i          i      i                                                                   i       i      i




                                                OPINION

                                          No. 04-08-00913-CR

                                           Cooper BAGHERI,
                                               Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                       From the County Court at Law No. 9, Bexar County, Texas
                                       Trial Court No. 950565
                               Honorable Laura Salinas, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: May 12, 2010

AFFIRMED

           Cooper Bagheri appeals from his conviction for driving while intoxicated, asserting the trial

court erred in denying his request for a limiting instruction as to the breath test results and erred in

ruling on two challenges for cause during voir dire. We affirm the judgment of the trial court.
                                                                                                          04-08-00913-CR



                                 FACTUAL AND PROCEDURAL BACKGROUND

         Bagheri was arrested for driving while intoxicated in the early morning on January 1, 2006.

The vehicle Bagheri was driving went through a line of flares set up in front of a major accident

being investigated by police, and struck one of the police cars parked in the street. Bagheri failed

to stop and continued driving; he was stopped by other officers down the road. An officer

questioned Bagheri, and then handcuffed him and instructed him to wait on the side of the road until

the investigation of the major accident was completed. Bagheri was detained at 1:30 am. Some time

later, Officer Mooney conducted the standard field sobriety tests on Bagheri, which caused Mooney

to conclude that Bagheri was intoxicated. An intoxilyzer test was conducted on Bagheri at 3:17 a.m.

and 3:19 a.m. on January 1, 2006; the test results showed a blood alcohol content (BAC) of 0.163

and 0.146 which is approximately twice the legal limit of 0.08. Bagheri was charged by information

with driving while intoxicated based on the loss of normal use of his mental and physical faculties

by reason of introduction of alcohol (Paragraph A), and having an alcohol concentration of 0.08 or

more in his body (Paragraph B).

         At trial, in addition to testimony by the investigating officers, the breath test results were

admitted into evidence through the expert testimony of George Allen McDougall, the Breath Test

Technical Supervisor for Bexar County, Texas. McDougall testified he did not know any of the

individual factors about Bagheri necessary in order to extrapolate and give a BAC at the time of

driving.1 Over objection, McDougall testified generally about the rates of alcohol absorption and



         1
           … See Mata v. State, 46 S.W .3d 902, 908-09 (Tex. Crim. App. 2001) (explaining that retrograde extrapolation
is “the computation back in time of the blood-alcohol level–that is, the estimation of the level at the time of driving based
on a test result from some later time.”). In Mata, the court made clear that any retrograde extrapolation testimony was
not reliable unless it was based on sufficient characteristics of the particular defendant. Id. at 916-17.

                                                            -2-
                                                                                          04-08-00913-CR



elimination over time based on population studies. McDougall also testified that the BAC readings

obtained from the breath test show that Bagheri consumed a “substantial amount” of alcohol before

the samples were taken. The court instructed the jury that it could find Bagheri guilty if it found

beyond a reasonable doubt that he had driven or operated a motor vehicle while “intoxicated,”

meaning either he did not have the normal use of his mental and physical faculties due to alcohol

ingestion (impairment definition), or he had an alcohol concentration of 0.08 or more in his body

(per se definition). The jury found Bagheri guilty. The court sentenced Bagheri to six months in jail

plus a $2,000 fine, but suspended the sentence and placed Bagheri on community supervision for 18

months. Bagheri timely appealed.

                                              ANALYSIS

       Limiting Instruction.      In his first issue, Bagheri argues the trial court erred in refusing his

request for a jury instruction limiting the relevance of the breath test results to the issue of whether

Bagheri had consumed alcohol before the test, and not as to whether he had a BAC in excess of 0.08

at the time he was driving. Bagheri asserts that, in the absence of retrograde extrapolation testimony,

the test results were relevant only to the impairment definition of intoxication and were not relevant

to the per se definition of intoxication, i.e., a BAC of 0.08 or more. Bagheri challenges only the

admission of the breath test results without a limiting instruction; he does not challenge any aspect

of McDougall’s testimony on appeal. The State responds that Bagheri’s requested instruction was

not a correct statement of the law, and therefore the court did not err in denying it.

