      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-03-00624-CR



                                     Blake Taylor, Appellant

                                                  v.

                                   The State of Texas, Appellee




                FROM COUNTY COURT AT LAW NO. 2 OF BELL COUNTY
           NO. 2C02-04982, HONORABLE JOHN BARINA, JR., JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Blake Taylor appeals her conviction for operating a motor vehicle while

intoxicated, a class B misdemeanor. See Tex. Pen. Code Ann. § 49.04 (West 2003).1 A jury found

appellant guilty and the trial court assessed punishment at ninety days in the county jail and a fine

of $1,000. The imposition of sentence was suspended and appellant was placed on community

supervision (probation) for one year subject to certain conditions.

               On original submission, we sustained appellant’s first point of error that the trial court

erred in refusing to hear the motion for new trial on the basis that the court lacked jurisdiction. We

abated the appeal and remanded the cause to the trial court to afford appellant a hearing on her timely

filed motion for new trial. See Taylor v. State, 163 S.W.3d 277 (Tex. App.—Austin 2005, pet.


       1
        The word “driving” is no longer found in the statute, but the offense is still commonly
known as “DWI.”
dism’d). The hearing was conducted, the motion was overruled, and the supplemental record has

been returned to this Court.


                                           Points of Error

               The first point of error having been disposed of, we examine the remaining

contentions. Second and third, appellant claims that the trial court erred in admitting testimony

concerning the field sobriety tests of horizontal gaze nystagmus (HGN) and the one-leg stand.

Fourth, appellant urges that the trial court erred in excluding evidence of appellant’s medical

condition at the time of her arrest. In four additional points, appellant challenges the legal and

factual sufficiency of the evidence to support the conviction. In a supplemental point of error,

appellant argues that the trial court abused its discretion in overruling the motion for new trial after

remand. We will affirm the judgment of conviction.


                                        Factual Background

               At approximately 12:30 p.m. on March 21, 2002, Killeen Police Officer Charles

Clayton was dispatched to a non-injury accident at the intersection of U.S. Highway 195 and Jasper

Avenue. Ramona Cofield testified that she was driving her young daughter to a baby sitter in a

friend’s compact car. She stopped at the flashing red light at the said intersection, and then

proceeded to make a turn when her vehicle was struck by a Jeep Cherokee vehicle driven by

appellant. Ms. Cofield related that appellant came up to her and stated, “Red means stop?” Cofield

could smell alcohol on appellant’s breath and observed that appellant’s eyes were “glossy.” Cofield




                                                   2
was concerned that she might be arrested because she had no driver’s license but denied that she told

appellant not to call the police. Apparently, appellant’s daughter, who was with her, called “911.”

               Officer Clayton arrived on the scene a few minutes after receiving the dispatch. He

found the flashing red light traffic signal to be operating properly. Immediately upon his arrival,

appellant approached Officer Clayton and accused Cofield of running the red light and causing the

accident. Appellant told the officer that she suspected Cofield of being intoxicated or under the

influence of drugs. At this point, Clayton observed that appellant’s speech was rambling, her eyes

were red and glassy, and that she was “swaying a tad bit.” Upon examination, the officer found that

Cofield displayed no such symptoms.

               Officer Samuel Ellis, Jr., arrived to assist Officer Clayton and was asked to perform

a horizontal gaze nystagmus test (HGN) on appellant. When Ellis approached appellant he could

smell the odor of alcohol on her person. When he asked about stopping at the flashing red light

signal, she responded, “What flashing red light?” When Ellis administered the HGN test he detected

four clues indicating intoxication, but appellant quit tracking his pen with her eyes, then turned her

head, thus preventing Ellis from completing the test. Ellis noticed that appellant was slightly

swaying during the interrupted test. In his opinion, appellant was intoxicated, having lost the normal

use of her physical and mental faculties.

               Officer Ellis, a certified accident reconstructionist, testified that from the damage to

the vehicles it appeared that appellant failed to stop for the red light and struck the Cofield vehicle

as it was turning. He acknowledged on cross-examination that without a witness, he could not be




                                                  3
sure how the accident occurred, and there was a possibility that one of the parties failed to yield the

right of way instead of running a red light.

               Officer Clayton had appellant perform several field sobriety tests at the scene. He

administered another HGN test, and the one-leg stand test. He testified that based upon his

observations at the scene, it was his opinion that appellant had lost the normal use of her mental and

physical faculties.

               Appellant was arrested and taken to the Killeen city jail. The booking officer,

Maurice Jones, testified that appellant’s eyes were glassy and bloodshot. He believed that she was

intoxicated. Appellant was uncooperative. She refused to take a breath test, and refused to give her

fingerprints or any of the information needed for booking. Appellant was videotaped at the jail,

repeatedly demanding to see her lawyer and refusing to take a breath test. The redacted videotape,

marked as State’s Exhibit #1A, was introduced into evidence. After appellant talked to an attorney

on the telephone, she asked for a blood test or even a breath test. None were given.

               Appellant testified that on May 20, 2002, she was at a club known “Oz” from 8 p.m.

until almost midnight, and that she had only one drink called a “Long Beach” with one shot of rum.

Appellant left to drive to IHOP restaurant for breakfast. Her daughter was with her and appellant

was driving the daughter’s car, a Jeep. About 12:20 a.m. at the intersection in question, appellant

stopped at the blinking red light when a red vehicle failed to stop for the red light, “fishtailed

somewhat” and collided with appellant’s vehicle. By agreement, the parties drove their vehicles into

a nearby parking lot. Appellant testified that she informed Cofield that Cofield had run a red light;




                                                  4
that Cofield responded that she needed to get out of there, that “I’m going to jail.” Appellant’s

daughter called “911,” while Cofield continued to plead with appellant not to call the police.

               Appellant reported that her daughter was holding the child with Cofield to comfort

the child. When Officer Clayton arrived, appellant gave him her driver’s license and got the car

insurance papers out of her daughter’s glove compartment. Appellant reported that she told Clayton

that she suspected that the child could have been kidnapped, the child was in pajamas, was upset and

clinging to her daughter and not Cofield, who was frantic to leave the scene.

               Appellant related that various tests were conducted at the scene. Officer Ellis asked

to look at her eyes. She was facing Jasper Avenue at the time and telling Ellis her concern for the

child when a test was performed. The second test on the eyes was conducted by Officer Clayton.

Appellant testified that she was on a sidewalk and faced a different direction while Clayton shined

a big light on her face. Appellant related that she performed a one-leg stand test and followed

instructions. When Clayton asked if she wanted to repeat the test, she felt that she had an option and

declined to take the test again.

               After being arrested and placed in a patrol car, appellant said that she began sweating

and had difficulty breathing. At the jail she was asked to repeat the earlier tests, but she asked for

an attorney to which she thought she was entitled. She refused the tests until she talked to her

attorney. Appellant reported that Officer Clayton shut off the video he had been taking and sent her

to the booking area.

               Appellant explained why she did not take a breath test. She said that she was stunned

and was not drunk, and that she wanted to talk to an attorney as she did not know how accurate the



                                                  5
test was and if it could be trusted. After being allowed to use a telephone, she called her husband

and then an attorney. Thereafter, appellant asked for a breath test but was told that the certified

officer had gone back on patrol. She then requested a blood test but none was administered.

               Appellant called Terry Walden, an expert in field sobriety testing, as a witness. He

listened to the testimony of Officers Clayton and Ellis, and concluded that the results of their field

sobriety testing was invalid. In great detail, Walden pointed out how in his opinion the HGN and

one-leg stand tests were improperly conducted. Appellant and Walden were the only defense

witnesses.


                                             Discussion

Admission of HGN Test

               In point of error two, appellant claims that the “trial court erred by admitting

testimony regarding the horizontal gaze nystagmus test.” The stated point of error could relate to

the admission of such evidence before the jury at the trial on the merits. There was no trial objection

made to preserve error. See Tex. R. App. P. 33.1. From her brief, it is obvious that appellant is

relying on the overruling of her second motion to suppress evidence to preserve error. See Waller

v. State, 581 S.W.2d 483, 485 (Tex. Crim. App. 1979); Roberts v. State, 545 S.W.2d 157, 158 (Tex.

Crim. App. 1977); Riojas v. State, 530 S.W.2d 298, 301 (Tex. Crim. App. 1975); Jackson v. State,

649 S.W.2d 317, 319 (Tex. App.—Amarillo 1983, no pet.) (to preserve error on appeal, defendant

need not renew during trial on merits overruled objection made in pretrial motion to suppress).

Appellant cites and relies solely upon evidence adduced at the hearing on the second motion to

suppress to support his contention. Under these circumstances, the general rule is that only evidence

                                                  6
from the hearing on the motion to suppress is considered on appeal. See Peddicord v. State, 942

S.W.2d 100, 108 (Tex. App.—Amarillo 1997, no pet.);2 see also Rachel v. State, 917 S.W.2d 799,

809 (Tex. Crim. App. 1996).

                 A pretrial motion to suppress evidence, see Tex. Code Crim. Proc. Ann. art. 28.01(6)

(West 1989), is nothing more than a specialized objection to the admissibility of evidence. Galetz

v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981); Manzi v. State, 56 S.W.3d 710, 715-16

n.2 (Tex. App.—Houston [14th Dist.] 2001), aff’d, 88 S.W.3d 240 (Tex. Crim. App. 2002); Carroll

v. State, 911 S.W.2d 216, 218 (Tex. App.—Austin 1992, no pet.); Mayfield v. State, 800 S.W.2d

932, 935 (Tex. App.—San Antonio 1990, no pet.). The suppression motion must meet the

requirements of an objection including specificity. See Tex. R. App. P. 33.1; Mayfield v. State, 800

S.W.2d at 935.

                 We examine the second motion to suppress evidence to determine the objection upon

which appellant relies. Appellant alleged in the motion that “the officer” (unidentified) had

administered certain scientific field sobriety tests to appellant in such a way that the scientific theory

underlying these tests could not have been properly applied on the particular occasion, citing Kelly

v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). It was further alleged “the officer” had testified

at the hearing on the first motion to suppress and would testify at trial.




        2
          Neither party claims that the issue was consenually relitigated during the trial on the merits
so as to bring into play relevant trial testimony for consideration. Peddicord v. State, 942 S.W.2d
100, 108 (Tex. App.—Amarillo 1997, no pet.) (citing Hardesty v. State, 667 S.W.2d 130, 133 n.6
(Tex. Crim. App. 1984)).

