                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS


                                                 §
 EDUARDO GUTIERREZ,                                              No. 08-11-00258-CR
                                                 §
                     Appellant,                                     Appeal from the
                                                 §
 v.                                                      County Criminal Court at Law No. 2
                                                 §
 THE STATE OF TEXAS,                                           of El Paso County, Texas
                                                 §
                     Appellee.                                   (TC# 20100C05621)
                                                 §

                                           OPINION

          Eduardo Gutierrez appeals his jury conviction of one count of driving while intoxicated.

In two issues, Appellant maintains that the trial court improperly forced him to use a peremptory

strike against a juror who should have been struck for cause, and that police officer testimony

pertaining to the administration of field sobriety tests was inadmissible expert testimony. We

affirm.

                                         BACKGROUND
                                          Factual History

          At approximately 9:30 p.m. on May 29, 2010, El Paso Police Department Officer Louis

Evans observed Appellant’s pick-up truck weave within one lane of traffic as it traveled down

Pebble Hills Boulevard in East El Paso. After following the truck in his patrol unit, Officer

Evans witnessed the truck’s right side wheels cross briefly into the adjacent lane of traffic before
the truck returned completely into its original lane. Appellant did not signal this partial lane

change, traffic on that street was heavy at the time, and there was another vehicle in the lane next

to Appellant’s truck when Appellant veered into the right lane. Based on this observation,

Officer Evans attempted to initiate a traffic stop. Appellant continued on for a distance before

pulling in to an apartment complex.

        Officer Evans testified that Appellant had bloodshot eyes and smelled like alcohol, and

that he could see a Bud Light beer bottle in the back pocket of the driver’s seat. Officer Evans

called EPPD Officer Michelle Gonzalez to perform three standard field-sobriety tests—the

horizontal gaze nystagmus test, the one-leg stand test, and the walk-and-turn test—in Spanish,

since Appellant stated he could not speak English. While waiting for Officer Gonzalez’s arrival,

Officer Evans heard the sound of liquid being poured onto the asphalt outside the truck. Officer

Evans testified that the bottle in the driver’s side pocket disappeared and the liquid being poured

smelled liked beer.

        Officer Gonzalez testified that before she administered the field sobriety tests, she also

saw that Appellant had bloodshot eyes, smelled like alcohol, and was swaying back and forth as

he stood still. Appellant failed the nystagmus test, and Officer Gonzalez testified that Appellant

failed the walk-and-turn test as well, although she was unable to remember specifically what he

did wrong. Appellant also failed the one-leg stand. On cross-examination, Officer Gonzalez

testified that Appellant had informed her that he had hurt his leg, but that he never informed her

that he was physically unable to perform the tests. She further stated that leg injuries could

affect standard field sobriety test results, since balance is a critical factor in many of the tests.

She also acknowledged wind could cause someone to get off balance and affect field sobriety

test results.



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       After failing the field sobriety test and being advised of his rights, Appellant voluntarily

gave two breath samples to EPPD Officer Anthony Alegre, a certified Intoxilyzer operator. The

breath test showed that Appellant had a presumptive blood alcohol concentration of .23, almost

triple the legal limit of .08. Officer Alegre testified that he waited fifteen minutes before

administering the breath test to ensure that Appellant did not burp, vomit, or attempt to place a

foreign object in his own mouth, all of which could affect the test. EPPD Certified Technical

Supervisor Rafael Tamez confirmed at trial that the Intoxilyzer testing machine was working

correctly. He also explained that if a subject burps at any point during the test, the alcohol levels

in the breath could increase, but that a strong differential in the alcohol levels between two

samples would cause the machine to reject the samples and produce an invalid test report. The

machine in question here did not produce such a report.

       The defense presented two witnesses at trial. First, Dr. Jorge Lopez, a Mexican physician

and close personal friend of Appellant, testified that Appellant had broken his leg ten years ago,

although Dr. Lopez did not treat the injury. Dr. Lopez further testified that he was playing golf

with Appellant prior to his arrest at the Vista Hills Country Club in East El Paso. He testified

that Appellant and him had some beers while playing 18 holes of golf and that afterwards they

stopped to eat, and Appellant may have had two more beers, but did not appear intoxicated.

