                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00446-CR


LYNN ATMER SIMMONS A/K/A                                              APPELLANT
LYNN A. SIMMONS

                                         V.

THE STATE OF TEXAS                                                          STATE


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          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1
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      Appellant Lynn Atmer Simmons a/k/a Lynn A. Simmons appeals his

conviction for felony driving while intoxicated. In a single point, he contends that

the trial court erred by admitting opinion testimony from a police officer who

testified that Appellant’s version of how his car collided with another’s made no

sense. We affirm.


      1
       See Tex. R. App. P. 47.4.
      The evidence showed that Appellant was intoxicated in his pickup truck

when it collided with a four-door Kia driven by an off-duty police officer. When

Fort Worth Police Officer Corey Swanson arrived on the scene, the Kia was

disabled in the roadway, facing westbound. It had sustained damage to its left

front corner. Appellant’s pickup had been pulled off the roadway. It had front

end damage. Appellant told Officer Swanson that his truck was over the double

yellow line turning left when the Kia struck him at high speed. Officer Swanson

testified that Appellant’s story made no sense to him.2 Citing rule of evidence

701, the trial court overruled Appellant’s objection and allowed the officer’s

testimony.

      Appellant argues that the trial court abused its discretion by admitting the

officer’s testimony under rule of evidence 701, which allows for a lay witness to

testify in the form of an opinion.3




      2
       Just before Officer Swanson so testified, Appellant had established
outside the jury’s presence that Officer Swanson was not an expert in accident
reconstruction, and Appellant objected to his opinion testimony on that basis.
      3
       Texas Rule of Evidence 701 provides:

             If the witness is not testifying as an expert, the witness’
      testimony in the form of opinions or inferences is limited to those
      opinions or inferences which are (a) rationally based on the
      perception of the witness and (b) helpful to a clear understanding of
      the witness’ testimony or the determination of a fact in issue.

Tex. R. Evid. 701.


                                        2
      The State responds that Appellant failed to preserve his claim based on

rule 701 because he based his trial objection on rule 702. Rule 702 governs the

admissibility of expert opinion testimony. It provides:

             If scientific, technical, or other specialized knowledge will
      assist the trier of fact to understand the evidence or to determine a
      fact in issue, a witness qualified as an expert by knowledge, skill,
      experience, training, or education may testify thereto in the form of
      an opinion or otherwise.

Tex. R. Evid. 702.

      At trial, Appellant established outside the jury’s presence that Officer

Swanson was not an expert in accident reconstruction and then objected that the

officer should not be allowed to give his opinion because he was not qualified as

an expert. The trial court overruled Appellant’s objection, specifically citing rule

701. Appellant did not argue to the trial court that the officer’s testimony also

violated rule 701. He does, however, so argue in his brief:

             The trial court was incorrect in believing that the testimony
      was admissible under [r]ule 701 because: (1) [t]he jury could have
      perceived his testimony as being that of an expert, and (2) [i]t was
      not helpful to the jurors’ understanding of the witness’ testimony and
      the jurors’ determination of a fact in issue, because they could have
      misconstrued his role as a police officer . . . .

      A complaint made on appeal must comport with the complaint made in the

trial court or it is forfeited. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App.

2009) (“Whether a party’s particular complaint is preserved depends on whether

the complaint on appeal comports with the complaint made at trial.”). To the

extent that Appellant’s point on appeal contests admissibility based on rule 701,



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because his trial objection was based on rule 702, his complaint is not preserved

for our review. See id.

      But Appellant did preserve a complaint based on rule 702.          So to the

extent that he also contends in his brief that the trial court abused its discretion

by overruling Appellant’s objection based on rule 702, that particular complaint

should be addressed. It is, however, without merit because it is clear from the

record that the officer’s opinion was not offered as that of an expert. The State’s

attorney plainly stated that Officer Swanson was not offered as an expert

witness. Appellant established outside the jury’s presence that Officer Swanson

was not an expert. The trial court specifically admitted the officer’s opinion as

that of a lay witness permitted by rule 701. Moreover, the officer need not have

been an expert to form the opinion based on seeing the cars after the wreck that

Appellant’s version of how his truck collided with the other car did not make

sense to him. See James v. State, 335 S.W.3d 719, 726 (Tex. App.—Fort Worth

2011, no pet.) (holding that officer’s opinion that defendant’s self defense claim

made no sense was properly admitted under rule 701). Appellant told the officer

that the Kia was approaching at high speed from the opposite direction and that it

hit him while he proceeded to turn left.      But the photo of Appellant’s truck

admitted as State’s Exhibit 2 shows some denting in the middle of the truck’s

front bumper and the photo of the Kia admitted as State’s Exhibit 4 shows the

Kia’s front left corner torn off.    A reasonable person could conclude that




                                         4
Appellant’s version does not make sense because the damage is in the wrong

places.

      Finally, even if the trial court erred in admitting the officer’s opinion that

Appellant’s version made no sense to him, given the evidence in the record that

Appellant was driving while intoxicated and the fact that the officer’s opinion was

not mentioned during closing argument, we conclude that the officer’s opinion

testimony had no effect on Appellant’s substantial rights and should be

disregarded.   See Tex. R. App. P. 44.2(b).        For these reasons we overrule

Appellant’s sole point and affirm the trial court’s judgment.




                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: GARDNER, McCOY, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 3, 2011




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