trial, the trial court did not err in

determining that the warden had probable cause to arrest. With respect to the jury

selection process, the trial judge could reasonably find that Weeks did not present

sufficient proof of the fair-cross-section claim. The record also reflects that the

prosecution’s argument was in response to a hypothetical presented by appellant’s

counsel. Concluding no reversible error has been raised by appellant, we affirm the

trial court’s judgment.

                                     THE FACTS

      A Texas Parks and Wildlife game warden patrolling Lake Conroe received a

call regarding intoxicated boaters. He followed a boat matching the description the

caller gave. The warden positioned his boat next to Weeks’s boat.

      He identified himself as a state game warden. He explained at trial that he

approached the boat to check for water safety equipment and in response to the call

he had received. The warden asked Weeks, the operator of the boat, to produce the

boat registration card and the required water safety equipment. The alcohol smell

coming from Weeks, his slurred speech, his failure to produce water safety

equipment at first request, his inability to properly put on a life vest, six clues of

possible intoxication on the HGN test, his admission that he had consumed two

                                          2
beers and a Gatorade and vodka, and his statement that he was “not totally

wasted[,]” prompted the warden to investigate further onshore.

      After giving Weeks time to adjust to being ashore, the warden administered

the HGN test again. Weeks again exhibited all six clues of possible intoxication.

He exhibited one out of a possible eight clues on the walk-and-turn test, and zero

clues out of a possible four clues on the one-leg stand test. In the offense report,

the warden noted that Weeks walked “heavy-footed” and his balance was

unsteady. The warden testified based on his training and experience he determined

that Weeks had operated the boat while intoxicated.

                             THE MOTION TO SUPPRESS

      Weeks argued in his motion to suppress that the detention, seizure, and

arrest violated his rights as guaranteed to him by statute and both the federal and

state constitutions. Among other things, Weeks claimed the warden did not have

reasonable suspicion or probable cause to believe that Weeks was engaged in

criminal activity. On appeal, he asserts evidence should have been suppressed

because of the alleged “unlawful warrantless detention and arrest.”

      In reviewing a trial court’s ruling on a motion to suppress, an appellate court

gives almost total deference to a trial court’s determination of historical facts, but

reviews de novo the trial court’s application of the law to those facts. Carmouche

                                          3
v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) (citing Guzman v. State, 955

S.W.2d 85, 88-89 (Tex. Crim. App. 1997)). The trial court’s ruling will be

affirmed if it is reasonably supported by the record and is correct under any theory

of law applicable to the case. Young v. State, 283 S.W.3d 854, 873 (Tex. Crim.

App. 2009).

      Section 31.124 of the Texas Parks and Wildlife Code authorizes an

enforcement officer to “stop and board any vessel subject to this chapter” and to

“inspect the boat to determine compliance with applicable provisions.” Tex. Parks

& Wild. Code Ann. § 31.124(a) (West 2002); see also §§ 31.031, 31.065, 31.067-

.071 (West 2002), §§ 31.021, 31.032, 31.066 (West Supp. 2012) (requirements for

boats). In Schenekl v. State, the Court of Criminal Appeals rejected a constitutional

challenge to section 31.124 under the Fourth Amendment. Schenekl, 30 S.W.3d

412, 413, 416 (Tex. Crim. App. 2000). The Court noted that the State has a strong

interest in promoting recreational water safety through the means provided:

random water safety checks. Id.; see also State v. Luxon, 230 S.W.3d 440, 449

(Tex. App.—Eastland 2007, no pet.) (“Section 31.124(a) authorizes enforcement

officers to stop and board boats, without probable cause or reasonable suspicion,

for the purpose of performing a water safety check.”).




