                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-12-00055-CR



         BENJAMIN CHASE CAPPS, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 188th District Court
                 Gregg County, Texas
               Trial Court No. 39504-A




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                                MEMORANDUM OPINION
       Benjamin Chase Capps was convicted by a jury of driving while intoxicated (DWI), third

or more, a third degree felony. His punishment was enhanced by his plea of true to a prior

conviction; Capps received a sentence of twenty years’ imprisonment.              On appeal, Capps

challenges the trial court’s jurisdiction and argues that the trial court erred in (1) failing to omit

jury instructions over objections that they constituted a comment on the weight of the evidence,

(2) allowing testimony from a non-expert witness about intoxication, (3) allowing extraneous-

offense evidence at the punishment stage, (4) allowing the use of a PowerPoint presentation

during the State’s closing argument, and (5) failing to grant Capps’ request to omit parole and

good time instructions in the punishment charge. We affirm the trial court’s judgment because

we find that the trial court was within its jurisdiction and committed no error with respect to

Capps’ complaints.

I.     Trial Court’s Jurisdiction

       The offense of DWI is a class B misdemeanor. See TEX. PENAL CODE ANN. § 49.04(b)

(West Supp. 2012). However, this offense becomes “a felony of the third degree if it is shown

on the trial of the offense that the person has previously been convicted: . . . two times of any

other offense relating to the operating of a motor vehicle while intoxicated.” TEX. PENAL CODE

ANN. § 49.09(b)(2) (West Supp. 2012).           The State’s indictment alleged that Capps was

previously convicted of DWI “on the 14th day of March, 2001, in cause number 2000-5038 in

the County Court of Gregg County, Texas” and “on the 5th day of July, 2001, in cause number

26761 in the County Court of Upshur County, Texas.” The State’s allegations of these predicate


                                                  2
offenses vested the district court with jurisdiction over this third degree offense. See Martin v.

State, 200 S.W.3d 635, 640 (Tex. Crim. App. 2006); Gibson v. State, 995 S.W.2d 693, 696 (Tex.

Crim. App. 1999).

           At trial, the State introduced a stipulation of evidence and judicial confession signed by

Capps, which admitted the convictions of the predicate offenses. The stipulation of evidence

was received without objection. In his briefing, Capps appears to argue that the stipulation was

“awkward,” and unclear. We disagree. The stipulation read:

                   I, BENJAMIN CHASE CAPPS . . . judicially confess to the following
           facts and agree and stipulate that these facts are true and correct: that on or about
           the 31st day of August, 2009 in Gregg County, Texas, I, BENJAMIN CHASE
           CAPPS did then and there prior to being charged with the aforesaid offense, on
           the 14th day of March, 2011, in cause number 2000-5038 in the County Court of
           Gregg County, Texas, I was convicted of an offense relating to the operating of a
           motor vehicle while intoxicated; and on the 5th day of July, 2001, in cause number
           26761 in the County Court of Upshur County, Texas, I was convicted of an
           offense relating to the operating of a motor vehicle while intoxicated, as charged
           in the indictment.

           This stipulation and judicial confession had the effect of withdrawing the fact of two

prior convictions from issue and dispensed with the need to prove them. Bryant v. State, 187

S.W.3d 397, 400 (Tex. Crim. App. 2005) (stipulation to two prior DWI convictions removes

need to prove those convictions); see generally Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App.

2000). 1




1
 Capps also references, but does not develop, an argument relating to double jeopardy which was not asserted in the
trial court below.
                                                        3
II.    Jury Instruction Directing a Finding of the Prior Jurisdictional Offenses

       Our review of error in this jury charge involves a two-step process. Ngo v. State, 175

S.W.3d 738, 743 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim.

App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009). Initially, we

determine whether error occurred and then evaluate whether sufficient harm resulted from the

error to require reversal. Abdnor, 871 S.W.2d at 731–32.