                                                    7
                 Kelly held that under Rule 702 of the Rules of Evidence, the proponent of novel

scientific evidence must prove to the trial court in the jury’s absence, by clear and convincing

evidence, that the proffered evidence is relevant and reliable. To be considered reliable the evidence

must satisfy three criteria: (1) the underlying scientific theory must be valid; (2) the technique

applying the theory must be valid; and (3) the technique must have been properly applied on the

occasion in question. Kelly, 824 S.W.2d at 573. Under the third criteria the qualifications of the

experts testifying must be established. Id.3 This was the basis of the second motion to suppress.

There was no Rule 403 objection included in the suppression motion or raised at the hearing. See

Tex. R. Evid. 403.




       3
           Rule 702 of the Texas Rules of Evidence relating to testimony by experts provides:

                 If scientific, technical, or other specialized knowledge will assist the trier of
           fact to understand the evidence or to determine a fact in issue, a witness qualified
           as an expert by knowledge, skill, experience, training, or education may testify
           thereto in the form of an opinion or otherwise.

Tex. R. Evid. 702.

                Before admitting expert testimony, a trial court must be satisfied that (1) the
           witness qualifies as an expert; (2) the subject matter of the testimony is an
           appropriate one for expert testimony; and (3) the expert testimony is reliable and
           relevant.

2 Steven Goode, Olin Guy Wellborm, III, and M. Michael Sharlot, Texas Practice: Guide to the
Texas Rules of Evidence § 7.02.1 (3d ed. 2002). The question of whether a witness offered as an
expert possesses the required qualifications rests largely in the trial court’s discretion. Absent an
abuse of discretion, the trial court’s decision to admit or exclude testimony will not be disturbed on
appeal. The party proffering the expert witness bears the burden of showing that the witness is
qualified on the specific matter in question. See Tex. R. Evid. 702; Wyatt v. State, 23 S.W.3d 18,
27 (Tex. Crim. App. 2000); Gullatt v. State, 74 S.W.3d 880, 882 (Tex. App.—Waco 2002, no pet.).


                                                     8
                On September 8, 2003, prior to trial, appellant was accorded a hearing on the second

motion to suppress at which “the officer,” Charles Clayton, Officer Samuel Ellis, and appellant’s

expert, Troy Walden, testified. The trial court overruled the motion as to the HGN tests and the one-

leg stand test, but granted the motion as to the walk and turn test for a practical reason—the test had

been conducted on a sloping and uneven surface.

                Assuming that the overruling of the second motion to suppress evidence is the basis

for point of error two, appellant’s contention is that the trial court erred in overruling the motion and

failing to suppress the testimony as to both HGN tests. In reviewing the trial court’s ruling on a

motion to suppress, we afford almost total deference to the trial court’s determination of historical

facts supported by the record, but review de novo the court’s application of the law to the facts. State

v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997). This is the “bifurcated” standard of Guzman. See Burke v. State, 27 S.W.3d 651,

654 (Tex. App.—Waco 2000, pet. ref’d). If the trial court has not made explicit findings, we assume

that the court made findings that are supported by the record and buttress its conclusions.

Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000). The party proffering the expert

witness bears the burden of showing that the witness is qualified on the specific matter in question.

Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000); Gullatt v. State, 74 S.W.3d 880, 882 (Tex.

App.—Waco 2002, no pet.).

                The subject matter of the expert testimony at issue is the application of the field

sobriety test of horizontal gaze nystagmus (HGN). Nystagmus is an involuntary rapid oscillation of

the eyes in a horizontal, vertical or rotary direction. Emerson v. State, 880 S.W.2d 759, 765 (Tex.



                                                   9
Crim. App. 1994) (citing The Merck Manual of Diagnosis and Therapy 1429 (1992)); see also

Quinney v. State, 99 S.W.3d 853, 857 (Tex. App.—Houston [14th Dist.] 2003, no pet.). HGN refers

to 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.

Webster v. State, 26 S.W.3d 717, 719 n.1 (Tex. App.—Waco, 2000, pet. ref’d). Consumption of

alcohol exaggerates nystagmus to the degree that it can be recognized by the naked eye. Emerson,

880 S.W.2d at 766. Nystagmus may be caused by factors other than alcohol such as narcotic use,

neurological disorders, or brain damage. Id.

               The HGN test has been held to be scientific evidence subject to the three-pronged

criteria of Kelly, 824 S.W.2d at 573-74, and Rule 702 before admission into evidence. Emerson, 880

S.W.2d at 763. In Emerson, the Texas Court of Criminal Appeals examined the underlying scientific

theory of HGN testing and found the theory and the technique employed in the testing to be reliable

for the purposes of Rule 702 governing the admissibility of expert testimony. Emerson, 880 S.W.2d

at 768. The court, finding both the theory and its technique to be valid, took judicial notice of the

theory and its technique. Id. at 769. By making this determination, the court relieved the State of

the burden of presenting evidence to satisfy the first two prongs of Kelly’s regarding expert HGN

testimony. See Quinney, 99 S.W.2d at 857; Gullatt, 74 S.W.3d at 883-84. The Emerson decision

left the State with the burden of showing only that the HGN technique was properly applied on the

occasion in question and the expert witness was qualified. While Rule 702 does not prescribe the

burden of persuasion, the Court of Criminal Appeals has determined that the burden is by clear and

convincing evidence rather than by a preponderance of the evidence. Kelly, 824 S.W.2d at 573.



                                                 10
Qualifications of Experts

                Appellant’s initial argument is that the trial court erred in permitting Officers Clayton

and Ellis to testify as to the HGN tests performed because they were not qualified as expert

witnesses.


             For testimony concerning a defendant’s performance on the HGN test to be
        admissible it must be shown that the witness testifying is a qualified expert on the
        HGN test, specifically concerning its administration and technique. In the case of a
        police officer or other law enforcement official, this requirement will be satisfied by
        proof that the officer has received practitioner certification by the State of Texas to
        administer the HGN.


Emerson, 880 S.W.2d at 769; Webster, 26 S.W.3d at 721.

                The first motion to suppress evidence was based on a claim that there was no probable

cause for the warrantless arrest of appellant. It was heard on June 11, 2003, and overruled. At the

hearing, Officer Clayton testified that he was “certified” to perform the HGN test, but he had not

received his practitioner’s license but “was working on it.” Officer Ellis simply testified that he was

“certified” and no further questions were asked. Appellant relies heavily on appeal on Officer

Clayton’s remarks. The State points out that appellant did not object to the qualifications of Officer

Ellis or Clayton as expert witnesses at either the first or second suppression hearing or at the trial on

the merits. See Tex. R. App. P. 33.1(a). The State urges that nothing is presented for review as to

witness qualification.

                Appellant bases her point of error two on the overruling of the second motion to

suppress claiming that the administration of all the field sobriety tests did not comply with the three-




                                                   11
pronged criteria of Kelly v. State, 824 S.W.2d at 573. It would seem that this specialized objection

within the second suppression motion might have preserved error unless it was waived.

                The second motion to suppress evidence was heard prior to trial on September 8,

2003. At the hearing, appellant asked the trial court to take into consideration all of the testimony

from the first hearing. Without objection, the trial court agreed to do so. The prosecutor then asked

that Officer Clayton be considered as an expert witness as he had been so qualified by the trial court

at the first hearing. When the trial court explained this request to appellant’s trial counsel, he

responded, “Okay.” At the second hearing there was no objection to the officers’s qualifications.

On cross-examination, Officer Clayton testified that he was initially certified to administer the HGN

test some ten years before when he was with the Copperas Cove Police Department and that in 2000

or 2001 he took a refresher course after joining the Killeen Police Department. Before Officer Ellis

testified, the trial court, upon the request of the State, took “judicial notice” of the officer’s

qualifications as an expert witness “from the last hearing.” Officer Ellis simply testified that he had

been “certified” since 1996.

                It is not unusual or improper for a party to agree or stipulate to the qualifications of

another party’s expert witness. In re J.S.C. held that the qualification of a State’s psychiatrist as an

expert witness was sufficiently established by a stipulation even though the trial court was not

informed of the qualifications. 812 S.W.2d 92, 94-95 (Tex. App.—San Antonio 1991, no writ). In

Guerrero v. Smith, 864 S.W.2d 797, 801-02 (Tex. App.—Houston [14th Dist.] 1993, no writ), the

defendant stipulated at the beginning of the plaintiff’s witness’s testimony that the witness was a




                                                  12
qualified expert. It was held that he could not complain on appeal about the witness’s qualifications,

even though subsequent to the stipulation his trial objection was overruled.

                In the instant case, given the circumstances, the State did not further develop the

qualifications of Officers Clayton and Ellis as expert witnesses in light of appellant’s agreement and

concession, lack of objection and waivers. Appellant is not in a position to complain on appeal

about the absence of sufficient evidence concerning the qualifications of the officers as witness. Still

further, the trial court did not abuse its discretion in finding Officers Clayton and Ellis qualified as

experts to testify as to the administration and technique of the HGN test. In Smith v. State, 65

S.W.3d 332, 344 (Tex. App.—Waco 2001, no pet.), like the instant case, the record showed the

officer was “certified” by the State but did not make clear that he had received a “practitioner’s

certificate” as discussed in Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994). Smith

held that Emerson does not require that an expert witness must be certified by the State of Texas

before his testimony on the subject of the HGN test is admissible. Smith, 65 S.W.3d at 344 (citing

Herr v. State, 921 S.W.2d 498, 502 (Tex. App.—Fort Worth 1996, no pet.).

                Moreover, other courts of appeals have permitted officer testimony on HGN tests

without regard to certification. See Singleton v. State, 91 S.W.3d 342, 348 (Tex. App.—Texarkana

2002, no pet.) (concluding trial court could determine officer was expert from his knowledge, skill,

experience, and training despite evidence that officer was not certified); Lewis v. State, 933 S.W.2d

172, 181 (Tex. App.—Corpus Christi 1996, pet. ref’d) (concluding no error in allowing officer to

testify regarding HGN test based on statement from officer that he was a qualified expert in

administering the test).