                                         4
      Weeks argues nonetheless that the warden lacked reasonable suspicion or

probable cause to stop or arrest him, and that the warden did not stop Weeks for

the purpose of enforcing Chapter 31. Compare Schenekl, 30 S.W.3d at 417

(Meyers, J., concurring) (“It ought to be emphasized that the search authorized by

the statute in question is narrow in scope and may not exceed its stated purpose,

absent reasonable suspicion or probable cause.”). According to Weeks, Chapter 31

does not apply here because the warden detained Weeks to investigate an

uncorroborated tip. Weeks argues that his statements, the warden’s observations,

and the results of the sobriety and breath tests were therefore inadmissible under

article 38.23 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc.

Ann. § 38.23 (West 2005) (exclusionary rule).

      The State maintains Weeks waived his motion to suppress, and did not

preserve the alleged error for review on appeal. There was no pre-trial hearing on

the motion to suppress, and no ruling on the motion before trial. As a prerequisite

to presenting a complaint for our review, a party must make the complaint to the

trial court by a timely request, objection, or motion, and also obtain a ruling or

object to the refusal to rule. Tex. R. App. P. 33.1; Stults v. State, 23 S.W.3d 198,

205-06 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (A timely objection

should be made when the ground for objection is apparent.).

                                         5
          We do not find in the record that Weeks objected to the warden’s testimony

at trial concerning his reasons for stopping the boat, his observations, the actual

sobriety tests, or his further onshore investigation to determine if Weeks was

intoxicated. The trial court sustained the defendant’s objection to testimony

concerning the accuracy of testing done by the warden during his training. The

warden testified without objection, however, to the circumstances leading up to the

arrest.

          When the State offered the DIC-24 (the “statutory warning-watercraft”

document that informed Weeks he was under arrest and requested a breath

specimen for testing), Weeks objected as follows:

                 Judge, may we approach? I’ve got a motion to suppress on file
          that I believe is a good time right now. I’d ask at this point that you
          suppress all further testimony, evidence of the blood test, and any of
          the testimony that they did not have probable cause in this case to
          arrest Mr. Weeks based on his testimony so far.

          As a general rule, the record must show that the complaint made on appeal

was timely made to the trial court “with sufficient specificity to make the trial

court aware of the complaint, unless the specific grounds were apparent from the

context[.]” See Tex. R. App. P. 33.1. Weeks objected to “further testimony” and to

the lack of “probable cause in this case to arrest[.]” By failing to object and obtain

a ruling from the trial court, Weeks waived his objection and motion regarding the

                                            6
warden’s testimony concerning the stop and detention, the actual sobriety field

tests performed before the arrest, and Weeks’s statements. See Tex. R. App. P.

33.1.

        When Weeks did object at the trial under his motion to suppress, he limited

the scope of his motion and objection to whether the warden had probable cause to

arrest Weeks “based on his testimony so far.” He did not object to the stop and

detention, or to the absence of reasonable suspicion. The objection was that,

considering the warden’s “testimony so far,” no probable cause for arrest existed at

the time of arrest. But based on the testimony admitted without objection, the trial

court could reasonably conclude that, at the moment the arrest was made, the facts

and circumstances within the warden’s knowledge and of which he had reasonably

trustworthy information were sufficient to warrant a prudent man to believe that,

more likely than not, Weeks had committed the offense of boating while

intoxicated. See Amador v. State, 275 S.W.3d 872, 878-79 (Tex. Crim. App. 2009)

(totality of the circumstances); State v. Garrett, 22 S.W.3d 650, 653-54 (Tex.

App.—Austin 2000, no pet.) (Smell of alcohol, watery eyes, and unsteadiness help

establish probable cause to arrest defendant for DWI.). The trial court did not err in

overruling that objection.




                                          7
      Even if the objection is considered sufficient to preserve the issue

concerning the stop and detention prior to the arrest, we see no error in the trial

court’s ruling. The stop was authorized under Chapter 31. See Tex. Parks & Wild.

