      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-00-00748-CR



                                 John Brantley Park, Appellant

                                                  v.

                                  The State of Texas, Appellee




      FROM THE DISTRICT COURT OF LLANO COUNTY, 33RD JUDICIAL DISTRICT
          NO. CR4980, HONORABLE CHARLES J. HEARN, JUDGE PRESIDING




               Appellant John Brantley Park1 was charged with the offense of driving a motor vehicle

while intoxicated, which was enhanced to a third-degree felony due to two prior convictions for the

same offense. See Tex. Penal Code Ann. §§ 49.04, .09(b) (West Supp. 2001). A jury found

appellant guilty and sentenced him to ten years of confinement. Appellant challenges his conviction,

asserting the State was improperly permitted to refer to a police inventory not introduced into

evidence. We affirm the trial court’s judgment.


Background

               Llano police officer Jody Deatherage testified at trial to the events that occurred

during appellant’s traffic stop. In the early morning hours of July 4, 1999, Officer Deatherage



  1
      Appellant has also used the surname, Parks, on several court documents. We refer to appellant
by the name specified in the trial court’s judgment.
responded to a dispatch call that followed a report of a possible drunk driver. Officer Deatherage

stated that he encountered the vehicle on Ford Street within the Llano city limits. He further stated

that he observed the car drift across the white lines separating the northbound lanes of traffic into the

outside lane of the street. He then saw the driver attempt to return to the inside northbound lane, but

continue across the double yellow lines into the inside lane of southbound traffic. At that time, he

activated the lights on his patrol car and pulled over the vehicle that appellant was driving.

                Officer Deatherage detected a strong odor of alcohol coming from the car and

observed that appellant had difficulty retaining his balance as he exited the car. As the officer

administered several field sobriety tests, appellant became uncooperative. Officer Deatherage testified

that, based on appellant’s poor balance, slurred speech, inability to follow directions, and failure of

the sobriety tests, he arrested appellant for driving while intoxicated. After the arrest, Officer

Deatherage visually inspected the contents of the car. In the back seat and trunk, he saw an unopened

case of beer, several fireworks, and an ice chest containing beer and sodas.

                Appellant also testified at trial. Appellant maintained that, while he was driving, he

was not intoxicated, but became so only after he was stopped. Appellant stated that, when he saw

a police car turn around to follow him, he knew he would be arrested for an outstanding warrant.

Appellant claimed that, after pulling his vehicle over to the side of the road, he opened a quart of

Bellows whiskey that was under the driver’s seat and “turned it up.” Appellant further claimed that

he became intoxicated only after “swigging” about a fifth of whiskey from the bottle just before the

police officer approached him. He testified that he then put the cap on the bottle and placed it under

the driver’s seat of the vehicle.



                                                   2
               On cross-examination of appellant, the State sought to discredit appellant’s account

of events by questioning him about the testimony of the arresting officer and a police inventory of his

vehicle, neither of which mentioned a whiskey bottle. The relevant portion of the reporter’s record

with appellant’s testimony is as follows:


       [Cross-Examination of the Defendant by Prosecutor]

       [Prosecutor]:         Okay. That’s fine. What did you do with that bottle after you
                             chugged it? What happened to it?

       A: Put the cap on it and stuck it back under the seat.

       [Prosecutor]:         May I approach the witness, Judge?

       The Court:            You may.

       [Defense Counsel]: Your Honor, may we approach on this?

       The Court:            Sure.

       (At the bench)

       [Defense Counsel]: You have a prior inconsistent statement or something?

       [Prosecutor]:         No –

        [Defense Counsel]: You’re going do that, and it doesn’t have his signature on it?

        The Court:           What do you-all want? I don’t know what you’re arguing. Tell
                             me what you’re up here for. You asked to approach.

        [Defense Counsel]: Well, I anticipate that he’s going to try and impeach my client,
                           attempt to impeach with this, and that’s completely improper.
                           There’s no statement here –

        The Court:           You know -- how do you know?