       Appellant, testifying in his own defense, stated that he consumed four beers and four

bottles of water during the course of the golf game. Afterwards, he ate two burritos, which he

testified gave him gastritis and made him burp. He also consumed two beers at dinner before

driving home. He admitted to pouring out the beer in his car because he was “very nervous.”

Appellant informed officers of his leg injury and gout in his knee, but did not inform them about

his gastritis. Appellant did not believe he was intoxicated.



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                                         Procedural History

       During jury selection, the prosecutor asked members of the venire if anyone felt as

though they would have any difficulties passing judgment in this case:

       [PROSECUTION]:          Okay. Ladies and gentlemen, finally, I know that
                               there is a mixture of -- of moral views, of ethical
                               views, of religious views in our community. And
                               sometimes people just flat don’t feel comfortable
                               judging somebody else, for whatever reason. If
                               anybody here has a difficult time or thinking they
                               would have a difficult time sitting in that box and
                               passing judgment in this case, I would ask that you
                               please speak up now.

       Three venirepeople answered that they would have a problem passing judgment in this
case, including Juror No. 5. Appellant also asked if anyone felt they could not be in trial past 5
p.m. Juror No. 5 again answered affirmatively. During individual voir dire examination outside
the presence of the other venirepeople, the Court examined Juror No. 5 and asked why she did
not believe she could sit in judgment in this case:


       [THE COURT]:            In a case of this nature, do you just find it very hard
                               to sit and hear a case of this nature?

       [JUROR #5]:             Yeah.

       [THE COURT]:            Is there a reason behind that?

       [JUROR #5]:             Well, I don’t know. I guess I’m very sentimental or
                               whatever. I don’t want to make decisions for
                               somebody else, to judge somebody else.

       [THE COURT]:            That’s why we call jurors. I know these are hard
                               times, I know. I think--I think jurors have a very
                               difficult job. But I think jurors take it seriously.
                               Remember, it’s an allegation.

       [JUROR #5]:             Uh-huh.

       [THE COURT]:            Nothing has been proven to you yet.

       [JUROR #5]:             Uh-huh.

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       [THE COURT]:          That’s why these gentlemen take their job seriously,
                             and that’s why this man over there takes his job
                             seriously in defending that man.

       [JUROR #5]:           Right.

       [THE COURT]:          But we call these jurors because they are the ones
                             who have to decide these matters. They didn’t ask
                             me to decide it. So they want a trial by jury, and the
                             beauty of this country is, we can call citizens of this
                             community, bring them in and they decide.

       [JUROR #5]:           That’s right.

       [THE COURT]:          What do you think? Do you think you can handle
                             that?

       [JUROR # 5]:          Well, in – I guess, but also I don’t think I can sit too
                             long. You know, I’m full of arthritis all over my
                             left side and in my – I can’t drive very good, you
                             know, and my hands are . . . .

       [THE COURT]:          I give breaks. You are not going to sit here all day
                             long.

       [JUROR #5]:           Oh, okay.

                                  .          .         .

       [THE COURT]:          Think you can do it?

       [JUROR #5]:           Yeah, I guess I’ll try.

       Following the conclusion of individual voir dire, Appellant moved to strike Juror No. 5

for cause. The trial court denied the strike. Appellant then requested an additional peremptory

strike and the trial court responded “[w]e’ll see if we get there.” Later, Appellant used a

peremptory strike to remove Juror No. 5 from the venire, noting on the record that he “was

forced to exercise a peremptory strike on Juror Number 5 who came in and initially indicated she

could not pass judgment and had a problem with staying after 5:00 p.m.” He further stated that

had he been given the additional peremptory strike, he would have used it on Juror No. 1. The

                                                 5
trial court acknowledged these statements on the record.

                                         DISCUSSION
                                Failure to Strike Juror for Cause

       In Issue One, Appellant contends that the trial court erred by forcing him to exercise a

peremptory strike against Juror No. 5 when the court should have struck her for cause at his

request. We disagree.