Code Ann. § 31.124 (West 2002). As authorized by the statute, the detention

should be brief and the inspection narrow. See id.; Schenekl, 30 S.W.3d at 417

(Meyers, J., concurring). But if reasonable suspicion develops during a safety and

regulatory compliance inspection under Chapter 31, a warden may briefly detain

the suspect further for investigative purposes. See generally Kuykendall v. State,

335 S.W.3d 429, 431, 434-35 (Tex. App.—Beaumont 2011, pet. ref’d) (In

conducting a welfare check, the officers’ observations gave rise to reasonable

suspicion sufficient to justify further investigation.). An officer has reasonable

suspicion to detain a suspect if the officer has specific, articulable facts that,

combined with rational inferences from those facts, would lead him reasonably to

conclude that the person is, has been, or soon will be engaged in criminal activity.

See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Weeks had some

difficulty complying with the Chapter 31 inspection requests. The warden smelled

alcohol on Weeks. And the warden had observed that Weeks was the operator of

the boat. These facts, and reasonable inferences from them, support the further

brief detention for investigative purposes. See id. Issue one is overruled.

                                          8
                            FAIR-CROSS-SECTION CLAIM

      Weeks complains that the jury selection process “denied appellant the right

to a fair trial by an impartial jury.” He argues that the procedure in Montgomery

County at the time required jurors who chose to respond to the jury summons using

the internet (e-jurors) to report directly to a trial court. Those who chose not to

utilize the internet to respond to the summons appeared at “an alternate location,”

and were called only in the event there were not enough e-jurors for a court. As in

appellant’s case, this resulted in some venires being comprised only of e-jurors.

Weeks argues:

            The jury selection process in Montgomery County excluded
      members of the community without internet access. As a result,
      individuals with an annual income below the poverty line were
      underrepresented. The underrepresentation of individuals with an
      annual income below the poverty line further excluded Hispanics and
      African-Americans.

      The Sixth Amendment to the Constitution of the United States guarantees a

criminal defendant an impartial jury selected from sources reflecting a fair cross-

section of the community. See Taylor v. Louisiana, 419 U.S. 522, 526, 530-37, 95

S.Ct. 692, 42 L.Ed.2d 690 (1975). In order for a defendant to establish a prima

facie violation of the fair-cross-section requirement, the defendant must show: (1)

that the group alleged to be excluded is a “distinctive” group in the community; (2)

that the representation of this group in venires from which juries are selected is not
                                          9
fair and reasonable in relation to the number of such persons in the community;

and (3) that this underrepresentation is due to the systematic exclusion of the group

in the jury selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664,

58 L.Ed.2d 579 (1979); Pondexter v. State, 942 S.W.2d 577, 580 (Tex. Crim. App.

1996). A defendant need not be a member of the underrepresented group to raise a

fair-cross-section claim. See Aldrich v. State, 928 S.W.2d 558, 560 (Tex. Crim.

App. 1996).

      In analyzing the third requirement, the Supreme Court in Berghuis v. Smith

required a showing of the cause of the underrepresentation. 559 U.S. 314, 130

S.Ct. 1382, 1395-96, 176 L.Ed.2d 249 (2010). The Court explained that “[n]o

‘clearly established’ precedent of this Court supports Smith’s claim that he can

make out a prima facie case merely by pointing to a host of factors that,

individually or in combination, might contribute to a group’s underrepresentation.”

Id. at 1395. The Court stated, “This Court, furthermore, has never ‘clearly

established’ that jury-selection-process features of the kind on Smith’s list can give

rise to a fair-cross-section claim.” Id. In analyzing the third requirement in this

case, therefore, the trial judge reasonably could focus on the specific jury-

selection-process feature attacked by Weeks as the cause of underrepresentation.




                                         10
      Appellant argues that two of the distinctive groups excluded by the process

were Hispanics and African-Americans. See Aldrich, 928 S.W.2d at 560

(“Hispanics are a distinctive group[.]”); Feagins v. State, 142 S.W.3d 532, 535

(Tex. App.—Austin 2004, pet. ref’d) (“African-Americans are a distinctive

group[.]”). He also contends individuals with annual incomes below the poverty

line are a “distinctive” group excluded from his venire. The Supreme Court noted

in Berghuis, 130 S.Ct. at 1395 n.6, however, that the Court has never definitively

decided “whether the impact of social and economic factors can support a fair-

cross-section claim.” Compare Thiel v. S. Pac. Co., 328 U.S. 217, 219-21, 66 S.Ct.

