McCallister, Charles Lee v. State

Affirmed and Memorandum Opinion filed February 28, 2006 Affirmed and Memorandum Opinion filed February 28, 2006. In The Fourteenth Court of Appeals _______________ NO. 14-04-00375-CR _______________ CHARLES LEE McCALLISTER, Appellant V. THE STATE OF TEXAS, Appellee ________________________________________________ On Appeal from the County Criminal Court at Law No. 14 Harris County, Texas Trial Court Cause No. 1191661 ________________________________________________ M E M O R A N D U M   O P I N I O N Charles Lee McCallister appeals a conviction for driving while intoxicated[1] (ADWI@) on the grounds that: (1) his constitutional rights were violated by the trial court=s denial of his motion to suppress evidence obtained from a search of his vehicle; (2) radar detection evidence was admitted in error; (3) his constitutional right to remain silent was violated; and (4) he was denied effective assistance of counsel. We affirm. Suppression of Evidence Appellant=s first and second issues contend that he was subjected to an illegal de facto arrest at the inception of his traffic stop when Deputy Smith, with his weapon drawn, ordered appellant out of his vehicle and onto the ground, where appellant remained until a second officer, Deputy McCall, arrived, handcuffed appellant, and placed him in the back of a patrol car. Appellant argues that because this arrest was without probable cause and objectively unreasonable, the evidence that was obtained in the ensuing search of his vehicle[2] was illegally obtained and thus inadmissible at trial. We review a trial court=s ruling on a motion to suppress with great deference to the trial court=s determination of historical facts, while reviewing de novo the court=s application of the law. Torres v. State, __ S.W.3d __, 2005 WL 3310462, at *2 (Tex. Crim. App. 2005). Where, as here, no findings of fact are made, the evidence is viewed in the light most favorable to the trial court=s ruling, and we assume that the trial court made implicit findings of fact that support its ruling, as long as the findings are supported by the record. Id. A police officer may arrest an offender without a warrant for any offense committed in his presence or view. Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). Violations of subtitle C of the Transportation Code are generally among the offenses for which an officer may arrest without a warrant.[3] Tex. Transp. Code Ann. ' 543.001 (Vernon 1999). A person commits the misdemeanor offense of fleeing or attempting to elude a police officer when he willfully fails or refuses to bring his vehicle to a stop when given a visual or audible signal by a pursuing police vehicle. See id. ' 545.421(a). Once an officer has probable cause to arrest, he may search the passenger compartment of a vehicle as a search incident to that arrest. Thornton v. U.S., 541 U.S. 615, 623 (2004); see also Glazner v. State, 175 S.W.3d 262, 265 (Tex. Crim. App. 2005). In this case, Smith initially began pursuing appellant for speeding. However, rather than pulling over in response to Smith=s emergency lights and siren, appellant drove several miles down the freeway at the same speed, bypassing several locations at which to safely pull over. Smith thus radioed the police dispatcher that he was in pursuit of a vehicle and needed assistance in stopping it. Because appellant maintained his speed and bypassed several safe opportunities to stop despite Smith=s signals to do so, Smith had probable cause to arrest him without a warrant for fleeing or attempting to elude.[4] See Tex. Transp. Code Ann. ' 543.001.[5] Finally, once appellant was handcuffed and placed in the back of Smith=s patrol car, Smith observed that appellant had bloodshot eyes, a flushed face, a strong odor of alcohol on his breath, and mental confusion. Thus, at this point, Smith also had probable cause to arrest appellant without a warrant for DWI. See Tex. Penal Code Ann. '' 49.01(2), 49.04(a) (Vernon 2003); see also State v. Ballard, 987 S.W.2d 889, 893 (Tex. Crim. App. 1999). This evidence, viewed in the light most favorable to the trial court=s ruling, supports the trial court=s implied determination that, prior to searching appellant=s vehicle,[6] Smith had probable cause to arrest appellant for evasion and DWI, and thus authority to search appellant=s vehicle incident to the arrest. See Thornton, 541 U.S. at 623; Glazner, 175 S.W.3d at 265. Accordingly, appellant=s first and second issues fail to demonstrate that the trial court erred in denying appellant=s motion to suppress, and are overruled. Radar Evidence Appellant=s third issue argues that radar detection evidence was improperly admitted over his objection because: (1) the State failed to establish that the radar device was working properly on the occasion in question; (2) the only basis for Smith=s belief that appellant was committing a traffic offense was Smith=s reliance on the radar device; and (3) Smith testified that appellant=s speed influenced his belief that appellant was intoxicated. However, appellant fails to explain how this evidence, which established reasonable suspicion for Smith to stop appellant for speeding:[7] (1) would have been inadmissible for that purpose (i.e., to establish reasonable suspicion) due to the lack of evidence he alleges regarding the device; or (2) was material to his conviction for DWI.[8] Accordingly, because appellant=s third issue does not demonstrate either error or harm[9] in the admission of the radar evidence, it is overruled.