       A trial court must submit a charge setting forth the “law applicable to the case.” TEX.

CODE CRIM. PROC. ANN. art. 36.14 (West 2007). “The purpose of the jury charge . . . is to

inform the jury of the applicable law and guide them in its application to the case.” Delgado v.

State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007).

       During guilt/innocence, the trial court submitted this instruction to the jury:

       THE DEFENDANT STIPULATED THAT HE HAS BEEN PREVIOUSLY
       CONVICTED TWO TIMES OF DRIVING WHILE INTOXICATED.
       BECAUSE THIS ELEMENT IS UNCONTESTED, NO OTHER EVIDENCE
       REGARDING THE PRIOR CONVICTIONS IS NECESSARY. YOU ARE
       HEREBY DIRECTED TO FIND THIS ELEMENT IS NOW PROVEN. THESE
       PRIOR CONVICTIONS MAY NOT BE USED FOR ANY OTHER PURPOSE
       IN DETERMINING THE GUILT OR INNOCENCE OF THE DEFENDANT
       ON THIS CHARGE.

       At the charge conference, Capps objected to this language as a comment on the weight of

the evidence, but noted that there was no “expectation to argue against the stipulation.” Counsel

clarified, “I have no problem with stating to the jury the defendant stipulated. . . . I just think the

next sentence is actually a comment on the weight of that evidence, and that is strictly within the

province of the jury.” After consulting Martin v. State, 200 S.W.3d 635 (Tex. Crim. App. 2006),


                                                  4
and the “Texas Criminal Pattern Jury Charges on intoxication and controlled substances, Section

A4.17,” the objection was overruled.

       In Martin, the Texas Court of Criminal Appeals directed that the jury charge “include

some reference to the jurisdictional element of two prior DWI convictions in a felony DWI trial”

and that it also include “some reference to the defendant’s stipulation and its legal effect of

establishing the jurisdictional element.” Id. at 641. It wrote that one manner of accomplishing

this task could be:

       to simply charge the elements of the underlying DWI offense and include a
       paragraph stating that the defendant has stipulated to the existence of two
       (specified or unspecified) prior DWI convictions, and thus the jury is directed to
       find that those elements of felony DWI are established.

Id. at 639. That is precisely what the trial court did in this case. Capps attempts to distinguish

Martin by stating that while the case “speaks of ‘prior convictions’ and stipulation thereto by a

defendant . . . [as] ‘established,’” the case “never sanctions the use of a word like ‘proven,’

which carries with it the especial [sic] connotation of a burden on proof and acceptability of

evidence, i.e. the weight of evidence.”

       We do not find any significant difference between the term proven and the term

established. The trial court acted in accordance with Martin. Finding no error in the submission

of this jury instruction, we overrule Capps’ point of error.




                                                  5
III.       Arresting Officer Testimony

           After the arresting officer, Jeremy Higginbotham, testified that he noticed Capps’ glassy,

red eyes, slurred speech, loss of fine motor skills, and slowed movement, 2 Capps asked the court

to take Higginbotham on voir dire outside of the presence of the jury. During voir dire, it was

established that Higginbotham was not an ophthalmologist or optometrist. After voir dire, Capps

lodged the following objection and argument:

           I believe that the officer should be prevented from testifying with regards to the
           results of an HGN exercise. I don’t think that he can—that he’s qualified to tell
           us what the causes of a particular eye movement is. And I think that only an
           ophthalmologist should be permitted to interpret the particular eye movement as
           indicative of intoxication.

The objection was overruled, and Higginbotham testified that he observed six out of six clues on

the horizontal gaze nystamus (HGN) test, which indicated intoxication.

