                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-169-CR


MICHAEL JOE TAYLOR                                                        APPELLANT

                                              V.

THE STATE OF TEXAS                                                            STATE

                                          ------------

      FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY

                                          ------------

                          MEMORANDUM OPINION 1

                                          ------------

      Appellant Michael Joe Taylor was charged with driving while intoxicated

(DWI) by not having the normal use of his mental or physical faculties by reason

of the introduction of alcohol, a controlled substance, a drug, a dangerous drug,

or a combination of two or more of those substances into his body or by having

an alcohol concentration of at least 0.08.               The jury was charged on both



      1
          … See T EX. R. A PP. P. 47.4.
theories of intoxication and convicted him of DWI. The trial court sentenced

him to one year’s confinement in jail, probated for twenty-four months, with

seventy-two hours in the Denton County jail and eighty hours of community

service as conditions of probation, and a $300 fine.

      In three issues, Appellant challenges the State’s evidence concerning the

intoxilyzer results, comparative evidence regarding other defendants who had

breath alcohol concentrations (BACs) of 0.166 according to the intoxilyzer

results, and the trial court’s denial of Appellant’s request for the computer and

computer program for the intoxilyzer used to test his BAC. Because we hold

that Appellant did not preserve his issues contending that the trial court abused

its discretion by admitting evidence and did not prove a Brady 2 violation or a

violation of the right to confrontation regarding the computer and computer

program, we affirm the trial court’s judgment.

      In his third issue, Appellant argues that the trial court abused its

discretion by admitting testimony concerning other individuals arrested for DWI

who tested 0.166 on the intoxilyzer, as did Appellant, and these individuals’

abilities to use their mental and physical faculties at the time of their arrests.

Appellant contends that the admission of the evidence violated rules 104, 105,




      2
          … Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).

                                        2
and 801 of the rules of evidence, the Sixth Amendment of the United States

Constitution, Article I, Section 10 of the Texas Constitution, and article 1.25

of the code of criminal procedure.3

      On direct examination, the prosecutor asked the arresting officer,

             Q.    Has it been your experience that you interacted with
      individuals who have given a breath test that of say .166 or a .165
      that have been coherent?

             A.    Yes, sir.

             Q.    And able to speak?

             A.    Yes, sir.

             Q.    In your opinion at being a .166 and a .165, is an
      individual intoxicated?

             A.    Yes, sir.

Appellant did not object to any of these inquiries.         On cross-examination,

defense counsel asked,

            Q.   . . . . Well, we’re talking about a man that you are
      saying is double the legal limit, or .16, who is intelligently
      answering 50 questions that you have asked him; is that correct?

             A.    It happens all the time, sir.

            Q.    It happens. Well, I — I was just asking you. I don’t —
      just answer my questions.


      3
       … U.S. C ONST amend. VI; T EX. C ONST. art. I, § 10; T EX. C ODE C RIM. P ROC.
A NN. art. 1.25 (Vernon 2005); T EX. R. E VID. 104, 105, 801.

                                         3
Appellant did not object to the evidence.

      On redirect, the prosecutor made the following inquiry, “You stated

earlier, and defense counsel tried to pin you down on this case[;] you stated

earlier that you’ve seen individuals with .166. You say it happens all the time.

Can they talk coherently?” Appellant objected on the grounds of “comparative

testimony” and relevance under rules 104 and 105. The prosecutor replied that

he was not comparing the officer’s testimony to that of another witness, but

asking the officer about his prior testimony.        The trial court overruled

Appellant’s objection. The questioning continued,

            Q.    Have you seen .166 individuals who have been able to
      talk and speak with you?

            A.    Yes, sir.

           Q.    Do you believe those individuals had the use of their
      mental or physical faculties?

            A.    No, sir.

            Q.    Do you believe those individuals were intoxicated under
      the law?

            A.    Yes, sir.

Appellant did not object until after the last question. The trial court sustained

Appellant’s objection to the last question “for comparative cases and

comparative testimony” and on grounds of relevance under rules 104 and 105,


                                       4
instructed the jury to disregard the answer, and denied Appellant’s request for

a mistrial.

      Because Appellant objected only on the bases of “comparative testimony”

and relevance, his arguments based on rule 801 of the rules of evidence, the

Sixth Amendment of the United States Constitution, Article I, Section 10 of the

Texas Constitution, and article 1.25 of the code of criminal procedure were not

preserved.4      Additionally, because the evidence he complains of came in

elsewhere without objection, as demonstrated above, he has also forfeited his

complaints based on relevance and comparative testimony.5              We overrule

Appellant’s third issue.

      In Appellant’s second issue, he contends that the trial court abused its

discretion by denying his request for the computer and computer program for

the intoxilyzer machine used in his case, violating his right to a fair trial and due

process under the Fifth Amendment, the Sixth Amendment, and Article I,

section 10 of the Texas Constitution.6 Appellant also raises and focuses on



      4
       … See T EX. R. A PP. 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).
      5
      … See Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App.), cert.
denied, 528 U.S. 1026 (1999); Leday v. State, 983 S.W.2d 713, 718 (Tex.
Crim. App. 1998).
      6
          … U.S. C ONST amends. V, VI; T EX. C ONST. art. I, § 10.

