Opinion issued July 8, 2014.

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-12-00971-CR

———————————

JASON BRIAN CONNOR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 8

Harris County, Texas

Trial Court Case No. 1791565

MEMORANDUM OPINION

A jury convicted appellant, James Brian Connor, of the misdemeanor 

offense of driving while intoxicated (DWI), and the trial court assessed punishment 

at one year confinement, suspended in favor of placing appellant under community 
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supervision for two years, with three days’ confinement in the county jail as a 

condition for the probation. In two points of error, appellant contends the trial court 

erred by denying his motion to suppress because: (1) the detaining officer lacked 

reasonable suspicion that appellant was intoxicated; and (2) the detention was 

impermissibly prolonged and was unreasonable. In his third point of error, 

appellant argues that the trial court erred by overruling his objection to the 

prosecutor’s closing argument. We affirm.

BACKGROUND

On the night of November 5, 2011, Officer Ramon of the Houston Police 

Department (HPD) was traveling westbound on the Katy Freeway when he saw

appellant driving a black BMW “like a rocket.” Ramon also saw appellant 

changing lanes unsafely by cutting in and out of traffic, sometimes without the use 

of a turn signal. Ramon testified that he saw other vehicles “hard braking” in 

response to appellant’s driving. Ramon pulled over the appellant’s car on the exit 

ramp to the Beltway. For safety reasons, Ramon approached the passenger side 

window of appellant’s vehicle, and appellant admitted that he had been speeding. 

Upon further questioning, appellant responded that he was coming from a Japanese 

restaurant and had consumed “a beer and sake”. Ramon testified that he could not 

smell any alcohol from the passenger side, but he had “a little suspicion” that 

appellant was intoxicated, so he requested the dispatch of a DWI unit to perform 
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field sobriety tests on appellant. Ramon was certified to administer field sobriety 

tests and had investigated about 100 DWI’s in the past, but requested a DWI unit 

according to his supervisor’s instructions. While waiting for the DWI unit officer 

to arrive, Ramon placed appellant in the backseat of his patrol car.

Approximately 10 minutes later, Officer Shepard of the HPD DWI unit 

arrived at the scene. Shepard saw that appellant had red, glassy eyes, and the 

officer smelled the odor of an alcoholic beverage on appellant’s breath. Appellant 

admitted to Shepard that he had drunk a 24-ounce beer and a shot of sake. Shepard 

then conducted field sobriety tests on the median of the exit ramp while Ramon 

kept an eye on oncoming traffic. Appellant displayed all 6 possible clues for 

intoxication during the horizontal gaze nystagmus test when only 4 clues are 

necessary to indicate intoxication. Appellant was unable to complete the one-leg 

stand test without swaying, using his arms, and dropping his foot, exhibiting 3 

clues when 2 clues indicate intoxication. Appellant struggled to maintain his 

balance during the walk and run test, exhibiting two clues when two clues indicate 

intoxication. Officer Shepard then arrested Appellant for driving while intoxicated.

MOTION TO SUPPRESS

In his first and second points of error, appellant contends that the trial court 

abused its discretion by denying his motion to suppress evidence constituting “all 

fruits of the detention.” Specifically, appellant contends the trial court erred by
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denying his motion to suppress because: (1) the detaining officer lacked reasonable 

suspicion that appellant was intoxicated; and (2) the detention was impermissibly 

prolonged and was unreasonable. The State responds that appellant’s issues are not 

preserved for appellate review. We agree with the State.

Preservation of Error

Before trial, appellant did not file a motion to suppress any evidence 

obtained as a result of Ramon detaining appellant in the back of his car. Similarly, 

at trial, appellant did not object to Shepard’s testimony or the video exhibit of the 

field sobriety tests. 

However, after the State rested, appellant moved for directed verdict. In his 

motion for directed verdict, appellant claimed that Officer Ramon illegally 

detained appellant and requested that all testimony obtained after the detention, 

including the testimony of Officer Shepard, be suppressed. The trial judge denied 

both the motion for directed verdict and the motion to suppress without providing 

reasons.

