                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-055-CR


MARTIN MUNANU KARIUKI                                            APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE

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     FROM COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                  Introduction

      Appellant Martin Munanu Kariuki appeals his conviction for driving while

intoxicated. See Tex. Penal Code Ann. § 49.04 (Vernon 2003). In two points,

appellant contends that the jury’s verdict was based on misleading testimony

regarding standardized field sobriety testing. We affirm.



      1
          … See Tex. R. App. P. 47.4.
                               Background Facts

      On February 8, 2007, the Tarrant County District Attorney’s Office filed

an information charging appellant with driving while intoxicated.          Before

appellant’s trial began in November 2007, he entered a plea of not guilty.

Following the voir dire examination of the jury panel, the trial court’s swearing

of the jury, and the State’s opening argument, the State called the trial’s only

witness—Keller Police Department Lieutenant Robert Enckhausen.

      Lieutenant Enckhausen, who had worked for the Keller Police Department

for thirteen years at the time of trial, briefly recited his career background and

explained that he had been specially trained in standardized field sobriety

testing. He then testified to the following facts.

      In the early morning of December 8, 2006, Lieutenant Enckhausen saw

a Jaguar ahead of him traveling very fast and weaving in and out of traffic.

After stopping in the middle of an intersection, the Jaguar went north in a

southbound lane and made an illegal turn. Lieutenant Enckhausen turned on the

overhead lights of his patrol car, and the Jaguar pulled into a gas station

parking lot, stopping in the middle of two parking spaces. While identifying

appellant as the driver, Lieutenant Enckhausen noticed that appellant’s eyes

were bloodshot and watery. Appellant stated that he had been at a bar but that

he drank only one beer.

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      As appellant came out of the car, he swayed, slurred his words, and

smelled like alcohol. Based on these conditions, Lieutenant Enckhausen decided

to conduct standardized field sobriety tests. After completing the horizontal

gaze nystagmus (HGN) test,2 Lieutenant Enckhausen attempted to complete the

other standardized tests (the walk-and-turn test and the one-leg-stand test), but

appellant refused to participate.       Upon concluding that appellant was

intoxicated, Lieutenant Enckhausen arrested him and took him to the Keller

police station, where appellant refused to provide a breath specimen to

determine his blood alcohol content.

      On cross-examination by appellant’s counsel, Lieutenant Enckhausen

testified that the HGN test is eighty-seven percent accurate to show that an

individual has a blood alcohol content above .08 when the officer correctly

discovers four of six “clues” used in the test. He also testified that optokinetic

nystagmus, which can be caused by the effect on eyes from light sources, does

not impact an HGN test. He then stated that the result of appellant’s HGN test,


      2
       … Lieutenant Enckausen stated that the HGN test, which looks for clues
of involuntary eye “jerking” while an individual looks to his sides, is used
throughout the United States. He explained the specific procedures used in the
test, though these procedures are not relevant to the issues raised in this
appeal. For a further explanation of the HGN test and the admissibility of its
results, see Emerson v. State, 880 S.W.2d 759, 762–70 (Tex. Crim. App.),
cert. denied, 513 U.S. 931 (1994).


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combined with appellant’s odor of alcohol and the level of appellant’s

cooperation, indicated to him that appellant was intoxicated.

      The parties rested and closed and counsel presented closing arguments.

After the jury deliberated for less than twenty minutes, they found appellant

guilty, and the trial court sentenced him to 120 days’ confinement (probated

for a period of two years), ordered him to submit to an alcohol evaluation and

perform community service, and assessed a $750 fine. Appellant filed a notice

of this appeal.

                     Lieutenant Enckhausen’s Testimony

      In appellant’s two points, he contends that his conviction was based on

misleading testimony by Lieutenant Enckhausen. While the two points regard

different portions of the testimony, they address the same legal complaint;

therefore, we will address the points together.

      Appellant specifically contends that Lieutenant Enckhausen provided

misleading testimony by (1) indicating that there was a correlation between the

results of an HGN test and blood alcohol content, (2) testifying about

optokinetic nystagmus, which is outside his area of expertise, and (3) allegedly

implying that HGN tests never give “false positives.” To preserve a complaint

for our review, a party must have presented to the trial court a timely request,

objection, or motion that states the specific grounds for the desired ruling if

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they are not apparent from the context of the request, objection, or motion.

Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim.

App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999). Further, the

trial court must have ruled on the request, objection, or motion, either expressly

or implicitly, or the complaining party must have objected to the trial court’s

refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334,

341 (Tex. Crim. App. 2004). “Except for complaints involving systemic (or

absolute) requirements, or rights that are waivable only, . . . all other

complaints, whether constitutional, statutory, or otherwise, are forfeited by

failure to comply with Rule 33.1(a).” Mendez, 138 S.W.3d at 342.

      The Texas Court of Criminal Appeals has “consistently held that the

failure to object in a timely and specific manner during trial forfeits complaints

about the admissibility of evidence.” Saldano v. State, 70 S.W.3d 873, 889

(Tex. Crim. App. 2002); see also Johnson v. State, 878 S.W.2d 164, 167

(Tex. Crim. App. 1994) (stating that it is “axiomatic that in order to preserve

an error in the admission of evidence for appellate review, a defendant must

make a timely objection”). Error may not be predicated on the admission of

testimony unless “a timely objection or motion to strike appears of record,

stating the specific ground of objection.” Tex. R. Evid. 103(a)(1); see Capps

v. State, 244 S.W.3d 520, 528 (Tex. App.—Fort Worth 2007, pet. ref’d)

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(holding that complaints about testimony were waived when no trial objection

was made). An objection should be made “as soon as the ground for [the]

objection becomes apparent.     If a defendant fails to object until after an

objectionable question has been asked and answered, and he can show no

legitimate reason to justify the delay, his objection is untimely and error is

waived.” Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App.), cert.

denied, 522 U.S. 917 (1997) (citation omitted).

      Our review of the record indicates that appellant failed to make any

objection to the portions of Lieutenant Enckhausen’s testimony that he now

complains about in his two points; he therefore clearly forfeited these

complaints. Thus, we overrule both of appellant’s points.3




      3
      … We note that the State was not responsible for Lieutenant
Enckhausen’s testimony on the matters complained about; rather, appellant’s
counsel developed the testimony on cross-examination. A defendant cannot
”be heard to complain of testimony he elicited by his own cross-examination.”
Stephens v. State, 522 S.W.2d 924, 927 (Tex. Crim. App. 1975).


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                                Conclusion

     Having overruled both of appellant’s points, we affirm the trial court’s

judgment.




                                         TERRIE LIVINGSTON
                                         JUSTICE




PANEL: LIVINGSTON, WALKER, and MCCOY, JJ.

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

DELIVERED: December 18, 2008




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