[10] Right to Remain Silent Appellant=s fourth and fifth issues complain that his constitutional right to remain silent was violated by: (1) the admission of the deputies= testimony regarding his post-arrest silence; (2) opening and closing arguments by the State; and (3) admission of testimony regarding appellant=s refusal to submit to field sobriety tests or sign forms. A defendant=s constitutional right to remain silent and not have that silence used against him at trial[11] is a forfeitable right. See Wheatfall v. State, 882 S.W.2d 829, 836 (Tex. Crim. App. 1994). Consequently, a defendant must object to preserve complaints concerning admission of evidence indicating his pre- or post-arrest silence. Id. Additionally, responses to requests for identification and reference to refusals of field sobriety testing generally do not violate the privilege against self-incrimination protected by the right to remain silent. See Griffith v. State, 55 S.W.3d 598, 603 (Tex. Crim. App. 2001); Miffleton v. State, 777 S.W.2d 76, 79-80 (Tex. Crim. App. 1989). Appellant specifically complains that his right to remain silent was violated when: (1) Smith testified that appellant=s response to Smith=s request for identification was, A[W]hat identification?@; (2) during closing argument, the State reminded the jury that Deputy McCall had Atried to talk to@ appellant about his confusing answers to questions regarding appellant=s behavior; (3) the State elicited testimony during trial that appellant refused to submit to field sobriety tests, refused to sign forms, and answered questions in a confusing manner; and (4) the State argued that appellant chose not to submit to various field sobriety tests during opening and closing argument. However, because appellant did not object to any of these alleged violations, none are preserved for our review.[12] See Tex. R. App. P. 33.1. Appellant also argues that this right was violated when Deputy Smith testified that appellant Awasn=t saying anything@ while he was lying on the ground beside his vehicle. However, because appellant objected to this testimony only after several other questions had been asked and answered, the objection was not timely and thus failed to preserve this complaint for our review.[13] See Tex. R. App. P. 33.1; see also Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). Appellant additionally contends that the State violated his right to remain silent by mentioning, during closing argument, that he had refused to sign a breath test refusal form. However, appellant=s objection to this argument was that there was no evidence that appellant refused to sign it, not that his right to remain silent had been violated. Because appellant=s objection at trial does not comport with his constitutional complaint on appeal, it presents nothing for our review. See Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005). Accordingly, appellant=s fourth and fifth issues are overruled. Ineffective Assistance of Counsel Appellant=s sixth issue contends that he was denied the effective assistance of counsel because his trial counsel failed to: (1) request an instruction based on article 38.23 of the Texas Code of Criminal Procedure;[14] and (2) object each time the prosecutor commented on appellant=s post-arrest silence. A defendant=s right to effective assistance of counsel is denied when a defense attorney=s performance falls below an objective standard of reasonableness and there is a reasonable probability that, but for the error, the result of the proceeding would have been different. Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Wiggins v. Smith, 539 U.S. 510, 521, 534 (2003); Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004), cert. denied, 543 U.S. 1059 (2005). Appellate review of defense counsel=s representation is highly deferential and presumes that counsel=s actions fell within the wide range of reasonable and professional assistance. Scheanette, 144 S.W.3d at 509. Without a record establishing trial counsel=s reasons for the challenged action or omission, the presumption of reasonable trial strategy can only be overcome where no reasonable trial strategy could justify that action or omission. See Andrews v. State, 159 S.W.3d 98, 101-03 (Tex. Crim. App. 2005). Even where counsel focuses on some issues to the exclusion of others, ineffectiveness is not shown unless the omitted matters were clearly more persuasive than those asserted.[15] To show ineffective assistance of counsel for the failure to object during trial, an appellant must show that the trial court would have committed error in overruling the objection. Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004). In this case, appellant contends that the illegality of his arrest and precluding the State from introducing evidence of his post-arrest silence were both central to his defense. However, appellant failed to develop a record of his trial counsel=s reason for not requesting an article 38.23 instruction, and has not shown that a choice not to pursue the legality of his arrest with the jury was either unreasonable as a matter of law or clearly more persuasive than the issues counsel elected to emphasize.