                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-15-00061-CR
                            ____________________

                    ANDY RICHARD STROUSE, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________             ______________

                    On Appeal from the 221st District Court
                         Montgomery County, Texas
                       Trial Cause No. 13-08-09050 CR
________________________________________________________             _____________

                          MEMORANDUM OPINION

      Following a jury trial that resulted in his conviction for driving while

intoxicated, a felony, Andy Richard Strouse appeals, arguing (1) the trial court

erred by failing to suppress all of the evidence that police obtained in searching his

truck, all the evidence regarding what he said to the police the evening of his

arrest, and the results of his blood test; (2) insufficient evidence was admitted in

his trial to show, beyond reasonable doubt, that he was intoxicated when he

operated his truck; (3) insufficient evidence was admitted in his trial to prove that


                                          1
he used or exhibited a deadly weapon when committing the offense; (4) his counsel

rendered ineffective assistance; and, (5) the trial court’s decision to give him a

forty-year sentence imposed a cruel and unusual punishment that violated his

constitutional rights.

      In its brief, the State concedes that insufficient evidence was admitted during

the trial to support the jury’s finding that Strouse used or exhibited a deadly

weapon when he committed the offense. However, as to the remaining issues, we

conclude that Strouse failed to properly preserve his complaints for our review or

that his complaints are without merit. Accordingly, we modify the trial court’s

judgment, and we delete the deadly-weapon finding; in all other respects, the trial

court’s judgment, as modified in the appeal, is affirmed.

                              Admission of Evidence

      In issue one, Strouse argues that in the guilt-innocence phase of his trial, the

trial court erred by allowing the State to introduce the evidence found by the police

following their search of his truck, any testimony regarding the statements that he

made to the investigating officers regarding whether he had recently been driving,

and the results of a blood draw that showed Strouse had ingested

methamphetamine. According to Strouse, all of this evidence should have been

excluded from the jury because the searches were done without warrants and

because, given that he was intoxicated, he could not have validly given the police
                                          2
permission to search his truck or to draw his blood. In response, the State argues

that Strouse failed to object to all but two of the exhibits, State’s Exhibits 11 and

12,1 which were admitted over his objections in the trial. Additionally, the State

argues that when Strouse lodged objections to Exhibits 11 and 12 at trial, there was

not yet any evidence showing that he was unable “to comprehend his decision to

allow law enforcement to search his vehicle to the extent that such consent was

rendered involuntary.”

      Strouse did not ask that the trial court conduct a suppression hearing

regarding the various exhibits that he complains the trial court erred by admitting

in his trial.2 Additionally, Strouse was required to lodge contemporaneous

objections each time the State offered the evidence that he addresses in his appeal,


      1
        State’s Exhibit 11 consists of a photograph of a jar and its contents that
police removed from Strouse’s truck. State’s Exhibit 12 consists of a photograph of
a butane lighter, which the police removed from the cab of the truck.
      2
         Strouse did not object to the admission of the consent form he signed that
gave his permission to collect and submit a specimen of his blood for testing, to the
test results on the contents of material in the jar that showed the jar contained trace
amounts of methamphetamine, or to the lab results that showed Strouse had
methamphetamine in his blood. In his appeal, Strouse also argues that the
statement he made to police at the scene, indicating that he had recently driven his
truck, was inadmissible. According to Strouse, the statement is the product of a
pre-Miranda custodial interrogation that occurred in violation of state law. See
generally Tex. Code Crim. Proc. Ann. art. 38.22 (West Supp. 2015). However,
during the trial, Strouse did not object to the admission of his statement on the
grounds that it was inadmissible under the Texas Code of Criminal Procedure. See
Tex. R. App. P. 33.1.
                                          3
and he was required to object each time the evidence was admitted to preserve his

complaints about the various items of evidence he is complaining about in his

appeal. See Ethington v. State, 819 S.W.2d 854, 859 (Tex. Crim. App. 1991). In

Strouse’s case, the record shows that he never obtained a running objection to any

of the items of evidence that he contends were inadmissible. Additionally, with

respect to the objections Strouse made regarding Exhibits 11 and 12, his objections

are not the same as his appellate arguments, which assert the exhibits were

inadmissible because he was so intoxicated he could not have voluntarily

consented to any requests to conduct a search. Therefore, with respect to Exhibits

11 and 12, Strouse must show that the grounds for the arguments that he advances

in his appeal would have been apparent to the trial court from his objection at trial

that the contents in his truck represented the fruits of an illegal search. See Pena v.