                                                  13
                At the trial on the merits, Officer Ellis testified that he was a senior police officer with

the Killeen Police Department with eleven and a half years of service, was a certified accident

reconstructionist, a trained intoxilyzer operator, had over 2,000 hours of training including field

sobriety tests school, and had been “certified” in 1996 on HGN testing through a course offered by

“the Texas A&M system.” Officer Clayton testified at trial that he had thirteen and a half years of

service as a law enforcement officer, had extensive training in family violence issues, arrest, search,

and seizure and had attended HGN and DWI detection schools. He stated he was initially “certified”

on HGN testing when he was with the Copperas Cove Police Department and had a refresher course

with the Killeen Police Department and both schools were sponsored by Texas A&M University and

the National Highway Traffic Safety Administration. After the first suppression hearing, Officer

Clayton’s remarks about the practitioner’s license was never raised again. Given the circumstance,

the trial court did not abuse its discretion in overruling the second motion to suppress because of a

lack of the qualifications of Officers Clayton and Ellis.4


       4
         Although not discussed by either party, it has been held that the rules of evidence, with the
exception of privilege, do not apply to suppression hearings involving the determination of
preliminary questions concerning the admission of evidence. Granados v. State, 85 S.W.3d 217, 227
(Tex. Crim. App. 2002); Turner v. State, 132 S.W.3d 504, 508 (Tex. App.—Houston [1st Dist.]
2004, pet. ref’d). In his dissent in Granados, 85 S.W.3d at 240, Judge Myers stated in part:

                Under the majority’s reading of the law, there is now nothing to prevent a
           trial court from deciding the merits of a suppression motion by relying
           exclusively on an unsworn police report or lab report. No longer must an expert
           witness at a suppression hearing be qualified. Tex. R. Evid. 702 (emphasis
           added).

The Texas Court of Criminal Appeals may want to revisit the Granados decision so the salutary
purpose behind the statutory provision for a motion to suppress evidence (Tex. Code Crim. Proc. art.
28.01(6) (West 2005) is not hamstrung by a decision interpreting rules of evidence adopted by the

                                                    14
Officer Clayton and the HGN Test

               Included in her point of error two, appellant claims that Officer Clayton misapplied

the HGN test that he administered to appellant. All record references cited in support of her claim

are from the court reporter’s record at the hearing on the second suppression motion. Officer

Clayton testified at this hearing as to his administration of the HGN test. Thereafter, appellant

qualified Troy Walden as a HGN test expert. Walden, a former peace officer, qualified HGN test

instructor, and former state coordinator for the standardized field sobriety testing program at the

Texas Engineering Extension Service with the Law Enforcement Security Division of the Texas

A&M University System, was permitted to remain in the courtroom during the hearing and listen to

Officer Clayton’s testimony. He had read the record of the first suppression hearing, the accident

report, and other matters relating to the instant DWI charge. Walden’s testimony was highly critical

of Officer Clayton’s handling of the HGN test. At the conclusion of the hearing, the trial court

overruled the second motion to suppress.

               Appellant relies heavily upon Walden’s testimony in her claim that Clayton

misapplied the HGN test. Clayton testified that he held his pen as a stimulus 12 to 18 inches in front

of appellant’s eyes as required by his training. Walden contended that the National Highway Traffic

Safety Administration (NHTSA) manual requires the stimulus to be held 12 to 15 inches in front and




Court under limited authority. See Tex. Gov’t Code Ann. § 22.109 (West 2004). If the trial court,
within its discretion, declines to hear the pretrial motion to suppress evidence, a defendant must raise
a trial objection to the admissibility of the evidence, which is decided at trial by the rules of
evidence. If the trial court hears the pretrial suppression motion on the same issue, the rules of
evidence do not apply under Granados.

                                                  15
above the eyes. However, Officer Clayton testified that he actually held the pen closer to 12 inches

in performing the test. In checking for the lack of smooth pursuit, Officer Clayton testified that he

took the stimulus out to each side at maximum deviation and brought it back without stopping the

stimulus. When asked how long it took to move the stimulus from the center point to maximum

deviation, the officer estimated four to five seconds. Walden testified that based on NHTSA

protocols there was a large time discrepancy in the check for smooth pursuit. Walden testified that

it should take two seconds to go to the outside and two seconds to go back to the center. Officer

Clayton was testifying about tracking the smooth pursuit in both of appellant’s eyes. In the context

it is not clear whether Clayton’s time estimation related to moving the stimulus from the center to

the maximum deviation in one eye or whether it included a return to the center. The State argues

that the NHTSA manual (without giving the date or which edition) uses the word “approximately”

with regard to the time estimation. Even if the time recommended by Walden and the NHTSA

manual is accurate, the difference between this time and that estimated by Officer Clayton appears

negligible. See Compton v. State, 120 S.W.3d 375, 378 (Tex. App.—Texarkana 2003, pet. ref’d).

There is nothing to show that the difference in time would result in a finding of smooth pursuit of

appellant’s eyes rather than a lack of smooth pursuit. Walden said that Officer Clayton made only

one pass of each eye in checking for smooth pursuit of the eyes when there should have been two

passes of each eye. No edition of a NHTSA manual was introduced. The trial court did not take

“judicial notice” of any such manual regardless of date. We do not conclude that Officer Clayton’s

testimony as to lack of smooth pursuit should be the basis for excluding the HGN test.




                                                 16
               Next, appellant claims the HGN test by Officer Clayton should have been excluded

as evidence because there was an invalid observation for nystagmus at the maximum deviation point

in each eye. Officer Clayton testified that he observed nystagmus in each eye when he held the pen

(stimulus) at the maximum deviation point in each eye. Walden claimed that the NHTSA protocal

was not followed on this element of the HGN test because the stimulus was not held in place for four

rather than three seconds. Otherwise, Walden testified it cannot be determined whether appellant’s

nystagmus was any indication of intoxication. It was nighttime. Officer Clayton was using a pen

as a stimulus and holding a flashlight. It was not shown that he had a stop watch. His testimony was

only an estimation. Here again, the difference in the time frame given the circumstances is

negligible.

               Still further, appellant argues that the HGN test by Officer Clayton should have been

excluded on the basis that there was an invalid observation of nystagmus prior to the 45 degree point.

This stage of the HGN test is used to observe at what point the eye first begins to exhibit nystagmus.

If nystagmus occurs at a point prior to the stimulus being at a 45-degree angle from the eye, this is

an indication of impairment. Emerson, 880 S.W.2d at 768. Appellant relies upon Officer Clayton’s

testimony at the second suppression hearing developed on cross-examination by appellant’s trial

counsel and later countered by the defense expert. The testimony was rather meager. Officer

Clayton testified that he moved the stimulus from the center to the 45 degree point in “smooth

progression;” that it took three seconds to reach the 45 degree point and three seconds to return to

center. He started the test with appellant’s right eye. It appears obvious that at some point the

officer saw nystagmus but he did not expressly say so. Walden, the defense expert, stated that



                                                 17
Officer Clayton should have started with the left eye and should have stopped when he first observed

nystagmus prior to the 45 degree point, but Clayton didn’t stop so there could not be a valid “clue”

from the test as administered by the officer. Here again, there was a discrepancy in time. Walden

stated that it should take four seconds to reach the 45 degree point.

               We observe that at the suppression hearing Officer Clayton never once stated that,

based on the HGN test he administered, appellant was intoxicated. The trial court was the trier of

fact and the judge of the credibility of the witnesses. While Walden testified to his understanding

of the NHTSA manual, no edition of it was introduced nor did the trial court take judicial notice of

the manual.

               We conclude that the trial court, as trier of fact, did not err in overruling the

suppression motion based on Officer Clayton’s administration of the HGN test.


Officer Ellis and the HGN test

               We turn next to appellant’s contention within the second point of error that Officer

Ellis did not properly apply the HGN test technique. Appellant cites and relies solely upon Officer

Ellis’s testimony at the two suppression hearings. Officer Ellis testified that he performed the first

two phases of the HGN test by determining (1) a lack of smooth pursuit of appellant’s eyes, and (2)

by observing a distinct nystagmus at maximum deviation in each eye. He was unable to complete

the test because appellant kept moving her head and failing to keep her eyes on the stimulus as

instructed. Officer Ellis acknowledged that appellant was slightly swaying during the test. He did

mention that he got four out of six clues before the test was terminated. At the suppression hearings,

Officer Ellis did not testify that, based on the incomplete HGN test, appellant was intoxicated at the

                                                 18
time, nor was he asked any such questions. There was no attempt at the suppression hearings to

quantify appellant’s exact BAC based on the incomplete test.

               Troy Waldon, appellant’s HGN expert, was critical of Officer Ellis’s HGN test

because appellant was swaying and because it was not completed. Walden concluded that the test

was not in compliance with the NHTSA standards.

               What was overlooked was that Officer Ellis did not express the opinion that appellant

was intoxicated based on the test. He testified to his attempt to administer the test and his

observations about appellant’s actions which prevented the test’s completion. Generally, the lay

opinion testimony of a police officer is admissible as to the officer’s observations and to prove a

defendant’s intoxication. Emerson, 880 S.W.2d at 763; Vaughn v. State, 493 S.W.2d 524, 525 (Tex.

Crim. App. 1972). Here, Officer Ellis offered no opinion testimony at the suppression hearings.

               We conclude that the trial court did not abuse its discretion in admitting Officer

Ellis’s testimony at the second suppression hearing.5 Appellant’s second point of error is overruled.


The One-Leg Stand Test

               In point of error three, appellant contends that the “trial court erred by admitting

testimony of appellant’s performance during the one-leg stand test.” In support of his contention,


       5
          At the trial on the merits, Officer Ellis recounted the failed administration of the HGN test
and the reasons for its termination. He also attempted improperly to correlate the four clues to
appellant’s BAC. The trial court sustained appellant’s prompt objection and appellant requested no
further relief. Subsequently, without objection, Officer Ellis testified that in his opinion appellant
was intoxicated at the time and had lost the normal use of her mental and physical faculties. The
experienced officer testified that his opinion was based on the odor of alcohol on appellant, her
appearance, her swaying, her failure to follow instructions and keep her head from moving, and her
confusion about the existence of the flashing red light at the intersection where the accident occurred.

                                                  19
appellant refers us only to the testimony at the hearing on the second motion to suppress evidence.

