                        NUMBER 13-12-00411-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

DAMIAN RAMIREZ CAVAZOS,                                                 Appellant,

                                         v.

THE STATE OF TEXAS,                                                     Appellee.


              On appeal from the County Court at Law No. 6
                       of Hidalgo County, Texas.


                        MEMORANDUM OPINION
        Before Chief Justice Valdez, Justices Garza, and Perkes
               Memorandum Opinion by Justice Perkes
      Appellant Damian Ramirez Cavazos appeals his conviction of driving while

intoxicated, a class B misdemeanor. See TEX. PENAL CODE ANN. § 49.04 (a)–(b) (West

2011). After a jury found appellant guilty, the trial court assessed punishment at one

hundred eighty days’ confinement in the county jail, suspended for one year. By two
issues, appellant argues: (1) the evidence was insufficient to convict; and (2) the trial

court should have granted appellant’s motion for mistrial. We affirm.

                                           I. BACKGROUND1

        Trooper Alfonso Lorezo Jarero Jr. stopped appellant for running a red light in his

vehicle. Trooper Jarero testified that upon making contact with appellant, he smelled a

strong odor of alcohol on appellant’s breath. Appellant informed Trooper Jarero that he

had drunk about six or seven twelve-ounce beers. Trooper Jarero administered three

standard field sobriety tests: the horizontal gaze nystagmus (HGN) test, the

walk-and-turn test, and the one-leg stand test. According to Trooper Jarero, appellant

showed all six clues of intoxication on the HGN test, four of the eight possible clues on the

walk-and-turn test, and three of the four clues on the one-leg stand test. Trooper Jarero

arrested appellant for driving while intoxicated.

        At the San Juan Police Department, Trooper Jarero interviewed appellant. In the

interview, appellant told Trooper Jarero that he actually consumed about twelve beers.

Trooper Jarero used an intoxilyzer to obtain breath samples from appellant. One sample

was deficient, and Trooper Jarero speculated that appellant “didn’t blow hard enough.”

The other two samples registered a blood alcohol concentration of .181 and .183.

        Marry Ann Perales, the technical supervisor responsible for maintaining and

calibrating the intoxilyzer that Trooper Jarero used to collect appellant’s breath samples,

testified that she tested the intoxilyzer about one month before and a few days after

appellant’s arrest. She affirmed the intoxilyzer was operating correctly on those dates.

        1
           Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
                                                     2
Perales stated that, in her opinion, appellant was intoxicated. The State asked Perales if

she could approximate the level of appellant’s blood alcohol content at a time about one

hour before he provided the breath samples. Perales responded that she could not give

an exact number, but she asserted, “I can tell you he was above the legal limit.”

                                II. SUFFICIENCY OF THE EVIDENCE

        By his first issue, appellant contends the evidence was insufficient to support his

conviction. We disagree.

A.      Admissibility of Evidence

        As a preliminary matter, although appellant frames his argument as a sufficiency

challenge, much of his issue questions the admissibility of certain evidence. Specifically,

appellant discounts Trooper Jarero’s testimony regarding the standard field sobriety tests

because “he was not shown to be certified to conduct field sobriety tests and because he

failed to adequately and correctly administer the field sobriety tests in accordance with

the instructions and guidelines contained in the NHTSA [National Highway Traffic Safety

Administration] Manual.” 2          Appellant similarly characterizes Perales’s testimony of

appellant’s level of intoxication about an hour before providing the breath samples as

“deficient, incompetent, and inadmissible” because it was “devoid of any concrete factual


        2
             Appellant acknowledges that he did not offer the National Highway Traffic Safety Administration
Manual into evidence in the trial court, but he encourages us to take judicial notice of it pursuant to Emerson
v. State, 880 S.W.2d 759, 764–66 (Tex. Crim. App. 1994) and Chapa v. State, 729 S.W.2d 723, 728 n.3
(Tex. Crim. App. 1987). Those cases allow an appellate court to take judicial notice of evidence not
previously admitted in assessing the universal admissibility of certain evidence, see Emerson, 880 S.W.2d
at 764–66 (evaluating the legitimacy of horizontal gaze nystagmus test to measure intoxication levels), or
the fundamental validity of a legal argument, see Chapa, 729 S.W.2d at 728 n.3 (holding judicial notice of
legislative fact helps determine when society recognizes an expectation of privacy as a reasonable one).
The cases do not exempt a party from moving to admit available evidence. See Emerson, 880 S.W.2d at
764–66; Chapa, 729 S.W.2d at 728 & n.3.

