                                NO. 12-10-00157-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

EFREN LEON GARCIA,                           §              APPEAL FROM THE
APPELLANT

V.                                           §              COUNTY COURT AT LAW #2

THE STATE OF TEXAS,
APPELLEE                                     §              HENDERSON COUNTY, TEXAS


                                 MEMORANDUM OPINION
       This is a DWI case. In two issues, Appellant, Efren Leon Garcia, contends the evidence
is insufficient to support his conviction and that the trial court reversibly erred in allowing
testimony from the arresting officer regarding the horizontal gaze nystagmus test although the
officer conceded that he incorrectly administered the test. We affirm.


                                         BACKGROUND
       On February 27, 2008, Officer James Graham of the Athens Police Department stopped a
truck driven by Appellant on North Prairieville Street in Athens, Texas. Officer Graham had
observed Appellant disregard a stop sign and almost collide with Graham’s patrol car. Graham
activated the overhead lights on his patrol car. Appellant pulled to the side of the road almost
striking two vehicles parked beside the roadway. Appellant was unable to locate his wallet until
Graham assisted him. Graham asked that a Spanish speaking officer be sent to the scene.
Graham told the jury that Appellant’s speech was slurred, although he conceded Appellant spoke
with a thick accent.
       Graham testified that he smelled an alcoholic beverage odor coming from the vehicle.
When asked to step to the rear of the truck, Appellant leaned against the truck for balance. Then
Graham started to administer common field sobriety tests beginning with the horizontal gaze
nystagmus (HGN) test.        However, Graham conceded that he had administered the test
incorrectly. Graham then attempted to administer the walk and turn test but stopped the test
when Appellant stumbled and almost fell. Graham testified that he did not even attempt to give
Appellant the one leg stand test because of Appellant’s inability to stand on his own two feet.
Appellant refused a breath test.


                                   INSUFFICIENCY OF THE EVIDENCE
       In his first issue, Appellant maintains the evidence of guilt is insufficient to sustain his
conviction. When Officer Graham was asked if he could determine whether Appellant was
intoxicated, he answered, ―no.‖ Appellant argues that Graham thereby acknowledged ―a greater
than reasonable doubt as to an essential fact.‖ He further argues that Graham’s description of
Appellant’s unsteady condition is not consistent with Appellant’s appearance on the patrol car
videotape of the stop. In Appellant’s view, there was no justification for Graham’s failure to
give Appellant two other field sobriety tests. Graham admitted that the only field sobriety test
that Appellant completed was given improperly.
Standard of Review and Applicable Law
       In reviewing the sufficiency of the evidence, the appellate court must determine whether
considering all of the evidence in the light most favorable to the verdict, the jury was rationally
justified in finding guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99
S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.
App. 2010). Considering the evidence ―in the light most favorable to the verdict‖ under this
standard requires the reviewing court to defer to the jury’s credibility and weight determinations,
because the jury is the sole judge of the witnesses’ credibility and the weight to be given their
testimony. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Brooks, 323 S.W.3d at 899. Each fact
need not point directly and independently to the guilt of the appellant if the cumulative force of
all incriminating circumstances is sufficient to support the conviction. Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007). ―[A] . . . court faced with a record of historical facts that
supports conflicting inferences must presume—even if does not affirmatively appear in the
record—that the trier of facts resolved any such conflicts in favor of the prosecution. . . .‖
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Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.
       In order to convict a defendant of driving while intoxicated, the state must prove that (1)
the defendant (2) operated (3) a motor vehicle (4) while intoxicated (5) in a public place. TEX.
PENAL CODE ANN. § 49.04(a) (Vernon 2003). ―Intoxicated‖ means ―(A) not having the normal
use of mental or physical faculties by reason of the introduction of alcohol, a controlled
substance, a drug, a dangerous drug, a combination of two or more of those substances, or any
other substance into the body; or (B) having an alcohol concentration of 0.08 or more.‖ TEX.
PENAL CODE ANN. § 49.01(1)(A), (B) (Vernon 2003). A jury’s conclusion that a person was
intoxicated may be based upon evidence of the defendant’s (1) bad driving, (2) unusual actions,
(3) sound of speech, (4) appearance, (5) smell of alcohol, and (6) unsteadiness. See Bagheri v.
State, 329 S.W.3d 23, 27–28 (Tex. App.–San Antonio 2010, pet. ref’d).
Discussion
       Appellant argues that Officer Graham’s testimony that he could not determine if
Appellant was intoxicated amounted to an acknowledgement by the State’s only witness that he
had ―a greater than reasonable doubt as to an essential fact‖ in the case. When considered in the
context of the preceding testimony regarding Appellant’s refusal to take a breath test, Officer
Graham’s testimony indicates that he regarded a ―determination‖ of intoxication to require a
breath or blood specimen showing .08 blood alcohol concentration.             Appellant’s refusal
prevented such a determination. On at least two occasions, Officer Graham testified that he
―felt‖ Appellant was intoxicated. If a conflict exists in the officer’s testimony, we must defer to
the jury’s resolution of the conflict.    Brooks, 323 S.W.3d at 899.         Appellant argues an
inconsistency exists in Officer Graham’s testimony that Appellant spoke with a thick accent and
his description of Appellant’s speech as slurred. The record shows that Officer Graham told the
jury that he could distinguish between slurred speech and a thick accent. Nor do we perceive any
important conflict between the officer’s testimony and the patrol car videotape. Appellant
plainly failed the walk and turn test. Officer Graham testified that it would have made no sense
to administer the one leg stand test when Appellant had just demonstrated limited ability to stand
on two legs.
       Appellant’s counsel’s relentless cross examination demolished the evidentiary value of
the HGN test results as well as effectively exposed other shortcomings in Officer Graham’s
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investigation. However, ―[i]t is not necessary that every fact point directly and independently to
the defendant’s guilt; it is enough if the conclusion is warranted by the combined and cumulative
force of all the incriminating circumstances.‖ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007) (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)).
       There is abundant evidence in the record on which the jury could have reasonably relied
to find Appellant guilty, including evidence of his poor driving before and during the stop, his
inability to find his wallet without Officer Graham’s assistance, his slurred speech, and the odor
of an alcoholic beverage emanating from his truck. Appellant clearly failed the walk and turn
test. The jury was also entitled to consider Appellant’s admission that he had ―at least four‖
drinks, and his refusal to provide a breath specimen. We conclude the cumulative force of all the
incriminating evidence sufficient to support Appellant’s conviction when considered in the light
most favorable to the verdict. Appellant’s first issue is overruled.