Thus, appellant’s contention is that the trial court erred in overruling the second motion to suppress

on this basis because, as stated in his specialized objection in his suppression motion, the field

sobriety test evidence did not meet the criteria of Kelly v. State, 824 S.W.2d at 573. And, he urges

that the evidence of the one-legged stand test was inadmissible under Rule 702. Tex. R. Evid. 702.

               The only police officer who testified to the administration of the one-leg stand test

to appellant was Officer Clayton. After examining Officer Clayton’s testimony6 and the balance of

the testimony on the one-leg stand test, we conclude the evidence related to nonscientific evidence

and was admissible as lay opinion under Rule 701. Tex. R. Evid. 701. The one-leg stand test, unlike

the HGN test, is a psychomotor task which tests a subject’s ability to perform multiple tasks

simultaneously. See State v. Ferrer, 23 P.3d 744, 760-62 (Haw. Ct. App. 2001). The fundamental

requirement of a psychomotor field sobriety test (FST), such as the one-leg stand test, differs from




       6
           Officer Clayton testified briefly about the administration of the one-leg stand test to
appellant at the scene of the accident. Officer Clayton testified that he instructed appellant how the
test was to be performed. He told her that she must stand with her feet together, both of her arms
at her side, lift one leg six or eight inches off the ground, and count aloud to thirty using one-one
thousand, two-one thousand, etc. Appellant was instructed not to start counting until told to do so
by the officer. The test was demonstrated to appellant by the officer and she stated that she
understood the procedure.

          When the test began, appellant raised her leg, but put it down and asked to perform the test
without her shoes. Officer Clayton agreed. Appellant started the test again, raising one leg five or
six inches off the ground and “kind of swaying.” When Officer Clayton noticed that appellant was
not counting aloud, within two seconds he began silently counting. When he reached fifteen-one
thousand, appellant placed her leg down and terminated the test. When asked, appellant declined
to continue the test. This concluded Officer Clayton’s testimony about the one-leg stand test. At
the suppression hearing, he did not testify as to any conclusion about appellant’s intoxication based
on the test or otherwise.

                                                 20
the fundamental requirement for the admission of HGN evidence. Id. at 760; State v. Meador, 674

So. 2d 826, 831 (Fla. Dist. Ct. App. 1996). Testimony concerning the HGN test is scientific

evidence and subject to the criteria of Kelly, 824 S.W.2d at 573-74. See Emerson v. State, 880

S.W.2d 759, 763 (Tex. Crim. App. 1994).


               Because the evidence procured by the administration of psychomotor FSTs
       is within the common experience of the ordinary citizen, the majority of the courts
       that have addressed the issue generally consider psychomotor FSTs to be
       nonscientific evidence.


Ferrer, 23 P.3d at 760; see also Cumbie v. City of Montgomery, 703 So. 2d 423, 425 n.1 (Ala. Crim.

App. 1987); State v. Superior Court, 718 P.2d 171, 178 (Ariz. 1986).

               The State calls our attention to Crampton v. State, 525 A.2d 1087 (Md. Ct. Spec.

App. 1987) holding that psychomotor FSTs are not scientific evidence but “essentially personal

observations of a police officer which determines a suspect’s balance and ability to speak with

recollection.” Id. at 1093-94.


                There is nothing ‘new’ or perhaps even ‘scientific’ about the exercise that an
       officer requests a suspect to perform. These sobriety tests have been approved by the
       National Highway Traffic Safety Administration and are simply guidelines for police
       officers to utilize in order to observe more precisely a suspect’s coordination. . . .
       The field sobriety tests are designed to reveal objective information about a driver’s
       coordination.


Id. at 1093-94 (emphasis added).

               In McRae v. State, 152 S.W.3d 739 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d),

the defendant in a DWI case raised the same contention as that advanced here. Both parties in



                                                 21
McRae cited United States v. Horn, 185 F.Supp.2d 530 (D. Md. 2002) in support of their arguments.

In McRae, the court responded:


                The Horn court held that the one-leg-stand test could constitute either lay
       witness testimony or expert testimony, depending on how it was used at trial. See
       Horn, 185 F.Supp.2d at 556. Acknowledging that the probative value of the one-leg-
       stand derives from the basic nature of observing human behavior, the Horn court
       concluded that the one-leg-stand test was lay witness testimony if the officer testified
       only about her observations of a defendant’s “appearance, coordination, mood, ability
       to follow instructions, balance, the presence of the smell of an alcoholic beverage . . .
       and the observations of the defendant’s performance of the standardized field[-]
       sobriety tests . . . .” Id. at 555-56. The court further concluded, however, that an
       officer’s otherwise lay witness testimony can become expert testimony when, among
       other circumstances, the officer uses terms like “standardized clues,” “test,” “pass,”
       or “fail.” Id.

               Texas, like Maryland, allows peace officers to testify as lay witnesses about
       their observations of a suspect’s performance on the one-leg-stand test. Texas courts
       have held that, because an officer’s testimony about a suspect’s coordination,
       balance, and mental agility problems exhibited during the one-leg-stand test are
       observations grounded in common knowledge, the officer’s testimony based on these
       observations is governed by rule 701 (lay witness opinion testimony) and not rule
       702 (testimony by experts). Compare Tex. R. Evid. 701 with Tex. R. Evid. 702; see
       also Emerson, 880 S.W.2d at 763 (explaining that peace officer need not qualify as
       expert to express opinion whether person he observed was intoxicated). The one-leg-
       stand test is grounded in the common knowledge that excessive alcohol consumption
       can cause problems with coordination, balance, and mental agility, and its sole
       purpose is to reveal clues or symptoms of impairment. See Smith v. State, 65 S.W.3d
       332, 347 (Tex. App.—Waco 2001, no pet.). Yet, it is also common knowledge that
       a variety of physical and environmental conditions, having nothing to do with
       intoxication, can also cause these symptoms. Id.


McRae, 152 S.W.3d at 745-46.

               The McRae opinion concluded that the testimony of the arresting officer in that case

concerning the one-leg stand test was lay witness testimony governed by Rule 701. 152 S.W.3d at




                                                  22
746-47; see also Plouff v. State, No. 14-04-00268-CR, 2006 Tex. App. LEXIS 2546, at *25 (Tex.

App.—Houston [14th Dist.] March 30, 2006, no pet. h.).

               Like McRae, we disagree with the Horn’s statement that the officer-witness’s use of

terms in his testimony such as “test,” “standardized clues,” “pass” or “fail” converts lay testimony

about the one-leg stand test into expert testimony where the witness must be qualified as an expert

and the criteria of Kelly as to scientific evidence must be met.7 See Horn, 185 F.Supp. at 559; see

also Plouff, at 2006 Tex. App. LEXIS 2546, at *27.

               We are aware of Smith’s holding that one-leg stand test testimony can cross from lay

testimony into expert testimony. 65 S.W.3d at 347. The court held that an officer’s testimony that

the defendant had demonstrated three out of four clues on the one-leg stand test and, therefore, that

there was a 83 percent probability that the defendant was intoxicated, impermissibly giving the one-

leg stand test “imprimatur” of scientific accuracy without proof that the officer’s “expert” testimony

was reliable as required by Emerson. Id.

               Other than prohibiting a statistical correlation between the one-leg stand test and the

blood alcohol concentration (BAC), Texas courts have not yet drawn a definite line between lay

versus expert testimony where the one-leg stand test is involved. See McRae, 152 S.W.3d at 746.8

       7
          In United States v. Horn, 185 F.Supp.2d 530 (D. Md. 2002), the court suggested that it
would be preferable to refer to field sobriety tests as “procedures” rather than “tests.” 185 F.Supp.2d
at 559 n.48. In State v. Meador, 674 So. 2d 826, 832 (Fla. Dist. Ct. App. 1996) the court used the
term “exercises” instead of “tests.”
       8
          In Compton v. State, 120 S.W.3d 375 (Tex. App.—Texarkana 2003, pet. ref’d), the officer
failed to instruct the defendant to keep his hands to his side during the one-leg stand test. The
defendant used his hands during the test to balance himself but still fared poorly on the tests. Id. at
379. The results of the test were admitted over objection. On appeal, the Compton court did not
distinguish between lay and expert testimony but immediately moved to a harm analysis. See Tex.

                                                  23
               We do know that a “witness may qualify to give testimony under both Rule 702

governing expert witnesses and Rule 701 permitting a lay or non-expert witness to offer opinions

or inferences if the witness’s testimony is based on first hand knowledge.” Harnett v. State, 38

S.W.3d 650, 659 (Tex. App.—Austin 2000, pet. ref’d). Even with specialized training, a police

officer-witness is not precluded from providing lay opinion testimony. Osbourn v. State, 92 S.W.3d

531, 535 (Tex. Crim. App. 2002). Rules 701 and 702 allow both expert and lay witnesses to offer

opinion testimony concerning intoxication. See Emerson, 880 S.W.2d at 763; Plouff, 2006 Tex.

App. LEXIS 2546, at *24.

               In deciding the issue before us, we are confined to the evidence that was admitted at

the time the trial court made its ruling on the second motion to suppress evidence. See Rachal, 917

S.W.2d at 809. We find Officer Clayton’s testimony regarding the one-leg stand test to be

nonscientific testimony admissible under Rule 701. It was not excludable on the basis of appellant’s

specialized objection in his second motion to suppress evidence. Officer Clayton did not attempt

to correlate appellant’s performance on the one-leg stand test to her BAC. In fact, at the suppression

hearings, Officer Clayton never expressed an opinion on appellant’s intoxication based on her

performance on the one-leg stand test.

               Appellant’s expert witness, Troy Walden, testified that Clayton had failed to tell

appellant to keep her legs straight during the test, but there is no showing that she did not. Walden

faulted Clayton for telling appellant to raise her leg six to eight inches, that it should be




R. App. P. 44.2(b). The results of the one-leg stand test were found relatively insignificant in light
of the other evidence and the error was held harmless. Compton, 120 S.W.3d at 379.