           Capps argues that the trial court erred in allowing Higginbotham to testify about the HGN

test without “any offer made by the State to supply a scientific basis . . . for those opinions.” 3

           In Emerson v. State, it was argued that “the HGN test is a ‘scientific’ test, similar to a

breathalyzer test, and that the HGN test results should not have been admitted because [the

arresting officer] was not qualified as a scientific expert.” Emerson v. State, 880 S.W.2d 759,

762 (Tex. Crim. App. 1994). This exact argument is made here. Rejecting this argument, the

Texas Court of Criminal Appeals espoused upon the scientific reliability of the HGN test and

took judicial notice “of the reliability of both the theory underlying the HGN and its technique.”

2
    Capps told Higginbotham that he had ingested both Vicodin and Suboxone.
3
 Although Capps’ brief complains that the court allowed Higginbotham to testify about other field-sobriety tests, he
lodged no objection at trial with respect to tests other than the HGN test.
                                                         6
Id. at 768–69. Thus, pursuant to Emerson, only the following requirements are needed in order

for an officer to testify about the results of an HGN test:

        For testimony concerning a defendant’s performance on the HGN test to be
        admissible, it must be shown that the witness testifying is qualified as an expert
        on the HGN test, specifically concerning its administration and technique. In the
        case of a police officer or other law enforcement official, this requirement will be
        satisfied by proof that the officer has received practitioner certification by the
        State of Texas to administer the HGN. A witness qualified as an expert on the
        administration and technique of the HGN test may testify concerning a
        defendant’s performance on the HGN test . . . .

Id. at 769.

        Capps acknowledges that Emerson stands “for the proposition that HGN evidence [is]

admissible even without the ability of the policeman to qualify as an expert in the science

underlying the test.” Yet, Capps cites United States v. Horn, 185 F. Supp. 2d 530, 561 (D. Md.

2002), a case which does not control in Texas courts, to support his claim that Emerson “has

been questioned by at least one court.” Unquestionably, however, Emerson has been cited with

favor in many Texas courts, including this one. Hartman v. State, 198 S.W.3d 829, 839 (Tex.

App.—Corpus Christi 2006, pet. struck); McRae v. State, 152 S.W.3d 739, 743 (Tex. App.—

Houston [1st Dist.] 2004, pet. ref’d) (disapproving Horn); Compton v. State, 120 S.W.3d 375,

377 (Tex. App.—Texarkana 2003, pet. ref’d) 4; Quinney v. State, 99 S.W.3d 853, 857 (Tex.

App.—Houston [14th Dist.] 2003, no pet.); Ellis v. State, 86 S.W.3d 759, 760 (Tex. App.—

Waco 2002, pet. ref’d); see State v. Fecci, 9 S.W.3d 212, 217–18 (Tex. App.—San Antonio

1999, no pet.).


4
 See also Tidwell v. State, No. 06-06-00143-CR, 2007 WL 1342460, at *4 (Tex. App.—Texarkana May 9, 2007, no
pet.) (mem. op., not designated for publication).
                                                    7
       Here, Higginbotham testified that he was trained on how to administer standard field-

sobriety tests in accordance with National Highway Traffic Safety Administration (NHTSA)

guidelines. He further testified he had taken a DWI course “[a]t the academy” in which he

became “certified to perform the SFSTs,” and had taken a second course focusing specifically on

HGN testing and administration. Thus, in accordance with Emerson, Capps was “qualified as an

expert on the HGN test, specifically concerning its administration and technique[.]” Emerson,

880 S.W.2d at 769. Thus, his testimony was admissible. Id.

       We overrule Capps’ third point of error.

IV.    Punishment Phase Evidence of a Prior Accident Caused by Intoxication

       During the punishment phase, several witnesses, including Capps, testified that the driver

of another vehicle was killed in an accident caused when Capps “shot over into incoming traffic”

on February 6, 2010. A test of a sample of Capps’ blood, taken on the day of the accident,

revealed the presence of Meprobamate (a muscle relaxer), Phenobarbital, Alaprazolam (Xanax),

and Hydrocodone.      Capps’ brief states, “[T]hroughout the punishment phase of the trial,

Appellant voiced his objection to the State’s use of evidence of a car wreck – and the

circumstances of it – on February 6, 2010, clearly encompassing several extraneous offenses.”