State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009); Tex. R. App. P. 33.1.

      Generally, when an appellant’s trial objections are inconsistent with the

arguments that the appellant advances on appeal, the objections are deemed

insufficient to preserve the argument for purposes of the appeal, unless “the correct

ground of exclusion was obvious to the judge and opposing counsel[.]” Zillender v.

State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). For example, “a complaint

that could, in isolation, be read to express more than one legal argument will

generally not preserve all potentially relevant arguments for appeal.” Resendez v.
                                          4
State, 306 S.W.3d 308, 314 (Tex. Crim. App. 2009). Likewise, “[w]hen the

objection is not specific, and the legal basis is not obvious, it does not serve the

purpose of the contemporaneous-objection rule for an appellate court to reach the

merits of a forfeitable issue that is essentially raised for the first time on appeal.”

Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006).

      It is settled law that the police can conduct a search without probable cause

or a warrant when the defendant consents to the request made by police to allow

the search to occur. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). The

evidence before the trial court shows that Strouse never objected to the admission

of Exhibits 11 and 12 on the basis that the extent of his intoxication rendered his

consent involuntary. Because the trial court was not given the opportunity to rule

on the arguments concerning Exhibits 11 and 12 that he advances in his appeal, his

appellate arguments regarding these exhibits were not properly preserved for our

review. Moreover, with respect to Strouse’s remaining arguments, which complain

of the admission of the remaining exhibits, Strouse did not object when these

exhibits were offered into evidence during his trial, thereby forfeiting his right to

complain about their admission on appeal. Issue one is overruled.

                             Driving While Intoxicated

      In issue two, Strouse argues the evidence is insufficient to show that he

operated the truck at a time when he was intoxicated. In response, the State argues
                                          5
the jury could reasonably infer that Strouse had driven the truck during periods

when he was intoxicated from the evidence that showed Strouse admitted to an

officer investigating the case that he had been driving, and evidence that showed

Strouse was the only person seen with his truck after the truck appeared near the

end of a homeowner’s driveway. The State also contends that the jury could infer

that Strouse had operated the truck in an intoxicated state based on the evidence

showing that he pressed the truck’s brake, shifted gears, and turned the truck’s

engine off, even though when he did these things, the truck never moved.

      When reviewing whether evidence in a criminal case is sufficient to support

a defendant’s conviction, we review all of the evidence in the light most favorable

to the verdict, and then determine whether, based on the evidence and reasonable

inferences from the evidence, rational jurors could have found that the defendant

committed the essential elements of the crime under a standard of beyond

reasonable doubt. See Roberts v. State, 273 S.W.3d 322, 326-27 (Tex. Crim. App.

2008) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). By reviewing the

evidence in the light most favorable to the verdict, the appeals court gives the jury

proper deference, which allows the jury to fulfill its responsibility to fairly resolve

any conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from the evidence that is before them in a trial. See Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007); see also Williams v. State, 235 S.W.3d 742,
                                          6
750 (Tex. Crim. App. 2007). In reviewing a complaint challenging the sufficiency

of the evidence supporting a defendant’s conviction, it is not our role to substitute

our judgment for the factfinder’s when the factfinder’s conclusions are reasonable

based on the evidence that is admitted at trial. See Dewberry v. State, 4 S.W.3d

735, 740 (Tex. Crim. App. 1999).

      Strouse argues that the evidence before the jury, for a variety of reasons,

fails to satisfy the corpus delicti rule. The corpus delicti rule concerns a matter that

is related to evidentiary sufficiency, and the rule applies in “cases in which there is

an extrajudicial confession.” Miller v. State, 457 S.W.3d 919, 924 (Tex. Crim.