                                                 24
“approximately” six inches. Officer Clayton testified that appellant raised her leg five to six inches

during the time. Walden criticized Officer Clayton’s timing of the test which must last for thirty

seconds. The evidence reflects that about fifteen to seventeen seconds into the test appellant put her

foot down and terminated the test. She declined to proceed further with the testing. At a suppression

hearing, the trial court is sole trier of fact and is free to accept or reject any or all of any witness’s

testimony. Brooks v. State, 76 S.W.3d 426, 430 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

We give almost total deference to the trial court’s determination of historical facts that depend on

credibility and demeanor, but renew de novo the application of the law to the facts. See Guzman,

955 S.W.2d at 89. The trial court made no findings of fact, therefore, we review the evidence in the

light most favorable to the trial court’s ruling. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.

2000).

                We conclude that the trial court did not err in overruling the motion to suppress

evidence concerning the admission of evidence about the one-leg stand test. The third point of error

is overruled.


Exclusion of Appellant’s Medical Condition

                In the fourth point of error, appellant states that the “trial court erred by excluding

testimony regarding appellant’s medical condition at the time of her arrest.” As a result of an earlier

agreement on a motion in limine, appellant’s counsel interrupted appellant’s direct examination at

trial, and asked that the jury be removed. In the jury’s absence, appellant briefly testified to her

medical condition at the time of her arrest: “I have asthma, allergic respiratory disease, lupus, and

I’ve had subcutaneous mastectomy and ten, at least, reconstructive surgeries.” Appellant also

                                                   25
testified that she took prednisone once a day for lupus, used her albuterol inhaler once a day when

home, but when “out” and exposed to cigarette smoke and other allergies she would use the inhaler

more than once a day. Appellant took medicine twice a day for her allergic respiratory disease but

she could not recall its name. She took neurontins twice a day for the nerve damage in her chest.

                  Defense counsel then requested the trial court to allow him to present this testimony

to the jury to explain the conditions that the State would urge showed her intoxication. In particular,

counsel called attention to the videotape (State’s exhibit 1A) taken of appellant at the police station

which had already been introduced into evidence. The State objected on the basis of relevancy

pointing out that there was no expert medical testimony as to what effect the medicines that appellant

was taking would have on a person’s conduct or condition, or on a person’s normal use of mental

and physical faculties. The prosecutor argued that appellant, as a lay person, had not furnished that

or similar information.9 No claim was made by appellant that evidence could be produced to show




        9
            In Zillender v. State, 557 S.W.2d 515 (Tex. Crim. App. 1997) the court stated:

            The generally acknowledged policies of requiring specific objections are twofold.
            First, a specific objection is required to inform the trial judge of the basis of the
            objection and afford him the opportunity to rule on it. Second, a specific
            objection is required to afford opposing counsel an opportunity to remove the
            objection or supply other testimony.

Id. at 517. In the instant case, the State asked for a ruling on its relevancy objection and at the same
time pointed out to appellant how the objection might be removed. Appellant did not take advantage
of the opportunity.


                                                     26
that appellant’s condition at the time of her arrest was due to her health and the medicines taken.

The trial court sustained the State’s objection.

               Relevant evidence is evidence “having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable than it would

be without the evidence.” Tex. R. Evid. 401. “Evidence which is not relevant is inadmissible.”

Tex. R. Evid. 402.

               In 1 Steven Goode, Guy Wellborn, III, & M. Michael Sharlot, Texas Practice: Guide

to the Texas Rules of Evidence § 401.1 (3d ed. 2002) (hereinafter Goode), the commentators wrote:


               For evidence to be relevant it must satisfy two requirements: first, materiality,
       and second, probativeness. The proferred evidence must be shown to be provable in
       the case, that is, addressed to the proof of a material proposition, i.e., “any fact that
       is of consequence to the determination of the action.” “If the evidence is offered to
       help prove a proposition which is not a matter in issue, the evidence is immaterial.”

               Once materiality has been established, Rule 401 then requires that the
       evidence is probative, i.e., that it tends to make the existence of that fact “more or
       less probable than it would be without the evidence.” So, “an offered item of
       evidence may be excluded as ‘irrelevant’ for either of these two quite distinct
       reasons: because it is not probative of the proposition at which it is directed, or
       because that proposition is not provable in the case.”


               In the instant case, it was established by evidence from both parties and was

uncontested that appellant had been at a dance club for approximately four hours, had reported that

she had only one alcoholic beverage, a rum drink, was the designated driver, and was driving a Jeep

motor vehicle at the time it was involved in an accident with another vehicle prior to her arrest. As

appellant acknowledges, “intoxication” was the only contested issue in the case.




                                                   27
               Appellant’s proffered evidence was neither material nor probative, and was properly

subject to the State’s relevancy objection. The evidence was a self-serving, sympathy-provoking

recitation of appellant’s health and current medication without any showing of a link or nexus to

“any fact that is of consequence to the determination of the action.” Tex. R. Evid. 401.

               When reviewing a trial court’s determination to admit or exclude, an appellate court

“must afford a trial court great discretion in its evidentiary decisions.” Montgomery v. State, 810

S.W.2d 372, 378 (Tex. Crim. App. 1990); Bisby v. State, 907 S.W.2d 949, 952-53 (Tex. App.—Fort

Worth 1995, pet. ref’d). The standard of review for the admission or exclusion of evidence is

whether the trial court abused its discretion. Weathered v. State, 15 S.W.3d 540, 542 (Tex. Crim.

App. 2000); Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996); Coffin v. State, 885

S.W.2d 140, 149 (Tex. Crim. App. 1994).

               Questions of relevance of evidence should be left largely to the trial court relying on

its own observations and experience, and the relevancy ruling will not be reversed absent an abuse

of discretion. Goff v. State, 931 S.W.2d 537, 553 (Tex. Crim. App. 1996); Moreno v. State, 858

S.W.2d 453, 463 (Tex. Crim. App. 1993); Skillern v. State, 890 S.W.2d 849, 865 (Tex.

App.—Austin 1994, pet. ref’d). The test for an abuse of discretion is whether the trial court acted

without reference to any guiding rules and principles, and whether the act was arbitrary and

unreasonable. Montgomery, 810 S.W.2d at 380. We conclude that the trial court did not abuse its

discretion in excluding appellant’s proffered evidence on the basis of relevancy.

               For the first time on appeal, appellant urges under point of error four that by

excluding her proffered testimony, the trial court deprived her of a fair trial by preventing a



                                                 28
meaningful opportunity to present a defense. In support of her due process claim, appellant cites

inter alia, “U.S. Const. Amends. VI and XIV; Tex. Const. art. I, §§ 10, 19; Chambers v. Mississippi,

410 U.S. 284, 302 (1973).” Appellant made no trial objection to preserve this claimed error. See

Tex. R. App. P.33.1(a). Even constitutional error may be waived. See Briggs v. State, 789 S.W.2d

918, 924 (Tex. Crim. App. 1990). Except for complaints involving fundamental constitutional

systemic requirements [structural error], all other complaints based on a violation of both

constitutional and statutory rights are waived by failure to comply with Rule 33.1. Ibarra v. State,

11 S.W.3d 189, 197 (Tex. Crim. App. 1999). Appellant failed to preserve her belated claim of error.

               It is true, as appellant asserts, that the federal constitution ensures that criminal

defendants will have a meaningful opportunity to present a defense. See Gilmore v. Taylor, 508 U.S.

333, 343 (1993); Crane v. Kentucky, 476 U.S. 683, 690 (1986). In the exercise of such right, the

accused, as is required of the State, must comply with established rules of procedure and evidence

designed to ensure both fairness and reliability in the ascertainment of guilt and innocence.

Chambers, 410 U.S. at 302. Thus, a defendant has a fundamental right to present evidence of a

defense so long as the evidence is relevant and not excluded by an established evidentiary rule.

Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001). If a federal or state rule is used to

exclude what is considered favorable evidence, it does not follow that a defendant is denied a fair

opportunity to present a defense. See United States v. Scheffer, 523 U.S. 303, 316 (1998). Trial

courts are free to apply evidentiary rules that are not arbitrary and unjustified. See Potier v. State,

68 S.W.3d 652, 667 (Tex. Crim. App. 2002).




                                                  29
               The federal constitutional right to have a meaningful opportunity to present a defense

is fundamental but is subject to limitations. The violation of such a right is not a structural error

involving fundamental constitutional systemic requirements which defy analysis by harmless error

standards. See Salinas v. State, 980 S.W.2d 219, 219 (Tex. Crim. App. 1998); Manley v. State, 23

S.W. 172, 175 (Tex. App.—Waco 2000, no pet.); see also Arizona v. Fulminante, 499 U.S. 279, 309

(1991); Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).

               We conclude that appellant was not deprived of a meaningful opportunity to present

a defense by the exclusion of appellant’s medical testimony. The fourth point of error is overruled.


Legal Sufficiency

               In points of error five and six, appellant challenges the legal sufficiency of the

evidence to sustain the conviction. Appellant contends that the evidence is insufficient to support

the conclusion that (1) she had lost the normal use of her mental faculties because of the introduction

of alcohol into her body, or that (2) she had lost the normal use of her physical faculties because of

the introduction of alcohol into the body.

               Section 49.04(a) provides that a “person commits an offense if the person is

intoxicated while operating a motor vehicle in a public place.” Tex. Pen. Code Ann. § 49.04 (West

2003). Section 49.01(2) (A), (B) defines “intoxicated”:


       (A) not having the normal use of mental or physical faculties by reason of the
           introduction of alcohol, a controlled substance, a drug, a dangerous drug, a
           combination of two or more of those substances, or any other substance into the
           body; or

       (B) having an alcohol concentration of 0.08 or more.

                                                  30
Tex. Pen. Code Ann. § 49.01(2) (A), (B) (West 2003) (emphasis added). The second definition is

not applicable here. It is clear that under the first definition the State only needs to prove beyond a

reasonable doubt the loss of the normal use of mental or physical faculties by introduction of alcohol

into the body. The loss of the normal use of both types of faculties is not required.

               In determining whether the evidence is legally sufficient to support a judgment of

conviction, we view the evidence in the light most favorable to the judgment, asking whether any

rational trier of fact could have found beyond a reasonable doubt all the essential elements of the

offense charged. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 7

(Tex. Crim. App. 2000). The evidence, viewed in this light, and all reasonable inferences drawn

therefrom, are evaluated in this review. The reviewing court must consider all evidence, rightly or

wrongly admitted, which the trier of fact was permitted to consider. See Dewberry v. State, 4

S.W.3d 735, 740 (Tex. Crim. App. 1999); Barnes v. State, 62 S.W.3d 288, 298 (Tex. App.—Austin

2001, pet. ref’d). The standard of review is the same for both direct and circumstantial evidence

cases. Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992).

