MODIFY and AFFIRM; and Opinion Filed January 31, 2014.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-12-00964-CR

                             CHARLES RAY BACON, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 282nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F11-31310-S

                             MEMORANDUM OPINION
                          Before Justices Bridges, Fillmore, and Lewis
                                   Opinion by Justice Lewis
       A jury found appellant Charles Ray Bacon guilty of driving while intoxicated, and the

trial judge assessed his punishment at confinement for eight years. In this Court, appellant

contends the trial court committed reversible error in its rulings on two voir dire issues and in

failing to suppress blood alcohol evidence at trial. Because the issues in this appeal involve the

application of well-settled principles of law, we issue this memorandum opinion. See TEX. R.

APP. P. 47.4. We modify the judgment to conform to the record, and—as modified—we affirm.
                                        Voir Dire Issues

Misstatement of Legal Standard

       In his first issue, appellant argues the trial court erred in overruling his objection to the

State’s voir dire “misstatement of the law” concerning the legal standard of intoxication.

Appellant made his objection in the following context:

       [THE PROSECUTOR]: Now, the law says that the loss of any normal use of
       your mental or physical faculties is intoxication, okay? Now, that’s a pretty low
       standard. If you think about it, you’ve lost any of your normal use. What do y’all
       think about that? What does that mean to you?

       VENIRE PERSON: It’s the law. The law decides it.

       [PROSECUTOR]: It’s the law.

       VENIRE PERSON: It decides the basis of it.

       [THE PROSECUTOR]: Yeah, you’ve got the tests that are going to tell you. But
       what if you don’t have the test? Are we -- are we okay with the low standard that
       if you’ve lost any of your normal mental or physical faculties?

       [DEFENSE COUNSEL]: Judge, I’m going to object. That[‘s] not what the law
       says. It’s says -- it’s not referenced anywhere in the statute.

       THE COURT: I get it. This is just voir dire. As long as you agree to follow the
       law as I give it to you. Remember, what the attorneys say is not -- not the law or
       evidence, but you will get a copy of the law. But you get a copy at the end of the
       review. Just understand that. Your objection’s overruled.

       In this Court, appellant argues the State clearly misstated the law when the prosecutor

told the venire that not having the normal use of mental or physical faculties by reason of

introduction of alcohol into the body is a “low standard.” The penal code defines “intoxicated”

as:

       (A) not having the normal use of mental or physical faculties by reason of the
       introduction of alcohol, a controlled substance, a drug, a dangerous drug, a
       combination of two or more of those substances, or any other substance into the
       body; or

       (B) having an alcohol concentration of 0.08 or more.



                                               –2–
TEX. PENAL CODE ANN. §49.01(2) (West 2011). In the prosecutor’s statement quoted above, she

asked the jury to consider the standard for determining intoxication “if you don’t have the test”

to establish the degree of alcohol concentration. Thus, she was focused on the first definition:

“not having the normal use of mental or physical faculties by reason of the introduction of

alcohol . . . into the body.” Id. §49.01(2)(A). We conclude the prosecutor did not misstate this

standard.

       The prosecutor did characterize the standard as a low one. However, as the trial court

emphasized following appellant’s objection, what the attorneys say is neither evidence nor the

law. It is the responsibility of the trial court—not the attorneys—to instruct the jury on the law

applicable to the case. See TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). In this case,

the trial court had read the statutory legal standard for intoxication to the panel as voir dire

began. Subsequently, the court’s charge defined “intoxicated” exactly as the statute did. The

prosecutor’s statement of the legal standard comported with that definition in the charge; her

characterization of the standard amounted to no more than argument.

       We note as well that appellant objected to the prosecutor’s characterization of the

standard as “low” only once. The prosecutor had similarly referred to the standard once before

the objection, and she repeated the characterization at least three more times during voir dire

without objection from appellant. Texas law requires a party to continue to object each time the

same objectionable conduct occurs. See Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App.

2003); see also Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Thus, even if

the prosecutor’s characterization of the standard had been error, appellant did not properly

preserve his complaint. See Martinez, 98 S.W.3d at 193.

       We overrule appellant’s first issue.




                                               –3–
       In his second and third issues, appellant contends the trial court violated his rights under

both the United States Constitution and the Texas Constitution by limiting appellant’s counsel to

fifteen minutes for voir dire questioning.

       The record establishes the jury panel completed questionnaires in this case. The trial

court also conducted its own voir dire of the panel. The court’s remarks and questions fill almost

twenty pages in the record and address a number of fundamental legal topics: the court’s

responsibility to tell jurors what the law is; the presumption of innocence; the charges against

appellant in this case; the State’s burden of proof; what is and what is not evidence; the

punishment range for the charged offense and factors that may be considered in assessing

punishment; and an understanding of bias. Throughout the court’s remarks, it stressed that for

the system to work, jurors must be fair to both sides and follow the law as the court gives it to

them. The court completed its voir dire by requesting and receiving a verbal commitment from

each potential juror that he or she would in fact be fair to both sides and would follow the law.