       When the State offered the breath test results into evidence, Bagheri objected that the test

results were not relevant to the allegation in Paragraph B of the information that Bagheri had a BAC

of 0.08 or more while he was driving the vehicle; he argued that if the results were admitted, they


                                                   -3-
                                                                                                     04-08-00913-CR



should be limited to the issue of loss of normal use of Bagheri’s faculties to demonstrate he had

consumed alcohol, and not “to prov[e] an actual alcohol concentration. . . .” The State replied that

Bagheri’s objection went to the weight of the evidence, not its admissibility. The court overruled

Bagheri’s objection and admitted the breath test results without limitation. At the charge conference,

Bagheri requested the following limiting instruction with respect to the breath test results:

        During the course of the trial evidence of certain breath test results were admitted.
        The tests are relevant only for the limited purpose of demonstrating that the appellant
        had consumed alcohol at some time before the tests were administered.

The court denied the instruction. Because Bagheri preserved error by objecting and requesting the

limiting instruction, we review the trial court’s ruling denying the instruction to determine whether

it was error and, if so, whether the error caused “some harm” to Bagheri. Mann v. State, 964 S.W.2d

639, 641 (Tex. Crim. App. 1998).

        We agree with the State that the limiting instruction requested by Bagheri is not a correct

statement of the law; therefore, it was not error to deny the instruction. As Bagheri concedes in his

brief, the Court of Criminal Appeals has rejected the argument that breath test results are irrelevant

under the per se definition of intoxication in the absence of retrograde extrapolation evidence. See

Stewart v. State, 129 S.W.3d 93, 96-97 (Tex. Crim. App. 2004) (holding that, even without

retrograde extrapolation testimony, breath test results obtained 80 minutes after stop were relevant

under both definitions of intoxication because they provided evidence that defendant had consumed

alcohol and thus tended to make it more probable she was intoxicated while driving).2 In Stewart,

the Court characterized breath test results without retrograde extrapolation as simply one of the



        2
         … The limiting instruction requested by Bagheri tracks the language used in the dissenting opinion in Stewart,
129 S.W .3d at 99.

                                                         -4-
                                                                                        04-08-00913-CR



“pieces in the evidentiary puzzle for the jury to consider in determining whether [the defendant] was

intoxicated at the time [he] drove.” Id. at 97. Further, the Court noted that admission of breath test

results without extrapolation evidence does not necessarily encourage the jury to engage in “its own

crude retrograde extrapolation” because it is not necessary for the jury to determine the defendant’s

precise BAC at the time he was driving–the jury only needs to find beyond a reasonable doubt that

either the defendant’s faculties were impaired or his BAC was 0.08 or more when he was driving.

See id.

          In addition, the Court addressed the probative value of breath test results without

extrapolation testimony in State v. Mechler, holding that the prejudice arising from admission of

breath test results obtained 90 minutes after the defendant’s arrest did not outweigh the probative

value of the test results under Texas Rule of Evidence 403. State v. Mechler, 153 S.W.3d 435, 440-

41 (Tex. Crim. App. 2005). The Court recognized that “the intoxilyzer results are undoubtedly

prejudicial to [the defendant], but they are not unfairly prejudicial because this evidence relates

directly to the charged offense.” Id. The Court expressly stated that the breath test results, without

accompanying retrograde extrapolation evidence, were relevant and probative as to both the per se

and impairment definitions of intoxication. Id. at 440 (test results indicated defendant had consumed

alcohol and thus tended to make it more probable that he was intoxicated at time of driving under

both per se and impairment definitions of intoxication).

          Bagheri argues that, despite Stewart and Mechler, the particular facts of this case justified

a limiting instruction on the breath test results to protect Bagheri from unfair prejudice and confusion

of the issues created by the absence of retrograde extrapolation testimony plus “confusing and

questionable” testimony about population studies unconnected to the defendant and the prosecution’s


                                                   -5-
                                                                                         04-08-00913-CR



“misrepresentation” of the time span between the stop and the breath test. Bagheri relies on language

in Gigliobianco v. State, in which the Court explained there may be a case in which the trial court

could reasonably conclude the probative value of breath test results are substantially outweighed by

the danger of unfair prejudice or confusion of the issues–but held that this was not such a case.

Gigliobianco v. State, 210 S.W.3d 637, 642-43 (Tex. Crim. App. 2006) (holding that BAC test

results obtained 75 minutes after driving had considerable probative value in proving both per se and

impairment intoxication at the time of driving). Bagheri acknowledges that Gigliobianco was

decided “on its own limited facts.” See id. In his brief, Bagheri argues merely that giving the

requested limiting instruction “would not necessarily conflict with existing authority.”

