                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-19-00023-CR


                          BRAD SHERMAN BAPTISTE, APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE

                         On Appeal from the County Court at Law No. 12
                                       Bexar County, Texas1
                     Trial Court No. 531008, Honorable Maria Herr, Presiding

                                           April 21, 2020

                                 MEMORANDUM OPINION
                            Before PIRTLE and PARKER and DOSS, JJ.


        Appellant, Brad Sherman Baptiste, appeals from his jury conviction for the offense

of driving while intoxicated, court-imposed sentence of six months in jail probated for two

years, and an $800 fine. We affirm the judgment of the trial court.




        1
        Originally appealed to the Fourth Court of Appeals, this case was transferred to this Court by the
Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001
(West 2013).
                            Factual and Procedural Background


       Around 1:00 a.m. on November 16, 2016, San Antonio Police Officer Jason Portillo

witnessed a driver commit four traffic violations, specifically failing to signal a lane change

and three instances of veering into other lanes of traffic. On this basis, Portillo initiated a

traffic stop of the vehicle. Appellant was the vehicle’s driver. When Portillo asked

appellant for his identification, appellant had trouble producing his identification as he

fumbled through his wallet. While appellant fumbled through his wallet, Portillo noticed

that appellant had bloodshot and glassy eyes. Portillo asked appellant if he had been

drinking and appellant responded that he had not had that much and that he had stopped

drinking approximately three hours ago.


       Portillo determined that he needed to administer field sobriety tests on appellant.

The first test he administered was the horizontal gaze nystagmus (HGN). According to

Portillo, appellant exhibited six of six clues for intoxication on the HGN. Portillo obtained

appellant’s consent for Portillo to administer the walk-and-turn test. Appellant complained

that the area where Portillo was attempting to administer the test was uneven, so Portillo

moved to a different location. Portillo began administering the test again over appellant’s

continued complaints that the new area was also uneven. According to Portillo, appellant

exhibited seven of eight clues for intoxication on the walk-and-turn test. Finally, Portillo

administered the one-leg stand test. Appellant continued to complain that the testing

surface was uneven. Portillo determined that appellant exhibited three of four clues for

intoxication on the one-leg stand test. Because the field sobriety tests reflected that

appellant was intoxicated, Portillo placed appellant under arrest for driving while

intoxicated. After placing appellant under arrest, Portillo read appellant his Miranda rights


                                              2
and the standard DIC-24 statutory warnings and verified that appellant understood his

rights. Appellant refused to provide a breath specimen.


         After appellant was placed under arrest, Portillo transported him to the magistrate’s

office. The magistrate issued a search warrant authorizing a draw of appellant’s blood.

Appellant’s blood was tested and had a blood-alcohol concentration of 0.176, which is

slightly more than twice the legal limit.


         Appellant was charged with DWI.        At his trial, the above facts were elicited.

Appellant testified on his own behalf. Appellant testified that, on the night of his arrest,

he drank two to three cups of cognac earlier in the evening, but no more than four ounces

total.    He could not explain how his blood testing would reflect a blood-alcohol

concentration of over twice the legal limit. At the close of the trial, a jury convicted

appellant of the offense of driving while intoxicated. Appellant then changed his previous

election and opted to have the trial court assess his sentence. The trial court sentenced

appellant to six months in jail probated for two years, and an $800 fine. From the resulting

judgment, appellant timely appeals.


         By his appeal, appellant presents a single issue. Appellant contends that the trial

court abused its discretion when it overruled appellant’s objections to statements

appellant made on a dash-cam video because the statements were made in response to

custodial interrogation and in violation of the United States and Texas Constitutions. The

State responds that appellant failed to preserve his objections to the dash-cam video and

contends that the evidence was not obtained through custodial interrogation.




