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

        _________________________

              No. 06-12-00016-CR
        ______________________________


        DAVID BERTRED HILL, Appellant

                        V.

        THE STATE OF TEXAS, Appellee



      On Appeal from the County Court at Law
             Cherokee County, Texas
              Trial Court No. 48280




    Before Morriss, C.J., Carter and Moseley, JJ.
   Memorandum Opinion by Chief Justice Morriss
                                        MEMORANDUM OPINION

           David Bertred Hill was speeding—sixty-two miles per hour in a zone with a speed limit

of forty—through the community of Rusk,1 Texas, in his tractor-trailer rig not long after

midnight, in mid-2007. Troy Ansley, the Rusk police officer who stopped Hill, did as he

normally does with stopped drivers of large trucks—he asked Hill to come to the back of the

truck, in front of Ansley’s patrol car. Once the two were behind Hill’s truck, Ansley noticed the

smell of alcohol emitting from Hill. Hill told Ansley conflicting stories as to his consumption of

alcohol and showed signs, according to Ansley, of intoxication—signs we will detail later.

Ansley concluded that Hill was under the influence of alcohol. As a result of this early-morning

encounter, Hill was convicted of driving while intoxicated (DWI).2

           On appeal, Hill complains that the evidence was insufficient to prove he had lost the

normal use of his physical or mental faculties and that Ansley’s investigation exceeded the scope

of the traffic stop.        We affirm the trial court’s judgment because (1) sufficient evidence

supported Hill’s conviction, and (2) Hill preserved no error regarding the evidence discovered

during the traffic stop.




1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Vernon 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
2
    TEX. PENAL CODE ANN. § 49.01(2)(A) (West 2011), § 49.04(a) (West Supp. 2011).


                                                        2
(1)    Sufficient Evidence Supported Hill’s Conviction

       Hill claims that the evidence shows, at most, Hill drove after consuming alcohol and that

it is insufficient to support a finding beyond a reasonable doubt that Hill suffered a loss of mental

or physical faculties. We find the evidence sufficient.

       In evaluating the sufficiency of the evidence, we review all the evidence in the light most

favorable to the trial court’s judgment to determine whether any rational jury could have found

the essential elements of the crime beyond a reasonable doubt.        Brooks v. State, 323 S.W.3d

893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));

Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We are to

conduct a rigorous sufficiency review focusing on the quality of the evidence presented. Brooks,

323 S.W.3d at 917–18 (Cochran, J., concurring). We examine evidentiary sufficiency under the

direction of the Brooks opinion, while giving deference to the responsibility of the jury ―to fairly

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.‖ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing

Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).

       After Ansley stopped Hill and addressed him behind the truck, Ansley smelled alcohol

coming from Hill’s person or clothing. Hill first told Ansley he had consumed no alcoholic

beverages, but then said he had had four beers, the last, about eight hours earlier. Hill’s eyes

were bloodshot, and Ansley noted him swaying. Ansley administered field-sobriety tests.

       Hill demonstrated five of six clues on the horizontal gaze nystagmus (HGN) test. When

performing a one-legged-stand test, Hill put one leg down and used his arms for balance, thus

                                                 3
failing to properly complete the test. Doing the walk-and-turn test, Hill missed touching his heel

to toe, stepped off the line, made an improper turn, and took the wrong number of steps. A

portable breath test showed the presence of alcohol on Hill’s breath, and he refused to give a

breath sample on the Intoxilyzer machine.3 Ansley concluded that Hill was under the influence

of alcohol.

        Ansley’s testimony about Hill’s performance on the field-sobriety tests is evidence of

Hill’s loss of physical faculties. In Reagan v. State, 968 S.W.2d 571 (Tex. App.—Texarkana

1998, pet. ref’d), we found the evidence sufficient to support conviction where it was shown the

defendant had slurred speech; smelled of alcohol; had difficulties balancing; and did not

successfully complete the HGN test. See also Compton v. State, 120 S.W.3d 375, 380 (Tex.

App.—Texarkana 2003, pet. ref’d) (evidence of lack of smooth pursuit on HGN test; using hands

to balance during one-legged-stand; combined with evidence of speeding and running red light;

smell of alcohol on breath; admission of drinking two beers, plus one cold beer found in vehicle;

sufficient to support DWI conviction); Kennedy v. State, 797 S.W.2d 695 (Tex. App.—Houston

[1st Dist.] 1990, no pet.) (evidence of intoxication was sufficient where officer observed

defendant had red, glassy eyes; slurred speech; and strong odor of alcohol on breath).