In order for error to be preserved on appeal, the record must show that 

appellant made a timely request, objection, or motion with a corresponding ruling 

by the trial court. TEX. R. APP P. 33.1(a)(1); Nelson v. State, 626 S.W.2d 535, 536 

(Tex Crim. App. [Panel Op.] 1981). An objection is timely only if it is raised as 

soon as the ground for objection becomes apparent. Johnson v. State, 878 S.W.2d 
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164, 167 (Tex. Crim. App. 1994). A motion to suppress is untimely if it was never 

presented to or ruled upon by the court before trial and is later made orally after the 

State rests its case-in-chief. Sims v. State, 833 S.W.2d 281, 284 (Tex. App.—

Houston [14th Dist.] 1992, pet. ref’d); see also Nelson, 626 S.W.2d at 536 (holding 

that, even if appellant had obtained ruling on motion to suppress evidence obtained 

by illegal search and seizure, it would have been untimely because motion was first 

presented after State rested its case); Vierling v. State, No. 01-10-00247-CR, 2012 

WL 4857363, at *4 (Tex. App.—Houston [1st Dist.] Oct. 11, 2012, pet ref’d) 

(mem. op., not designated for publication) (holding that motion to suppress was 

untimely when appellant filed it on first day of trial but did not move to suppress 

evidence obtained as result of traffic stop until after State had rested its case).

Here, appellant’s motion to suppress was untimely because he did not file a 

pretrial motion, nor did he object to Officer Shepard’s testimony until after the 

State had rested its case-in-chief. Appellant did not present his oral motion to 

suppress as soon as the grounds for objection became apparent; rather, the motion 

to suppress was included as an argument in favor of a motion for directed verdict. 

“There are two main purposes behind requiring a timely, specific objection: 1) to 

inform the judge of the basis of the objection and give him the chance to make a 

ruling on it, and 2) to give opposing counsel the chance to remove the objection or 

provide other testimony.” Garza v. State, 126 S.W.3d 79, 82 (Tex. Crim. App. 
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2004). Requiring timely objections is particularly important in jury trials because a 

judge may shield the jury from hearing any potentially inadmissible evidence. Id. 

at 83. 

In this case, the jury had already been presented with Shepard’s testimony 

and video footage of the sobriety tests before appellant moved to suppress the 

evidence outside the jury’s presence. The State had rested its case and would have 

been unable to provide other testimony. Further, with regards to the video footage 

of the sobriety tests, appellant stated that he had no objection to the admission of 

State Exhibit 1; rather, appellant informed the court that “[w]e would like it 

admitted.” A defendant who affirmatively states that he has no objection to the 

admission of evidence sought to be suppressed has waived any complaint over the 

admission. Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986).

The Texas Court of Criminal Appeals recognized a limited exception to 

Nelson in Garza, in which the appellant had filed a pre-trial motion to suppress, 

but the judge directed that the motion be carried with the trial. Garza, 126 S.W.3d 

at 84. The Garza exception is inapplicable here because there was no pre-trial 

motion to suppress, and the judge did not direct appellant that he carry the motion 

with the case.

Likewise, the fact that appellant also asserted his first and second points of 

error in his motion for new trial does not preserve the complained of error for 
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appeal. The failure to properly preserve error under Texas Rules of Appellate 

Procedure Rule 33.1 cannot be cured by raising the matter in a motion for new 

trial. Igo v. State, 210 S.W.3d 645, 647 (Tex. Crim. App. 2006). 

Because appellant’s motion to suppress was untimely and did not preserve 

the errors complained of, we overrule appellant’s first and second points of error.

IMPROPER JURY ARGUMENT

In his third point of error, appellant alleges that the trial court abused its 

discretion by overruling his objection to a personal statement made to the jury 

during closing statements. Appellant does not independently contest the trial 

court’s decision to overrule his motions for a mistrial.

Background

During his closing argument, the prosecutor stated:

I watched these videos just as you did. And when I watch them, I 

always try to find that one point, that one point in the case where I am 

convinced beyond a reasonable doubt that that person is intoxicated. 

And I’m not going to try a case if I don’t think someone truly is 

intoxicated.

Appellant objected on the grounds of offering a personal opinion. The objection 

was sustained, and the trial court instructed the jury to disregard the statement. 

Appellant also requested a mistrial, and the request was denied. The prosecutor 

continued, “And for me, it came with the one-leg stand. I watched as the Defendant 

puts his foot in the air and there was some sway . . . . [W]hen he did that move, 
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when his leg shot straight to the left, that’s when I knew, that’s when I knew that 

man . . . .” Again, the appellant objected on grounds of offering a personal opinion 

and requested a mistrial. The objection was sustained, and the trial court instructed 

the jury to disregard the statement, but the mistrial was denied. Later, in reference 

to the walk and turn test, the prosecutor stated, “It looked like he was suspended up 

in the air, walking a tightrope as he tried to balance. And that’s when I knew that’s 

a person that does not have the normal use of their mental faculties.” The appellant 

objected on the same grounds, but this time the objection was denied.

Standard of Review

Permissible jury arguments generally fall into one of four areas: (1) 

summation of the evidence; (2) reasonable deduction from the evidence; (3) an 

answer to the argument of opposing counsel; or (4) a plea for law enforcement. 

Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010); Alejandro v. State, 

493 S.W.2d 230, 231–32 (Tex. Crim. App. 1973). Whether a party’s jury argument 

properly falls within one of the four proper areas of jury argument is considered in 

light of the record. Magana v. State, 177 S.W.3d 670, 674 (Tex. App.—Houston 

[1st Dist.] 2005, no pet.); see also Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. 

Crim. App. 2000). Jury argument that expresses the prosecutor’s personal opinion 

is non-constitutional error. See Allen v. State, 149 S.W.3d 254, 261 (Tex. App.—

Fort Worth 2004, pet. ref’d) (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex. 
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Crim. App. 1998). Non-constitutional errors are reversible if the improper 

argument affects the defendant’s substantial rights. TEX. R. APP. P. 44.2(b); 

Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000). If the nonconstitutional error has a substantial and injurious effect upon the jury’s verdict, 

then a substantial right is affected. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. 

App. 1997). 

Error, if Any, is Harmless

Even assuming that the prosecutor’s remarks were an improper jury 

argument, they did not affect appellant’s substantial rights, and any error in the 

trial court’s ruling on appellant’s objection was harmless. Courts balance three 

factors to determine whether or not an improper jury argument is harmful under 

Rule 44.2(b): (1) the severity or prejudicial effect of the misconduct; (2) any 

curative measures from the court; (3) the certainty of conviction absent the 

misconduct. Martinez, 17 S.W.3d at 692–93; Mosley, 983 S.W.2d at 259. An 

improper jury argument generally will not be considered harmful error unless, “in 

light of the record as a whole, the argument is extreme or manifestly improper, 

violative of a mandatory statute or injects new facts, harmful to the accused into 

the trial proceeding.” Todd v. State, 598 S.W.2d 286, 297 (Tex. Crim. App. [Panel 

Op.] 1980).
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The prejudicial effect of the prosecutor’s statement was insignificant. The 

statement, “[a]nd that’s when I knew that’s a person that does not have the normal 

use of their mental faculties,” came only after the prosecutor had recounted 

evidence concerning the officers’ observations and the field sobriety tests. Even if 

the argument implied that the prosecutor had some special knowledge of 

intoxication, the argument also called upon the jury to evaluate the evidence in 

reaching its own conclusion. When read in light of the prosecutor’s entire closing 

argument, the statement challenged on appeal lacked the severity to infringe 

appellant’s substantial rights. 

Because the judge overruled appellant’s objection, there were no curative 

measures taken with regards to the statement challenged on appeal. Appellant also 

argues that the prosecutor’s two prior improper statements, which the trial court 

instructed the jury to disregard, magnified the harmfulness of the prosecutor’s 

subsequent statement. A prompt instruction to disregard by the trial court will 

generally cure any error associated with an improper jury argument “unless it 

appears the argument was so clearly calculated to inflame the minds of the jury or 

is of such a damning character as to suggest it would be impossible to remove the 

harmful impression from the juror’s minds.” Torres v. State, 424 S.W.3d 245, 261 

(Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (citing Logan v. State, 698 

S.W.2d 680, 683–84 (Tex. Crim. App. 1985) (en banc)). Any error caused by 
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previous statements was cured because the trial court twice sustained appellant’s 

objections and instructed the jury to disregard the statements. It is true that 

repeated noncompliance with a court’s ruling on an improper jury argument can 

influence the harmfulness of the error. See McClure v. State, 544 S.W.2d 390, 393 

(Tex. Crim. App. 1976). However, here the jury argument challenged on appeal 

related to the evidence rather than flatly asserting appellant’s guilt based on 

personal knowledge.

Most importantly, in this case, the certainty of conviction was still 

substantial. The State introduced significant evidence of appellant’s intoxication 

from two police officers who testified that appellant was speeding, drove unsafely, 

admitted to drinking, had red eyes, had a distinct odor of alcohol on his breath, 

refused to offer a blood sample, and failed three field sobriety tests. The videotapes 

of the field sobriety tests were also admitted into evidence. Because the foundation 

of the prosecutor’s closing argument consisted of recounting these facts and asking 

the jury to rely on them in determining guilt, the remark in question likely had little 

weight in the jury’s verdict.

Thus, even if we assume that the prosecutor’s statement was an improper 

jury argument, it was harmless error because the impact of the statement upon the 

outcome of the trial and appellant’s substantial rights was insignificant. 

We overrule appellant’s third point of error.
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CONCLUSION

We affirm the trial court’s judgment.

Sherry Radack

Chief Justice 

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).