NO. 07-02-0200 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L D APRIL 30, 2003

______________________________ LINDSE Y FORD, JR .,

Appellant
v. THE STATE OF TEXAS , Appellee

_________________________________ FROM THE COUNT Y COURT AT LAW NO. 2 OF L UBBOCK COUNTY; NO. 2002-478,31 8; HON. DRUE FARMER, P RESIDING

_______________________________ Before QUINN, REAVIS and CAMP BELL, JJ. Appellant Lindsey Ford, Jr. app ealshis con viction for driv ing w hile in tox icated. Via three issues, he contends th at the t rial court err ed in 1) fa iling to grant am istri al due to improper jury argum ent, 2 ) re fusing toallow him to cros s-exam ine the S tate’s exp ert witness with a purported learned treatise, and 3) refusing to give an instruction to the j ury under art. 38.23 of the Tex

as Code of Crim inal Procedure. W e affirm thejudgm ent of the trial court. Backgr ound2

On Decem ber

13, 200 1, K

evin Turner, a Nolan County constable, saw a car driven by appellant on Highway 84 ne ar Lubbock veer onto and then off of the outs ide median. Appellant then pulled over into Turner’s lane of traffic w hen Turner at te mpt ed to pa ss hi m. This caused Turner to back aw ay and follow appellant. As hedid, he observed appellant driving erratically. At one point, appellant exited th e h ig hwa y onto a parking lot, m ade three “donuts” or U-turns in the lot, and then re-entered the highway driving westbound in the eastbound lane for approx imately 50 yards. While obs erv ing a ppe llant , Tu rne r us ed h is police radio to con tact local authorit ies. Trooper Br ook Ray res pon ded to t he c all and encountered Turner and appellant in town. Bythat ti m e, a ppe ll ant had sto ppe d. Ray a ppr oac hed app ellan t an d ad m inistere d fie ld sobriety tests. Thereafter, he arrested appellant and transported him to t he police station. Atthe station, appellant underwent breath tes ting that revealed his blood alcohol content to be .123. Issue One - I mprope r Jur y Argu ment In his fir st issue, appel lant assert s tha t th e tr ia l court erred “in faili ng to grant a mistrial when the prosecution impe rmissibly com mented directly on [his] failure to testify regarding an element

of the case w hile further alludi ng to his silence on other element s of the case.” We overrule the issue. In the first of thr ee remarks underlying appellant’s complaint, the prosecutor said:

. . . in Lubbock County, Tex as. I don’t think the re is any contention aboutthat. On or about Decem ber 13, 2 002; I d on’t be lieve there is any contention of that . .

. .3

This utterance, according to appellant, was a c omm ent on his fai lure to testi fy because “there [was] only o ne perso n who co uld contest it,” that person allegedly being the appellant. In response to the obj ection, the trial court directed the prosecutor to “restate, p lease.” At that point, appellant m oved for m istrial, which motion the t rial court denied. While objecting to the com ment and after the trial court apparently sustained the obj ection bydirecting the prosecutor to “restate,” appellant did not request that it also instruct the jury to disregard the com ment . This omission w as fatal. To preserve error regardin g prosecutorial miscondu ct, the appellant m ust not only obj ect but also request an instruction to disregard and m ove for a m istrial. Penry v. State , 9 03 S. W .2 d 7 15 , 7 64 (T ex . C ri m. App.), cert. deni

ed, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995 ). Having failed to request an instruction to disregard, appellant failed to preserve his com plaint about the
com ment

. Bus se v. P ac ificCattle Feedi ng Fund No. 1, Ltd. , 896 S.W .2 d 8 07 , 8 15 (T ex. App.--Texarkana1 995, writ denied) (holding that the failure to request an instruction to disregard waives the complaint). This is espe ciall y s o since a n instruc tion to disr

egard generally cu res any

purporte d harmarising from the error. Dinki ns v. State , 894 S.W.2d 330, 357 (Tex. C rim. Ap p), cert. deni ed, 516 U.S. 832, 116 S.Ct. 1 06, 133 L.Ed. 2d 59 (1995). The second comm ent in di sp u te involves the prosecutor’s s tatem ent, during
sum mat ion, that:

. . . He d id n’t mention about him drinki ng. Never heard tha t by defense cou nse l, the fact that, “N o, I haven’t had anyth ing to drink,” but the fact [t he] Trooper sm elled alcohol on his breath.4