       The court then told the panel each side would have “about fifteen minutes” to talk and

ask questions about “certain aspects of this case that they think [are] important to make sure you

can follow the law and be fair to both sides.” When the court told counsel for the State that her

time was up, the record reflects the following exchanges took place:

       [PROSECUTOR]: Just a little more?

       THE COURT: It’s been 15 minutes. You all are delving into evidence. Your
       questions are questions that are presented during the trial. You’re asking questions
       about things that -- that are factual hypotheticals that we can go on forever on this.
       That’s not -- the question is this: Are you going to follow the law and be fair the
       both sides? That’s all I’m concerned about, and we’re -- we’ve narrowed this --
       that now. Now, it’s the Defense’s turn to go. You’ve got 15 minutes.

       [DEFENSE COUNSEL]: Could we approach, Judge, briefly?

       (There was an off-the-record Bench conference between the Court and the
       parties.)


                                                –4–
Immediately thereafter, counsel for appellant began his voir dire, which was limited to fifteen

minutes. The court released the panel for a lunch break and told appellant’s counsel: “All right.

Put your stuff on the record.” Counsel then identified a number of topics on which he wished to

question jurors, including their individual attitudes toward drinking and their history with law

enforcement.   Counsel also complained that he had not had time to review all the jurors’

questionnaires before his voir dire, so he was unable to ask follow-up questions concerning

remarks on those questionnaires. Counsel offered one specific example of a panel member

whose questionnaire raised significant concerns about that member’s ability to be fair. Counsel

stated time constraints prevented his questioning that panel member to elicit information

allowing him to be stricken for cause. Instead, counsel was forced to use a strike to remove that

panel member and to accept another juror, whose questionnaire stated he or she believed that any

alcohol consumed renders a driver intoxicated.

       The State argues appellant waived his complaint concerning limited time to voir dire

because he did not state on the record that he objected to the time allowed for voir dire and did

not specifically request additional time for questioning. We disagree. Although we cannot know

if counsel specifically objected and asked for more time during the bench conference following

the State’s voir dire, we know the judge prompted counsel to make a record of his complaints

immediately following the defense voir dire. More importantly, counsel’s statements on the

record unquestionably conveyed to the trial court that the time limitation had prevented his

conducting the voir dire he desired and that he believed the limitation harmed his client by

placing at least one individual on the jury who may have held views prejudicial toward appellant.

We conclude appellant made an adequate record below to preserve that complaint. See Everitt v.

State, 407 S.W.3d 259, 263 (Tex. Crim. App. 2013) (“all the party has to do to avoid the

forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks he

                                                 –5–
is entitled to it, and to do so clearly enough for the judge to understand him at a time when the

trial court is in a proper position to do something about it”).           We will not employ a

“hypertechnical” requirement for error preservation. See id.

        However, in this Court appellant has not complained that he was forced to accept one

juror with a potentially unfavorable view of intoxication because of the time limitation. Instead,

appellant casts his complaints as constitutional violations of his Sixth Amendment right to

effective counsel and his state constitutional right to be represented by counsel. Our review of

the record establishes that appellant never raised these complaints in the trial court. When a

party asserts a different complaint on appeal than his objection made at trial, the party waives the

issue. Jones v. State, 111 S.W.3d 600, 604 (Tex. App.—Dallas 2003, pet. ref’d). An objection

stating one legal basis may not be used to support a different legal theory on appeal. Rezac v.

State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). Accordingly, we conclude appellant did not

preserve the constitutional right-to-counsel complaints that he alleges in issues two and three.

        However, even if we were to address the complaint appellant did preserve—that he was

forced to accept a juror who may have held a view of intoxication that was unfriendly toward

him—we would overrule these two issues. We review a trial court’s limitations on the voir dire

process under an abuse of discretion standard. Cockrum v. State, 758 S.W.2d 577, 584 (Tex.

Crim. App. 1988). A trial court always has the authority to impose reasonable restrictions on the

exercise of voir dire examination. Splawn v. State, 949 S.W.2d 867, 871 (Tex. App.—Dallas

1997, no pet.). We examine each case on its own facts, understanding that a reasonable time

limitation for one case may not be reasonable for another. Id. at 871–72. “The amount of time

allotted is not, by itself, conclusive.” Id. at 872.




                                                  –6–
          Here, potential jurors filled out questionnaires giving counsel significant information

before voir dire began. 1 Then the trial court conducted a lengthy threshold voir dire on its own.

