Opinion issued July 8, 2014.




                                     In The

                               Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                               NO. 01-12-00971-CR
                           ———————————
                     JASON BRIAN CONNOR, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



          On Appeal from the County Criminal Court at Law No. 8
                           Harris County, Texas
                       Trial Court Case No. 1791565



                         MEMORANDUM OPINION

      A jury convicted appellant, James Brian Connor, of the misdemeanor

offense of driving while intoxicated (DWI), and the trial court assessed punishment

at one year confinement, suspended in favor of placing appellant under community
supervision for two years, with three days’ confinement in the county jail as a

condition for the probation. In two points of error, appellant contends the trial court

erred by denying his motion to suppress because: (1) the detaining officer lacked

reasonable suspicion that appellant was intoxicated; and (2) the detention was

impermissibly prolonged and was unreasonable. In his third point of error,

appellant argues that the trial court erred by overruling his objection to the

prosecutor’s closing argument. We affirm.

                                 BACKGROUND

      On the night of November 5, 2011, Officer Ramon of the Houston Police

Department (HPD) was traveling westbound on the Katy Freeway when he saw

appellant driving a black BMW “like a rocket.” Ramon also saw appellant

changing lanes unsafely by cutting in and out of traffic, sometimes without the use

of a turn signal. Ramon testified that he saw other vehicles “hard braking” in

response to appellant’s driving. Ramon pulled over the appellant’s car on the exit

ramp to the Beltway. For safety reasons, Ramon approached the passenger side

window of appellant’s vehicle, and appellant admitted that he had been speeding.

Upon further questioning, appellant responded that he was coming from a Japanese

restaurant and had consumed “a beer and sake”. Ramon testified that he could not

smell any alcohol from the passenger side, but he had “a little suspicion” that

appellant was intoxicated, so he requested the dispatch of a DWI unit to perform

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field sobriety tests on appellant. Ramon was certified to administer field sobriety

tests and had investigated about 100 DWI’s in the past, but requested a DWI unit

according to his supervisor’s instructions. While waiting for the DWI unit officer

to arrive, Ramon placed appellant in the backseat of his patrol car.

      Approximately 10 minutes later, Officer Shepard of the HPD DWI unit

arrived at the scene. Shepard saw that appellant had red, glassy eyes, and the

officer smelled the odor of an alcoholic beverage on appellant’s breath. Appellant

admitted to Shepard that he had drunk a 24-ounce beer and a shot of sake. Shepard

then conducted field sobriety tests on the median of the exit ramp while Ramon

kept an eye on oncoming traffic. Appellant displayed all 6 possible clues for

intoxication during the horizontal gaze nystagmus test when only 4 clues are

necessary to indicate intoxication. Appellant was unable to complete the one-leg

stand test without swaying, using his arms, and dropping his foot, exhibiting 3

clues when 2 clues indicate intoxication. Appellant struggled to maintain his

balance during the walk and run test, exhibiting two clues when two clues indicate

intoxication. Officer Shepard then arrested Appellant for driving while intoxicated.

                            MOTION TO SUPPRESS

      In his first and second points of error, appellant contends that the trial court

abused its discretion by denying his motion to suppress evidence constituting “all

fruits of the detention.” Specifically, appellant contends the trial court erred by

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denying his motion to suppress because: (1) the detaining officer lacked reasonable

suspicion that appellant was intoxicated; and (2) the detention was impermissibly

prolonged and was unreasonable. The State responds that appellant’s issues are not

preserved for appellate review. We agree with the State.

Preservation of Error

       Before trial, appellant did not file a motion to suppress any evidence

obtained as a result of Ramon detaining appellant in the back of his car. Similarly,

at trial, appellant did not object to Shepard’s testimony or the video exhibit of the

field sobriety tests.

       However, after the State rested, appellant moved for directed verdict. In his

motion for directed verdict, appellant claimed that Officer Ramon illegally

detained appellant and requested that all testimony obtained after the detention,

including the testimony of Officer Shepard, be suppressed. The trial judge denied

both the motion for directed verdict and the motion to suppress without providing

reasons.