                                       Standard of Review

       “A challenge for cause is an objection made to a particular juror, alleging some fact

which renders the juror incapable or unfit to serve on the jury.” TEX.CODE CRIM.PROC.ANN. art.

35.16(a)(West 2006). We review the trial court’s denial of a challenge for cause for abuse of

discretion, looking at the voir dire record as a whole to determine whether sufficient evidence

underpins the trial court’s ruling. See Stewart v. State, 162 S.W.3d 269, 280 (Tex.App.--San

Antonio 2005, pet. ref’d); Roman v. State, No. 08-11-00057-CR, 2012 WL 5287933, at * 6

(Tex.App.--El Paso Oct. 24, 2012, no pet.)(not designated for publication). The Texas Code of

Criminal Procedure provides that a juror may be struck for cause where, inter alia, he or she has

“a bias or prejudice in favor of or against the defendant[,]” TEX.CODE CRIM.PROC.ANN. art.

35.16(a)(9), that “would substantially impair the venire member’s ability to carry out the juror’s

oath and judicial instructions in accordance with the law.” Davis v. State, 329 S.W.3d 798, 807

(Tex.Crim.App. 2010). “The proponent of a challenge for cause has the burden of establishing

that the challenge is proper.” Id.

       “Bias means an inclination toward one side of an issue rather than to the other leading to

the natural inference that the juror will not act with impartiality.” Bell v. State, 233 S.W.3d 583,

589 (Tex.App.--Waco 2007, pet. dism’d, untimely filed)[Internal quotation marks omitted].

“Prejudice means prejudging.” Id. [Internal quotation marks omitted]. “When a juror states he

                                                 6
is unable to sit in judgment of another,” that amounts to an expression of prejudice against a

finding of guilt, which justifies a challenge for cause. See Malone v. State, No. B14-87-269-CR,

1987 WL 25837, at *2 (Tex.App.--Houston [14th Dist.] Dec. 3, 1987, pet. ref’d)(not designated

for publication)(holding that inability to sit in judgment of another constituted implicit bias in

favor of defendant and against state); see also Phillips v. State, 661 S.W.2d 226, 228-29

(Tex.App.--Houston [1st Dist.] 1983, pet. ref’d).

       Where bias or prejudice exist as a matter of law, the prospective juror “must be excused

when challenged, even if he states that he can set his bias aside and provide a fair trial . . . .”

Anderson v. State, 633 S.W.2d 851, 854 (Tex.Crim.App. 1982). “However, it is left to the

discretion of the trial court to first determine whether or not bias exists.” Id. Before dismissing a

venire member for cause, the court must explain the law to the venire member, he or she must

understand the law’s requirements, and the venire member must indicate that he or she cannot

“overcome his or her prejudice well enough to follow the law.” Davis, 329 S.W.3d at 807. “We

accord particular deference to the trial court’s ruling when a venire member vacillates in his or

her answers.” Id. at 813.

                                      Preservation of Error

       As a threshold matter, the State urges us to overrule Appellant’s juror strike challenge as

unpreserved under the Rules of Appellate Procedure for two reasons. First, the State argues that

Appellant’s failure to specify why Juror No. 5 was objectionable rendered his objection

unpreserved. See Boulware v. State, No. 07-06-0386-CR, 2008 WL 794807, at *4 (Tex.App.--

Amarillo Mar. 26, 2008, no pet.)(mem. op., not designated for publication)(challenge to jurors in

which attorney only stated juror numbers insufficient to preserve error). Second, the State

maintains that Appellant failed to preserve error by ensuring the trial court actually ruled on his



                                                 7
request for an additional peremptory strike.             Riddle v. State, No. 2-02-157-CR, 2003 WL

1786025, at * 1 (Tex.App.--Fort Worth Apr. 3, 2003, pet dism’d, untimely filed)(mem. op., not

designated for publication), overruled on other grounds by Holmes v. State, 248 S.W.3d 194, 202

(Tex.Crim.App. 2008)(where appellant fails to show request for additional peremptory strikes

was denied, error is not preserved). We find that error was properly preserved on this issue.1