The State’s voir dire dealt primarily with the standard for intoxication and the ways in which the

State could prove intoxication. Then defense counsel addressed the following topics during his

allotted time: the notion that DWI is the penal code’s only “opinion crime”; the experience of

being pulled over, questioned concerning one’s drinking, and taking field sobriety tests; whether

each of the panel members would hold against appellant the fact that he had twice previously

been convicted of DWI; and the reasonable-doubt standard.

          Counsel complained he was not able to address other topics: the drinking habits of each

individual juror; more about the loss of normal functions and the physiological effects of alcohol;

and follow-up questions from questionnaire responses, including the nature of prior criminal-jury

service, prior alcohol-related incidents in members’ lives, and relationships with individuals in

law enforcement. We cannot say these topics are irrelevant. However our review of the record

establishes that most of these topics were addressed to some extent in the voir dire process, and

any of these topics could have been addressed if they had been considered a priority by counsel.

          Again, appellant’s specific complaint at trial was that he was required to accept a juror—

juror number five—who had expressed an unfavorable understanding of intoxication in the

questionnaire answered before the voir dire. But the panel received significant instruction during

voir dire concerning the legal definition of intoxication. The trial court gave an appropriate

definition in its charge. All of the potential jurors told the judge they would follow the law, and

we have no reason to assume appellant’s unwanted juror did not do so. Indeed, appellant’s

counsel stated he had reviewed the first twenty-five questionnaires before voir dire began, so he

     1
       The record does not contain a juror questionnaire form. However, defense counsel’s remarks indicate the form contained questions about a
panel member’s views concerning what constitutes intoxication, opinions of individuals involved in the justice system, and relationships with
individuals in law enforcement.



                                                                    –7–
was aware of juror number five’s misunderstanding concerning intoxication. He could have used

a fraction of his time to be sure the potential juror was now committed to the legal definition of

intoxication. We cannot say the trial court’s time limits in this case prevented appellant from

seating a fair jury. Nor can we say, given the facts and record in this case, that the court’s time

limit was unreasonable and an abuse of discretion. See Splawn, 949 S.W.2d at 871.

       We overrule appellant’s second and third issues.

                            Suppression of Blood Alcohol Evidence

       In his fourth and fifth issues, appellant again contends the trial court violated both the

United States Constitution and the Texas Constitution, this time by denying appellant’s motion to

suppress blood evidence of his alcohol consumption. Appellant’s specific complaint is that he

did not voluntarily consent to having his blood drawn.

       Drawing blood from a suspect is a search and seizure within the scope of the Fourth

Amendment to the United States Constitution and article I, section 9 of the Texas Constitution.

State v. Mosely, 348 S.W.3d 435, 440 (Tex. App.—Austin 2011, pet. ref’d) (citing Schmerber v.

Cal., 384 U.S. 757, 767 (1966)). The validity of a defendant’s consent to search is a question of

fact to be determined from the totality of the circumstances. Meekins v. State, 340 S.W.3d 454,

458 (Tex. Crim. App. 2011). Federal law requires the State to prove voluntary consent by a

preponderance of the evidence; article I, section 9 of the Texas Constitution, however, requires

the State to prove consent by clear and convincing evidence. Montanez v. State, 195 S.W.3d

101, 105 (Tex. Crim. App. 2006).      We review the trial court’s denial of a motion to suppress

with “almost total deference” to the court’s determination of facts supported by the record when

the court’s findings (whether historical fact findings or mixed questions of law and fact) are

based on an evaluation of credibility and demeanor. Id. at 106. We conduct a de novo review

where the resolution of mixed questions of law and fact does not turn on an evaluation of

                                               –8–
credibility and demeanor. Id. We must view the evidence in the light most favorable to the trial

court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007).

          The record indicates, and all parties agree, the arresting detective read the appropriate

statutory warnings to appellant. Those warnings address a person’s right to refuse to give a

specimen for alcohol-testing purposes and the consequences of such a refusal. During the

hearing on appellant’s motion to suppress, a recording of his arrest was played and the arresting

detective testified. The recording and the detective’s testimony confirmed that, after reading the

warnings, the detective stated: “Breath or blood? I’m requesting you take a breath or blood.”

Appellant responded, “I want breath.”                       At this point in time, however, the detective was

contacted by his superior who told him a blood-draw facility had been set up in the next town

and they could get appellant “in and out fast.” 2 The detective testified appellant was “extremely

cooperative,” and he agreed to the blood test. (The recording device had been turned off before

this exchange occurred.) The defense characterized this requirement to change from breath test

to blood test as coercion; the detective testified appellant willingly changed his mind when

presented with the new information. The trial court found that appellant agreed to provide a

blood specimen and concluded appellant voluntarily consented to the blood draw.

