Opinion filed July 30, 2015




                                      In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-13-00202-CR
                                    __________

                          ADAM GIBBINS, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

                         On Appeal from the County Court
                             Eastland County, Texas
                           Trial Court Cause No. 12-456


                          MEMORANDUM OPINION
       The jury convicted Adam Gibbins of driving while intoxicated. The trial court
assessed his punishment at confinement for one hundred and eighty days in jail and
a $1,500 fine. The trial court suspended the confinement portion of Appellant’s
sentence and placed him on community supervision for a term of eighteen months.
Appellant filed a timely notice of appeal and has raised two issues for us to review
on appeal. We affirm.
      On the date of the offense, Eastland County Deputy Sherriff Ben Yarbrough
returned home from work about 5:30 in the evening. Shortly after he got home, he
heard “[a] lot of tires screeching, going around corners, and engine racing.” He then
heard a thud, “like someone had hit a hollow tree.” Then, he heard an “engine racing
and a bunch of tires squealing”; he could tell a vehicle was stuck and eventually
broke free.
      Deputy Yarbrough, still in uniform, started to get into his patrol car to go see
what was happening. As he was getting into his patrol car, he heard a car—turned
out to be a Ford Mustang—that was being driven down the street in a reckless and
unsafe manner. Deputy Yarbrough went to look for, and in less than ten minutes
actually located, the Mustang. When Deputy Yarbrough found the Mustang, the
driver was driving it out of a driveway. When the driver saw Deputy Yarbrough, he
quickly backed back up into the driveway. At this time, Deputy Yarbrough saw the
passenger run from the car and disappear. He saw the driver, Appellant, step out of
the Mustang and duck behind it; he was hiding from Deputy Yarbrough. The first
thing that Appellant said to Deputy Yarbrough was, “I’ll pay for the fence.”
      Appellant showed signs of intoxication, smelled of stale beer and alcohol, and
Deputy Yarbrough placed him in custody and called Rising Star Police Chief
William Kelcy for assistance. After Chief Kelcy arrived, he conducted field sobriety
tests on Appellant and he also administered a portable breath test. After Chief Kelcy
completed the tests, he wrote Appellant tickets for reckless driving, leaving the scene
of an accident, and for “drug paraphernalia.” He then placed Appellant under arrest.
      While Appellant and Chief Kelcy were in the patrol car on the way to jail,
Chief Kelcy asked Appellant whether he would take a breath or blood test. The
record is unclear as to whether Chief Kelcy asked Appellant to complete both or
only one of these tests. Chief Kelcy testified that Appellant refused the test or tests,
and he took Appellant to jail. We cannot tell from the record whether Chief Kelcy
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made Appellant aware of the consequences of refusal. However, it is clear that
Appellant did not sign a written refusal that contained the statutory warnings for the
consequences of refusal. At trial, Chief Kelcy testified, without objection, to
Appellant’s refusal. Further, Chief Kelcy testified that one reason he did not have
Appellant fill out the refusal paperwork was because the intoxilyzer at the jail was
broken at the time.
      Appellant brings forth two issues on appeal. Both of the issues are based on
claimed error in the admission of evidence that Appellant refused the breath test and
that Chief Kelcy was aware that the intoxilyzer was not working. In Appellant’s
first issue, he argues that the trial court committed fundamental error when it
admitted Appellant’s refusal because it prejudiced Appellant’s case to the extent it
denied him a fair trial. In Appellant’s second issue, he argues that the State should
have to lay an additional predicate—the intoxilyzer was in working condition—
before a refusal is admissible. Since these issues are largely related, we will address
them together.
      Appellant complains that when the trial court admitted Appellant’s refusal it
fundamentally prejudiced his right to a fair trial, because the evidence showed that
the intoxilyzer was inoperable at the time. Appellant did not object to Deputy
Yarbrough’s testimony either time that he discussed Appellant’s refusal. Further,
Appellant cites no case authority which directly relates to this issue, but simply
argues that his fundamental rights were violated.
      In Marin v. State, the Court discussed various types of rights of a defendant.
Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993), overruled on other grounds
by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997) (en banc), abrogated by
Matchett v. State, 941 S.W.2d 922 (Tex. Crim. App. 1996). The Marin Court
discussed three categories of rights: “(1) absolute requirements and prohibitions;
(2) rights of litigants which must be implemented by the system unless expressly
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waived; and (3) rights of litigants which are to be implemented upon request.” Id.
at 279. The Marin Court found that the only rights that a defendant must object to
at trial are those that are to be implemented on request. Id. However, since Marin,
the Texas Court of Criminal Appeals has held that rights classified as “waivable
only” require objection at trial. Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim.
App. 2002). Consequently, the only time that a defendant is not required to object
in order to preserve error is when the right implicated is one that concerns absolute
requirements and prohibitions. Id.
      The admissibility of evidence does not rise to the level of absolute
requirements and prohibitions. Id. The Court of Criminal Appeals has held “that
the failure to object in a timely and specific manner during trial forfeits complaints
about the admissibility of evidence.” Id. In Saldano, the Court discussed the
different classifications of rights as set forth in Marin. Id. The defendant in Saldano
did not object to testimony that concerned his rights under the Equal Protection
Clause. Id. The court held that a defendant must object to testimony offered, and
the failure to do so “prevents his raising on appeal a[n] [Equal Protection Claim].”
Id. Appellant’s issues in this case concern the admission of evidence to which he
did not object.      Accordingly, Appellant’s issues are not such that present
fundamental error and did not deny Appellant his right to a fair trial. Id. Rather, his
failure to object “forfeits complaints about the admissibility of evidence,” as well as
complaints about the lack of a predicate for the admission of evidence regarding
Appellant’s refusal to submit to an intoxilyzer Id.
      The admission of testimony concerning Appellant’s refusal to take a breath or
blood test, despite the fact the intoxilyzer was broken, is not fundamental error and
did not deprive Appellant of a fair trial. Appellant has waived any complaint by his
failure to object to the testimony in the trial court. Appellant’s first and second issues
on appeal are overruled.
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        We affirm the judgment of the trial court.


                                                                 JIM R. WRIGHT
                                                                 CHIEF JUSTICE




July 30, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., McCall, J.1

Bailey, J., not participating.




        1
        Terry McCall, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by
assignment.

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