       Our review of the record reveals that counsel employed a running objection only as to

“any and all unadjudicated offenses.” The testimony from several witnesses regarding the car

accident at issue then continued without further objection.      Counsel also complains of the

introduction of “extraneous offenses . . . [that] were yet unadjudicated, unconvicted, offenses of

possession of various controlled substances, intoxication manslaughter, and intoxication

                                                  8
assault.” 5 Again, the only objection made was a general objection to the introduction of any

unadjudicated offenses.

         Article 37.07 of the Texas Code of Criminal Procedure provides:

         Regardless of the plea and whether the punishment be assessed by the judge or the
         jury, evidence may be offered by the state and the defendant as to any matter the
         court deems relevant to sentencing, including but not limited to the prior criminal
         record of the defendant, his general reputation, his character, an opinion regarding
         his character, the circumstances of the offense for which he is being tried, and,
         notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence
         of an extraneous crime or bad act that is shown beyond a reasonable doubt by
         evidence to have been committed by the defendant or for which he could be held
         criminally responsible, regardless of whether he has previously been charged with
         or finally convicted of the crime or act.

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2012). At trial, counsel lodged

no Rule 404 or 405 objections. Here, he argues for the first time that Rule 403 applies, claiming

that “[a]t best, the State’s evidence amounted to ‘some evidence’ that drugs were present, but

certainly not proof of their quantities by weight or their penalty groups as must be proven beyond

a reasonable doubt for conviction.”

         We find that the trial court properly overruled Capps’ sole objection related to

“unadjudicated offenses” and that the evidence introduced by the State which did not consist of

judgments of convictions was permitted under Article 37.07, Section 3(a)(1) as extraneous bad

acts. Because they were bad acts, the State was only required to show that the acts were




5
 The record reveals that counsel specifically stated that he had no objection to the State’s introduction of convictions
for possession of marihuana, theft, burglary of a vehicle, providing a false report to a peace officer, two assaults
causing bodily injury, and several DWIs.

                                                           9
committed by Capps beyond a reasonable doubt, 6 not that the acts rose to the level of a crime.

Haley v. State, 173 S.W.3d 510, 514 (Tex. Crim. App. 2005) (not necessary to prove that bad act

was criminal act or that defendant committed crime). Finally, because no Rule 403 arguments

were raised below, they were unpreserved. See TEX. R. APP. P. 33.1; Montgomery v. State, 810

S.W.2d 372, 388 (Tex. Crim. App. 1991) (op. on reh’g).

        We overrule Capps’ point of error related to evidence introduced at punishment.

V.      The State’s Use of PowerPoint

        Capps does not complain generally that the PowerPoint presentation should have been

disallowed. He objects to a slide which listed “aggravated assault/manslaughter” as a bad act

committed by Capps. At trial, the following discussion occurred:

                 [Defense Attorney]: Your Honor, I think that the -- as long as I believe it
        does -- there is one entry, that very last one, aggravated assault/manslaughter, I
        think it misleads, in other words, criminal history means something that has
        already occurred, it’s in the past. That aggravated assault/manslaughter action is
        still unadjudicated and it’s something we still need to get a court’s decision on.

                 ....

              [State’s Attorney]: What we’re talking about is the 2/6/2010, I believe, is
        where the objection is. We’ve used the offense dates for each case in this
        Powerpoint [sic] until the last one, the 2/6/2010 is the date of the offense date.
        We don’t have “conviction” written by it. The date of the offense was given.

