                            COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-08-324-CR


ROBBIE LOFTIN                                                          APPELLANT

                                             V.

THE STATE OF TEXAS                                                           STATE

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             FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

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                           MEMORANDUM OPINION 1

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       Appellant Robbie Loftin appeals the trial court’s denial of his motion for new

trial. W e will affirm.

       A jury found Appellant guilty of felony driving while intoxicated (DW I) and

assessed his punishment at twenty-six years’ confinement.

       The State’s evidence at trial included Appellant’s poor driving, the odor of

alcohol on his breath, his admissions of having consumed tequila, his slurred




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            See Tex. R. App. P. 47.4.
speech, an empty beer can in his truck, his performance on sobriety tests, and

police-officer-opinion testimony that Appellant had lost the normal use of his physical

and mental faculties. Appellant refused to provide a sample of his breath or blood,

and the police did not seek a warrant for a blood sample.

      The evidence also included a videotape of Appellant’s interaction with the

arresting officer. Before trial, in response to Appellant’s motion in limine, the parties

agreed to mute those portions of the videotape in which Appellant and the officer

discussed Appellant’s prior DW I offenses.

      On cross-examination of the arresting officer, Appellant’s defense counsel

began by asking about the decision to not seek a warrant for a sample of Appellant’s

blood. Counsel continued:

      Q. Felony DW I is a more serious offense than a DW I first, fair to say?

      A. No.

      Q. No? Does it have a greater punishment range?

      A. It has a greater punishment range, but at that time I didn’t know it
      was a felony.

      Q. Okay. You didn’t know that there were––

      A. You’re talking about when I arrested him, correct?

      Q. It’s your testimony that you had no knowledge that he had two prior
      DW I’s that bumped this up to a felony?

      A. I had no knowledge.

      [THE PROSECUTOR]: Your Honor, may we approach?


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      THE COURT: Yeah, come on up here.

      [DEFENSE COUNSEL]: A felony DW I has a more serious punishment
      range than a misdemeanor; is that right?

      A. That’s correct?

      Q. And the State of Texas has said that?

      A. Yes.

      Q. You’re aware of that?

      A. Yes.

Later, defense counsel concluded his cross-examination of the arresting officer with

more questions about blood warrants.

      Before redirect, outside the jury’s presence, the prosecutor advised the trial

court that he had instructed the witness that any mention of Appellant’s prior

convictions would be edited from the videotape of the stop and that the witness was

not to answer any questions about Appellant’s prior convictions. Defense counsel’s

re-cross included more questions about the benefits of a blood warrant and a blood

sample. Finally, during closing argument, defense counsel argued, among other

things, that the jury could hold the fact that police did not obtain a blood sample,

which would have shown “an exact level of intoxication,” against the State.

      The jury returned a verdict of guilty and assessed Appellant’s punishment at

twenty-six years’ confinement.




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      After trial, Appellant filed, and the trial court granted a hearing on, Appellant’s

motion for new trial. Appellant presented testimony from his trial counsel and the

arresting officer to show that the officer’s testimony that he had “no knowledge” of

Appellant’s prior convictions was inconsistent with the portions of the videotape

muted at trial that contained some discussion about Appellant’s prior DW I

convictions. At the conclusion of the hearing, the trial court denied Appellant’s

motion for new trial, summing up its reasoning as follows:

      W e have a catch 22 here. Trial counsel files a motion in limine; I grant
      that. Now, trial counsel asked the witness, after being instructed not to
      testify regarding any prior statements, (sic) questions about, well, did
      you know if he had any prior statements (sic). So, now, either he’s
      going to say, no, he didn’t per the court’s instructions or yes, I did, then
      he breaks the motion in limine. So, you know, as far as that’s
      concerned, I don’t think that’s grounds for a motion for a new trial, and
      I don’t believe there’s any perjury there whatsoever. That’s just my take
      on it.

      Now, in a single point on appeal, Appellant contends that the trial court

“violated [his] federal and state constitutional right to a fair trial” by overruling his

motion for new trial. Despite this mention of the federal and state constitutions,

however, Appellant bases his arguments solely on the Texas Rules of Appellate

Procedure. If a party provides no argument or legal authority to support its position,

we may properly overrule the issue or point as inadequately briefed. Tex. R. App.

P. 38.1(i); Russeau v. State, 171 S.W .3d 871, 881 (Tex. Crim. App. 2005), cert.

denied, 548 U.S. 926 (2006); Tong v. State, 25 S.W .3d 707, 710 (Tex. Crim. App.

2000), cert. denied, 532 U.S. 1053 (2001). Consequently, we will not address


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Loftin’s constitutional claims. See Tex. R. App. P. 38.1(i) (requiring that appellate

briefs contain clear and concise arguments with appropriate citations to authorities);

Vuong v. State, 830 S.W .2d 929, 940 (Tex. Crim. App. 1992) (holding appellant

waived constitutional argument where he failed to cite any specific constitutional

provision to support claim); Nolan v. State, 102 S.W .3d 231, 235–36 (Tex.

App.—Houston [14th Dist.] 2003, pet. ref’d) (“Conclusory statements which cite no

authority present nothing for appellate review.”).

      W e review a trial court’s denial of a motion for new trial under an abuse of

discretion standard. Webb v. State, 232 S.W .3d 109, 111 (Tex. Crim. App. 2007);

State v. Herndon, 215 S.W .3d 901, 906 (Tex. Crim. App. 2007); Holden v. State, 201

S.W .3d 761, 763 (Tex. Crim. App. 2006); Lewis v. State, 911 S.W .2d 1, 7 (Tex.