According to appel lant , th is too w as a co m m ent on h is failure to testify. The trial co urt sustained theobj ect ion, inst ruc ted thej ury

to d isre gar

d th e co m m ent , an d ap par ent ly overruled his motion for m istrial. To violate an acc used’s right agains t self-incrim ination, therem ark must be of such
a character that the j ury would necess arily and naturally t ake it asa com m ent on h is failure to testify; so too m ust it be viewed from

the jury ’s standpoint. Fuentes v. State , 991 S.W.2d 267, 275 (Tex. Crim. A pp.), cert. den ied, 528 U.S. 1026, 1 20 S.Ct. 541, 145 L.Ed.2d 420 (199 9). The fact that thelanguage may be construed as an implied or indir ect allusion to a defendant’s failure to testify is not enough to ev i nc e i mp ropriety, however. Staley v. State, 887 S.W.2d 885, 895 (Tex. C rim. Ap p. 1994), cert. deni ed, 514 U.S. 1020, 115 S.Ct. 1366, 131 L.Ed.2d 222 (1995 ). A t first bl ush and assuming that the comment w as without context, it may b e o f
concern. Ho w eve r, w hen itis p lace d in cont ex t, a ll bas is f

or c onc ern diss ipat es. Thisis
so because the record reveals that the pros ecutor was attem pting to respond to argum ent uttered by t h e defense counsel as to w hy his client should be acquitted. That is, after defense counsel concluded his sum mat ion, counsel for the State beg an by s tating that “[t]hese are som e o f th e e xcu se s [u rg ed by a pp el la nt whi ch ] I h av e wr it te n d own throughoutthis trial.” Then he proceeded to describe them . They included, am ong other things, an attack upon theaccuracy of the mac hine by which appellant’s breath w as tested for alcohol content, an attack upon Turner’s m otives in rep orting appellant, a general
com ment

upon appellant’s failure to pay att ent ion w hile drivi ng, and the manner in which t he field sobriety tests were adm inistered. It was only after describing those v ariou s5

excusesthat counsel for the S tate said appellant never denied having anything to drink. Sim ply put , the prosecutor w as attem pting to illustrate that despite all the excuses proffered by appe llant and su pposedly jus tifying acq uittal, thejur y never h eard the excuse that appellant should be acquitted because he w as innocent of drinking. It is per m iss ible for

a pr ose cutor t o an swer t he a rgu m ent utt ere d by

his opponent. Gui dry v. State, 9 S.W.3d 133, 154 (Tex. Crim . App. 1999), cert. deni ed, 531 U.S. 837, 121 S.Ct. 98, 148 L.Ed.2d 57 (2000) (describing the perm issible areasof j ury argu m ent). That is what he was doing here. A nd, when v iewed in contex t and from the perspective of a juror at the trial, the utterance in question was not of t he ilk w hich w ould necessari ly and naturally cause the j ury to interpret it as a com ment on appell ant’s fail ure to testi fy. As framed by the context of the argument, any silenc e to which the State alluded did not
concern appellant’s invocation o f his Fifth Am endme nt right against self-incrimination. Rather, it concerned the absence f rom t he litan y of

excus es a llege dly

offered by appellant tha t w hich theSt ate tho ugh t th e j uro rs s hou ld deem important, i.e. that he was not drunk because he drank no alcoholic beverage. Yet, eve n if one cou ld re aso nab lyconclude that the com ment was im proper, the trial court instructed the j ury to disregard it. As previously m entioned, suc h an instruction gen era llycures the error and harm arising therefrom. Dinki ns v. State , 894 S.W.2d at 357. And, appellant fails to explain why t hat is not so here. The final comm ent about w hich appellant c om plain s consisted of the prosec utor saying:6

. . . He told you he i s a sw orn peace offi cer, and that i s his job, to protect society, to protect people like you or your fam ilies who are out driving on [Highway] 84 and m ight run into somebody that is going the wrong way or som ebody t hat is out

there - - In rais ing t his com plain t on app eal, appellant failed to cite to any authority directly holding the com ment

to be imprope r or indicating, by analogy, that it was improper. Consequentl y, he faile d to properl y brief the issu e and, therefore, w aived it. T EX . R. A PP . P. 38.1(h) (stating that a brief m ust contain clear and concise argum ent accom panied by citation to the record and authority); Bil ly v. Sta te, 77 S.W.3d 427, 429 (Tex. Ap p.—Dallas 2002, pet. ref’d) (holding that one waives his com plaint by failing to cite to pertine nt legal aut hority). Issue Two - Use of Lear ned Treatise Appellant argues, in his second issue, that the trial court erred “in refusing to allow [h i m] to cross examine and confront the State’s expert witness reg arding [t he] expert [sic] conclusions with a learned treatise pursuant to Rule 803(18) of the Texas Rules of Evidence.” We overrule the issue. Per Rul e 80 3(18), one m ay impeac h an expert w itness with a treatise, book , or scienti fic journal i f the witness recognizes the item as authoritative or relies on it. Carter
v. Steere Tank Li