                [Defense Attorney]: Your Honor, cognitively it’s all fine if we’re looking
        at the date. But if this was the image of all dates, I certainly don’t have an issue
        with it. But what we have is criminal history. We know that history is that he’s
        committed some offenses. He’s had court opinion on those offenses. He has not
        a court opinion on what we have highlighted in red. So what we’re asking the
6
 Capps’ brief does not allege that he did not commit the various bad acts which were introduced by the State. The
jury charge instructed that “extraneous crimes or bad acts” were admitted solely for determining the proper
punishment. The jury was further instructed that such evidence could not be considered unless the jury found
beyond a reasonable doubt that Capps committed such acts.
                                                       10
       jury to do is -- you know, we’re telling them that that’s something that they need
       to go ahead and put into his history although we don’t have a court decision on
       that. That’s not right, Judge. That’s something that we will probably never agree
       to.

              THE COURT: Well, as I understand that’s the allegation of the
       unadjudicated offense that the State has put on testimony during punishment
       phase.

              [Defense Attorney]: Yes, it is. If it’s clear and it doesn’t mislead the jury
       into thinking that that was part of his history, because the presumption of
       innocence is still with this case -- with this man. And here we’ve taken it away.
       We’re saying that the presumption of innocence is part of his history. And, Your
       Honor --

              THE COURT: Well, I’m going to direct the State can use this as
       demonstrative evidence but you need to make it clear that this is not -- this is the
       offense in the punishment phase that you put on evidence and it’s not one that
       he’s been adjudicated guilty in a court of law.

              ....

               THE COURT: No. We’re in punishment phase where Texas law allows
       the State to attempt to prove up extraneous. And you can argue if they fail to do
       so beyond a reasonable doubt; they’re going to argue that they have. So I note
       your objection and I overrule it.

In this point of error, Capps reurges his complaint regarding admission of testimony related to

the extraneous accident, as well as unpreserved arguments related to Rule 403. We have already

explained above that the trial court did not err in admitting evidence related to the accident,

which constituted a bad act. No further analysis is provided as to why the trial court erred in

allowing the State to use the PowerPoint as a demonstrative aid during closing argument.

       Capps attempts to argue that the objection to the PowerPoint “was an objection to jury

argument. . . . ” From that premise, Capps presents a lengthy argument on the propriety of a

State’s jury summation; the missing link is any objection to the argument. We do not interpret
                                               11
the objection to a portion of the PowerPoint presentation as an objection to the State’s argument

to the jury. Without proper objection, no jury argument issue is preserved.

         This point of error is overruled.

VI.      Parole and Good Time Instruction Was Mandatory

         Section 4(c) of Article 37.07 of the Texas Code of Criminal Procedure requires the trial

court to inform the jury of the existence and mechanics of parole law and good conduct time.

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(c) (West Supp. 2012). The instruction Capps

sought to omit was required “[i]n the penalty phase of the trial of a felony case in which the

punishment is to be assessed by the jury rather than the court, if the offense is punishable as a

felony of the second or third degree.”               Id.    As we have stated before, this instruction is

considered mandatory. Villarreal v. State, 205 S.W.3d 103, 105 (Tex. App.—Texarkana 2006,

pet. dism’d, untimely filed); Rogers v. State, 87 S.W.3d 779, 781 (Tex. App.—Texarkana 2002,
               7
pet. ref’d).

         We overrule Capps’ last point of error.




7
 Once again, appellate counsel attempts to convert a trial objection into an argument that was not mentioned at trial.
Counsel posits that the objection to the mandatory jury instruction effectively asserted a violation of federal and
state due process rights and then presents a due process argument. Again, no objection was made at trial to preserve
this issue. Further, the Texas Court of Criminal Appeals has held this mandatory instruction does not violate due
process rights. Luquis v. State, 72 S.W.3d 355, 365 (Tex. Crim. App. 2002).
                                                           12
VII.   Conclusion

       We affirm the trial court’s judgment.




                                               Jack Carter
                                               Justice

Date Submitted:       March 5, 2013
Date Decided:         March 15, 2013

Do Not Publish




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