                                                  3
[Defense Counsel]: Police inventory deal. Has nothing to do -- if he wants to
                   properly authenticate this and lay the predicate --

The Court:           Is this the police inventory?

[Prosecutor]:        Yes.

The Court:           He’s already testified. It’s impeachment. He has already
                     testified what happened to the bottle, what didn’t happen to the
                     bottle, where he put it, the whole 10 yards --

[Defense Counsel]: Well, if he wants to introduce it --

The Court:           He’s going to do that. He just now marked it. If he don’t lay
                     the proper predicate, you object.

[Defense Counsel]: Okay.

(In the hearing of the jury)

(Reporter marked State’s Exhibit No. 6)

Q: (By [Prosecutor]): Sir, you heard Officer Deatherage testify what he observed
   in your vehicle, correct?

A: Yes.

Q: You heard he never mentioned a bottle of whiskey, correct?

A: Yes.

Q: And I’m going to show you State’s Exhibit Number 6, sir. Do you recognize
   what State’s Exhibit Number 6 is?

A: Yes.

Q: What is State’s Exhibit Number 6?

A: Well, this is the –

[Defense Counsel]: Your Honor, I’m going to go –



                                          4
       The Witness:         -- says fireworks --

       The Court:           Just a minute. Just a minute, please. Just a minute. What?

       [Defense Counsel]: Your Honor, if the government wants to--

       The Court:           No, I don’t want you to tell me what the government wants.
                            Tell me what your objection is, if you’re going to make one.

       [Defense Counsel]: My objection is that, first off, he has him testifying from a
                          document that has not been introduced into evidence, Your
                          Honor. That’s the first objection.

       The Court:           Okay, Well, he’s trying to get him to identify it.

       [Defense Counsel]: Okay.

       The Court:           So that objection’s overruled at this time.

       [Defense Counsel]: The second objection, Your Honor, is that this witness cannot
                          properly authenticate a document that was prepared by
                          somebody else.

       The Court:            That objection’s overruled at this time.

       The Witness:          Yes. There was a pint of gin under the other seat, and maybe a
                             numerous amount of beers and stuff laying in the back
                             floorboard. Yeah, yeah. That, there was also other things in
                             there that’s not on there, yeah.

       [Defense Counsel]: Renew my objection to testifying --

       The Witness:          Lots of things on there that’s –

       The Court:            Objection’s overruled.


The prosecutor continued to question appellant regarding the inventory, asking him to confirm that

the exhibit was an inventory of his vehicle and that it did not mention a whiskey bottle or a pint of




                                                   5
gin. During this line of questioning, appellant’s counsel voiced no further objections. State’s exhibit

number six was not offered or admitted into evidence.

                Appellant identifies his sole issue on appeal as follows: “Did the trial court err in

allowing cross-examination of appellant that allowed the contents of State’s exhibit no. 6, an

inventory of appellant’s vehicle, to be presented to the court without being properly introduced into

evidence and authenticated?”


                                            DISCUSSION

                We review a trial court’s rulings admitting evidence according to an abuse of

discretion standard. See Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001), petition

for cert. filed, (U.S. June 1, 2001) (No. 00-10389); Green v. State, 934 S.W.2d 92, 101-02 (Tex.

Crim. App. 1996); Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994); cf. Montgomery

v. State, 810 S.W.2d 372, 390-91 (Tex. Crim. App. 1990) (op. on reh’g); Poole v. State, 974 S.W.2d

892, 897 (Tex. App.—Austin 1998, pet. ref’d). As a reviewing court, our role is “limited to

determining whether the record supports the trial court’s ruling.” Coffin, 885 S.W.2d at 149. We

do not disturb a trial court’s ruling concerning the admission of evidence if it lies within “the zone of

reasonable disagreement.” Salazar, 38 S.W.3d at 154; Montgomery, 810 S.W.2d at 391; Poole, 974

S.W.2d at 897.      All relevant evidence is admissible at trial unless otherwise barred by the

Constitution, statute, or rule. Tex. R. Evid. 402. Relevant evidence tends to make a fact at issue

more or less probable. Id. 401.

