AFFIRM; and Opinion Filed January 3, 2017.




                                            Court of Appeals
                                                             S      In The


                                     Fifth District of Texas at Dallas
                                                         No. 05-15-01347-CR

                              JUAN MANUEL PALLARES-RAMIREZ, Appellant
                                                V.
                                    THE STATE OF TEXAS, Appellee

                                 On Appeal from the County Criminal Court No. 6
                                              Dallas County, Texas
                                     Trial Court Cause No. MA-1322517-G

                                           MEMORANDUM OPINION
                                      Before Justices Fillmore, Brown, and O’Neill 1
                                               Opinion by Justice O’Neill
            A jury found appellant Juan Manuel Pallares-Ramirez guilty of driving while

intoxicated with a blood alcohol concentration (BAC) level greater than 0.15. The trial court

assessed his punishment at ninety days in the county jail, probated for twelve months, and a fine

of $500. On appeal, appellant contends he was convicted of an offense on which he was not

arraigned and to which he did not enter a plea. Appellant also argues the trial court erred by

denying his motion to suppress, by rejecting his request for an article 38.23 jury instruction, and

by overruling his hearsay objection to a police officer’s report. We affirm the trial court’s

judgment.




   1
       The Hon. Michael J. O’Neill, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
                                                               Background

            At around 10:30 on a summer evening in 2013, a witness called 911 and reported a

possibly intoxicated motorist driving on a particular street in Farmer’s Branch. The caller

provided the license plate number of the car. Officer Garrett, 2 a Farmers Branch police officer,

received the 911 dispatch and located the vehicle, which was being driven by appellant.

Appellant was driving slowly. As Garrett pulled in behind appellant, he saw traffic building up

behind him. Garrett also noticed appellant had a flat tire, and he believed the wheel was

wobbling dangerously. Garrett stopped appellant and, when Garrett spoke to him, he smelled

alcohol and noticed appellant’s eyes were bloodshot. Garrett asked appellant to get out of the car

and performed a series of field sobriety tests upon him. Based on appellant’s performance on the

tests, Garrett arrested appellant for driving while intoxicated.

            The State ultimately charged appellant by information with driving while intoxicated

with a BAC level of 0.15 or more, a class A misdemeanor. The jury found him “guilty as

charged in the Information,” and his punishment was assessed by the trial court at ninety days in

the county jail, probated for twelve months, and a fine of $500. Appellant raises four issues in

his challenge to the trial court’s judgment.

                                        Improper Arraignment and Jury Charge

            In his first issue, appellant contends the trial court improperly arraigned him and

improperly charged the jury. 3                    The State’s information charged appellant with the class A

misdemeanor of driving while intoxicated with a BAC greater than 0.15. Appellant complains

that the trial court treated the fact of appellant’s elevated BAC as an enhancement to a class B

     2
         The record does not contain Officer Garrett’s given name.
     3
         The State argues this issue is multifarious and should be stricken. We understand appellant to argue two procedural errors—at the
arraignment and the jury charge—rooted in a single substantive error, namely the mischaracterization and omission of an element of the charged
offense. We conclude appellant’s first issue embraces one specific error that purportedly played out in two ways at trial. We decline the State’s
request to strike the issue.



                                                                     –2–
DWI charge rather than as an element of the class A misdemeanor.                 Because of this

mischaracterization, appellant argues, the trial court erred by arraigning him on the class B

offense and in presenting the elevated BAC as a punishment issue to the jury at the end of the

court’s guilt-innocence charge. Appellant timely objected both to the arraignment and to the jury

charge on these grounds. He alleges he was harmed by the mischaracterization because he was

not on notice that he was facing the class A misdemeanor charge, he was not anticipating having

to defend against the class A charge, and he was not given “an opportunity to argue” that his

BAC might have been greater than the class B limit (0.08) but less than the class A limit (0.15).

       The State concedes error on this issue and acknowledges that the elevated BAC is in fact

an element of the class A misdemeanor DWI rather than a mere enhancement. See Navarro v.

State, 469 S.W.3d 687, 696 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (concluding the

elevated BAC is “an element of a separate offense because it represents a specific type of

forbidden conduct—operating a motor vehicle while having an especially high concentration of

alcohol in the body.”); see also Castellanos v. State, No. 13-14-00524-CR, 2016 WL 6777566, at

*3 (Tex. App—Corpus Christi-Edinburg, Oct. 27, 2016, pet. filed).

       We conclude, however, that appellant was not harmed by the mischaracterization of this

element of his charged offense as an enhancement. Appellant was aware of the charge against

him from the information, and he took the position throughout trial that the State was required to

prove his BAC level was more than 0.15 as an element of the offense with which he was

charged.