                                                      3
or scientific basis, [and] it was largely an exercise of conjecture and speculation.”

        Because appellant did not object to the admissibility of either witness’s testimony

in the trial court, we will not rule on its admissibility. See TEX. R. APP. P. 33.1 (as a

prerequisite to presenting an issue on appeal, the appellant must have timely objected to

the trial court, stating the specific objectionable grounds and obtaining a ruling on the

objection); Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007).3 Regardless,

even if the testimony was improperly admitted, we nevertheless consider all evidence,

admissible and inadmissible, in our sufficiency review.                   See Johnson v. State, 967

S.W.2d 410, 412 (Tex. Crim. App. 1998) (citing Gardner v. State, 699 S.W.2d 831, 835

(Tex. Crim. App. 1985) (en banc)); Jaynes v. State, 216 S.W.3d 839, 845 (Tex.

App.—Corpus Christi 2006, no pet.) (citing Moff v. State, 131 S.W.3d 485, 488 (Tex.

Crim. App. 2004)).

B.      Standard of Review

        “The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original);

see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.).

“The jury is the exclusive judge of the credibility of the witnesses and of the weight to be
        3
           Appellant’s cross-examination of Trooper Jarero extensively covered the administration of the
standard field sobriety tests, and the trial court admitted and published to the jury, without objection, a DVD
recording of Trooper Jarero’s administration of the standard field sobriety tests. See Lane v. State, 151
S.W.3d 188, 193 (Tex. Crim. App. 2004) (holding that error in the admission of evidence is cured when it
comes in elsewhere without objection); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (same).

                                                      4
given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the

evidence.” Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc)

(citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)).

       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily

restrict the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Id. A person commits the offense of driving while

intoxicated if the person is intoxicated while operating a motor vehicle in a public place.

TEX. PENAL CODE ANN. § 49.04. “Intoxicated” means “not having the normal use of

mental or physical faculties by reason of introduction of alcohol, a controlled substance, a

drug, a dangerous drug, a combination of two or more of those substances, or any other

substance in the body.” Id. § 49.01(2)(A). “Intoxicated” can also mean, “having an

alcohol concentration of .08 or more.” Id. § 49.01(2)(B).

C.     Analysis

       It is undisputed that appellant was operating a motor vehicle in a public place.

The strongest evidence that appellant was intoxicated while operating the vehicle was

that his breath sample registered a .181 and .183 blood alcohol concentration—clearly in

excess of the .08 legal limit—about an hour after Trooper Jarero stopped him. See TEX.

PENAL CODE ANN. § 49.01(2)(B). Perales gave unobjected-to testimony that appellant’s


                                               5
blood alcohol concentration would have been above the legal limit about an hour before

he submitted the breath samples.        This evidence alone was sufficient to convict

appellant. See Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012) (citing

Kitchens v. State, 823 S.W.2d 256, 258–59 (Tex. Crim. App. 1991) (en banc) (“When a

jury returns a general guilty verdict on an indictment charging alternate methods of

committing the same offense, the verdict stands if the evidence is sufficient to support a

finding under any of the theories submitted.”).

       Alternatively, Trooper Jarero testified that he arrested appellant for driving while

intoxicated because appellant performed poorly on the standard field sobriety tests. The

court admitted and published a DVD recording of appellant performing the tests.

Trooper Jarero expressly affirmed that, based on his observations, appellant had lost the

normal use of his mental and physical faculties.          See TEX. PENAL CODE ANN. §

49.01(2)(A).

       We defer to the jury as the sole judge of the credibility of the witnesses and of the

weight to be given their testimony. See Wesbrook, 29 S.W.3d at 111. Viewing the

evidence in the light most favorable to the prosecution, we conclude a rational jury could

have found the essential elements of driving while intoxicated beyond a reasonable

doubt. See Johnson, 364 S.W.3d at 293–94. Thus, as an alternative to proving the

offense with evidence of appellant’s blood alcohol concentration, Trooper Jarero’s

testimony and evidence of appellant’s poor performance of the standard field sobriety

tests constituted sufficient evidence to convict. See Sanchez, 376 S.W.3d at 775. We

overrule appellant’s first issue.