        In a case decided after briefing was complete in this appeal, the Court of Criminal Appeals

settled the issue by holding that a jury instruction that stated breath test results could be considered

only for “the limited purpose of showing that the individual who was tested had ingested alcohol

only at some point before the time of the test” was an improper comment on the weight of the

evidence. Kirsch v. State, No. PD-0379-09, 2010 WL 447437, at *6 (Tex. Crim. App. Feb. 10,

2010). In holding the instruction was error, the Court emphasized that no Texas statute, rule of

evidence, or judicial precedent limits the jury’s consideration of an otherwise admissible breath test

result. Id. In discussing the import of Stewart, Mechler and Gigliobianco, the Court explained that,

“The purport of these decisions, taken together, is that BAC-test results, even absent expert

retrograde extrapolation testimony, are often highly probative to prove both per se and impairment

intoxication.” Id. at *4. Finally, the Court noted that a BAC result is not sufficient by itself to prove

the defendant was driving while intoxicated according to the per se definition; in the absence of

retrograde extrapolation testimony, there must be other evidence in the record to support an inference


                                                   -6-
                                                                                         04-08-00913-CR



that the defendant was intoxicated at the time of driving as well as at the time of the breath test. Id.

at *4-5. Here, although there was no retrograde extrapolation evidence, the jury had other evidence

of Bagheri’s intoxication to consider along with the breath test results, including the officers’s

testimony about Bagheri’s driving and striking a police car before he was stopped, his disheveled

appearance, bloodshot eyes, smell of alcohol, slow speech, and unstable stance when he stepped out

of the vehicle, the results of his field sobriety tests, and Bagheri’s statement at the scene that he hit

the police car because “it was in the way.”

        We conclude that under Stewart, Mechler, and Kirsch, the breath test results were properly

admitted without an instruction limiting their relevance solely to the impairment definition of

intoxication. Accordingly, we overrule Bagheri’s first issue.

        Challenges for Cause. In his second and third issues, Bagheri contends the trial court erred

in ruling on two challenges for cause to potential jurors during voir dire in violation of article 35.16

of the Code of Criminal Procedure. TEX . CODE CRIM . PROC. ANN . art. 35.16 (Vernon 2006).

Specifically, Bagheri asserts the court erred in denying his challenge for cause to venire member no.

13, Candace Martinez, because she showed a bias against the defense by making the statement that

if a person was arrested for DWI then they must be guilty. See TEX . CODE CRIM . PROC. ANN . art.

35.16(c)(2) (venire member may be challenged for cause by defendant if he or she has a bias or

prejudice against the law upon which the defense is entitled to rely). In addition, Bagheri argues the

court erred in granting the State’s challenge for cause to venire member no. 5, Alexis Mata, based

on her statement that she does not judge people and would be unable to reach a verdict. See TEX .

CODE CRIM . PROC. ANN . art. 35.16(b)(3) (State may challenge venire member for cause if he or she

has a bias or prejudice against the law upon which the State is entitled to rely for conviction or


                                                   -7-
                                                                                       04-08-00913-CR



punishment). Bagheri asserts he was harmed by both rulings because an objectionable venire

member, no. 4, Carolyn McCannon, ended up on the jury.

       When reviewing a trial court’s decision to grant or deny a challenge for cause based on bias

or prejudice, we look at the entire record to determine if there is sufficient evidence to support the

ruling. Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002); Stewart v. State, 162 S.W.3d

269, 280 (Tex. App.—San Antonio 2005, pet. ref’d). The test is whether the venireperson’s bias or

prejudice would substantially impair their ability to carry out their oath and follow the court’s

instructions in accordance with the law. Feldman, 71 S.W.3d at 743-45. Before a venire member

may be excused for cause on the basis of bias or prejudice, the law must be explained and she must

be asked whether she can follow the law regardless of her personal views. Id. To establish that a

challenge is proper, the proponent of the challenge must show the veniremember understood the law

and could not overcome her prejudice enough to follow the law. Id. When the record shows the

venireperson vacillated on her ability to follow the law, we must defer to the trial court. Moore v.

State, 999 S.W.2d 385, 400 (Tex. Crim. App. 1999); Brown v. State, 913 S.W.2d 577, 580 (Tex.

Crim. App. 1996).