                                               3
                                    Preservation of Error


       We agree with the State that appellant did not timely preserve his complaint

regarding the admission of the dash-cam video. “Preservation of error is a systemic

requirement.” Darcy v. State, 488 S.W.3d 325, 327 (Tex. Crim. App. 2016). If an issue

has not been properly preserved for appeal, a reviewing court should not address the

merits of that issue. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). In fact,

it is the duty of this Court to ensure that a claim is preserved in the trial court before

addressing its merits. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op.

on reh’g) (per curiam). To properly preserve a complaint for appeal, the record must show

that the complaining party made a timely request, objection, or motion that identified the

grounds for the ruling sought from the trial court with sufficient specificity to make the trial

court aware of the complaint. TEX. R. APP. P. 33.1(a)(1)(A); see TEX. R. EVID. 103(a)(1).

An objection should be made as soon as the ground for the objection becomes apparent,

which is generally when the evidence is admitted. Dinkins v. State, 894 S.W.2d 330, 355

(Tex. Crim. App. 1995) (en banc). Failing to object at the time evidence is admitted,

without a showing of a legitimate reason to justify the delay, waives the claim of error. Id.


       In the present case, appellant failed to preserve his claim of error in the admission

of his statements recorded on the dash-cam video. Prior to trial, appellant reviewed the

dash-cam video and the State agreed to make certain redactions to the video. During

trial, when the State offered its Exhibit 6, the dash-cam video, appellant affirmatively

stated that he had “[n]o objection” to its admission. “When the defendant affirmatively

asserts during trial he has ‘no objection’ to the admission of the complained of evidence,

he waives any error in the admission of the evidence . . . .” Ex parte Moore, 395 S.W.3d


                                               4
152, 157 (Tex. Crim. App. 2013) (orig. proceeding). Consequently, appellant’s contention

that the dash-cam video should be excluded from evidence has not been preserved for

our review.2


        However, the primary reason that appellant’s objection to the dash-cam video is

not preserved is that his objection to this evidence was untimely. After the video was

admitted into evidence and was being presented to the jury, appellant first objected

approximately ten minutes into the video. Because this objection was not raised until

after the exhibit had already been introduced and no legitimate reason to justify the delay

was identified by appellant, his objection to the admission of the dash-cam video was

waived. Dinkins, 894 S.W.2d at 355.




         2 Each of the cases cited by the concurrence involve an instance in which the defendant had

previously preserved his claim of error prior to stating that he had “no objection” to the evidence when
subsequently offered. See Thomas v. State, 408 S.W.3d 877 (Tex. Crim. App. 2013) (error previously
preserved by pre-trial motion to suppress); Bouyer v. State, 264 S.W.3d 265, 268-69 (Tex. App.—San
Antonio 2008, no pet.) (error preserved by pre-trial motion to suppress even though hearing on motion not
held until after the evidence was admitted); Shedden v. State, 268 S.W.3d 717, 730 (Tex. App.—Corpus
Christi 2008, pet. ref’d) (error preserved by pre-trial motion to suppress and trial court specifically advised
by defendant that he did not intend to waive his objections to admission of the evidence); 43A George E.
Dix And John M. Schmolesky: CRIMINAL PRACTICE AND PROCEDURE § 53:150 (3d ed. 2011) (waiver “open
to doubt” where defense counsel’s “no objection” statement might have been intended to mean that
defendant had no objections beyond those already presented and rejected and the trial court was not misled
into believing that the defense no longer wished to pursue that objection). We conclude that these cases
hold that a defendant’s statement of “no objection” to the State’s proffered evidence does not forfeit the
defendant’s earlier-preserved claim of error in the admission of the evidence.

        In the present case, however, appellant did not previously preserve his claim of error in the
admission of the evidence reflected in the dash-cam video. He did not file a motion to suppress the dash-
cam video and he had not apprised the trial court of any objection relating to the dash-cam video prior to
its admission. See Madrigal v. State, No. 07-14-00350-CR, 2016 Tex. App. LEXIS 7487, at *5-6 (Tex.
App—Amarillo July 13, 2016, pet. ref’d) (where defendant “never obtained a hearing, or a ruling, on his
motion to suppress, Thomas has no application.”).
                                                      5
                                        Custodial Interrogation


       However, even if appellant had timely objected to introduction of the dash-cam

video, the statements made by appellant that were recorded by the dash-cam were not

the result of custodial interrogation.