       The jurors were also aware that the BAC threshold at issue was 0.15. The State informed

all prospective jurors during voir dire that appellant was charged with a class A misdemeanor, in

which the alcohol concentration at issue was 0.15 or higher; the prosecutor also informed the

panel of the punishment range for a class A misdemeanor, not a class B offense. Counsel for

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appellant then repeated the class A range of punishment and the 0.15 BAC standard when asking

prospective jurors if they could consider the entire range of punishment. The trial court heard

argument from appellant concerning how the elevated BAC would be treated at trial: appellant’s

objections were overruled, and he was informed that the State could submit the elevated BAC as

a separate question to the jury at the bottom of the guilt-innocence charge. Thus appellant was

aware that the jury could be asked whether his alcohol level exceeded the elevated standard at

the end of the guilt-innocence phase of trial: he knew what he had to defend against and when

he had to defend against it. Indeed, as the State points out, appellant’s counsel did address the

0.15 BAC level in his closing arguments, at one point conceding that although the video might

have shown someone at a 0.09 level, it did not portray someone at a level “almost three times

that.”

         Finally, although jurors were asked only after they found appellant guilty whether his

BAC level was 0.15 or more, they were asked the question, and they responded that it was “true”

that his BAC was that high. Appellant has not challenged the sufficiency of the evidence

supporting that finding.

         We conclude the trial court erred by treating an elevated BAC level of 0.15 or more as an

enhancement to—rather than an element of—a class A misdemeanor DWI. But we conclude

appellant was not harmed by this error. We decide appellant’s first issue against him.

                                       Motion to Suppress

         In his second issue, appellant argues the trial court erroneously overruled his motion to

suppress because Officer Garrett lacked reasonable suspicion to stop and detain appellant.

Appellant contends the State’s “buck-shot approach” to establishing his stop failed to meet the

standard of reasonable suspicion. He addresses the various reasons raised by the State for the




                                               –4–
stop—the 911 tip, appellant’s slow rate of speed, and the malfunction in appellant’s tire—and

attempts to discredit each of them.

       Our concern with this suppression issue, however, lies with the threshold requirement of

preservation. Appellant did not file a written motion to suppress, and he did not make his oral

motion until after the State rested its case. When Garrett finished testifying on the first day of

trial, the trial court adjourned proceedings for the day. As proceedings continued the next day,

Garrett was excused without any further questioning. The State then called Alvin Finkley, a

technical supervisor of police agencies, to discuss alcohol’s effect on the mental and physical

faculties of an individual and appellant’s test procedures and results.       When Finkley was

excused, the State rested. Only then did appellant’s counsel state, “defense would make a

motion to suppress the evidence based on an illegal stop.” Counsel argued each ground the State

put forward as a basis for reasonable suspicion: the 911 tip, appellant’s slow driving speed, and

the purported malfunction in appellant’s tire. The trial court allowed lengthy arguments but

eventually denied the motion to suppress.

       A motion to suppress must meet all of the requirements of an objection: it must be timely

and sufficiently specific to inform the trial court of the complaint. Krause v. State, 243 S.W.3d

95, 102 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). “To be timely, a motion to suppress

must be presented before the evidence [sought to be suppressed] is admitted into evidence.”

Dixon v. State, No. 14–08–01081–CR, 2010 WL 318088, at *1 (Tex. App.—Houston [14th

Dist.] Jan. 28, 2010, no pet.) (mem. op.) (not designated for publication) (citing Nelson v. State,

626 S.W.2d 535, 536 (Tex. Crim. App. 1981), and Sims v. State, 833 S.W.2d 281, 284 (Tex.

App.—Houston [14th Dist.] 1992, pet. ref’d)).

       Appellant did not urge his oral motion to suppress based on an allegedly unlawful stop

until after Garrett had testified about the circumstances surrounding appellant’s arrest and the

                                                –5–
videotape of the stop was admitted into evidence and played for the trial court. In addition, the

State had also offered testimony concerning appellant’s sobriety tests before the motion was

raised. We conclude that because appellant’s motion to suppress was untimely, appellant failed

to preserve his complaint for appellate review. See Rodriguez v. State, No. 05-98-01932-CR,

2000 WL 146808, at *1 (Tex. App.—Dallas, Feb. 11, 2000, no pet.) (mem. op.) (not designated

for publication) (because evidence was admitted without objection, subsequent oral motion to

suppress was untimely and preserved nothing for appellate review); Moody v. State, No. 08-01-

00030-CR, 2002 WL 1340959, at *2 (Tex. App.—El Paso June 20, 2002, no pet.) (not

designated for publication) (defendant failed to preserve error on motion to suppress because he

“urged his oral motion to suppress after the evidence had been admitted into evidence”).

        We overrule appellant’s second issue.

                                   Article 38.23 Jury Instruction

        In his third issue, appellant complains the trial court erroneously denied his request for an

article 38.23 instruction to the jury. That article states:

        In any case where the legal evidence raises an issue hereunder, the jury shall be
        instructed that if it believes, or has a reasonable doubt, that the evidence was
        obtained in violation of the provisions of this Article, then and in such event, the
        jury shall disregard any such evidence so obtained.