       Turning to Bagheri’s issue complaining of the denial of his challenge for cause to venire

member no. 13, Candace Martinez, it appears Bagheri failed to preserve the issue. To preserve error

on the denial of his challenge for cause, Bagheri must show on the record that: (1) he asserted a clear

and specific challenge for cause to that venire member; (2) he used a peremptory challenge on the

complained-of venire member; (3) he exhausted all his peremptory challenges; (4) his request for

additional peremptory strikes was denied; and (5) an objectionable juror sat on the jury. Feldman,

71 S.W.3d at 744; Stewart, 162 S.W.3d at 280. The record shows Bagheri did not use a peremptory


                                                  -8-
                                                                                       04-08-00913-CR



strike on Martinez, and she ended up sitting on the jury. Bagheri therefore cannot show he was

harmed by being forced to use a peremptory strike to remove Martinez and then suffering a detriment

from the loss of the strike. Feldman, 71 S.W.3d at 743-45; Sells v. State, 121 S.W.3d 748, 758 (Tex.

Crim. App. 2003). Even if the issue was preserved, the record does not show the trial court abused

its discretion in denying the defense challenge for cause on Martinez. Stewart, 162 S.W.3d at 280

(abuse of discretion standard). Although Martinez initially stated she would automatically assume

someone who was arrested for D.W.I. was guilty, she was rehabilitated during individual voir dire

when the State explained there are different standards for an arrest and a conviction. After hearing

the explanation of the law, Martinez stated she would require the State to meet the higher burden of

proof beyond a reasonable doubt in order to find Bagheri guilty, and if it failed to meet that higher

burden she could then find Bagheri not guilty. Martinez indicated she understood the law, and stated

she could follow it; therefore, the trial court did not abuse its discretion in denying Bagheri’s

challenge for cause to Martinez. See Adanandus v. State, 866 S.W.2d 210, 222 (Tex. Crim. App.

1993) (if venireperson ultimately states he can follow court’s instructions and render a verdict

according to the evidence, the venireperson is not challengeable for cause, even if he originally

equivocated on his answers).

       Finally, Bagheri complains the trial court abused its discretion in granting the State’s

challenge for cause to venire member no. 5, Alexis Mata. Specifically, Bagheri argues the State

failed to meet its burden on the challenge for cause because it did not ask Mata any questions during

individual voir dire. As noted, we look at the entire record to determine if there is sufficient

evidence to support the court’s ruling. Feldman, 71 S.W.3d at 744. In reviewing a decision to

sustain a challenge for cause, we consider whether the totality of the voir dire testimony supports the


                                                  -9-
                                                                                        04-08-00913-CR



trial court’s implied finding of fact that the prospective juror is unable to take the required oath and

follow the law as instructed by the court. Kemp v. State, 846 S.W.2d 289, 391 (Tex. Crim. App.

1992). We must also be mindful of the trial judge’s unique position in observing the demeanor of

the venireperson, and grant great deference to the trial court’s determination. Id. An appellant who

complains of an erroneously excluded veniremember must demonstrate that either: (1) the trial court

applied the wrong legal standard in granting the challenge for cause; or (2) the court abused its

discretion in applying the correct legal standard. Kemp, 846 S.W.2d at 296.

       The State may challenge for cause any venireperson who “has a bias or prejudice against any

phase of the law upon which the State is entitled to rely for conviction or punishment.” TEX . CODE

CRIM . PROC. ANN . art. 35.16(b)(3). A venireperson who is unable to enter a finding of guilt warrants

sustaining a challenge for cause. Roy v. State, 891 S.W.2d 315, 326 (Tex. App.—Fort Worth 1994,

no pet.). A prospective juror who would ultimately be guided by his or her personal beliefs rather

than by the law is unqualified to sit as a juror. Castillo v. State, 739 S.W.2d 280, 296 (Tex. Crim.

App. 1987). Here, venire member no. 5 unequivocally stated her personal feeling that, “I don’t like

judging people” and “I’ve never judged anybody in my life.” She explained that she “can’t help but

put myself in their position.” When asked by defense counsel, “You don’t think you can reach a

verdict?” Mata answered, “No, I can’t.” Based on the unambiguous voir dire testimony, we hold

the trial court applied the law correctly and did not abuse its discretion in sustaining the State’s

challenge for cause to Mata.




                                                  -10-
                                                                                     04-08-00913-CR



       Based on the foregoing reasons, we overrule all of Bagheri’s issues on appeal, and affirm the

trial court’s judgment.

                                                             Phylis J. Speedlin, Justice

PUBLISH




                                               -11-