               The jury as the trier of fact is the judge of the credibility of the witnesses and the

weight to be given their testimony, and may accept or reject all or any of any witness’s testimony.

See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). The evidence is not rendered

insufficient because the defendant presented a different version of the events. State v. Turro, 867

S.W.2d 43, 47 (Tex. Crim. App. 1993).

               Appellant concedes that she was operating a motor vehicle. Without regard to fault,

it is undisputed that appellant was involved in an automobile accident on a public highway.

                                                  31
Appellant urges that the only issue was intoxication. Ramona Cofield, the other driver, and three

police officers all testified that in their opinions appellant was intoxicated. They testified that

appellant’s eyes were glassy, red, and blood shot, and that she had the smell of alcohol on her breath

and swayed “a lot.” When asked at the scene if she stopped her vehicle at the flashing red light,

appellant responded: “What flashing red light?” Appellant did not perform well on the field

sobriety tests.     There was a conflict whether the field tests were properly conducted, but

reconciliation of evidentiary conflicts is solely the function of the jury. See Miranda v. State, 813

S.W.2d 724, 733-34 (Tex. App.—San Antonio 1991, pet. ref’d). At the jail appellant refused to

repeat the field sobriety tests or to take a breath test. The jailer testified she was uncooperative and

refused to be fingerprinted. A jail photograph (State’s exhibit five) was inculpatory as to appellant’s

appearance. There was also evidence of appellant’s unusual behavior at the scene: she told an officer

that the other driver was intoxicated and suggested that the other driver had kidnapped the child that

was with the other driver.

                  Appellant testified that she had been at the Club Oz, a dance club, for approximately

four hours and had only one alcoholic drink—a “Long Beach.” She denied that she was intoxicated

while operating the motor vehicle. In analyzing the challenge to the legal sufficiency of the

evidence, the reviewing court does not realign, disregard, or weigh the evidence. See Rodriguez v.

State, 939 S.W.2d 211, 218 (Tex. App.—Austin 1997, no pet.). In reviewing all the evidence in the

light most favorable to the jury’s verdict, we conclude that any rational trier of fact could have found

all the essential elements of the offense charged including the loss of the normal use of the mental




                                                   32
or physical faculties by appellant as a result of the introduction of alcohol into the body. The fifth

and sixth points of error are overruled.


Factual Sufficiency

                In her seventh and eighth points of error, appellant challenges the factual sufficiency

of the evidence. A factual sufficiency review begins with the presumption that the evidence

supporting the judgment of conviction was legally sufficient. See Clewis v. State, 922 S.W.2d 126,

129 (Tex. Crim. App. 1996). In order to determine if the evidence is factually sufficient, we must

review all the evidence in a neutral light and determine whether the evidence supporting guilt is so

weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the

verdict is so strong that the beyond a reasonable doubt burden of proof could not have been met.

Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). In applying the test, we consider all

the evidence, rightly or wrongly admitted.         Camarillo v. State, 82 S.W.3d 529, 537 (Tex.

App.—Austin 2002, no pet.). One principle of a factual sufficiency analysis is deference to the

findings of the jury. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Appellate courts

should be on guard not to substitute their own judgment in these matters for that of the trier of fact.

Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997), but see Johnson, 23 S.W.3d at 9

(a reviewing court may disagree with the result to prevent a manifest injustice).

                Without reiterating the evidence, and applying the Zuniga holding, we find no merit

in appellant’s claim that the evidence is factually insufficient to support the conclusion that appellant

had lost the normal use of her mental or physical faculties because of the introduction of alcohol into

her body. Appellant’s seventh and eighth points of error are overruled.

                                                   33
The Motion for New Trial

                After our decision on original submission, the appeal was abated, the trial court

conducted a hearing on the motion for new trial and overruled the motion. Appellant has filed a

supplemental brief raising an additional point of error claiming that the trial court abused its

discretion in failing to grant the motion for a new trial. The State has not responded.

                Appellant has divided her contention into three parts. She claims that the trial court

erred in denying the motion because (1) appellant was deprived of the effective assistance of trial

counsel; (2) the State asked an improper question without any basis in fact; and (3) the jury received

other evidence that prejudiced her and resulted in jury misconduct.

                Rule 21.2 provides: “A motion for new trial is a prerequisite to presenting a point

of error prerequisite to presenting a point of error on appeal only when necessary to adduce facts not

in the record.” Tex. R. App. P. 21.2 (emphasis added).

                A trial court’s ruling denying a motion for new trial is reviewed under an abuse of

discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). The reviewing

court will not substitute its judgment for that of the trial court but simply determine whether the trial

court’s analysis was arbitrary or unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App.

1995); Ford v. State, 129 S.W.3d 541, 547 (Tex. App.—Dallas 2003, pet. ref’d). The trial court is

the sole judge of the credibility of the witnesses, including testifying jurors, and the weight to be

given the evidence. If there is conflicting evidence, the trial court as trier of fact at the hearing on

a motion for new trial determines the issue. Lewis, 911 S.W.2d at 7; Thomas v. State, 699 S.W.2d

845, 854 (Tex. Crim. App. 1985).

                                                   34
Effective Assistance of Counsel

               Appellant claims that she was deprived of the effective assistance of trial counsel and

that the trial court erred in failing to grant a new trial on that basis. She relies upon the Sixth and

Fourteenth Amendments to the United States Constitution and article I, sections ten and nineteen of

the Texas Constitution.

               In Strickland v. Washington, 466 U.S. 668, 687-92 (1984), the United States Supreme

Court held that in order to show ineffective assistance of counsel, a convicted defendant must show

that (1) his trial counsel’s performance was deficient, in that counsel made such serious errors he was

not functioning effectively as counsel; and (2) the deficient performance prejudiced the defendant

to such a degree that the defendant was deprived of a fair trial. See also Ex parte Briggs, 187

S.W.3d 458, 466 (Tex. Crim. App. 2006); Ex parte Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App.

2004).

               The two-pronged standard for testing claims of ineffective assistance of counsel set

out in Strickland has been adopted for Texas constitutional claims. Hernandez v. State, 726 S.W.2d

53, 57 (Tex. Crim. App. 1986). Under the Strickland-Hernandez standard, any allegation of

ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate

the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We

review counsel’s representation in its totality rather than by isolated acts or omissions of trial

counsel, and the test is applied at the time of the trial from counsel’s perspective and not through

hindsight. Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991); Ex parte Welborn, 785

S.W.2d 391, 393 (Tex. Crim. App. 1990). We indulge a strong presumption that counsel’s acts or

                                                  35
omissions were reasonable and part of a sound trial strategy, and it is the defendant’s burden to

overcome that presumption by a preponderance of the evidence. Jackson v. State, 877 S.W.2d 768,

771 (Tex. Crim. App. 1994). Our review is highly deferential to counsel, and we will not speculate

about trial counsel’s strategy. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Mayhue

v. State, 969 S.W.2d 503, 511 (Tex. App.—Austin 1998, no pet.).

               The defendant may prevail by providing a record that affirmatively demonstrates that

counsel’s performance was not based on sound trial strategy. Mallet v. State, 65 S.W.3d 59, 63 (Tex.

Crim. App. 2001). Without an evidentiary hearing on the issue, the defendant’s burden is difficult

to meet. Nailor, 149 S.W.3d at 130-31; Blevins v. State, 18 S.W.3d 266, 271-72 (Tex. App.—Austin

2000, no pet.). If the appellate record is silent regarding the reasons for counsel’s conduct, as it is

in many cases, then it is insufficient to overcome the presumption that counsel followed a legitimate

strategy. Tong v. State, 25 S.W.3d 707, 714 (Tex. Crim. App. 2000); Thompson, 9 S.W.3d at 813-

14.

               In her motion for new trial, appellant claimed that she was denied the effective

assistance of counsel because exculpatory evidence was either excluded or not offered. Attached

to the motion were the affidavits of Nicole Rudacille and Shannon Broach, who were with appellant

at the Club Oz and at the time of the automobile accident, but who did not testify at the trial.

               At the hearing on the motion, appellant called her trial attorney and Rudacille as

witnesses and offered the affidavit of Broach, who was unavailable, into evidence to support the

ineffective assistance of counsel claim. The motion was overruled.




                                                  36
               In her brief, appellant divides her ineffective assistance claim into three parts. We

shall first consider her claim that trial counsel failed to call exculpatory witnesses or introduce the

jail videotape. A claim of ineffective assistance of counsel must be proved by a preponderance of

the evidence. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Bone v. State, 77

S.W.3d at 833; Hale v. State, 140 S.W.3d 381, 391 (Tex. App.—Fort Worth 2004, pet. ref’d). The

record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813; In

re I.R., 124 S.W.3d 294, 298-99 (Tex. App.—El Paso 2003, no pet.). For example, the failure to call

a witness does not amount to ineffective assistance unless the record shows that the witness was

available and would have provided testimony beneficial to the defendant. Butler v. State, 716

S.W.2d 48, 55 (Tex. Crim. App. 1986). This is the general rule. Cate v. State, 124 S.W.3d 922, 927

(Tex. App.—Amarillo 2004, pet. ref’d); Parmer v. State, 38 S.W.3d 661, 668 (Tex. App.—Austin

2000, pet. ref’d). Moreover, when the record is silent as to the motivations underlying counsel’s

decisions, the defendant usually cannot overcome the strong presumption that counsel’s conduct was

reasonable. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at 813.

The decision whether to present witnesses is largely a matter of trial strategy. Gaston v. State, 136

S.W.3d 315, 322 (Tex. App.—Houston [1st Dist.] 2004, pet. struck) (en banc).

               The “exculpatory witnesses” to which appellant makes reference appear to be

Rudacille and Broach. There was no showing that they were available at the time of the trial.

Rudacille testified at the hearing but her whereabouts on the trial date was not established. Rudacille

related that she was with appellant (“my mom”) and Broach at the Club Oz for three hours or so on

the evening of May 20, 2002. She had three or four drinks during the evening, was at the bar, in the



                                                  37
restroom, and was not always with appellant. Rudacille did not know how many drinks appellant

had. Both parties erroneously inquired about her post-trial affidavit of May 15, 2003, stating that

appellant had only one drink. This affidavit in the record does not show Rudacille made such a

statement but was consistent with her testimony that she did not know how many drinks appellant

had. The interrogation appeared confusing to Rudacille, who testified that it had been almost three

years since the incident and she did not recall how many drinks appellant may have had on the night

in question.

