      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00804-CR



                                Cornelio Garcia-Mata, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
       NO. CR2012-205, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found Cornelio Garcia-Mata guilty of driving while intoxicated, and further

found that he had at least two prior DWI convictions and that he used a deadly weapon in

committing the offense. The jury assessed sentence at life in prison. Appellant contends that the

trial court erred by excluding two videotapes, one showing that, contrary to the arresting officers’

testimony, appellant hit his head getting into the police car, and the other showing that appellant

had difficulty with the English language. Appellant contends that the exclusion of this evidence

prevented him from impeaching the officers on their lack of memory that he hit his head. He also

asserts that the exclusion of evidence prevented him from supporting his contention that he did not

understand the officers, which would have rebutted or explained the officers’ testimony that he failed

to comply with their instructions on the field sobriety tests. He contends that these limitations

impinged on his Sixth Amendment right to confront witnesses. See U.S. Const. amend. VI. We will

affirm the judgment of conviction.
                The State contends that appellant did not present these particular arguments to the

trial court when offering the evidence and thereby waived them. The State also contends that the

evidence is improper impeachment on a collateral matter. Finally, the State argues that any error in

the admission of the evidence is harmless.

                Exclusion of evidence presents reversible error only when it is harmful—even when

the exclusion may touch on constitutional rights. See Tex. R. App. P. 44.2; see also Walters v. State,

247 S.W.3d 204, 219 (Tex. Crim. App. 2007) (non-constitutional error); Ray v. State, 178 S.W.3d

833, 835 (Tex. Crim. App. 2005) (constitutional error). We must reverse for errors of constitutional

dimension unless we determine beyond a reasonable doubt that the error did not contribute to the

conviction or punishment. Tex. R. App. P. 44.2(a).

                Even assuming solely for the sake of discussion that appellant preserved the error,

that the trial court erred by excluding the evidence, and that the exclusion affected his constitutional

rights, we find no harmful error under any applicable standard. Eyewitnesses testified about

appellant’s erratic and dangerous driving. He drove inconsistent speeds, often much slower than

the ambient speed, and drifted across lanes of traffic on Interstate 35. Witnesses testified that many

drivers had to swerve to avoid hitting or being sideswiped by his slower-moving vehicle. They

feared that a large pileup was imminent. A police officer testified about his personal observation of

appellant drifting across and back on the access road. The officer testified regarding the strong odor

of alcohol emitted from the vehicle, appellant’s bloodshot and glassy eyes, appellant’s difficulty in

turning off the vehicle and producing a driver’s license, appellant’s unsteadiness in standing outside

the truck, appellant’s apparent urination on himself before and during the stop, and a fellow officer’s

discovery of two open, cool-to-the-touch, nearly empty 24-ounce cans of beer inside the truck.

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Through an interpreter, appellant testified regarding his difficulties understanding the officers, his

unfamiliarity with the manual transmission in the vehicle he was driving, and a medical condition

that might have caused uncontrollable urination. He also admitted he was driving on the public

roads and that he thought he might have been intoxicated because he was “quite drunk” the day

before, might still have had some alcohol in his system when he got up, had not eaten, and had

consumed two more beers. His blood-alcohol concentration as tested at the hospital after his arrest

registered .446 grams of alcohol per 100 milliliters of blood—more than 5.5 times greater than the

legal limit. See Tex. Penal Code § 49.01. Even if the excluded video evidence showed that he had

trouble with English and that, contrary to police testimony, appellant hit his head on the roof of the

police car, it would not have added evidence of any counterweight on the elements of the offense.

               We conclude beyond a reasonable doubt that any error in excluding the evidence did

not contribute to appellant’s conviction or punishment. Any error in excluding evidence did not

otherwise affect his substantial rights. We affirm the judgment.




                                               Jeff Rose, Justice

Before Justices Puryear, Rose, and Goodwin

Affirmed

Filed: August 6, 2014

Do Not Publish




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