984, 90 L.Ed. 1181 (1946) (prohibiting the deliberate exclusion of daily wage

earners from jury service in federal court, and stating that prospective jurors must

be selected by court officials without systematic and intentional exclusion of any

economic, social, religious, racial, political and geographic groups); see also Rivas

v. Thaler, 432 F.App’x 395, 402-03 (5th Cir. 2011) (Whether a showing of a

distinct economic group would be sufficient to establish a Duren violation is an

issue the Supreme Court has expressly reserved.); Anaya v. Hansen, 781 F.2d 1, 4-

5 (1st. Cir. 1986) (stating that Thiel, decided more than thirty years before Duren,

does not provide much “relevant guidance” in determining whether a group

constitutes a ‘distinct group’ for purposes of a Duren analysis).

                                         11
      Weeks’s primary argument assumes that those jurors who did not use the

internet to respond were jurors whose income fell below the poverty line. He

produced some information, apparently from the U.S. Census Bureau, of selected

characteristics and activities of internet users, and some information concerning the

population of Montgomery County. But the record contains no specific evidence of

the income levels of individuals who have served on venires in Montgomery

County, nor does the record contain evidence comparing the income levels of e-

juror venires to those of the County, or to those of other venires. No one testified to

explain the import of the data presented. The trial court was asked to extrapolate

from an assumption, one possibly reasonable, but without supporting testimony or

sufficient evidence. This Court cannot say the trial court should have found

systematic exclusion of those with an annual income below the poverty line when

the record before the trial court lacked sufficient evidence establishing that

exclusion. On the record presented to the trial court, the trial court need not have

reached the question whether individuals with annual incomes below the poverty

line are a “distinctive” group for purposes of a fair-cross-section claim.

      Appellant says “[a]ssuming arguendo that there is insufficient data that the

non-e-jurors were not low-income individuals, that showing is not necessary.” He

cites United States v. Jackman, 46 F.3d 1240 (2d Cir. 1995). We understand the

                                          12
assertion to be that, regardless of the lack of sufficient data in the record to support

his primary claim of systematic exclusion based on income level, we should look

at the data he submits on African-American and Hispanic representation on

venires.

      The record includes a study of the “Representativeness of Petit Juries” in

Montgomery County. The study asked four questions:

      1. Are there differences in the racial composition of juries as
         compared with the racial composition of the venire?
      2. Are there differences in the racial composition of juries as
         compared with the racial composition of the county?
      3. Are there differences in the racial composition of venires as
         compared with the racial composition of the county?
      4. Are there differences in the demographic variables between those
         prospective jurors selected to serve and those not selected?

For purposes of a fair-cross-section analysis, the third question is most directly

relevant. In response to the second and third questions, the study found no

statistically significant difference for any group except Hispanics.

      The conclusions of the study Weeks presented to the trial court therefore do

not support his assertion that African-Americans are systematically excluded from

venires in Montgomery County. Weeks says that there were no African-Americans

on his venire, and he argues that there should have been at least one. But the Court

of Criminal Appeals has stated that “[d]isproportionate representation in a single

panel does not demonstrate the systematic exclusion of distinctive groups in
                                          13
violation of the appellant’s rights under the Sixth Amendment.” See May v. State,

738 S.W.2d 261, 269 (Tex. Crim. App. 1987); see also Pondexter, 942 S.W.2d at

581.

       Weeks noted in the trial court that there were only two Hispanics on the

venire and he believed, apparently based on census data, that there should have

been at least four. The study he relied on in the trial court indicated “a significant

difference exists between the racial composition of the jury and the county and the

racial composition of the venire and the county for the Hispanic group.” Weeks

argues that this underrepresentation is the result of the systematic exclusion of

Hispanics through the e-juror selection process.

