      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                                        NO. 03-07-00338-CR



                                   Sean Lee McIntosh, Appellant

                                                   v.

                                    The State of Texas, Appellee


          FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY
           NO. 06-7423-1, HONORABLE SUZANNE BROOKS, JUDGE PRESIDING



                               CONCURRING OPINION


                I agree with the majority that appellant’s point of error should be overruled and that

the judgment should be affirmed. However, because I believe that appellant’s point should be dealt

with summarily, I write separately.

                I agree that appellant did not preserve error because his objections related to the

“scientific validation” of the tests were made only during his voir dire of Santos and were limited

to “the scientific relevance and reliability of the science itself.” Appellant also failed to object when

Santos testified before the jury that three of the four tests had been scientifically validated or to

Santos’s use of phrases like “standardized tests,” “scientifically validated clues,” and “recognized

tests.” I also note that Santos’s testimony that the walk-and-turn and one-leg-stand tests had been

scientifically validated came during his cross-examination by appellant. In other words, the

testimony of which appellant complains was elicited by appellant during his interrogation about

Santos’s training, knowledge, and understanding of the tests and the science supporting and leading
to their development.1 In its condemning of Santos’s “repeatedly testifying that the walk-and-turn

and one-leg stand tests provide ‘validated’ or ‘scientifically validated’ clues of impairment,” the

majority neglects to observe that such testimony was in large part due to appellant’s inquiries and,

despite paying passing attention to this Court’s opinion in Taylor v. State, glosses over the holding

in Taylor that an officer’s use of terms “such as ‘test,’ ‘standardized clues,’ ‘pass’ or ‘fail’” does not

automatically convert lay testimony into expert testimony requiring expert qualifications. No. 03-03-

00624-CR, 2006 WL 1649037, at *12 (Tex. App.—Austin June 16, 2006, pet. ref’d) (mem. op., not

designated for publication). I therefore agree that appellant waived the error he attempts to

raise on appeal.

                I also agree that any error in the officer’s testimony related to the “scientific

validation” of the field sobriety tests was harmless in light of the extensive testimonial and videotape

evidence. Because any error was both waived and harmless in light of the evidence, I fail to see the

point of conducting a lengthy discussion of whether Santos’s testimony was impermissible expert

testimony. Rather than simply noting that the complaint was waived and, even if both preserved and

erroneous, harmless, the majority insists on carrying through an analysis to find error, only then

noting its waiver and harmless nature. Further, I do not agree that Santos’s testimony, which was

elicited by appellant, clearly overstepped the boundary between proper lay-witness testimony and

improper expert testimony.


        1
          The testimony of which he complains was almost entirely elicited by appellant himself
through questions such as, “The only three recognized tests that are scientifically validated are the
horizontal gaze nystagmus, the walk and turn and the one leg stand, correct?” and, “That’s what you
were taught, correct? That they were scientifically validated, correct?” Further, nowhere during his
cross-examination into Santos’s opinion about the scientific validation of the tests did appellant
object and raise the complaint he raises on appeal.

                                                    2
               Because I do not agree that Santos’s testimony was clearly improper, much less with

the purely academic exercise of conducting an analysis to reach that conclusion in the first place, I

concur in the conclusion of the majority rather than joining the opinion as a whole.




                                              ___________________________________________

                                              David Puryear, Justice

Filed: February 4, 2010

Do Not Publish




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