          Appellant first argues that when the detective “request[ed] you take a breath or blood,”

appellant was essentially coerced into giving some type of specimen. He contends the detective

gave him those two options—breath or blood—but failed to give him the necessary third option,

i.e., to refuse to give any specimen. We disagree. It is undisputed that the detective read

appellant the statutory warnings required in a DWI arrest before breath or blood specimens may

be taken. Those warnings informed appellant of the option of refusing to give a specimen.


     2
        The blood-draw facility was part of a holiday “no refusal” weekend, when persons who refused to give a specimen could be brought
before a judge and, if appropriate, a warrant would be signed to require a blood draw.



                                                                 –9–
           Moreover, the warning form—which appellant attaches as an exhibit to his brief—also

includes the very request at issue in this case. Following the list of warnings and information

about requesting a hearing, the form states:

           I certify that I have informed you both orally and in writing of the consequences
           of refusing to submit to the taking of a specimen or providing a specimen. I have
           provided you with a complete and true copy of this statutory warning.

           I am now requesting a specimen of your                               Breath               Blood

The arresting detective read appellant the required warnings informing him that he could refuse

to give a specimen. He continued reading the approved form and requested a specimen of

appellant’s breath or blood.                    That request was not a variance from the form; it was not

superfluous language that somehow invalidated the statutory warnings. 3                                                 In this case, the

undisputed record supports the trial court’s finding that—based upon the totality of the

circumstances—appellant was told he had the right to refuse both the blood draw and the breath

test.

           Appellant also argues that although he agreed to take a breath test, he did not voluntarily

agree to the blood draw that was ultimately used to measure his blood alcohol level. Again, we

disagree. The trial court found appellant voluntarily consented to the blood draw. We must

defer to the trial court’s determination of that mixed question of law and fact if it is based on the

court’s evaluation of credibility and demeanor. See Montanez, 195 S.W.3d at 106. The court

found the detective was contacted by his superior, who asked the detective to request a blood

specimen. The court then found:

           Although not on the video, [the detective] again asked [appellant] whether
           [appellant] wants to provide a blood specimen or breath specimen, and [appellant]
           agreed to provide [a] blood specimen.

     3
         Although the detective acknowledged adding some of his own words while reading the warnings, we defer to the trial court’s finding that
those words did not render the consent involuntary. The essence of appellant’s complaint—that he was presented with two options (blood or
breath) rather than three (blood, breath, or refusal)—was not the result of superfluous words; the request for one or both of the specimens is part
of the statutory warning form.



                                                                     –10–
As the finding indicates, this portion of the interaction between appellant and the detective was

not recorded. The trial court, having observed the demeanor and adjudged the credibility of the

detective at the hearing, chose to believe his testimony that appellant freely agreed to the blood

draw. We find no evidence in the record to the contrary. Accordingly, we defer to the trial

court’s finding that appellant’s consent was voluntary. See id. We conclude the State met its

burden to establish voluntary consent by clear and convincing evidence.

       We overrule appellant’s fourth and fifth issues.

                                 Modification of the Judgment

       In a single cross-point, the State asks us to correct the judgment so that it correctly states

(1) appellant pleaded true to an enhancement paragraph (and the trial court found that paragraph

true), and (2) the trial court—rather than the jury—assessed appellant’s punishment. We will

modify a judgment to correct what the trial court could have corrected by a judgment nunc pro

tunc, when the evidence necessary to correct the judgment appears in the record. McGregor v.

State, 145 S.W.3d 820, 822 n.1 (Tex. App.—Dallas 2004, no pet.) (citing Asberry v. State, 813

S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d)).            The record supports the State’s

proposed modifications. Accordingly, we modify the trial court’s judgment as follows:

   •   Following “Plea to 1st Enhancement Paragraph,” we change “N/A” to “TRUE”;

   •   Following “Findings on 1st Enhancement Paragraph,” we change “N/A” to “TRUE”; and

   •   Under “Punishment Assessed by,” we change “JURY” to “COURT.”

As modified, we affirm the trial court’s judgment.




Do Not Publish                                       /David Lewis/
TEX. R. APP. P. 47                                   DAVID LEWIS
                                                     JUSTICE
120964F.U05

                                               –11–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

CHARLES RAY BACON, Appellant                        On Appeal from the 282nd Judicial District
                                                    Court, Dallas County, Texas
No. 05-12-00964-CR         V.                       Trial Court Cause No. F11-31310-S.
                                                    Opinion delivered by Justice Lewis.
THE STATE OF TEXAS, Appellee                        Justices Bridges and Fillmore participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
            • Following “Plea to 1st Enhancement Paragraph,” we change “N/A” to
               "TRUE";
            • Following “Findings on 1st Enhancement Paragraph,” we change “N/A” to
               “TRUE”; and
            • Under “Punishment Assessed by,” we change “JURY” to “COURT.”

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 31st day of January, 2014.




                                                   /David Lewis/
                                                   DAVID LEWIS
                                                   JUSTICE




                                             –12–