                                          5
Brady in the discussion of his issue. Of these arguments, Appellant preserved

at trial only his Brady argument and, within that, his Sixth Amendment right to

an adequate defense.7 But Appellant has not shown a reasonable probability

that had he been given access to the computer and computer program, the

outcome of the trial could have been different.8 He therefore has not shown

reversible Brady error or, correspondingly, a violation of his Sixth Amendment

right to an adequate defense.9 To the extent that Appellant raises confrontation

in the discussion of this issue, having preserved that complaint below, we note

that neither the computer nor the computer program is a witness that could be

called to testify.10 Therefore, we hold that Appellant’s right to confrontation

is not implicated by their absence. 11 We overrule Appellant’s second issue.

      In his first issue, Appellant contends that the trial court abused its

discretion by admitting testimony from the technical supervisor about the test


      7
          … See T EX. R. A PP. P. 33.1(a)(1); Mosley, 983 S.W.2d at 265.
      8
      … See Webb v. State, 232 S.W .3d 109, 114–15 (Tex. Crim. App.
2007).
      9
          … See id.
      10
       … See Torres v. State, 109 S.W.3d 602, 606–07 (Tex. App.—Fort
Worth 2003, no pet.) (holding unavailability of computer program in gas
chromatography machine used to analyze blood does not violate right to
confrontation).
      11
           … See id.

                                         6
results when he could not testify about the intoxilyzer’s computer or computer

program and therefore could not testify about the intoxilyzer’s scientific

reliability.   We note that Appellant did not challenge the sufficiency of the

evidence to support the jury’s verdict on the alternate ground regarding the lack

of normal use of Appellant’s mental and physical faculties, nor did he challenge

the admissibility of evidence regarding that prong. But in Bagheri v. State, the

Texas Court of Criminal Appeals held that improper admission of expert

testimony in a DWI case was reversible error even though the evidence was

sufficient to sustain the alternative theory of intoxication.12    We therefore

cannot simply affirm the general verdict based on the alternate theory of proof

of intoxication.13

       The record shows that defense counsel objected when the intoxilyzer

testimony was first offered. After the State offered a printout of the intoxilyzer

or BAC results, State's Exhibit No. 4, defense counsel "re-urged" his objections.

The trial court overruled the objections and admitted the exhibit. Then the

technical supervisor testified about Appellant’s test results as shown on State’s




       12
            … Bagheri v. State, 119 S.W.3d 755, 763–64 (Tex. Crim. App. 2003).
       13
            … See id. at 761–62.

                                        7
Exhibit No. 4 without objection to his testimony. Defense counsel also elicited

testimony involving the intoxilyzer:




            Q.   . . . . Now, has this machine ever malfunctioned while
      it was under your authority as the scientific supervisor over Area
      23?

            A.    Malfunctions? No.

            Q.    Did you have to repair it?

            A.    Sure. Just like anything else, it requires maintenance
      from time to time.

           Q.     Okay. Have you ever had an Intoxilyzer 5000 not work
      properly?

            A.    Yes. When they’re not working properly, we take them
      out for maintenance.

            Q.    Okay. Do you know if any individuals may have been
      given the test and the test wasn’t properly maintained? Or it was
      a wrong score? Do you know if that’s ever happened?

            A.    Not that I’m aware of.

            Q.    You’re saying that everybody that was brought to trial
      had the correct test results of thousands of tests?

            A.    As we’re sitting here in trial yes, that’s what I’m saying
      today.

      Defense counsel also questioned the challenged witness about the test

results, including asking how many drinks Appellant would have had to


                                       8
consume to get a BAC of 0.16, what the rate of elimination of alcohol from the

body would be, and what a person who had twelve drinks would look like.

Defense counsel did not object to any of the answers.         The witness also

testified without objection during cross-examination, “If in fact this individual

has an alcohol concentration of .16, I have no doubt in believing the accuracy

and validity of the test.”

      As the Texas Court of Criminal Appeals has explained,

            The general rule is that error regarding improperly admitted
      evidence is waived if that same evidence is brought in later by the
      defendant or by the State without objection. However, error is not
      waived when the evidence is brought in later in an effort to meet,
      rebut, destroy, deny or explain the improperly admitted evidence. 14

Nothing in the record suggests that Appellant invoked the exception to the

general rule when defense counsel also treated the witness as an expert. Under

the limited facts of this case, we hold that Appellant has not preserved his

complaint for appeal. 15 We therefore overrule his first issue.

      Having overruled Appellant’s three issues, we affirm the trial court’s

judgment.




                                           LEE ANN DAUPHINOT
                                           JUSTICE


      14
         … Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993)
(citations omitted).
      15
           … See Fuentes, 991 S.W.2d at 273; Leday, 983 S.W.2d at 718.

                                       9
PANEL: DAUPHINOT, HOLMAN, and WALKER, JJ.

PUBLISH

DELIVERED: August 14, 2008




                             10
