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).
2

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 
3

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.
4

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 
5

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 dashcam 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.”).
6

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).
7

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.
8

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.