       He suggests this disparity could have been easily remedied, and he requested

the remedy before trial. Appellant argues essentially that those who respond in

person and those who respond initially by internet should not be kept in separate

“jury ‘universes’” when assignments to a court are made. See Feagins, 142 S.W.3d

at 537. But the study Weeks uses to support this claim does not refer to the e-juror

response system. The study did not make any determination that the e-juror feature

caused a systematic exclusion of jury-eligible Hispanics.

       Instead, the study he relies on concludes:

            [D]etermining the actual expected number of persons of
       Hispanic descent on either the juries or the venires is problematic.
                                          14
      This is so for a number of reasons. First, Texas has a very substantial
      population of unauthorized migrants who are ineligible for jury
      service, but who are, nevertheless, included in census data (U.S.
      Census Bureau, n.d.a). (footnote omitted).

The study’s authors state, at the end of a lengthy footnote: “Obviously, if up to

one-third of the number of people expected to be on juries are ineligible for

service, the estimates are very unstable.”

      The study identifies other limitations:

             A limitation of the current study relates to the failure to
      document exemptions. . . . [I]t is not possible to differentiate between
      those who received the jury summons and chose not to respond from
      those who did not receive the summons at all. Absent these data, it is
      impossible to know how much of the proportion of members of
      different racial and ethnic groups “fall out” of the process and at
      which stage.
             A similar limitation inheres in the number of respondents who
      did not answer the summons. The no-show rate in Montgomery
      County, as elsewhere in Texas, is known to be quite high. . . . Again,
      there is no way of knowing who falls out when.
             A final limitation along these lines pertains to the absence of
      race data on who is summoned. . . .

      In Berghuis, the Supreme Court considered a case in which an African-

American was convicted by an all-white jury. Three veniremembers were African-

American. After an evidentiary hearing on the defendant’s fair-cross-section claim,

the trial court concluded that African-Americans were underrepresented in Circuit

Court venires. But the trial court held the evidence was insufficient “to prove that


                                         15
the juror-assignment order, or any other part of the jury-selection process, had

systematically excluded African-Americans.” See Berghuis, 130 S.Ct. at 1390.

        In rejecting the fair-cross-section claim, the Supreme Court explained that,

“as the Michigan Supreme Court not at all unreasonably concluded,” the

defendant’s “evidence scarcely shows that the assignment order he targets caused

underrepresentation.” The Court continued: “Although the record established that

some officials and others in Kent County believed that the assignment order

created racial disparities, and the County reversed the order in response [citation

omitted], the belief was not substantiated by [the defendant’s] evidence.” Id. at

1394. The Court noted that the defendant produced no evidence that “African-

Americans were underrepresented on the Circuit Court’s venires in significantly

higher percentages than on the Grand Rapids District Court’s[.]” Id. In summary,

the Court stated that the “evidence gave the Michigan Supreme Court little reason

to conclude that the district-court-first assignment order had a significantly adverse

impact on the representation of African-Americans on Circuit Court venires.” Id. at

1395.

        As was the case in Feagins, Weeks offered insufficient evidence “of what

percent of eligible jurors in the county” are members of the distinctive groups. See

Feagins, 142 S.W.3d at 537. In United States v. Torres-Hernandez, 447 F.3d 699,

                                         16
701 (9th Cir. 2006), the court concluded that “a district court need not and may not

take into account Hispanics who are ineligible for jury service to determine

whether Hispanics are underrepresented on grand jury venires.” In that case, the

court held that “to determine whether Hispanics are underrepresented to an

unconstitutional degree in venires, a district court must rely on that evidence which

most accurately reflects the judicial district’s actual percentage of jury-eligible

Hispanics.” Id. There, the trial court had that evidence. See id. at 701-02; compare

Feagins, 142 S.W.3d at 537. On this record, however, the trial court could

reasonably find that Weeks failed to present sufficient evidence to support his

claim that the specific jury-selection-process feature he targeted violated his Sixth

Amendment right to an impartial jury. Issue two is overruled.

