                                 NO. 07-07-0258-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL D

                              DECEMBER 14, 2007
                        ______________________________

                             CYNTHIA P. HERNANDEZ,

                                                            Appellant

                                          v.

                              THE STATE OF TEXAS,

                                                    Appellee
                      _________________________________

        FROM THE COUNTY COURT at LAW NO. 2 OF LUBBOCK COUNTY;

               NO. 2006-441,705; HON. DRUE FARMER, PRESIDING
                      _______________________________

                              Memorandum Opinion
                        _______________________________

Before QUINN, C.J. and CAMPBELL and PIRTLE, JJ.

      Cynthia P. Hernandez appeals her conviction for driving while intoxicated. Through

two issues she contends that the trial court abused its discretion in overruling 1) her

objection to testimony about the horizontal gaze nystagmus (HGN) test showing her to be

intoxicated, and 2) her motion for a mistrial due to improper jury argument during the

punishment phase of the trial. We affirm the judgment.
       Issue 1 - HGN Test Results

       In her first issue, appellant complains of the trial court’s admission of testimony by

the arresting police officer that four clues are required on the HGN test to determine that

someone is intoxicated.1 We overrule the issue.

       First, to the extent that the question sought purportedly inadmissible evidence, a like

question was asked later at trial without objection by appellant. Moreover, when appellant

complained of the initial question and his objection was overruled, he neither solicited nor

obtained a running or continuing objection. So, because a similar question later was asked

and answered without objection, any complaint that appellant had was lost. See Haley v.

State, 173 S.W.3d 510, 516-17 (Tex. Crim. App. 2005) (stating that one must continually

object to purportedly inadmissible evidence or obtain a running objection to preserve his

complaint for appeal).



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           The testim ony was as follows:

                 Q.      . . . How m any m inim um clues do you need to determ ine that som eone is
                         intoxicated based on the HGN?

                 [Defense counsel]: Objection, Judge. HGN doesn’t even determ ine that. It’s
                 com m on knowledge.

                 THE COURT: Overruled.

                 Q.      . . . W hat is the m inim um num ber of clues on the HGN?

                 A.      Four.

                 Q.      Four?

                 A.      Four clues.

                 Q.      So even at the ALR Hearing, when you testified she had four clues, that
                         was still enough to place in your m ind she is possibly intoxicated?

                 A.      Yes, sir.

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       Second, an officer may testify concerning the performance of an individual on an

HGN test but not correlate that performance to a precise blood alcohol content. Emerson

v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994). We cannot say that the State was

attempting such here. The prosecutor’s question simply asked for the number of clues

needed to conclude that someone was intoxicated. He did not ask whether the presence

of those clues indicated that appellant had a certain blood alcohol level. See Burkett v.

State, 179 S.W.3d 18, 34 (Tex. App.–San Antonio 2005, no pet.) (holding inadmissible

testimony that six clues showed intoxication beyond the legal limit).

       Additionally, the State alleged through its indictment that appellant was intoxicated

by not “having the normal use of [her] mental or physical faculties” as opposed to

exceeding the legal blood alcohol level, and the jury was charged in like manner. Nothing

was said about appellant having a particular blood alcohol level. And, to support the

charge as contained in the indictment, the State presented evidence discussing the HGN

clues exhibited by appellant, her swerving and failure to stop at a stop sign, the odor of

alcohol on her breath, her slurred speech, her red, watery eyes, her failure to successfully

perform various field sobriety tests, and her refusal to give a breath specimen. Much of

this was captured on video and available for the jury to see. Given this evidence and the

manner in which appellant was indicted and the jury charged, any insinuation in the State’s

question about the HGN test indicating a specific blood alcohol level was harmless at best.

See id. at 35 (holding that there was no harm from the improper admission of HGN

testimony when the indictment did not allege intoxication by having a blood alcohol content

in excess of 0.08, there was no reference to blood alcohol content, and the defendant had



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a strong odor of alcohol, could not follow instructions, refused a breath test, and refused

to perform field sobriety tests on video).

       Issue 2 - Motion for Mistrial

       In her second issue, appellant claims the trial court erred in refusing to grant a

mistrial after the State mentioned, in closing argument during the punishment phase, that

appellant committed perjury. Prior to requesting a mistrial, appellant’s objection to the

comment was sustained, and the jury was instructed to disregard the utterance. We

overrule the issue.

       According to the record before us, appellant first broached the issue of perjury

during her closing argument. This was done when defense counsel alluded to 1) her

having denied, under oath at the guilt-innocence phase of the trial, that she had consumed

alcoholic beverages, and 2) the jury nevertheless having convicted her. It can be logically

said that in convicting appellant, the jury discredited her testimony and concluded that she

had indeed ingested intoxicating beverages. Despite that verdict and conclusion, appellant

again denied drinking but this time at the punishment phase of the trial. Apparently, these

circumstances persuaded defense counsel to argue at closing: “[t]oday she’s asked [at the

punishment phase] to get up and perjure herself and lay herself open to a felony charge,

which would be the effect of that. She testified as she did.” Because appellant first

opened the door to the idea of her committing perjury, she cannot complain of the

prosecutor pursuing the very same topic during its closing. So, if it was error on the part

of the State, the error was invited by appellant who cannot knowingly gain advantage from

it. Sharp v. State, 210 S.W.3d 835, 838 (Tex. App.–Amarillo 2006, no pet.) (holding that

one cannot complain of invited error).

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      The judgment of the trial court is affirmed.



                                                Brian Quinn
                                                Chief Justice



Do not publish.




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