        Sufficient evidence supports the finding of a loss of physical or mental faculties.




3
 Results on a portable breath test machine are admissible to show the presence of alcohol. See Adams v. State, 156
S.W.3d 152, 156 (Tex. App.—Beaumont 2005, no pet.); Fernandez v. State, 915 S.W.2d 572, 576 (Tex. App.—San
Antonio 1996, no pet.). Evidence of the appellant’s refusal to submit to a breath test is relevant to show a
consciousness of guilt on his or her part. Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008).

                                                        4
(2)     Hill Preserved No Error Regarding the Evidence Discovered During the Traffic Stop

        Hill also complains that, after Ansley stopped Hill for speeding, his further questioning

and investigation of Hill exceeded the scope necessary to effectuate the traffic stop. This

complaint was not preserved for our review.

        While Hill’s point of error complains of the scope of Ansley’s stop and investigation,

there is no attack on the admission of the evidence procured by that investigation. There was no

motion to suppress or trial objection seeking to keep that evidence from being admitted. Hill

must challenge the admissibility of Ansley’s evidence, else there is no reason to challenge the

scope of the traffic stop. A defendant may challenge the admissibility of evidence in two ways:

(a) object to the admission of the evidence when it is offered at trial or (b) file a pretrial motion

to suppress4 the evidence. Holmes, 248 S.W.3d 194, 199 (Tex. Crim. App. 2008). Hill did

neither.

        To preserve a complaint for appeal, the record must show the complaint was made to the

trial court by a timely request, objection, or motion. See TEX. R. APP. P. 33.1(a)(1). Failure to

do so is fatal. See Perry v. State, 703 S.W.2d 668, 670–71 (Tex. Crim. App. 1986); Stults v.

State, 23 S.W.3d 198, 206 (Tex. App.—Houston [14th Dist.] pet. ref’d) (no pretrial suppression

motion or objection to substantial testimony concerning gun found in defendant’s car; objection

only later, when gun physically tendered as exhibit; complaint not preserved).


4
 A motion to suppress is nothing more than a specialized objection to the admission of evidence. Galitz v. State, 617
S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981) (op. on reh’g). If the objection made in the trial court differs from
the complaint made on appeal, the defendant has failed to preserve error for review. Wilson v. State, 71 S.W.3d 346,
349 (Tex. Crim. App. 2002). Here, there was no motion to suppress or any in-court objection to the evidence.


                                                         5
         Because Hill made no objection to the admission of Ansley’s testimony describing

evidence of Hill’s intoxication and lack of faculties, Hill’s challenge to the scope of the traffic

stop5 became moot. There being nothing presented for our review, we overrule this point of

error.

         We affirm the judgment of the trial court.



                                                               Josh R. Morriss, III
                                                               Chief Justice

Date Submitted:           June 15, 2012
Date Decided:             June 18, 2012

Do Not Publish




5
 Ansley testified that, while conducting the traffic stop, he noticed Hill’s bloodshot eyes and the smell of alcohol;
these facts, combined with the time of morning, prompted him to investigate the possibility of DWI. Even if Hill
had properly preserved error, the officer here had reasonable suspicion to investigate the possibility that Hill had
been driving while intoxicated. Goudeau v. State, 209 S.W.3d 713, 719 (Tex. App.—Houston [14th Dist.] 2006, no
pet.) (during traffic stop, officer noticed defendant’s bloodshot eyes, slurred speech, and fumbling for insurance
papers; scope of investigation expanded to possible intoxicated driving); Perales v. State, 117 S.W.3d 434, 439
(Tex. App.—Corpus Christi 2003, pet. ref’d) (reasonable suspicion of suspect driving while intoxicated when
suspect had red eyes, officer smelled alcohol, and open container in plain view); Rubeck v. State, 61 S.W.3d 741,
745 (Tex. App.—Fort Worth 2001, no pet.) (slurred speech and strong smell of alcohol on appellant’s breath,
sufficient reasonable suspicion to investigate intoxicated driving).

                                                         6