nes, Inc., 835 S.W.2d 176, 18 2 ( Te x. App.— Am arillo 1992, w rit denied). Or, the litigant may

useitif other expert tes timony s hows thepublication to be reliabl e or if the trial court takes j udicial notice of its reli ability. T EX . R. E V ID . 803(18). Here, appellant does not contend that th e trial court should have taken judicia l noti ce of the reliabili ty of the journal he sought to use to im peach the State’s ex pert. Nor does he conte nd that other exp erttestimon y established the reliabili ty of the treatise. I nstead, he asserts that t he7

exp erthe intended to impea ch adm itted that they w ere, or recognized them as, reliable. Yet, the w itness st ated that she had not previously relied on that journal, that she “assum e[d]” it was a peer rev iew j ournal, that “m ayb e so m e” w ould rely on t he j our nal, that itis “possi ble” that it is a peer review article used in the scientific com munity, a nd that “it appearsto be” a professiona l journal. E ach of these statement s is equivocal. None evince certainty. Nor do any rise to t he level of an adm ission about the reliabil ity of the purported treatise given the equivocation of the w itness. Lee v. Lee , 43 S.W.3d 636, 641- 41 (Tex. Ap p.–Fort W orth 2001, no pet.) (holding that to be an adm ission a statem entmust be, am ong other things, clear, deliberate, and unequivocal). Con sequent ly, the t rial court did not abuse its di scretion i n refusi ng to adm it the evidence. See Powel l v. State, 63 S.W.3d 435, 43 8 (Tex . Crim . App. 2001) (s tating th at appellatecourt s re view the admission or ex

clusion of evidence under an abuse of discretion standard).

Issue Three - Err or in Ju ry Cha rge In his third issue, appellant contends that the trial court erred “i n refusing to give the instruction to the j ury concerning the unla w ful c ollec tion of e vide nce pur

sua nt to Ru le 38.23 of the Texas Code of Crim inal Procedure.” W e overrule the issue. According to article 38.23 of the Code of Criminal Procedure, [i]n any ca se w here the legal evidence raises an issue [regarding the legality of the m eans by w hich evidence was obtained], the j uryshall be instructed thatif 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, t he jur y shall disregard any such evidence so obtained. T EX . C ODE C R IM . P ROC
. A NN . art. 38.23(a) (Vernon S upp. 2003). Yet, as can be seen from the wording of

the statute itself, the accused is not ent itle d to the instr uction unl ess a fact8

issue exists regarding the legality of t he m eth od u sed to o bta in th e ev iden ce in dispute. If suc h an issu e does n ot ex ist, then the trial co urtdoes not err in refusing to instruct the jury per art. 38.23. Shpik

ula v. Stat

e , 68 S.W.3d 212, 217 (Tex. App.– Houston [1 stDist.] 2002, nopet.). Here, appellant contends that he “intensely questioned the w itnesses about both the va lidity of the tests and the need to adm inister them in the proper m anner.” So too does he allege that he “sought to establish that probable cause did not exist with respect to Appellant’s arrest . . .” and “the issue [sic] of tes t validity and improper adm inistration of field sobriety

testswer

e ra ised with every law enforcem ent witness called . . . .” Yet,
m ere lysaying that he sought to attack the validity of the arrest and aggr ess ively questioned the witnesses about it does not m ea n that the record conta ins evid ence creating a disputed fact issue regarding the validity of the arrest. Nor does appellant cite
us to any evidence creating such a f act issue. Instead, h e m erely refers the court to argument

of the State (which is no t evidence) and to excerpts of his cross-ex amination wherein he asked ab out how f ield sobriety tests, in general, were adm inistered. In short, to be entitled to an art. 38.23 instruction, appellant had to do m ore than
m ere lycon ten d th at h e qu est ione d th e va lidity of h is arrest; he had to illustrate to us that a fact issue ex isted regarding the validity of the arrest. That he did not do. Accordingly, the j udgme nt of the trial court is affirmed.

Brian Quinn Justice9

Do not publish.