                                             6
                                   III. MOTION FOR MISTRIAL

        By his second issue, appellant argues the trial court erred in failing to grant his

motion for mistrial because Trooper Jarero improperly commented on appellant’s right to

remain silent. See U.S. CONST. amend. V; TEX. CONST. art. I, § 10; TEX. CODE CRIM.

PROC. ANN. art. 38.08 (West 2005). The complained-of comment came during defense

counsel’s cross-examination of Trooper Jarero. Trooper Jarero testified that appellant,

in running the red light, almost hit Trooper Jarero’s vehicle. Defense counsel, trying to

discredit Trooper Jarero, asked why Trooper Jarero did not include that information in his

arrest report. Trooper Jarero responded, “Why don’t you put him on the stand in [sic] ask

him?” Defense counsel objected to the comment, and the trial court sustained the

objection and struck the statement from the record. 4 The trial court then denied a

requested motion for mistrial.

A.      Standard of Review

        We review a trial court's ruling on a motion for mistrial under the

abuse-of-discretion standard. See Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim.

App. 2007). We view the evidence in the light most favorable to the trial court's ruling

and uphold the ruling if it is within the zone of reasonable disagreement. See id. (citing

Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)).

        A mistrial is a severe remedy, and “[o]nly in extreme circumstances, where the

prejudice is incurable, will mistrial be required.” Hawkins v. State, 135 S.W.3d 72, 77

(Tex. Crim. App. 2004) (en banc). “A mistrial is the trial court's remedy for improper


        4
          Appellant did not ask the trial court to instruct the jury to disregard Trooper Jarero’s statement.
No instruction to disregard was given.
                                                     7
conduct that is ‘so prejudicial that expenditure of further time and expense would be

wasteful or futile.’” Id. (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.

1999)). “Therefore, a mistrial should be granted only in the cases where the ‘reference

was clearly calculated to inflame the minds of the jury or was of such damning character

as to suggest it would be impossible to remove the harmful impression from the juror's

minds.’” Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009) (quoting Rojas v.

State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998)).        Otherwise, sound discretion

normally requires the trial judge to consider less drastic alternatives. Torres v. State,

614 S.W.2d 436, 442 (Tex. Crim. App. [Panel Op.] 1981).

      In determining whether a mistrial should have been granted, three factors must be

balanced: (1) the severity of the misconduct (prejudicial effect); (2) curative measures;

and (3) the certainty of conviction absent the misconduct. Archie v. State, 221 S.W.3d

695, 700 (Tex. Crim. App. 2007) (citing Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim.

App. 2004)).

B.    Discussion

      We agree with appellant and the trial court that Trooper Jarero’s comment was

improper.   Viewed in context, however, Trooper Jarero’s retort was unrelated to

appellant’s level of intoxication; Trooper Jarero was defending his credibility, which

defense counsel attempted to undermine by asking why certain details discussed in the

trooper’s testimony did not appear in his arrest report. Once the court sustained the

objection and struck the remark, Trooper Jarero did not repeat the statement.

      First, we hold the statement was not so severe that it was impossible to remove


                                           8
any harmful impression from the juror's minds.                 See Young, 283 S.W.3d at 878.

Second, the trial court’s curative measures of sustaining the objection and striking it from

the record were sufficient to remove the impression from the jurors’ minds.5 Third, as

discussed in the previous section, the evidence that appellant was driving while

intoxicated was very strong. Appellant’s conviction resulted from the strength of the

evidence rather than Trooper Jarero’s comment, especially given that the comment was

unrelated to appellant’s level of intoxication. Thus, on balance, the three factors weigh

against the extreme remedy of a mistrial. See Archie, 221 S.W.3d at 700.

        Viewing the evidence in the light most favorable to the trial court’s ruling, we

conclude the ruling fell within the zone of reasonable disagreement. See Webb, 232

S.W.3d at 112. We overrule appellant’s second issue.

                                        IV. CONCLUSION

        We affirm the trial court’s judgment.



                                                           GREGORY T. PERKES
                                                           Justice

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

Delivered and filed the
6th day of February, 2014.




        5
           The jury charge properly informed the jury that appellant’s silence was not to be held against
him. We presume the jury followed the jury charge absent a contrary showing. See, e.g., Casanova v.
State, 383 S.W.3d 530, 543 & n.56 (Tex. Crim. App. 2012).
                                                   9