                Rudacille testified that appellant did not appear “off kilter” and was not intoxicated

at the time. Despite this latter testimony, Rudacille’s testimony tended to undermine appellant’s

“designated driver and one drink all evening” theory. This was not favorable testimony. Rudacille

was not asked about her availability as a witness, any contact she had with appellant’s counsel, or

why she did not testify at trial.

                At the hearing, appellant’s appellate counsel told the court that he did not know where

Broach was; that the information he had was that Broach was in Oklahoma; and that he thought that

with enough time he could “track her down” and have her available for the next trial. Counsel then

introduced Broach’s affidavit of May 15, 2003. See Tex. R. App. P. 21.7. Broach’s affidavit

reflected that on May 20, 2002, she was with appellant and Rudacille “around 7 or 8 . . . for a few

hours”; that she knew appellant had one beverage (unidentified); and that she “had a coke and water

while there.” Broach swore that appellant did not appear intoxicated to her and that she would not

have gotten into the vehicle if she thought there was any danger because a friend’s siblings had been




                                                  38
killed in a drunk driving accident. Broach’s affidavit did not touch on her availability as a witness

at the time of trial.

                Broach’s affidavit was generally supportive of appellant’s theory of the case, but it

opened up the possible scenario of the prosecution exploring why appellant, the oldest individual

in the group, would encourage Broach, her employee, who was legally underaged for purchasing,

possessing or consuming alcoholic beverages, to spend four hours in a bar and dance club. Broach’s

affidavit that she only had a “coke and water” in the four-hour period was strikingly similar to

appellant’s “one drink only” testimony and could have affected the credibility of both in the eyes of

the jury. Broach’s affidavit makes no mention of any contact with appellant’s trial counsel nor

explains why she did not testify at trial.

                Appellant’s trial counsel testified that he spoke with one of the two witnesses,

possibly Broach. He was not asked why he had not called Rudacille and Broach as witnesses. The

record is silent as to trial counsel’s motivations underlying his decisions. Mallett, 65 S.W.3d at 63.

In light of the record, we cannot say appellant has sustained her burden of showing ineffective

assistance on the basis of failure to call Rudacille and Broach as witnesses.10


        10
            The parties have not called the following matters to our attention. At the conclusion of
the first suppression hearing, the prosecutor noted the presence of Broach and asked to have her
sworn and instructed by the trial court to be present at trial. The trial court told the prosecutor to first
have her subpoenaed as a witness. On July 10, 2003, the State asked that subpoenas be issued for
Broach and Nicole Zielinski (as Rudacille was known to the State). The record does not reflect that
the subpoenas were issued or executed. Appellant’s trial counsel may have been aware of the State’s
efforts to secure these witnesses.

           During the trial on the merits and the cross-examination of Officer Ellis, appellant’s trial
counsel, in the absence of the jury, unsuccessfully tried to offer into evidence a taped post-arrest and
pretrial telephone conversation between appellant and Officer Ellis. At one point, appellant told

                                                    39
The “Jail Videotape”

               Appellant also claims that trial counsel provided ineffective assistance of counsel by

not introducing the “jail videotape.” The motion for new trial in a conclusory manner urges that

“extensive exculpatory evidence was either excluded or not offered” but no mention is made of a

“jail videotape.”

               In her only argument in her brief, appellant asserts:


       The jury also saw appellant after her arrest being asked to submit to a breath-test.
       (State’s exhibit 1-A). The jury did not see what occurred after appellant refused that
       test. While there is no audio, there is a videotape recording all her behavior and
       movements afterward in the jail. She walks and moves just as an ordinary person
       would do. This video footage is further evidence that she was not intoxicated.


               There appears to have been three videotapes. The record is not clear that appellant’s

trial counsel knew of or had access to the “jail videotape.” As a witness at the new trial hearing, he

was not asked why he did not introduce it into evidence. The record is here again silent as to the

motivations underlying his decision not to use the videotape. Mallett, 65 S.W.3d at 63. We do not

speculate about trial counsel’s strategy. Blevins, 18 S.W.3d at 271. We conclude that appellant

failed to sustain her burden of showing ineffective assistance of counsel on the basis that the “jail

videotape” was not offered by trial counsel.

               In another ineffective assistance claim, appellant complains that her trial counsel

failed to introduce independent evidence that appellant sought a blood test to prove her innocence.




Officer Ellis that Shannon Broach “only had water to drink, so she certainly had a clear head.”
Officer Ellis responded: “If she only had water, somebody must have poured a lot of beer on her.”

                                                 40
Appellant’s general conclusory allegations in the motion for new trial did not specifically point out

this claimed deficit so as to give reasonable notice to the trial court and the State as to the matters

under attack. See Flores v. State, 18 S.W.3d 796, 799 (Tex. App.—Austin 2000, no pet.).

                Appellant did testify at trial that, after talking to an attorney on the telephone from

jail, she asked for a blood test which was not given. Jailer Maurice Jones testified that it was

possible that appellant requested a blood test. Appellant argues that the jury had little else except

her word that she actively pursued preservation of evidence to show she was not intoxicated,11 and

that there was other evidence. At the hearing on the new trial motion, appellant’s trial counsel, as

a witness, was shown what was claimed to be Officer Clayton’s arrest report which reflected that

immediately upon the EMS’s arrival (apparently at the scene of the accident), appellant asked the

EMS personnel for a blood test to prove she was not intoxicated. Appellant’s trial counsel admitted

“that” was at least a part of the arrest or offense report. Trial counsel could not recall whether he had

interrogated Officer Clayton about this matter. Appellant’s appellate counsel then moved on to other

matters in his interrogation at the hearing. No reason is given as to why appellant could not testify

to her own actions.

                The record is silent as to why trial counsel did not question Officer Clayton about this

matter. As noted, we do not speculate about trial strategy. Without some explanation of trial

counsel’s acts or omissions, we presume that trial counsel’s conduct fell within the wide range of




        11
           As to preservation of evidence, appellant makes no reference in argument to her refusal
to take a breath test or further perform field sobriety tests.

                                                   41
reasonable professional assistance. Strickland, 466 U.S. at 689. Appellant has not overcome that

presumption.

                In still another ineffective assistance claim, appellant urges that her trial counsel’s

trial strategy was objectively unreasonable. Here again, there is no specification of this claim set

forth in the motion for new trial as to give reasonable notice to the trial court and the State as to the

matters under attack. See Flores, 18 S.W.3d at 799. The motion does not set forth grounds showing

that appellant was entitled to relief. Id.

                The narrow basis for appellant’s broad-based claim is that trial counsel’s lack of

knowledge of a change in the law was a “large factor” in appellant’s decision to testify at her trial.

Appellant’s trial counsel filed a motion to exclude the videotape in which appellant invoked her right

to counsel citing Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991), in which it was held

that evidence of a post-Miranda warnings request for counsel is inadmissible. Trial counsel testified

at the hearing on the new trial motion that he was surprised when the trial court admitted the

videotape. Counsel acknowledged that he was unaware of the decision in Griffith v. State, 55

S.W.3d 598 (Tex. Crim. App. 2001), holding that pre-Miranda warnings requests for counsel are

admissible and can be considered as substantial evidence of guilt because the invocation is not

produced by custodial interrogation and the individual is not yet officially charged. Id. at 602-08.

In this situation, there is no violation of either the Fifth or Sixth Amendments to the United States

Constitution. Id.

                In the instant case, appellant’s request for counsel on the videotape came prior to any

Miranda warnings being given and at the time of her refusal to take the breath test.



                                                   42
               Even if the law had been different and favorable to appellant, trial counsel could have

excluded only that part of the tape where appellant invoked her right to counsel, not the remainder

of the videotape. At the hearing on the new trial motion, trial counsel did say that the admission of

the videotape was a “large factor” in the decision for appellant to take the witness stand. He did not

explain why this was true nor was he asked. On direct and cross-examination, counsel testified that

he and appellant discussed her decision to testify prior to trial but it was a “game time” decision.

Counsel stated that he explained the pros and cons of the decision to appellant and how it might

affect the case, but the decision was personally made by appellant. The record is silent as to how

counsel’s unawareness of the Griffith opinion rendered his overall trial strategy objectively

unreasonable. A defense counsel must have a firm command of the facts as well as governing law.

Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). However, the Strickland two-

pronged test is to be judged by the “totality of the representation” rather than by isolated acts or

omissions of trial counsel, and the test is applied at the time of the trial, not through hindsight.

Welborn, 785 S.W.2d at 393. The Strickland standard has never been interpreted to mean errorless

or perfect counsel. Bridge v. State, 726 S.W.3d 558, 571 (Tex. Crim. App. 1986). The fact that

another attorney might have pursued a different course of action at trial does not support a finding

of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Josey v. State, 97

S.W.3d 687, 696 (Tex. App.—Texarkana 2003, no pet.); Banks v. State, 819 S.W.2d 676, 681 (Tex.

App.—San Antonio 1991, pet. ref’d).

               Unless a defendant makes a showing of both prongs of the Strickland test, it cannot

be said that the conviction resulted from a breakdown in the adversary process that renders the



                                                 43
results unreliable. Strickland, 466 U.S. at 687; Oestrick v. State, 939 S.W.2d 232, 237 (Tex.

App.—Austin 1997, pet. ref’d). Here, appellant has failed to show that her trial counsel’s trial

strategy was objectively unreasonable and therefore did not meet the two-pronged test of Strickland.

The trial court did not abuse its discretion in overruling the motion for new trial on the basis of

ineffective assistance of counsel.


Receipt of Other Evidence

                 Appellant next contends that the trial court abused its discretion in denying the

motion for new trial because the jury received other evidence that prejudiced her. The motion for

new trial did not allege jury misconduct in any form, much less the receipt of other evidence, nor was

there a supporting affidavit. A motion for new trial alleging facts outside the record filed without

supporting affidavits is not a proper pleading. Dugard v. State, 688 S.W.2d 524, 530 (Tex. Crim.