                Appellant argues that, by permitting the State to cross-examine him regarding the

contents of the police inventory, the trial court did not require the State to comply with the rules for

                                                   6
the admission of evidence set forth in Texas Rules of Evidence 803(8)(B) and 901. Id. 803(8)(B)

(creating a hearsay exception for public records and reports but excluding from that exception law

enforcement reports); id. 901 (establishing a requirement of authentication or identification). The

State responds that defense counsel did not preserve error because his objections were not timely and

that even if the objections were considered timely, the trial court did not err in permitting the

questioning. The State also urges that any error was harmless. We first consider whether appellant

preserved error for appeal.

                To preserve error, an objection to the admission of evidence must be timely2 and

specific. Id. 103(a)(1); Tex. R. App. P. 33.1(a)(1); see also Franklin v. State, 12 S.W.3d 473, 477

(Tex. Crim. App. 2000); Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). In addition,

the objecting party must obtain a ruling, or show that the court refused to rule, on his objection. Tex.

R. App. P. 33.1(a). The basis of the objection at trial must comport with the issue raised on appeal.

Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993); McFarland v. State, 845 S.W.2d

824, 838 (Tex. Crim. App. 1992); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).

                In this case, appellant’s counsel first protested the prosecutor’s use of the police

inventory of appellant’s vehicle as the court reporter marked the document as State’s exhibit number


   2
     To be timely, counsel is required to object as soon as the ground for the objection becomes
apparent. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995); Thompson v. State, 691
S.W.2d 627, 635 (Tex. Crim. App. 1984); Guzman v. State, 521 S.W.2d 267, 269 (Tex. Crim. App.
1975). Such a ground usually becomes apparent when evidence is offered or admitted. Dinkins, 894
S.W.2d at 355; Johnson v. State, 878 S.W.2d 164, 167 (Tex. Crim. App. 1994); Wilson v. State, 511
S.W.2d 531, 532 (Tex. Crim. App. 1974). Thus, when a question clearly seeks to elicit an
objectionable response, an objection should be made before the response is given. Dinkins, 894
S.W.2d at 355; Guzman, 521 S.W.2d at 269; Webb v. State, 480 S.W.2d 398, 400 (Tex. Crim. App.
1972).

                                                   7
six. Even if we construe counsel’s comments at the bench as a sufficient objection, no error was

preserved for appeal because the trial court did not rule on the objection. 3 See Tex. R. App. P.

33.1(a).

                Appellant’s counsel next objected when the prosecutor asked appellant to identify the

exhibit, asserting that the prosecutor was trying to have appellant (i) testify from a document not in

evidence and (ii) authenticate a document prepared by someone else. The trial court overruled these

objections. After the trial court ruled, appellant volunteered testimony that numerous items, including

the whiskey bottle, were missing from the police inventory of his vehicle. At the end of appellant’s

statement, defense counsel asserted, “Renew my objection to testifying . . . [.]” The trial court also

overruled this objection.

                In his brief, appellant states the issue so it comports with the objections raised at trial,

but the issue as briefed is not consistent with the objections made below. Appellant first argues that

the police inventory was inadmissible hearsay under Texas Rule of Evidence 803(8)(B). Tex. R.

Evid. 803(8)(B). When the prosecutor asked appellant to identify the inventory marked as State’s

exhibit number six, defense counsel did not raise a specific hearsay objection. Because the trial

objection does not comport with appellant’s complaint on appeal, the claimed error was not

preserved.4 See Camacho, 864 S.W.2d at 533; McFarland, 845 S.W.2d at 838; Rezac, 782 S.W.2d

at 870.



   3
       Appellant does not suggest that the trial court refused to rule on this objection.
   4
       In addition, because the State’s question sought to identify a marked exhibit rather than to
elicit an objectionable response, defense counsel’s objection may be viewed as premature. See
Dinkins, 894 S.W.2d at 355; Guzman, 521 S.W.2d at 269; Webb, 480 S.W.2d at 400.