App. 2015); Carrizales v. State, 414 S.W.3d 737, 743 (Tex. Crim. App. 2013). The

corpus delicti rule requires evidence outside the defendant’s confession to establish

that the defendant was guilty of the crime the jury convicted him of having

committed. Salazar v. State, 86 S.W.3d 640, 645 (Tex. Crim. App. 2002).

Nonetheless, the corpus delicti rule does not require the State to prove the identity

of the perpetrator of the crime; instead, the confession may be used to support the

conclusion that the defendant is the person who committed the crime. Gribble v.

State, 808 S.W.2d 65, 70 (Tex. Crim. App. 1990).

      With respect to cases that involve the crime of driving while intoxicated, the

corpus delicti rule requires proof showing that someone operated a motor vehicle

in a public place while intoxicated. Layland v. State, 144 S.W.3d 647, 650-52
                                           7
(Tex. App.—Beaumont 2004, no pet.). In Strouse’s case, the record contains the

testimony of witnesses, other than Strouse, that placed Strouse behind the wheel of

his truck at a time when the jury could have inferred that he was intoxicated. For

example, the evidence shows that Strouse’s truck was first noticed by a

homeowner in the street near the end of the homeowner’s driveway. The

homeowner, near whose driveway police found Strouse’s truck, called 911 around

6:00 p.m. to report that a truck had been parked near his driveway. The homeowner

indicated that he had not seen the truck approximately an hour before calling, so

the jury could have reasonably inferred that Strouse’s truck had only recently been

parked there before the homeowner saw it. The homeowner indicated in his

testimony that after noticing the truck, he watched a man, identified by others as

Strouse, get out of the driver’s side of the truck, stagger to the back, drop the

tailgate, and take a seat. The homeowner explained that he watched Strouse for

approximately thirty minutes, and that he then saw Strouse move around the truck,

first to the passenger side, then to the driver’s side. The homeowner testified that

he saw the truck’s brake lights come on after he saw Strouse return to the driver’s

seat of the truck. Fearing that Strouse might leave, and based on his perception that

Strouse was severely impaired, the homeowner called 911 a second time due to his

concern that Strouse had no “business behind the wheel of a vehicle.”


                                         8
      Deputy Jordan, the officer who investigated why the truck was parked in the

neighborhood, also provided testimony relevant to the jury’s finding that Strouse

operated the truck while in an intoxicated state. Deputy Jordan testified that when

he initially approached Strouse’s truck, Strouse appeared to be getting out of the

truck on the driver’s side. According to Deputy Jordan, when he first saw Strouse,

the truck’s engine was running and the engine of the truck was in neutral. Deputy

Jordan explained that he watched Strouse as he walked in an unsteady manner

around the back of the truck and toward the passenger side, while holding onto the

truck for support.

      Strouse also testified in his defense during the trial. He indicated that he

woke up in the passenger seat, realized the truck was running, and he moved to the

driver’s seat where he pressed on the brake, put the truck into park, and turned the

truck’s engine off. The testimony of Strouse, the homeowner, and Deputy Jordan

supports the jury’s conclusion that someone, while intoxicated, operated the truck

in a public place. See Layland, 144 S.W.3d at 650-52.

      Strouse also argues that the statement he made to one of the other officers

involved in the investigation should have been excluded because it was not

obtained legally. According to that officer, Strouse told him that he had been

driving. However, Strouse failed to challenge the admission of the officer’s

testimony about the statement when the statement was offered at Strouse’s trial.
                                         9
Additionally, in conducting a legal sufficiency review, we are to consider all of the

evidence in the record. See Dewberry, 4 S.W.3d at 740.

      From the combined force of the cumulative evidence, including the fact that

no other occupants of the truck were with Strouse when he was seen with his truck,

the jury could reasonably conclude, beyond reasonable doubt, that Strouse had

operated the truck on a public roadway at a time when he was intoxicated. See

Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995); see also Barton v.