        “To preserve error for a trial court’s erroneous denial of a challenge for cause, appellant

must show that:        (1) he asserted a clear and specific challenge for cause; (2) he used a

peremptory challenge on the complained-of venire member; (3) his peremptory challenges were

exhausted; (4) his request for additional strikes was denied; and (5) an objectionable juror sat on

the jury.” Davis, 329 S.W.3d at 807. Although trial counsel only identified the juror by her

name and number, it was apparent from context that she was being challenged for her inability to

sit in judgment of others. This is confirmed later in the record, when prior to seating the jury,

trial counsel explained his reasons for wishing to strike Juror No. 5, and the court acknowledged

that it understood counsel’s reasoning. Likewise, although the court initially deferred ruling on

granting additional peremptory strikes, its failure to grant any additional strikes constituted an

implicit denial of Appellant’s request, a fact that is also confirmed by counsel’s statements on the

record that the court denied the request, followed by the court’s acknowledgment of Appellant’s

statement. As such, error is preserved and we properly review the merits of Appellant’s claim.

                                                   Analysis

        Turning to the substance of Appellant’s argument, we find that the trial court did not need

to strike Juror No. 5 for cause as a matter of law. A venire member’s statement that she cannot


1
  The State also urges us in a footnote to overrule Appellant’s Issue One on the basis that the argument is
inadequately briefed under TEX.R.APP.P. 38.1(i) for failure to cite to authority and making conclusory arguments.
Although we note Appellant’s briefing on Issue One is not clear as it could have been, Appellant identified and
applied relevant case law, making the issue adequately briefed under the Rules.

                                                       8
overcome her prejudice or bias must be unequivocal; if the venire member vacillates, we grant

the trial court almost total deference in its decision, since that court is in a better position to

assess the potential juror’s credibility, sincerity, and demeanor than we are. Davis, 329 S.W.3d

at 807. Where a venire member indicates that she is willing to serve after she has been explained

the law and indicates she can move past her bias and prejudices, the trial court does not abuse its

discretion in refusing to strike her. Id. Here, although Juror No. 5 initially indicated that she

would be unable to sit in judgment of Appellant, after the trial court explained the role of a juror

to her and assured her that the court would take breaks, she told the court that she would be

willing to serve. As such, the trial court did not abuse its discretion in failing to strike her for

cause.

         Issue One is overruled.

                       Admissibility of Standard Field Sobriety Test Results

         In Issue Two, Appellant asserts that the trial court abused its discretion by admitting the

results of the standard field sobriety tests under TEX.R.EVID. 702 because Officer Gonzalez

improperly administered the tests. We again disagree.

                                        Standard of Review

         We review a trial court’s evidentiary rulings for abuse of discretion. Weatherred v. State,

15 S.W.3d 540, 542 (Tex.Crim.App. 2000). A trial court abuses its discretion when its ruling

falls outside “the zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391

(Tex.Crim.App. 1990)(op. on reh’g).          “Error in the admission of evidence constitutes

nonconstitutional error.” Plouff v. State, 192 S.W.3d 213, 222 (Tex.App.--Houston [14th Dist.]

2006, no pet.).     We disregard nonconstitutional errors unless they affect the defendant’s

substantial rights. TEX.R.APP.P. 44.2(b). “[S]ubstantial rights are not affected by the erroneous



                                                  9
admission of evidence if the appellate court, after examining the record as a whole, has fair

assurance that the error did not influence the jury, or had but a slight effect.” Solomon v. State,

49 S.W.3d 356, 365 (Tex.Crim.App. 2001)[Internal quotation marks omitted].

                                              Analysis

       TEX.R.EVID. 702 provides for the admission of expert opinion testimony based on

“scientific, technical, or other specialized knowledge” where it is helpful to the trier of fact. The

proponent of the expert testimony evidence must establish by clear and convincing evidence that

it is reliable, i.e. (1) that the underlying scientific theory is valid, (2) the technique applying the

theory is valid, and (3) the technique was properly applied on the occasion in question. See

Weatherred, 15 S.W.3d at 542; Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App. 1992). “If

the witness is not testifying as an expert, the witness’ testimony in the form of opinions or

inferences is limited to those opinions or inferences which are (a) rationally based on the

perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue.” TEX.R.EVID. 701.