       A trial court’s decision to admit or exclude evidence is reviewed under an abuse of

discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A

court abuses its discretion if its decision is arbitrary, unreasonable, or is made without

reference to any guiding rules or principles. Rhomer v. State, 569 S.W.3d 664, 669 (Tex.

Crim. App. 2019).


       The Fifth Amendment of the United States Constitution protects an individual from

being compelled to be a witness against himself in any criminal case. Herrera v. State,

241 S.W.3d 520, 525 (Tex. Crim. App. 2007). The warnings required by Miranda3 were

established to protect an uncounseled individual’s privilege against self-incrimination

during custodial interrogation. Id. Custodial interrogation is defined as “questioning

initiated by law enforcement officers after a person has been taken into custody or

otherwise deprived of his freedom of action in any significant way.” Id. A person is in

custody if “a reasonable person would believe that his freedom of movement was

restrained to the degree associated with a formal arrest.” Id. A DWI investigation that

includes questioning before, during, or immediately after field sobriety tests does not by

itself give rise to custody. State v. Stevenson, 958 S.W.2d 824, 828-829 (Tex. Crim. App.

1997) (en banc) (discussing Berkemer v. McCarty, 468 U.S. 420, 441, 104 S. Ct. 3138,




       3   Miranda v. Ariz., 384 U.S. 436, 498-99, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
                                                     6
82 L. Ed. 2d 317 (1984), as concluding that the administration of field sobriety tests

followed immediately by questioning was not custodial interrogation).


       In the present case, appellant was not in custody when he made the statements

recorded in the dash-cam video. Immediately upon effectuating the traffic stop, Portillo

asked appellant for his identification. After appellant was unable to locate his license,

Portillo asked appellant if he had been drinking and appellant admitted that he had but

that it was not that much. Portillo began performing field sobriety tests to determine

whether it would be safe for appellant to drive.         Appellant voiced no objection to

performing the tests, other than claiming that the surface was uneven.              Appellant

expressly consented to perform the walk-and-turn test. Only after Portillo completed all

three field sobriety tests was appellant placed under arrest.            Consequently, any

statements appellant gave as a result of Portillo’s questioning were not obtained from

custodial interrogation.


       Appellant contends that, after Portillo completed the HGN, appellant was in

custody because Portillo had enough information at that time to arrest appellant.

However, the test to determine whether a person is in custody is not based on whether

the officer has sufficient information to warrant an arrest but, rather, whether the individual

believed that their freedom of movement was restrained to the degree associated with a

formal arrest. See Herrera, 241 S.W.3d at 525. Appellant simply concludes that Portillo’s

investigative detention became an arrest after Portillo completed the HGN. We do not

agree that a reasonable person would have believed that they were in custody during the

period after the HGN but before appellant was placed under formal arrest.




                                              7
         Finally, the purpose of providing constitutional warnings before custodial

interrogation is to protect an individual’s right against self-incrimination. Id. Nothing that

appellant said after Portillo completed the HGN was incriminating. According to appellant,

the statements that he made that should have been excluded were that he had not had

anything to drink in three hours, the ground where the field sobriety tests were being

performed was not level, and that he had been “doing this shit all my life.” The only other

statement made by appellant during this time was his assertion that he was not intoxicated

immediately prior to being placed under formal arrest.


                                         Conclusion


         Because appellant failed to preserve his complaint regarding the admission of

evidence during his trial, we overrule his sole issue and affirm the judgment of the trial

court.




                                                         Judy C. Parker
                                                            Justice


Do not publish.


Pirtle, J., concurring and dissenting.




                                              8