State, 882 S.W.2d 456, 458 (Tex. App.—Dallas 1994, no pet.). We conclude the

evidence before the jury allowed the jury to conclude, beyond reasonable doubt,

that Strouse had operated his truck while intoxicated. We overrule issue two.

                             Deadly-Weapon Finding

      In issue three, Strouse contends the evidence is insufficient to support the

jury’s deadly-weapon finding. In response, the State concedes that it failed to

produce sufficient evidence showing that the truck had been used as a deadly

weapon.

      To sustain a deadly-weapon finding in a case involving a vehicle, the

evidence must show that the defendant used the vehicle in a way that it placed

others in actual danger of death or serious bodily injury. Brister v. State, 449

S.W.3d 490, 494-95 (Tex. Crim. App. 2014). Evidence showing that a driver

operated a vehicle while intoxicated, without more, is insufficient to support a
                                         10
jury’s finding that a driver used the vehicle as a deadly weapon. Id. In this case, for

example, there is not any evidence of any near miss collisions with any other

objects that were either on or off the road. On appeal, the appeals court is required

to delete a deadly-weapon finding from the judgment if it is not supported by

legally sufficient evidence. Gutierrez v. State, 741 S.W.2d 444, 445 (Tex. Crim.

App. 1987). We sustain issue three with respect to Strouse’s complaint about the

jury’s deadly-weapon finding.

                         Ineffective Assistance of Counsel

      In issue four, Strouse contends that he received ineffective assistance of

counsel during trial. Strouse asserts that his trial counsel was deficient because

counsel allowed the State to ask leading questions of various witnesses. According

to Strouse, by allowing the State to present its case through leading questions, the

State presented its case in a dramatic way. Additionally, Strouse complains that his

trial counsel failed to develop a plausible defensive theory, and compounded that

problem by asking to re-open by calling Strouse as a witness. When he testified,

Strouse explained that on the morning before he was arrested, he had taken

prescription sleeping pills, and on the night before the arrest, he had taken

methamphetamine. In his appeal, Strouse argues that this evidence supports the

jury’s conclusion that he was intoxicated. Strouse also complains counsel lacked

knowledge about methamphetamines, failed to cross-examine the State’s expert
                                          11
witnesses regarding the effect of methamphetamine and sleeping pills, failed to

present a witness to explain to the jury the effect of these drugs, and failed to do

anything “to subject the State’s case to meaningful, adversarial testing.” Strouse

concludes that his trial counsel had no conceivable strategy to defend him against

the charges the State brought against him.

      In response, the State notes that the record is silent regarding the reasons

why Strouse’s case was presented to the jury in the manner at issue. According to

the State, the choices that Strouse criticizes trial counsel for making possibly

represent reasonable options between different legitimate trial strategies, given the

facts available to defend Strouse in the case.

      To show that trial counsel was ineffective, Strouse must demonstrate that

trial counsel’s performance was deficient because it fell below an objective

standard of reasonableness, and he must show that but for counsel’s unprofessional

errors, the result of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 687 (1984). On appeal, we “analyze the reasonableness

of counsel’s conduct on the facts of the particular case, viewed at the time of the

conduct.” Okonkwo v. State, 398 S.W.3d 689, 693 (Tex. Crim. App. 2013). Once

the appellant identifies the acts or omissions of counsel that he claims were

ineffective, the court reviewing the case must “determine whether, in light of all

the circumstances, the acts or omissions were outside the wide range of
                                          12
professionally competent assistance.” Id. When the record indicates that counsel

never was provided an opportunity to explain the conduct that his former client

challenges in the appeal, we generally must assume that the explanation counsel

would have given likely related to the strategy employed in presenting the case.

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

      In Strouse’s case, Strouse did not file a motion for new trial; consequently,

the record before us is silent concerning whether the complaints Strouse levels at

trial counsel represented reasonable choices between different possible strategies.

Because Strouse’s trial attorney was not given an opportunity to explain the

choices he made in defending Strouse, we are unable to evaluate Strouse’s claim

that his representation was constitutionally ineffective. See Rylander v. State, 101

S.W.3d 107, 111 (Tex. Crim. App. 2003).