       Officer Gonzalez performed three standard field sobriety tests on Appellant: the

horizontal gaze nystagmus test, the one-leg stand test, and the walk-and-turn test. The horizontal

gaze nystagmus test, which tracks “the inability of the eyes to smoothly follow an object moving

horizontally across the field of vision, particularly when the object is held at an angle of forty-

five degrees or more to the side[,]” is a scientific test subject to Rule 702 and the strictures of

Kelly. See Plouff v. State, 192 S.W.3d 213, 218-19 (Tex.App.--Houston [14th Dist.] 2006, no

pet.). However, Appellant does not appear to challenge the administration of the nystagmus test.

Instead, Appellant focuses the majority of his argument in the brief on the fact that the standard

field sobriety tests were unreliable because he had sustained a leg injury. Since a leg injury



                                                  10
would not presumably affect the nystagmus test, we construe Appellant’s brief as bringing a

challenge only to the one-leg-stand and walk-and-turn tests. See Horton v. State, No. 2-09-158-

CR, 2010 WL 3433776, at *2-*3 (Tex.App.--Fort Worth Aug.31, 2010, no pet.)(mem. op., not

designated for publication)(no challenge brought to nystagmus test where defendant’s claim that

officer failed to question her on her weight irrelevant to issue of nystagmus).

       In contrast with the nystagmus test, “the one-leg-stand and walk-and-turn tests are not

grounded in science.” Id., at *3. Rather, “an officer’s testimony about a suspect’s coordination,

balance, and any mental agility problems exhibited during the one-leg-stand and walk-and-turn

tests are observations grounded in common knowledge . . . .” Id.; see also Plouff, 192 S.W.3d at

223-24 (“The one-leg stand and walk-and-turn tests are grounded in the common knowledge that

excessive alcohol consumption can cause problems with coordination, balance, and mental

agility . . . .”). As such, Kelly is inapposite, and the lay witness opinion rule under TEX.R.EVID.

701 governs the admission of testimony pertaining to these tests. Id. at 224; but see Meier v.

State, No. 05-08-00486-CR, 2009 WL 765490, at *7 (Tex.App.--Dallas Mar. 25, 2009, no

pet.)(not designated for publication)(under some circumstances, use of words such as “clues,”

“certified,” “pass,” and “fail” may give lay officer testimony “aura of scientific validity” that

could convert lay testimony into expert testimony as perceived by jury).

       Here, Officer Gonzalez did not use words that gave her testimony an “aura of scientific

validity” that would subject it to the Kelly requirements. Instead, the testimony consisted of her

demonstrating the test for jurors and relaying her assessment of Appellant’s mental faculties and

physical coordination as he performed those tasks. Because Officer Gonzalez’s opinion that

Appellant’s failure on the one-leg-stand and walk-and-turn tests showed he was intoxicated was

rationally based on her perceptions, her testimony was admissible under Rule 701. The trial



                                                11
court did not abuse its discretion by allowing her to testify.

       Even if Officer Gonzalez’s testimony did veer into the realm of expert testimony, error, if

any, would have been harmless. Three EPPD officers testified that Appellant smelled like

alcohol and that he appeared to be swaying during the stop. Appellant admitted to having drank

alcohol prior to being stopped and admitted to pouring a bottle of Bud Light out onto the

pavement during the traffic stop. Appellant also blew a .23 as recorded in the Intoxilyzer

records, the results of which Appellant did not challenge on appeal. Taking the evidence in the

aggregate, we are convinced that testimony pertaining to the walk-and-turn and one-leg-stand

sobriety tests only had a slight effect on the jury’s ultimate verdict. Solomon, 49 S.W.3d at 365.

       Issue Two is overruled. The trial court’s judgment is affirmed.



                                               _/s/ Yvonne T. Rodriguez__________
June 30, 2014                                  YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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