Clifford G. Olson v. State ( 2007 )

Affirmed and Memorandum Opinion filed June 19, 2007

Affirmed and Memorandum Opinion filed June 19, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00338-CR

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CLIFFORD G. OLSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1029022

M E M O R A N D U M   O P I N I O N

Appellant Clifford G. Olson was indicted for the felony offense of driving while intoxicated, third offender.  A jury convicted him, and the trial court assessed his sentence, after finding two enhancement paragraphs to be true, at thirty years= confinement in the Texas Department of Criminal Justice.  Appellant claims that the trial court erred by denying his motion to suppress statements he made to police officers during the traffic stop and in refusing to grant a mistrial in response to the State=s improper jury argument.  We affirm.

Appellant has not raised a legal or factual sufficiency challenge, and we therefore outline only the facts necessary to resolve this appeal.  On November 10, 2004, Officer Wendy Burks of the Metropolitan Transit Authority observed appellant drive through a red light without the use of his headlights, even though it was 8:20 p.m. and dark outside.  Officer Burks signaled appellant to stop, which he did quickly.  Officer Burks smelled alcohol and marijuana coming from appellant and his van.  She called for backup, and Officer Jose Coronado of the Metropolitan Transit Authority arrived.  Officer Coronado performed a horizontal gaze nystagmus testCutilized to test for sobrietyCbut appellant refused to perform the other field-sobriety tests.  Appellant was then placed under arrest and transported to the Houston Police Department where he performed other sobriety tests and gave a breath sample to test his blood alcohol content.  The breath test showed appellant to have a blood alcohol content of more than twice the legal limit.

In his first issue, appellant complains the trial court erred in failing to suppress his statements made to Officers Burks and Coronado.  At trial, before opening arguments but after voir dire, appellant made an oral motion to suppress these statements on the grounds they were inadmissible under Texas Code of Criminal Procedure article 38.22.  On appeal, appellant does not base his argument on article 38.22 but rather asserts arguments under the federal and state constitutions.  A specific and timely objection is required to preserve error.  See Tex. R. App. P. 33.1(a); Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005).  Appellant=s objection to the trial court based on article 38.22 does not comport with his constitutional arguments on appeal, and thus he has failed to preserve error on this issue.  See Swain, 181 S.W.3d at 365 (holding appellant waived argument on appeal for suppressing statements by failing to make such argument to the trial court). We overrule appellant=s first issue.

In his second argument, appellant asserts the trial court erred in denying his motion for mistrial based on improper jury argument. During the State=s closing argument at the guilt/innocence phase of trial, the prosecutor twice made comments implying that appellant could kill someone in the future by driving while intoxicated.  Appellant objected to both comments, the trial court sustained both objections, and the trial court instructed the jury both times to disregard.  However, the trial court did not grant a mistrial.  We need not decide if the prosecutor=s statements were improper because even if they were, the trial court cured any harm.

An instruction from the trial court to disregard the statement normally cures any error.  See Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999).  If a trial court sustains an objection to a comment, instructs the jury to disregard the statement, but denies a motion for mistrial, the issue we must determine is whether the trial court abused its discretion in denying the motion.  Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).  A mistrial is required only when the error is incurable and Aso prejudicial that expenditure of further time and expense would be wasteful and futile.@  Id.  The Court of Criminal Appeals found that a very similar argument referring to the possibility of the defendant killing someone in the future was not so prejudicial as to require a mistrial and that the trial court=s instruction to disregard cured the error.  See Livingston v. State, 531 S.W.2d 821, 823 (Tex. Crim. App. 1976); see also Coons v. State, 758 S.W.2d 330, 337 (Tex. App.CHouston [14th Dist.] 1988, pet. ref=d) (holding that any error in denying mistrial for prosecutor=s statements that defendant would A[k]ill the victim next time@ was cured by instruction to disregard).  Accordingly, we conclude that the trial court=s instruction to disregard cured any prejudice from the comments and that the trial court thus did not abuse its discretion in denying appellant=s motion for mistrial.  We overrule appellant=s second issue.

Having overruled both of appellant=s issues, we affirm the trial court=s judgment.

/s/      Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed June 19, 2007.

Panel consists of Justices Yates, Edelman, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).