Crim. App. 1995). W e do not substitute our judgment for that of the trial court;

rather, we decide whether the trial court’s decision was arbitrary or unreasonable.

Holden, 201 S.W .3d at 763. A trial court abuses its discretion by denying a motion

for new trial only when no reasonable view of the record could support the trial

court’s ruling. Id; Lewis, 911 S.W .2d at 7.

      Appellant first argues that the trial court violated Texas Rule of Appellate

Procedure 21.8(b) by making the comment quoted above when it denied Appellant’s

motion for new trial. Appellant argues that the comment violates Rule 21.8(b)’s

proscription on a trial court’s “making any comment on the evidence in ruling on a

motion for new trial.”


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      Prior to its amendment, rule 21.8 provided, “In ruling on a motion for new trial,

the court must not summarize, discuss, or comment on evidence.” Landers v. State,

256 S.W .3d 295, 301 n.4 (Tex. Crim. App. 2008) (quoting prior version of rule 21.8).

The rule was amended, however, by the Texas Court of Criminal Appeals on

December 13, 2006, effective January 1, 2007. See Tex. R. App. P. 21.8 (amended

2007). Appellant was tried in September 2008, and his hearing on his motion for

new trial was held the next month on October 21, 2008, almost two years after the

effective date for the new rule. The new rule states in pertinent part: “In ruling on a

motion for new trial, the trial court may make oral or written findings of fact.” Tex. R.

App. P. 21.8(b). W e hold, therefore, that Appellant’s first argument is without merit,

and we overrule this portion of Appellant’s sole point. See Tex. R. App. P. 21.8(b);

Landers, 256 S.W .3d at 301 n.4.

      Next, citing subsections (b) and (g) of Texas Rule of Appellate Procedure

21.3, Appellant argues that the trial court “committed reversible error in overruling

the new trial motion on the basis that the [o]fficer’s testimony was inconsistent with

the truth[,] should not have been allowed before the jury,” and denied him the ability

to “pursue his trial strategy.”

      Rule 21.3 provides, in pertinent part,

      The defendant must be granted a new trial, or a new trial on
      punishment, for any of the following reasons:

             ....



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      (b) when the court has misdirected the jury about the law or has
      committed some other material error likely to injure the defendant’s
      rights;

             ....

      (g) when the jury has engaged in such misconduct that the defendant
      did not receive a fair and impartial trial[.]

Tex. R. App. P. 21.3.

      There is no evidence anywhere in the record of any misconduct by the jury.

On its face, therefore, part (g) of the rule does not apply in this case and Appellant

has provided no argument to show otherwise. See, e.g., Noland v. State, 264

S.W .3d 144, 153 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding movant

for new trial based on jury misconduct must prove that misconduct occurred and that

it resulted in harm to movant (citing Garza v. State, 630 S.W .2d 272, 274 (Tex. Crim.

App. 1981)). Accordingly, we overrule this portion of Appellant’s sole point.

      Similarly, as to the portion of Appellant’s sole point asserting that the trial court

violated rule 21.3(b), even if we were to assume that the trial court allowed the jury

to hear “testimony inconsistent with the truth,” Appellant has made no argument and

provided no authority to show how the trial court “misdirected the jury about the law.”

Tex. R. App. P. 21.3(b); see Tex. R. App. P. 38.1(i). Moreover, the record shows no

objection on the part of Appellant to the challenged portion of the officer’s testimony.

See Tex. R. App. P. 33.1(a); Hardeman v. State, 1 S.W .3d 689, 690 (Tex. Crim.

App. 1999) (noting that if opportunity to object was afforded appellant and he failed



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to object, he cannot use a later motion for new trial to preserve the error).

Accordingly, the trial court did not abuse its discretion by overruling Appellant’s

motion for new trial on the basis that “such blatantly improper testimony should not

have been allowed before the jury.” See Webb, 232 S.W .3d at 111; Herndon, 215

S.W .3d at 906; Holden, 201 S.W .3d at 763; Lewis, 911 S.W .2d at 7. W e overrule

this portion of Appellant’s sole point.

      In the end, what remains of Appellant’s point is his assertion that the trial

court—presumably by allowing testimony that conflicted with a muted portion of the

videotape—committed some material error likely to have injured Appellant’s rights.

See Tex. R. App. P. 21.3(b).        Appellant asserts that he was prevented from

promoting his defense theory that “because this was a felony DW I, more attempts

should have been made by [the arresting officer] to obtain a blood warrant.”

Although the record is silent as to how this theory would have helped the defense,

it is apparent from the record that Appellant was not deprived of the opportunity to

present it. He visited the issue a number of times on cross and re-cross of the

arresting officer, and he argued in his closing argument that the jury could hold it

against the police for not securing a warrant for a sample of Appellant’s blood. W e

hold, therefore, that the trial court did not abuse its discretion by denying Appellant’s

motion for new trial because it committed no material error likely to injure Appellant’s

rights. See Webb, 232 S.W .3d at 111; Herndon, 215 S.W .3d at 906; Holden, 201

S.W .3d at 763; Lewis, 911 S.W .2d at 7; accord Igo v. State, 210 S.W .3d 645, 647


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(Tex. Crim. App. 2006) (providing that trial court errors under rule 21.3(b) do not

automatically warrant reversal without harm).     W e overrule the remainder of

Appellant’s sole point.

      Having overruled Appellant’s sole point of error, we affirm the trial court’s

denial of the motion for new trial.



                                                   PER CURIAM

PANEL: W ALKER, GARDNER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 29, 2010




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