       In order for error to be preserved on appeal, the record must show that

appellant made a timely request, objection, or motion with a corresponding ruling

by the trial court. TEX. R. APP P. 33.1(a)(1); Nelson v. State, 626 S.W.2d 535, 536

(Tex Crim. App. [Panel Op.] 1981). An objection is timely only if it is raised as

soon as the ground for objection becomes apparent. Johnson v. State, 878 S.W.2d

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164, 167 (Tex. Crim. App. 1994). A motion to suppress is untimely if it was never

presented to or ruled upon by the court before trial and is later made orally after the

State rests its case-in-chief. Sims v. State, 833 S.W.2d 281, 284 (Tex. App.—

Houston [14th Dist.] 1992, pet. ref’d); see also Nelson, 626 S.W.2d at 536 (holding

that, even if appellant had obtained ruling on motion to suppress evidence obtained

by illegal search and seizure, it would have been untimely because motion was first

presented after State rested its case); Vierling v. State, No. 01-10-00247-CR, 2012

WL 4857363, at *4 (Tex. App.—Houston [1st Dist.] Oct. 11, 2012, pet ref’d)

(mem. op., not designated for publication) (holding that motion to suppress was

untimely when appellant filed it on first day of trial but did not move to suppress

evidence obtained as result of traffic stop until after State had rested its case).

      Here, appellant’s motion to suppress was untimely because he did not file a

pretrial motion, nor did he object to Officer Shepard’s testimony until after the

State had rested its case-in-chief. Appellant did not present his oral motion to

suppress as soon as the grounds for objection became apparent; rather, the motion

to suppress was included as an argument in favor of a motion for directed verdict.

“There are two main purposes behind requiring a timely, specific objection: 1) to

inform the judge of the basis of the objection and give him the chance to make a

ruling on it, and 2) to give opposing counsel the chance to remove the objection or

provide other testimony.” Garza v. State, 126 S.W.3d 79, 82 (Tex. Crim. App.

                                            5
2004). Requiring timely objections is particularly important in jury trials because a

judge may shield the jury from hearing any potentially inadmissible evidence. Id.

at 83.

         In this case, the jury had already been presented with Shepard’s testimony

and video footage of the sobriety tests before appellant moved to suppress the

evidence outside the jury’s presence. The State had rested its case and would have

been unable to provide other testimony. Further, with regards to the video footage

of the sobriety tests, appellant stated that he had no objection to the admission of

State Exhibit 1; rather, appellant informed the court that “[w]e would like it

admitted.” A defendant who affirmatively states that he has no objection to the

admission of evidence sought to be suppressed has waived any complaint over the

admission. Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986).

         The Texas Court of Criminal Appeals recognized a limited exception to

Nelson in Garza, in which the appellant had filed a pre-trial motion to suppress,

but the judge directed that the motion be carried with the trial. Garza, 126 S.W.3d

at 84. The Garza exception is inapplicable here because there was no pre-trial

motion to suppress, and the judge did not direct appellant that he carry the motion

with the case.

         Likewise, the fact that appellant also asserted his first and second points of

error in his motion for new trial does not preserve the complained of error for

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appeal. The failure to properly preserve error under Texas Rules of Appellate

Procedure Rule 33.1 cannot be cured by raising the matter in a motion for new

trial. Igo v. State, 210 S.W.3d 645, 647 (Tex. Crim. App. 2006).

      Because appellant’s motion to suppress was untimely and did not preserve

the errors complained of, we overrule appellant’s first and second points of error.

                        IMPROPER JURY ARGUMENT

      In his third point of error, appellant alleges that the trial court abused its

discretion by overruling his objection to a personal statement made to the jury

during closing statements. Appellant does not independently contest the trial

court’s decision to overrule his motions for a mistrial.

Background

      During his closing argument, the prosecutor stated:

      I watched these videos just as you did. And when I watch them, I
      always try to find that one point, that one point in the case where I am
      convinced beyond a reasonable doubt that that person is intoxicated.
      And I’m not going to try a case if I don’t think someone truly is
      intoxicated.

Appellant objected on the grounds of offering a personal opinion. The objection

was sustained, and the trial court instructed the jury to disregard the statement.

Appellant also requested a mistrial, and the request was denied. The prosecutor

continued, “And for me, it came with the one-leg stand. I watched as the Defendant

puts his foot in the air and there was some sway . . . . [W]hen he did that move,

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when his leg shot straight to the left, that’s when I knew, that’s when I knew that

man . . . .” Again, the appellant objected on grounds of offering a personal opinion

and requested a mistrial. The objection was sustained, and the trial court instructed

the jury to disregard the statement, but the mistrial was denied. Later, in reference

to the walk and turn test, the prosecutor stated, “It looked like he was suspended up

in the air, walking a tightrope as he tried to balance. And that’s when I knew that’s

a person that does not have the normal use of their mental faculties.” The appellant

objected on the same grounds, but this time the objection was denied.

Standard of Review

      Permissible jury arguments generally fall into one of four areas: (1)

summation of the evidence; (2) reasonable deduction from the evidence; (3) an

answer to the argument of opposing counsel; or (4) a plea for law enforcement.

Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010); Alejandro v. State,

493 S.W.2d 230, 231–32 (Tex. Crim. App. 1973). Whether a party’s jury argument

properly falls within one of the four proper areas of jury argument is considered in

light of the record. Magana v. State, 177 S.W.3d 670, 674 (Tex. App.—Houston

[1st Dist.] 2005, no pet.); see also Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.

Crim. App. 2000). Jury argument that expresses the prosecutor’s personal opinion

is non-constitutional error. See Allen v. State, 149 S.W.3d 254, 261 (Tex. App.—

Fort Worth 2004, pet. ref’d) (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex.

                                         8
Crim. App. 1998). Non-constitutional errors are reversible if the improper

argument affects the defendant’s substantial rights. TEX. R. APP. P. 44.2(b);

Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000). If the non-

constitutional error has a substantial and injurious effect upon the jury’s verdict,

then a substantial right is affected. King v. State, 953 S.W.2d 266, 271 (Tex. Crim.

App. 1997).

Error, if Any, is Harmless

      Even assuming that the prosecutor’s remarks were an improper jury

argument, they did not affect appellant’s substantial rights, and any error in the

trial court’s ruling on appellant’s objection was harmless. Courts balance three

factors to determine whether or not an improper jury argument is harmful under

Rule 44.2(b): (1) the severity or prejudicial effect of the misconduct; (2) any

curative measures from the court; (3) the certainty of conviction absent the

misconduct. Martinez, 17 S.W.3d at 692–93; Mosley, 983 S.W.2d at 259. An

improper jury argument generally will not be considered harmful error unless, “in

light of the record as a whole, the argument is extreme or manifestly improper,

violative of a mandatory statute or injects new facts, harmful to the accused into

the trial proceeding.” Todd v. State, 598 S.W.2d 286, 297 (Tex. Crim. App. [Panel

Op.] 1980).




                                         9
      The prejudicial effect of the prosecutor’s statement was insignificant. The

statement, “[a]nd that’s when I knew that’s a person that does not have the normal

use of their mental faculties,” came only after the prosecutor had recounted

evidence concerning the officers’ observations and the field sobriety tests. Even if

the argument implied that the prosecutor had some special knowledge of

intoxication, the argument also called upon the jury to evaluate the evidence in

reaching its own conclusion. When read in light of the prosecutor’s entire closing

argument, the statement challenged on appeal lacked the severity to infringe

appellant’s substantial rights.

      Because the judge overruled appellant’s objection, there were no curative

measures taken with regards to the statement challenged on appeal. Appellant also

argues that the prosecutor’s two prior improper statements, which the trial court

instructed the jury to disregard, magnified the harmfulness of the prosecutor’s

subsequent statement. A prompt instruction to disregard by the trial court will

generally cure any error associated with an improper jury argument “unless it

appears the argument was so clearly calculated to inflame the minds of the jury or

is of such a damning character as to suggest it would be impossible to remove the

harmful impression from the juror’s minds.” Torres v. State, 424 S.W.3d 245, 261

(Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (citing Logan v. State, 698

S.W.2d 680, 683–84 (Tex. Crim. App. 1985) (en banc)). Any error caused by

                                        10
previous statements was cured because the trial court twice sustained appellant’s

objections and instructed the jury to disregard the statements. It is true that

repeated noncompliance with a court’s ruling on an improper jury argument can

influence the harmfulness of the error. See McClure v. State, 544 S.W.2d 390, 393

(Tex. Crim. App. 1976). However, here the jury argument challenged on appeal

related to the evidence rather than flatly asserting appellant’s guilt based on

personal knowledge.

      Most importantly, in this case, the certainty of conviction was still

substantial. The State introduced significant evidence of appellant’s intoxication

from two police officers who testified that appellant was speeding, drove unsafely,

admitted to drinking, had red eyes, had a distinct odor of alcohol on his breath,

refused to offer a blood sample, and failed three field sobriety tests. The videotapes

of the field sobriety tests were also admitted into evidence. Because the foundation

of the prosecutor’s closing argument consisted of recounting these facts and asking

the jury to rely on them in determining guilt, the remark in question likely had little

weight in the jury’s verdict.

      Thus, even if we assume that the prosecutor’s statement was an improper

jury argument, it was harmless error because the impact of the statement upon the

outcome of the trial and appellant’s substantial rights was insignificant.

      We overrule appellant’s third point of error.

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                                CONCLUSION

      We affirm the trial court’s judgment.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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