                       ADMISSIBILITY OF OFFICER GRAHAM’S TESTIMONY
       In his second issue, Appellant complains the trial court erred in allowing Officer Graham
to testify ―regarding a purported horizontal gaze nystagmus field sobriety test.‖
       Prior to the reading of the information, Appellant’s counsel reurged the defense’s motion
in limine. The motion asked the trial court to exclude all references to or results of field sobriety
tests unless it was shown that the tests were properly administered by a qualified person. During
the first trial of this case, the trial court had granted a mistrial because of the State’s violation of
an unrelated motion in limine. In reurging his motion, Appellant’s counsel summarized Officer
Graham’s testimony in the first trial regarding the HGN test, testimony that he argued indicated
that Graham was unqualified to administer the test and had improperly administered it to
Appellant. The trial court denied Appellant’s motion.
       Appellant did not object when Officer Graham testified at length regarding his
administration of the HGN test. Instead, he conducted a persistent cross examination regarding
the way the officer had tested Appellant, eventually forcing Graham’s admission that he had not
given the test properly.
       On appeal, Appellant contends the presentation of the motion in limine was, in effect, a
Rule 705 hearing ―directed to the underlying facts or data upon which the opinion [Officer
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Graham’s] is based.‖
          The State insists that Appellant’s failure to object to Officer Graham’s testimony waived
any error in admitting the testimony.
Standard of Review
          A trial court’s decision to admit or exclude evidence is reviewed for abuse of discretion.
Davis v. State, 329 S.W.3d 798, 802 (Tex. Crim. App. 2010). To obtain reversal of a judgment
based on error in the admission or exclusion of evidence, an appellant must show the trial court’s
ruling was error and that the error affected a substantive right of the defendant. TEX. R. EVID.
103(a).
Applicable Law
          A motion in limine normally preserves nothing for review. Fuller v. State, 253 S.W.3d
220, 232 (Tex. Crim. App. 2008); Webb v. State, 760 S.W.2d 263, 275 (Tex. Crim. App. 1988).
―For error to be preserved with regard to the subject of a motion in limine, an objection must be
made at the time the subject is raised during trial.‖ Fuller, 253 S.W.3d at 232.
          ―When the court hears objections to offered evidence out of the presence of the jury and
rules that such evidence be admitted, such objections shall be deemed to apply to such evidence
when it is admitted before the jury without the necessity of repeating those objections.‖ TEX. R.
EVID. 103(a)(1); Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). An objection
must be made unless the complaining party obtains a running objection or obtains a ruling on his
complaint in a hearing outside the presence of the jury. Lopez v. State, 253 S.W.3d 680, 684
(Tex. Crim. App. 2008).
          Out of the presence of the jury and before the reading of the information, Appellant’s
counsel stated, ―Your Honor, at this time, we would reurge our—the defense motion in limine in
regard to the horizontal gaze nystagmus test.‖ The trial court heard no testimony during the
short hearing. Appellant summarized for the court Officer Graham’s testimony from the first
trial, which counsel argued demonstrated that the HGN test given Appellant was incorrectly
administered and Graham unqualified to give it. The trial court denied Appellant’s motion.
Appellant thereafter raised no objection to Officer Graham’s testimony regarding the HGN test.
Instead, Appellant’s counsel effectively cross examined Officer Graham, eventually eliciting his
admission that the test, as given, was not valid. Appellant did not ask the court to strike Officer
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Graham’s testimony regarding the results of the HGN test. By failing to continue to object to
Graham’s testimony regarding the HGN test, Appellant waived error, if any, in admitting the
testimony.
         Appellant insists, however, that the testimony of Officer Graham in the first trial was, in
effect, a hearing outside the presence of the jury under Rule 705, Texas Rules of Evidence. Rule
705 provides that prior to an expert giving the expert’s opinion or disclosing the underlying facts
or data, a party against whom the opinion is offered shall be permitted to conduct a voir dire
examination out of the hearing of the jury directed to the underlying facts or data upon which the
opinion is based. Appellant made no request to conduct a voir dire examination of Officer
Graham prior to his testimony.              Appellant implies that his counsel’s summary of Officer
Graham’s testimony in the first trial was an adequate substitute for a voir dire examination in the
second. Appellant made no such assertion in the trial court. Appellant simply ―reurged . . . the
defense motion in limine.‖ Appellant’s contention is without merit. Appellant’s failure to object
to the HGN test evidence when offered waived error, if any. Appellant’s second issue is
overruled.


                                                    DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.




                                                                 BILL BASS
                                                                    Justice

Opinion delivered March 31, 2011.
Panel consisted of Griffith, J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




                                              (DO NOT PUBLISH)

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