Jimmy Jarrett v. State ( 2009 )

NO. 07-08-0277-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 28, 2009
______________________________
JIMMY JARRETT, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;
NO. CR-08A-003; HONORABLE ROLAND SAUL, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Jimmy Jarrett, was convicted by a jury of felony driving while intoxicated,
enhanced,1 and sentenced to confinement for eighty years. Appellant contends the trial
1
The indictm ent alleged two prior DW I convictions, m aking the prim ary offense a felony of the third
degree. See Tex. Penal Code Ann. § 49.09(b)(2) (Vernon Supp. 2008). The indictm ent also alleged five prior
felony convictions, m aking the offense punishable by im prisonm ent for any term of not m ore than 99 years
or less than 25 years. See § 12.42(d).
court erred when it: 1) denied him the right to assistance of counsel by precluding counsel
from questioning the jury panel concerning certain matters or issues; and 2) denied him the
right to confront his accusers by permitting a witness for the State to testify to the contents
of documents admitted into evidence. We affirm.
I. Voir Dire
The constitutionally guaranteed right to assistance of counsel encompasses the
right to question prospective jurors, during the jury selection process, as to any issue
relevant to the intelligent and effective exercise of peremptory challenges and challenges
for cause. McCarter v. State, 837 S.W.2d 117, 119 (Tex.Crim.App. 1992); Ratliff v. State,
690 S.W.2d 597, 599 (Tex.Crim.App. 1985). This right, however, must coexist and be
harmonized with the trial court’s interest in the efficient administration of justice through the
imposition of reasonable restrictions on the voir dire process. Id.
Appellant contends he was denied the right to assistance of counsel because the
trial court precluded him from questioning prospective jurors on the issues of a defendant’s
right to remain silent, the presumption of innocence, and the State’s burden of proof.
Although Appellant attempts to frame this issue as a constitutional one based upon a
deprivation of an accused’s right to counsel, the gravamen of his complaint is that the trial
court precluded counsel from fully questioning prospective jurors concerning how their
verdict would be influenced if the defense “did nothing.” After exchanging a convoluted
2
dialog with several prospective jurors2 concerning whether they could afford Appellant his
full constitutional rights, Appellant’s counsel moved to strike one juror, moved for a mistrial
due to a “contaminated jury pool,” and objected to the State’s additional voir dire of one
juror. Each request was denied by the trial court. At that point, the trial court stated, “All
right. [Defense counsel] let’s move on to something else.” The trial court never precluded
Appellant’s counsel from asking any specific question or exploring any area of the law and
counsel never made an objection based upon the trial court’s preclusion of questioning as
to any specific issue.
To preserve error on appeal, a party must make a timely, specific objection or
motion to the trial court that states the grounds for the ruling sought with sufficient
specificity and complies with the rules of evidence and procedure. See Tex. R. App. P.
33.1(a). If an argument is presented for the first time on appeal, it is waived. Id. See
Nelson v. State, 661S.W.2d 122 (Tex.Crim.App. 1983) (trial court s failure to give clarifying
instruction during voir dire).
Appellant’s counsel neither made an objection premised on issue preclusion,
submitted specific question(s) he was precluded from asking, nor filed a bill of exception.
Accordingly, we overrule Appellant’s first issue. See Barrett v. State, 516 S.W.2d 181, 182
(Tex.Crim.App. 1974). See also Dhillon v. State, 138 S.W.3d 583, 587-88
(Tex.App.–Houston [14th Dist.] 2004, no pet.).
2
In his brief, Appellant indicates none of the prospective jurors ultim ately sat on the jury.
3
II. Evidentiary Objection
Appellant contends the trial court abused its discretion by permitting Deputy Pat
Hagemeier to testify on the State’s behalf by reading from a document admitted into
evidence during the punishment phase of Appellant’s trial.3 Having reviewed the record,4
we have determined Appellant’s objections were made to Deputy Hagemeier’s testimony
related to the contents of State’s Exhibit Number 11.5
The manner and means of the presentation of documentary evidence to a jury is
best left to the sound discretion of a trial court. Wheatfall v. State, 882 S.W.2d 829, 838
(Tex.Crim.App. 1994) (en banc), cert. denied, 513 U.S. 1086, 115 S. Ct. 742, 130 L. Ed. 2d
644 (1995). Upon careful review of the record, we do not believe the trial court abused its
discretion in permitting Deputy Hagemeier to read portions of the admitted exhibit into
evidence. Id. at 837-38. Appellant’s second issue is overruled.
3
Again, although Appellant’s counsel attem pts to fram e this issue as a constitutional one based upon
a deprivation of an accused’s right of confrontation under the Texas Constitution, there is no evidence that
Appellant was not perm itted to cross exam ine Deputy Hagem eier. In fact, the only evidence in the record
indicates Appellant was perm itted to voir dire the witness and conduct cross exam ination.
4
Appellant’s citations to the record are to the testim ony of Officer Adan Alem an, Deaf Sm ith County
Sheriff’s Office. Officer Alem an participated in Appellant’s arrest for driving while intoxicated. The testim ony
cited by Appellant contained no objections to any testim ony by Officer Alem an.
5
State’s Exhibit Num ber 11 was adm itted as a public docum ent including the following: (1) a com plaint
sworn by County Attorney Charles F. Aycock against Jim m y Jarrett alleging that, on February, 17, 1996, he
was driving while intoxicated; (2) a bench warrant for Jim m y Jarrett’s arrest issued by Bonnie J. Clayton,
County Judge, Parm er County, signed February 20, 1996; (3) a warrant of arrest issued by Judge Clayton on
February 20, 1996; (4) a waiver of rights executed by Jim m y Jarrett in The State of Texas v. Jimmy Jarrett,
Cause No. 7487; and (5) a Judgm ent issued in Cause No. 7487 executed by Judge Clayton indicating
Appellant pled guilty to his second offense for driving while intoxicated. Each docum ent was certified as a true
and correct copy of an original on file in the Parm er County Clerk’s office.
4
Conclusion
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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