                                                    8
                Citing Texas Rule of Evidence 901(a), appellant also contends that he could not

authenticate a document prepared by someone else. Tex. R. Evid. 901(a). Texas Rule of Evidence

901(a) reads, “The requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what

the proponent claims.” Id. Without any further citation to authority, appellant asserts that because

none of the officers who participated in the preparation of the inventory testified at trial and the only

person questioned about the inventory played no part in its preparation, the inventory was not

properly authenticated as the document it purported to be.

                Importantly, the remaining testimony at issue was not elicited by the prosecutor’s

questioning. After the trial court ruled on defense counsel’s authentication objection, appellant

blurted out without further question from the State that numerous things were missing from the

inventory. Defense counsel then renewed his earlier objection that appellant was testifying from a

document not in evidence, and the trial court overruled it.5

                In his brief, appellant offers no additional argument or authority to demonstrate how

the trial court erred in its ruling on the authentication objection. Again, appellant’s arguments on

appeal do not comport with the objection made at trial to appellant’s volunteered testimony. Because

we find that appellant offers no additional argument with respect to any error arising from these

particular rulings and that the argument in his brief does not comport with the trial objections, we




   5
      We note that defense counsel could have objected to appellant’s volunteered testimony as
nonresponsive and then requested that the trial court strike, and instruct the jury to disregard, that
portion of appellant’s testimony. By asking the court to strike the testimony, counsel could have
minimized any damage caused by appellant’s self-inflicted wound.

                                                    9
further conclude that appellant’s briefing is not sufficient6 and does not preserve error. See Tex. R.

App. P. 38.1(h); Camacho, 864 S.W.2d at 533; McFarland, 845 S.W.2d at 838; Rezac, 782 S.W.2d

at 870. Even if the error was preserved, we conclude that the trial court’s rulings lie within “the zone

of reasonable disagreement,” and we may not disturb such a ruling. Salazar, 38 S.W.3d at 154;

Montgomery, 810 S.W.2d at 391; Poole, 974 S.W.2d at 897. 7

               If we now assume that the trial court erred in permitting appellant to testify about the

inventory, admission of this testimony would be harmless. Texas Rule of Appellate Procedure

44.2(b) provides that a nonconstitutional error “that does not affect substantial rights must be

disregarded.” Tex. R. App. P. 44.2(b). The Court of Criminal Appeals has determined that

substantial rights are not affected by the erroneous admission of evidence “‘if the appellate court,

after examining the record as a whole, has fair assurance that the error did not influence the jury, or

had but a slight effect.’” Reese v. State, 33 S.W.3d 238, 243 (Tex. Crim. App. 2000) (quoting

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)).

               Because we find that the issue on appeal has not been sufficiently preserved and has

not been sufficiently briefed, we cannot say on the record before us that the trial court abused its



  6
       The record does not contain a copy of the police inventory. Thus, we are unable, on the record
before us, to conclude that the trial court permitted the prosecutor to use a document which was not
authenticated. Tex. R. Evid. 901(b), 902(1), (2), (4). We note that Texas Rule of Evidence 902
expressly designates certain public records as self-authenticating. Id. 902(1), (2), (4) (recognizing
as self-authenticating domestic documents under seal, domestic documents not under seal but
certified, and certified copies of public records). Because we cannot examine the inventory, we
cannot determine whether it was self-authenticating.
  7
      Again, because the State merely asked appellant to identify a marked exhibit, which would not
require an objectionable response, defense counsel’s objection may be viewed as premature. See
Dinkins, 894 S.W.2d at 355; Guzman, 521 S.W.2d at 269; Webb, 480 S.W.2d at 400.

                                                  10
discretion. In addition, after reviewing the entire record, we cannot say that admission of this

evidence influenced the jury, or, in any event, had more than a slight effect on the jury. Accordingly,

we overrule appellant’s issue on appeal.


                                           CONCLUSION

               We affirm the trial court’s judgment of conviction.




                                               Jan P. Patterson, Justice

Before Chief Justice Aboussie, Justices Yeakel and Patterson

Affirmed

Filed: July 26, 2001

Do Not Publish




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