[16] In addition, the unobjected to comments on appellant=s post-arrest silence included only his response to requests for identification and reference to his refusal of field sobriety testing, neither of which violated his privilege against self-incrimination. See Griffith, 55 S.W.3d at 603; Miffleton, 777 S.W.2d at 79-80. Because the trial court would not have erred in overruling these objections, his counsel cannot be deemed ineffective for failing to assert them. See White, 160 S.W.3d at 53. Similarly, appellant has provided no basis to conclude that, but for these alleged errors, there is a reasonable probability that the outcome of his trial would have been a not guilty verdict or a lesser punishment. See Bone v. State, 77 S.W.3d 828, 837-38 (Tex. Crim. App. 2002). Because appellant=s sixth issue thus fails to demonstrate ineffective assistance of counsel, it is overruled, and the judgment of the trial court is affirmed. /s/ Richard H. Edelman Justice Judgment rendered and Memorandum Opinion filed February 28, 2006. Panel consists of Justices Edelman, Seymore, and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] A jury convicted appellant and assessed a 15 day sentence. However, the trial court suspended the sentence and placed appellant on community supervision for one year. [2] This evidence consisted of a half-empty bottle of whiskey and a glass with what smelled like whiskey residue. [3] However, for the offense of speeding, the officer must issue a written notice to appear, and, if the person arrested signs it, the officer must promptly release the person. See Tex. Transp. Code Ann. '' 543.004(a), 543.005 (Vernon Supp. 2005). [4] Additionally, while in pursuit of appellant, Smith saw appellant throw something out of his driver=s side window, and lean forward and reach backward several times. Smith testified that he was quite concerned at this point that appellant was retrieving or hiding a weapon. After appellant pulled off the well-lit freeway and finally came to a stop on a side street, Smith drew his weapon and ordered appellant to remain in his vehicle with his hands visible. Rather than obey this order, appellant again began reaching around in the passenger compartment of his truck, so Smith ordered appellant out of the vehicle and onto the ground next to appellant=s truck where Smith=s spot light was shining. However, instead of complying, appellant walked to the front of his truck, where Smith saw appellant putting his hands in the waistband of his pants and then momentarily lost sight of him. Smith then shouted at appellant to lie down on the roadway, and appellant finally complied. Smith held appellant at gunpoint until McCall arrived, handcuffed appellant, and put him in the backseat of Smith=s patrol car. Although not central to our disposition, appellant=s brief fails to demonstrate that under these circumstances Smith did not have reasonable grounds to believe he could be in danger of bodily harm or injury, and was therefore justified in taking such precautions as drawing his gun and ordering appellant to lie face down next to his vehicle. [5] See also Randolph v. State, No. 14-98-00514-CR, 2000 WL 38783 (Tex. App.CHouston [14th Dist.] Jan. 20, 2000, pet. ref=d) (not designated for publication). [6] Smith testified that his reason for looking inside the vehicle was to find appellant=s identification because appellant was unable to provide it upon request. [7] An officer=s use of a radar device to determine that a defendant was traveling above the speed limit provides adequate grounds to stop a defendant without a warrant. McClain v. State, 984 S.W.2d 700, 702 (Tex. App.CTexarkana 1998, pet. ref=d). [8] The case appellant relies on in support of his argument that the radar evidence was improperly admitted involved the admission of such evidence as proof of guilt of speeding. See Ochoa v. State, 994 S.W.2d 283, 285 (Tex. App.CEl Paso 1999, no pet.). [9] We disregard all non‑constitutional errors that do not have a substantial and injurious effect or influence in determining the jury=s verdict. Tex. R. App. P. 44.2(b); Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005). [10] Moreover, Smith testified that, based on his training and experience, he would have determined appellant was speeding even without radar. [11] The Fifth Amendment of the United States Constitution protects post-arrest silence made only after Miranda warnings have been given. Fletcher v. Weir, 455 U.S. 603, 605-06 (1982), Doyle v. Ohio, 426 U.S. 610, 611 (1976). However, article I, section 10 of the Texas Constitution protects post-arrest silence even before such warnings have been administered. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004). [12] Appellant acknowledges this deficiency in his sixth point of error, alleging that his trial counsel was ineffective for failing to object, discussed below. [13] Appellant also moved for a mistrial, which was denied by the trial court, but he has not challenged the denial of the mistrial on appeal. Similarly, although appellant argues on appeal that error occurred during the State=s examination of Deputy Blanco, the trial court instructed the jury to disregard the objected to question, and appellant has not challenged the trial court=s denial of his motion for a mistrial. [14] Article 38.23 provides that, in any case where the evidence raises an issue regarding whether evidence was obtained in violation of any law or provision of the United States or Texas Constitution, Athe 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. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). Appellant contends that there were several fact issues surrounding the legality of his arrest. [15] See Yarborough, 540 U.S. at 7-9; Smith v. Robbins, 528 U.S. 259, 288 (2000). [16] See Ramirez v. State, 76 S.W.3d 121, 128 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d) (holding that trial counsel could not be found ineffective when appellant did not file a motion for new trial and the record contained no evidence behind his trial counsel=s actions in failing to request such an instruction).