                               CLOSING ARGUMENT

      Weeks maintains that the trial court erred in overruling his objection to a

closing argument made by the prosecutor. During the arguments, appellant’s

counsel compared the Intoxilyzer machine to a fictitious “Taxilyzer” machine that

he mentioned during voir dire. Appellant’s counsel stated, as a hypothetical, that he

worked for a tax department and was attempting, through use of the “Taxilyzer

5000” machine, trying to determine who lied on his or her taxes. In the

hypothetical, he would identify an expensive vehicle parked outside an apartment

                                         17
complex, locate the vehicle’s owner, request a W-2 form, and feed it into the

machine. If the machine said the person did not pay enough taxes, he would throw

him in jail and fine him. Appellant’s counsel then asked the veniremembers if they

would allow him to run their W-2 forms through a machine that they knew little

about, that used outdated technology, that had a twenty percent acceptable range of

error and checked itself, and that had been recalled in other states.

      In closing argument, appellant’s counsel stated that he would not trust the

results from the Intoxilyzer. He questioned the reliability of the Intoxilyzer and

referred back to the fictitious “Taxilyzer” he imagined during voir dire. He argued:

             Ladies and gentlemen of the jury, I talked to you about this
      Taxilyzer. All of y’all told me heck no. I’m not giving you my W-2.
      You wouldn’t have given me your W-2 if you were faced with jail and
      a fine. I got inherent problems with this Intoxilyer that was made in
      the 1980s.

The prosecutor responded:

            And what better thing could you say that people would hate
      than something to do with taxes? It made sense to me after I thought
      about [it]. That’s probably what I would say in order to get you to hate
      something.

Weeks objected on the basis that this was an attempt by the prosecutor to strike at

Weeks “over the shoulder” of counsel. The trial court overruled the objection. The

prosecutor continued his closing argument:


                                          18
      And if you go back there and you are thinking about taxes, maybe you
      will hate this instrument too. But unfortunately, for them, this thing
      has nothing to do with taxes. It has everything to do with science. It
      was operating properly that day. Take a look at the test slips. You will
      see that it was maintained properly and operating properly and came
      out with a .14.

      Generally, proper jury argument falls within one of four areas: summation of

the evidence, reasonable deduction from the evidence, answer to argument of

opposing counsel, and plea for law enforcement. Brown v. State, 270 S.W.3d 564,

570 (Tex. Crim. App. 2008). A prosecutor risks improperly striking at a defendant

“over the shoulder” of counsel when an argument refers to defense counsel

personally and when the argument explicitly impugns defense counsel’s character.

Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g). The

prohibition protects the defendant from improper character attacks on defense

counsel. Davis v. State, 268 S.W.3d 683, 713 (Tex. App.—Fort Worth 2008, pet.

ref’d) (citing Coble v. State, 871 S.W.2d 192, 205 (Tex. Crim. App. 1993)). Weeks

maintains that the argument was improper because it injected facts not in evidence

and invited the jury to speculate that Weeks “labored behind the scenes to persuade

the jury that they should ‘hate’ the State’s evidence.”

      The prosecutor’s statements were in response to defense counsel’s attack

throughout the trial on the reliability of the Intoxilyzer. The prosecutor’s response

was not a personal attack but was instead an answer to an assertion by opposing
                                          19
counsel. See Mosley, 983 S.W.2d at 258-59; Davis, 268 S.W.3d at 713. The

prosecutor responded to a specific argument about an imaginary “Taxilyzer”

introduced by defense counsel. See Brown, 270 S.W.3d at 570. Under the

circumstances, the trial court judge could reasonably consider the prosecutor’s

argument as within the scope of permissible response. Issue three is overruled.

      Having reviewed the record and the issues raised, we see no error by the trial

court that would justify reversal of the court’s judgment. See Tex. R. App. P. 44.2.

The judgment is therefore affirmed.

      AFFIRMED.


                                             ________________________________
                                                      DAVID GAULTNEY
                                                          Justice
Submitted on October 25, 2012
Opinion Delivered March 13, 2013
Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.




                                        20