      For instance, with respect to Strouse’s complaint regarding leading

questions, if the evidence would have been admitted anyway, it is possible that

allowing leading questions might constitute a sound strategy. Wheeler v. State, 433

S.W.3d 650, 655 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). With respect to

Strouse’s criticism regarding counsel’s failure to compel a witness to appear for

trial, we cannot tell whether the decision was a matter of trial strategy, given a

record that contains nothing to explain why the witness was not called or what the

witness would have said. See Brown v. State, 866 S.W.2d 675, 678 (Tex. App.—
                                        13
Houston [1st Dist.] 1993, pet. ref’d). Additionally, Strouse provided the court with

no explanation of what a plausible defense strategy should have been given the

facts in his case, nor does he explain how another strategy would have altered the

result that he achieved. See Rylander, 101 S.W.3d at 110-11. Moreover, we are

unable to speculate about these matters. Id.

      Given the undeveloped state of the record, the proper procedure requires that

we overrule issue four without prejudice to Strouse’s right to raise his

ineffectiveness claims in a post-conviction writ. See Robinson v. State, 16 S.W.3d

808, 813 n.7 (Tex. Crim. App. 2000). We overrule issue four.

                           Cruel and Unusual Punishment

      In issue five, Strouse contends his forty-year sentence represents a cruel and

unusual punishment that violates the Eighth and Fourteen Amendments. According

to Strouse, his sentence is greatly disproportionate to the nature of his crime. The

State contends that Strouse failed to preserve error on this issue.

      Generally, a defendant forfeits complaints about a sentence being cruel and

unusual if such complaints were not raised at trial. Diamond v. State, 419 S.W.3d

435, 440 (Tex. App.—Beaumont 2012, no pet.); see also Garza v. State, 435

S.W.3d 258, 260-61 (Tex. Crim. App. 2014). The record reflects that Strouse did

not object to his sentence when it was pronounced and that he did not object to the

length of his sentence in any post-trial motions. Therefore, the record shows that
                                          14
the trial court was never asked to rule on any complaint that the sentence it

imposed was disproportionate as compared to the nature of Strouse’s crime. We

conclude that Strouse failed to preserve for appeal the complaints that he raises

about his sentence. See Tex. R. App. P. 33.1(a). We overrule issue five.

      Nonetheless, even if Strouse had preserved the complaint he raises regarding

the length of his sentence, his complaint has no merit. “A sentence is grossly

disproportionate to the crime only when an objective comparison of the gravity of

the offense against the severity of the sentence reveals the sentence to be extreme.”

Harris v. State, 204 S.W.3d 19, 29 (Tex. App.—Houston [14th Dist.] 2006, pet.

ref’d). The record before us reflects that Strouse was indicted as a habitual

offender; the evidence shows that he has prior felony convictions for forgery and

attempted murder. His criminal record includes other prior convictions as well, for

theft, burglary of a building, failure to identify, and evading arrest. He has also

been convicted in four other cases for driving while intoxicated.

      Under recidivism statutes, the defendant’s sentence is based not merely on

the defendant’s most recent offense, but it is also based on the propensities the

defendant has demonstrated over a period of time showing that the fact he was

previously punished for crimes failed to deter his additional criminal behavior. Id.

Given his status as a habitual offender, the evidence in the record does not support

Strouse’s argument that his sentence was unconstitutionally harsh.
                                         15
                                     Conclusion

      In light of our resolution of Strouse’s challenge to the jury’s deadly-weapon

finding, we strike the affirmative deadly-weapon finding and the language in the

judgment reciting that “[t]he Court FINDS Defendant used or exhibited a deadly

weapon during the commission of a felony offense or during immediate flight

therefrom or was a party to the offense and knew that a deadly weapon would be

used or exhibited.” In all other respects, the trial court’s judgment, as modified, is

affirmed.

      AFFIRMED AS MODIFIED.


                                              ________________________________
                                                      HOLLIS HORTON
                                                            Justice


Submitted on November 30, 2015
Opinion Delivered July 13, 2016
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




                                         16