App. 1985), overruled on other grounds, by Williams v. State, 780 S.W.2d 802, 803 (Tex. Crim.

App. 1989); Flores v. State, 18 S.W.3d 796, 798 (Tex. App.—Austin 2000, no pet.). A trial court

does not abuse its discretion in refusing to grant a new trial without proper pleading. Flores, 18

S.W.3d at 798.

                 Unlike repealed article 756 of the 1925 Code of Criminal Procedure, the current Rules

of Appellate Procedure and 1966 Code of Criminal Procedure do not require that a motion for new

trial be in writing and specify its contents. See 43A George E. Dix & Robert O. Dawson, Texas

Practice: Criminal Practice and Procedure § 41.22 (2d ed. 2001). Despite the omission, the Texas

Court of Criminal Appeals has held that the requirement persists and a motion for new trial must

distinctly set forth each ground. Id. (citing Trout v. State, 702 S.W.2d 618, 620 (Tex. Crim. App.

                                                  44
1985)) (holding that if instance of alleged jury misconduct is not properly presented by motion for

new trial, it should not be entertained by trial court at hearing on motion and is not properly

preserved for appeal), see also Harvey v. State, 201 S.W.2d 42, 45 (Tex. Crim. App. 1947) (holding

that in alleging jury misconduct, motion for new trial must give reasonable notice not only to trial

court but to State as to misconduct relied upon).

                In Cuellar v. State, 943 S.W.2d 487 (Tex. App.—Corpus Christi 1996, pet. ref’d),

the court stated:


        In order for a particular instance of juror misconduct to be properly before the court,
        that instance of jury misconduct must be included in the motion for new trial, which
        must also be accompanied by an affidavit of a juror “or” some other person in
        position to know the facts, or else include some reason or excuse for why such
        affidavit is omitted. See Trout, 702 S.W.2d at 620, and Stephenson v. State, 494
        S.W.2d 900, 908 (Tex. Crim. App. 1973). This general rule serves the dual purpose
        of discouraging “fishing expeditions” in the hopes of impeaching a jury verdict, as
        well as providing reasonable notice to both the trial court and the State as to the
        specific instances of misconduct alleged. Trout, 702 S.W.2d at 620; Stephenson, 494
        S.W.2d at 908.


Id. at 491. In absence of the general rule it would be difficult for the State to controvert “in writing”

the allegations in the motion for a new trial as permitted. See Tex. R. App. P.21.5.

                In the instant motion for new trial there were no allegations concerning the receipt

of other evidence by the jury or any other type of jury misconduct. Nevertheless, appellant called

Maruisa Hines, a juror, as a witness at the hearing. Hines was asked if there had been a discussion

during jury deliberations about a “Long Island Ice Tea” drink. Hines explained that it was

“mentioned and 90 percent of us did not understand what it was.” A lady juror who was a bartender




                                                   45
told the others that the drink contained three or four alcoholic beverages with orange or grapefruit

juice and soda. She did not know the types of alcoholic beverages used.

               At this point the prosecutor objected that this matter was not alleged in the new trial

motion. The objection was overruled. The trial court told the prosecutor to raise the matter on

appeal if there was one. Hines was then asked if the explanation showed that the “Long Island Ice

Tea” was “a pretty heavy-duty drink.” He replied: “It was what I’d call a butt-kicker.”11 Hines then

affirmatively stated that he thought “that” was persuasive to the jury and himself in returning a guilty

verdict.

               Appellant relies upon Rule 21.3(f), claiming that a new trial must be granted because

“after retiring to deliberate, ‘the jury has received other evidence.’” Tex. R. App. P.21.3(f). To

show jury misconduct the defendant must show that (1) the other evidence was actually received by

the jury; and (2) it was detrimental. Garza v. State, 630 S.W.2d 272, 274 (Tex. Crim. App. 1981);

Stephenson v. State, 571 S.W.2d 174, 176 (Tex. Crim. App. 1978); Ford, 129 S.W.3d at 548;

Escobedo v. State, 6 S.W.3d 1, 8 (Tex. App.—San Antonio 1999, pet. ref’d). Whether the jury has

“received” other evidence is a fact question to be decided by the trial court. Escobedo, 6 S.W.3d at

8.

               A new trial is not required every time a juror mentions something that is not

supported by the evidence adduced at trial. Stephenson, 571 S.W.2d at 176. A passing remark will

not constitute the receipt of other evidence. Ford, 129 S.W.3d at 548; Escobedo, 6 S.W.3d at 9;


       11
           Juror Hines’s answer was his subjective view of a “Long Island Ice Tea” drink as
described. There was no showing that Hines expressed his opinion to the other jurors or that they
reached the same conclusion.

                                                  46
Saenz v. State, 976 S.W.2d 314, 322 (Tex. App.—Corpus Christi 1995, no pet.); Bratcher v. State,

771 S.W.2d 175, 189 (Tex. App.—San Antonio 1989, no pet.). In order to determine whether

evidence was “received,” we look to the context in which it was mentioned and the extent to which

the jurors discussed it. Geaona v. State, 733 S.W.2d 611, 619 (Tex. App.—Corpus Christi 1987,

pet. ref’d).

               Here Hines was the only juror to testify.         He said the particular drink was

“mentioned” and a juror-bartender briefly explained what it contained without knowing what alcohol

beverages were actually used. This information was essentially the same as the prosecutor suggested

but did not prove in his cross-examination of appellant. There was no evidence showing that

appellant drank a “Long Island Ice Tea.” The extent of the juror’s discussion about the matter was

not shown. It appears the jurors were curious about the drink and the juror-bartender’s statement

was a passing remark and does not reflect the receipt of other evidence in violation of Rule 21.3(f).

               Hines did briefly testify that the remarks were “persuasive” with regard to the guilty

verdict. This was inadmissible evidence. Rule 606(b) prohibits a juror from testifying, either in

person or by affidavit, “as to any matter or statement occurring during the jury’s deliberations.” Tex.

R. Evid. 606(b). The only exceptions are that “a juror may testify: (1) whether any outside influence

was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified

to serve.” Id. Neither exception is here applicable. The rules contemplate that an outside influence

originate from sources other than the jurors themselves. Ford, 129 S.W.3d at 550; see also Tinker

v. State, 148 S.W.3d 666, 673 (Tex. App.—Houston [14th Dist.] 2004, no pet.).




                                                  47
               There were no allegations of jury misconduct in the motion for new trial nor was there

a supporting affidavit or other verification. The pleadings were insufficient12 and the matter of jury

misconduct should not have been entertained by the trial court. Moreover, the evidence offered over

the State’s objection did not show jury misconduct for the reasons stated above. The trial court did

not abuse its discretion in overruling the motion for a new trial on the basis of jury misconduct.


Improper Trial Question

               In her third claim that the trial court erred in denying the motion for new trial,

appellant urges that she was prejudiced by an improper trial question asked by the State without any

basis in fact. Appellant fails to identify which question was improper but refers this Court, as she

did the trial court, to two pages of her cross-examination at trial. This interrogation was a part of

the record, but apparently appellant sought to establish a lack of basis for the interrogation at the

hearing on the motion for new trial.

               At the outset, the difficulty observed is that there are no allegations in the motion for

new trial that an improper question was asked and neither the trial court nor the State were given

reasonable notice about this matter being under attack. The motion for new trial was a deficient

pleading in this regard. The trial court need not have considered the matter. Cuellar v. State, 943

S.W.2d 487, 491 (Tex. App.—Corpus Christi 1996, pet. ref’d). We will explain how this contention

arose at the hearing on new trial motion.




       12
           Appellant’s pleading in the motion for new trial: “And for such other reasons that may
appear on the hearing on this motion” is insufficient itself and does not constitute a jury misconduct
allegation.

                                                  48
               At trial, the arresting officer Charles Clayton testified that appellant told him that she

only had one drink, “a Long Beach.” A videotape (State’s exhibit 1A) also revealed appellant stating

that she had “a Long Beach.” On direct examination, appellant corroborated this evidence. On

cross-examination, appellant explained that a “Long Beach” consisted of Sprite [soda], orange juice,

and one shot of Bacardi [rum]. Over a relevancy objection, the prosecutor asked appellant if she

knew what a “Long Island Ice Tea” drink was. Appellant had heard of the drink but did not know

its contents. Appellant denied that a “Long Beach” and a “Long Island Ice Tea” were the same drink

with four ounces of liquor. Appellant stated that she could not drink “that.” This interrogation

continued without objection. Appellant insisted that she only had a “Long Beach” and could not

answer the hypothetical question about a “Long Island Ice Tea.” The interrogation concluded

without the prosecutor establishing his suggestion.

               After juror Hines had testified at the hearing, appellant’s appellate counsel called the

trial court’s attention to the specific pages of appellant’s cross-examination at trial. Counsel then

asked to call the prosecutor to show a lack of basis in fact for the cross-examination about the “Long

Island Ice Tea” drink. Without testifying, the prosecutor acknowledged that the basis for the cross-

examination was the supplemental report of Officer Clayton. This report introduced at the hearing

stated that appellant told Officer Clayton that she had a “Long Island Ice Tea” drink which the officer

understood to contain six different shots of hard liquor. Although this report was contrary to Officer

Clayton’s sworn testimony at trial, the matter was not further pursued at the new trial hearing.

               In argument at the conclusion of the hearing, appellant’s counsel made a brief

reference to the matter but made no claim that the prosecutor acted in bad faith. This basis for a new



                                                  49
trial was not alleged in the motion for new trial developed at the hearing to the extent described, and

not pursued as a separate and independent ground for a new trial until now.

               Appellant cites Gailey v. State, 671 S.W.2d 123 (Tex. App.—Houston [1st Dist.]

1984 pet. ref’d), which involved the denial of a mistrial motion, and which is distinguishable from

the instant case by the facts, procedure, and the law. Given the circumstances presented, the trial

court did not abuse its discretion in overruling the motion for new trial on the basis of the asking of

an improper question. The supplemental point of error is overruled.

               Having overruled all of appellant’s points following remand, we will affirm the

judgment of the court.




                                               John F. Onion, Jr., Justice

Before Chief Justice Law, Justices Puryear and Onion*

Affirmed

Filed: June 16, 2006

Do Not Publish




*
    Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by
    assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).



                                                  50