TEX. CRIM. PROC. CODE ANN. art. 38.23(a) (West 2005). In this case, the trial judge actually

granted appellant’s first request for an article 38.23 instruction, but she later concluded the

instruction was inappropriate, saying “I don’t believe that the fact that [appellant] was impeding

traffic [is] in dispute.” If the State proved there was no fact issue as to any one of the officer’s

bases for the stop, then the trial court correctly denied the instruction. Madden v. State, 242

S.W.3d 504, 510 (Tex. Crim. App. 2007) (“Where no [fact] issue is raised by the evidence, the

trial court acts properly in refusing a request to charge the jury.”) (quoting Murphy v. State, 640

S.W.2d 297, 299 (Tex. Crim. App. 1982)).
                                                  –6–
       We look first to the trial court’s articulated basis for denying the instruction, i.e., that

appellant was impeding traffic. The transportation code states that “[a]n operator may not drive

so slowly as to impede the normal and reasonable movement of traffic, except when reduced

speed is necessary for safe operation or in compliance with law.” TEX. TRANSP. CODE ANN.

§ 545.363(a) (West 2011). Garrett testified appellant was driving fifteen miles per hour below

the speed limit on a street where it is “very rare” to encounter cars driving slowly. He testified

further that cars were being held up because of appellant’s driving; he saw several vehicles

slowing down as they came up behind him. Appellant argues—based on the officer’s dashboard

camera video—that he was not, in fact, impeding traffic because cars behind him could have

passed him. But Garret believed appellant was impeding traffic, and we cannot identify any

evidence in the record controverting the reasonableness of his belief. Accordingly, there was no

fact issue for the jury to decide, and the trial court correctly denied the article 38.23 instruction.

See Madden, 242 S.W.3d at 511 (if officer has reasonable belief offense is occurring, then traffic

stop is proper).

       We overrule appellant’s third issue.

                               Hearsay Objection to Police Report

       In his fourth issue, appellant contends the trial court erred by overruling his objection to

Garrett’s reading from his report during his testimony. Appellant relates that the officer “took

the stand, with his police report in hand unknown to Appellant’s counsel. Several minutes into

his testimony, Appellant’s counsel noticed and promptly objected.” Appellant’s specific concern

is that Garrett testified concerning results of appellant’s field sobriety tests by consulting his

report; Garrett acknowledged he had no independent recollection of those results.

       Although appellant contends he “noticed” Garrett reading from his report after “[s]everal

minutes,” we really have no way of determining from the record how long a time he testified

                                                 –7–
from the report before an objection was made. 4 However, our review of the record indicates

that—before appellant objected—Garrett had testified to:                                       his initial communication with

appellant and his assessment of appellant’s physical appearance; his administration of the

horizontal gaze nystagmus test (what it is, how it was administered, and appellant’s performance

of it); his administration of the “nine step walk and turn” test (what it is, how it was

administered, and appellant’s performance of it); and his administration of the “one leg stand”

test (what it is, how it was administered, and appellant’s performance of it). At this point,

Garrett had testified that appellant showed sufficient “clues” on all three tests to have been

considered intoxicated. Only when he finished testifying concerning the third and final test

results did appellant object, saying “I just realized that he has his report with him, without any

predicate being laid as to what it is, to refresh his recollection.”

           We addressed the importance of timely complaints above in the context of a motion to

suppress evidence. A timely objection gives the trial judge the opportunity to cure error. Hollins

v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991). An objection is timely if it is made “as

soon as the ground of objection becomes apparent, i.e., as soon as the defense knows or should

know that an error has occurred.” Id. Failure to lodge an objection in a timely manner waives

error.      Id.     In this case, the witness had testified at length concerning the field tests he

administered and the appellant’s performance on those tests before any objection was raised, but

appellant asked the trial court to strike all of the officer’s testimony on the tests as hearsay. We

conclude appellant waived any objection to the testimony concerning test results by failing to

object timely.




     4
        For reference purposes, Officer Garrett’s testimony begins on page 131 of volume 2 of the Reporter’s Record. Appellant’s objection first
appears on page 153 of that volume.



                                                                     –8–
       Moreover, after appellant’s objection was overruled, the prosecutor offered Garrett’s

dashboard camera video, and it was admitted into evidence. As the video was shown, the

prosecutor asked Garrett questions about what the jurors were seeing, including the field sobriety

tests. Garret testified to the same test results that he had testified to earlier, and appellant did not

object. To preserve error a party must object each time inadmissible evidence is offered or

obtain a running objection. Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004). Indeed,

an earlier error in admitting evidence is cured if the same evidence comes in later without

objection. Id. Thus, even if appellant’s untimely objection did not waive error, any error was

cured by appellant’s failure to object to the same evidence when it came in later without

objection.

       We overrule appellant’s fourth issue as well.

                                             Conclusion

       We have decided each of appellant’s issues against him. We affirm the trial court’s

judgment.




                                                       /Michael J. O'Neill/
                                                       MICHAEL J. O’NEILL
                                                       JUSTICE, ASSIGNED

Do Not Publish
TEX. R. APP. P. 47

151347F.U05




                                                 –9–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JUAN MANUEL PALLARES-RAMIREZ,                       On Appeal from the County Criminal Court
Appellant                                           No. 6, Dallas County, Texas
                                                    Trial Court Cause No. MA-1322517-G.
No. 05-15-01347-CR         V.                       Opinion delivered by Justice O’Neill,
                                                    Justices Fillmore and Brown participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 3rd day of January, 2017.




                                             –10–
