      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00644-CR



                             Martin Dominich DiCarlo, Appellant

                                                 v.

                                  The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
       NO. 07-1507-K277, HONORABLE KEN ANDERSON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Martin Dominich DiCarlo was convicted of felony driving while intoxicated.

Finding he had previous felony convictions for DWI, the jury assessed sentence at life in prison.

DiCarlo contends that he was harmed by the prosecutor’s comments during voir dire about the

punishment range for habitual offenders, and by the erroneous admission of an audiotape of a

telephone conversation with his brother. We affirm.

               Appellant’s vehicle was stopped by a police officer who testified that he saw

the vehicle swerve several times onto the fog line of northbound U.S. Highway 183, change speeds

repeatedly, and change lanes without signaling while exiting the freeway. At the stop, the officer

noted that appellant’s eyes were glassy and bloodshot, his speech was slurred, his statements

inconsistent, and his manner tense. The officer testified that appellant showed multiple signs of

intoxication during field sobriety tests including the horizontal gaze nystagmus test, the walk-and-
turn test, and the one-leg stand test. Appellant offered to provide a breath sample, which revealed

a blood-alcohol concentration of .139 and .144. Appellant introduced evidence that he has diabetes

and that several of the intoxication indicators are also consistent with a diabetic who has low blood-

sugar levels. The officer testified that he knew that some behaviors stemming from a diabetic

episode could resemble intoxication indicators, but that appellant’s behaviors were consistent with

alcohol intoxication rather than a diabetic episode. Appellant stipulated that he had previously been

convicted at least twice for DWI.

                Appellant complains that, during jury selection, the State improperly commented

on his previous offenses. When asking whether potential jurors could consider the full range of

punishment, the prosecutor invoked hypothetical situations involving an offender who had previous

offenses that could garner punishment as long as life imprisonment.1 DiCarlo did not object to


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           For instance, the prosecutor stated:

       And again, in a hypothetical case, not necessarily saying this defendant, but you
       might hear evidence that a defendant has been convicted more than once, at least
       twice, been to prison before for two other felonies, went in, served a prison sentence,
       got out, did it again, got out, and then committed the crime that the jury would be
       deciding.

She also asked:

       If it changed and you heard evidence that there had been two prior felonies and the
       range of punishment was 25 to 99 or life, is there anybody who can’t envision
       anything out there at all where they could assess 99 years or life?

       Now, don’t—I think that I asked that kind of confusingly. Is there anybody who just
       could never see themselves considering—I don’t mean you’re promising to give it,
       but just keep an open mind and consider 99 years or life. Does anybody feel like you
       could just never do that?


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these statements during voir dire. Failure to object to comments during voir dire waives appellate

review regarding those comments. See Tex. R. App. P. 33.1(a); Penry v. State, 903 S.W.2d 715, 741

(Tex. Crim. App. 1995); see also Fuentes v. State, 991 S.W.2d 267, 276 (Tex. Crim. App. 1999)

(challenge to court’s comments during voir dire waived absent timely objection). DiCarlo did not

preserve any error on this issue.

               DiCarlo next complains that the court erred by admitting the recording of a telephone

conversation he had with his brother while he was incarcerated. We review the admission of

evidence for an abuse of discretion. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008).

Any error that does not affect substantial rights must be disregarded. Tex. R. App. P. 44.2(b).

               Appellant made the telephone call at issue, imploring his brother to get him released

from jail. Appellant’s brother declined, reiterating that he has told appellant repeatedly not to drink

and drive. Appellant’s brother stated that neighbors were telling him not to bail appellant out

for fear that appellant would drink and drive again that night. The portion of the conversation on

which appellant relies in his brief ended with appellant’s brother saying, “Well, you know what, if

you wouldn’t [have] drank and drive you wouldn’t have been there either.” Appellant responded,




In response to a venire member’s statement that such a sentence would be overkill, the prosecutor
stated as follows:

       And it’s certainly at the point in time—And I’m not trying to be evasive, but neither
       Mr. Senter or I are allowed to tell you the facts of this case or what you might hear
       either at the guilt/innocence stage or at the punishment stage if you get there, but just
       keep in mind, too, it could be the worst set of facts, the most criminal history, the
       worst, you know, other crimes for different things. Just, you know, keep an open
       mind and think about what might be out there. Is there anybody else that says you
       could never even envision assessing life or 99 years?

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“Well, we all make mistakes, but I’m paying for . . . .” Appellant’s brother responded, “Oh yeah,

yeah, yeah, yeah, yeah—you’ve made five . . . five . . . .”

               Appellant argues that the conversations were irrelevant and that their probative value

was greatly outweighed by their prejudicial effect. He contends that the conversation was generally

about his past, his brother’s previous warnings, and others’ opinions about appellant, and did not

bear on any fact of consequence regarding the offense at issue. He contends that his statement that

“we all make mistakes” is too vague to be probative of whether he was intoxicated when arrested.

Appellant contends that these side issues were not simply irrelevant but inflamed the jurors’ minds

against him. Appellant also contends that the brothers’ use of coarse language was irrelevant to

whether he was intoxicated but likely prejudicial to his case.

               The State responds that the conversation is relevant and probative of guilt because

appellant, by failing to contradict his brother’s assertions that appellant was intoxicated, adopted

those assertions and tacitly admitted the offense. The State rejects the idea that the brothers’

language was unfairly prejudicial. Finally, the State argues that the recording was admissible to

impeach appellant’s brother’s testimony that the indicators of intoxication observed by the arresting

officer were consistent with appellant’s behaviors when experiencing low blood sugar levels.

               We conclude that the court did not abuse its discretion by admitting the recording.

The contents of the recording are not tremendously probative of whether appellant was intoxicated,

but neither are they unfairly prejudicial. This case is distinct from Abdygapparova v. State, on which

appellant relies for the proposition that communications from outsiders are not relevant to the

offense at hand and are unduly prejudicial. 243 S.W.3d 191, 203-04 (Tex. App.—San Antonio 2007,



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pet. ref’d). In that case, the defendant (a woman) was charged with sexual assault and capital

murder. The trial court admitted a letter sent to the defendant in which the writer (a man) expressed

sexual desires and fantasies involving the defendant and other women. The prosecution offered the

letter to impeach the defendant’s denial that she ever had sex with women. Id. The court of appeals

held that the admission of the letter was error because the defendant had never met the writer, whose

fantasies were irrelevant to the defendant’s sexual orientation or whether she sexually assaulted

the victim. Id. Here, however, the brother’s side of the conversation was offered to impeach the

brother’s own testimony regarding the effects of diabetes and to blunt the defense theory that

appellant’s intoxication symptoms were a diabetic episode. Both sides of the conversation were

relevant for the arguable inference that appellant tacitly admitted committing the offense. The

coarseness of the language used might have offended some jurors, but we are not persuaded that it

made the jury more likely to convict appellant. We find no error in the admission of the recording.

               Even if the admission of the recording were error, we conclude that it did not

harm appellant. In a separate, recorded conversation with his ex-wife discussing why he was

in jail, appellant stated, “It’s my fault for drinking and driving.” The arresting officer reported

observing signs consistent with intoxication while appellant was driving and while he was

performing field sobriety tests. Most compelling is appellant’s blood-alcohol concentration

measured by the breath test on which both readings—.139 and .144—were well higher than the

acceptable .08 level for legal driving. In light of this evidence, we conclude that a coarsely worded

conversation between brothers alluding to appellant’s guilt did not influence the jury’s decision

and did not affect appellant’s substantial rights.



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              Affirmed.




                                          G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: August 14, 2009

Do Not Publish




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