                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                 NO. 2-09-270-CR


JOHN REDFEARN                                                       APPELLANT

                                            V.

THE STATE OF TEXAS                                                       STATE


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            FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

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                          MEMORANDUM OPINION 1

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      Appellant John Redfearn appeals his conviction for felony driving while

intoxicated (DW I) and his sentence of 75 years’ confinement. In three issues, he

alleges that the trial court erred by denying his challenges for cause to certain

prospective jurors and by admitting certain evidence.       W e overrule each of

Appellant’s issues and affirm the trial court’s judgment.




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           See Tex. R. App. P. 47.4.
                                  B ACKGROUND F ACTS

        On August 9, 2008, Robert Mayo, a Denton resident, left work at

approximately 2:30 a.m. As Mayo was driving home, he approached the intersection

of Carol and Sherman Streets to turn onto Sherman Street. Appellant was sitting in

the driver’s seat of his car, which was parked on Carol Street in the left turn lane with

its lights on and the engine running. Appellant had the go-ahead but did not move.

Mayo waited for about thirty seconds before deciding to go and continue home.

Once there, Mayo spoke with his girlfriend and then went out again to get some fast

food. In doing so, Mayo drove past the Carol Street intersection and noticed that

Appellant was still sitting in his car.

        Meanwhile, two men were standing near a closed gas station at the same

intersection. One of the men had approached Appellant’s car in an effort to wake

him. In response, Appellant drove very slowly on the wrong side of the road. Mayo

called 911 and was relaying information about Appellant’s driving behavior and

location to the operator while watching Appellant continue driving at approximately

two miles per hour. Appellant turned his car into a parking lot and drove off of a two-

foot-high embankment. He then drove through another parking lot and into a car

wash.

        Jerrett Klar, an officer with the City of Denton Police Department who was

assigned to DW I enforcement, was dispatched to the car wash where Mayo had




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reported seeing Appellant, who appeared intoxicated. As Klar arrived, Appellant was

getting out of his car.

      Klar immediately noticed that Appellant’s breath smelled strongly of alcohol

and that his eyes were red and glassy. Klar asked Appellant to rank his own level

of intoxication, and Appellant said he was a four on a scale of ten. W hen asked if

he was safe to drive, Appellant said, “the honest truth, no,” and, “I don’t need to be

out here on the road.” Appellant asked Klar if he could just be arrested for public

intoxication.

      Klar administered three field sobriety tests to Appellant: the horizontal gaze

nystagmus (HGN) test, the one-leg-stand test, and the alphabet test. Appellant

failed all three. Appellant then refused to take a breath or blood test.

      Appellant was indicted for felony DW I, enhanced jurisdictionally by two

stipulated prior misdemeanor DW I’s. The State also alleged two previous felony

convictions to enhance Appellant’s punishment.        Appellant was convicted and

sentenced to 75 years’ confinement.

                              C HALLENGES F OR C AUSE

      Appellant contends in his first issue that the trial court erred by refusing his

challenges for cause to certain jurors based on their expressed difficulty in

considering the minimum range of punishment for a person convicted of felony DW I.




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Preservation of Error

      To preserve error regarding a trial court’s denial of a challenge for cause, a

defendant must: (1) exercise a peremptory challenge on a venire member whom the

trial court should have excused for cause; (2) exhaust all of his peremptory

challenges; (3) request and be denied an additional peremptory challenge;

(4) identify the objectionable venire member who actually sat on the jury whom he

would have struck otherwise; and (5) make the trial court aware of his complaint at

a time and in a manner wherein it could be corrected. Loredo v. State, 159 S.W .3d

920, 923 (Tex. Crim. App. 2004); see Johnson v. State, 43 S.W .3d 1, 5–6 (Tex.

Crim. App. 2001); Payton v. State, 572 S.W .2d 677, 680 (Tex. Crim. App. 1978); see

also Tex. R. App. P. 33.1.

      Furthermore, an appellant challenging denials of challenges for cause is

entitled to appellate review of denials only with respect to jurors he used statutory

peremptory strikes to exclude. Busby v. State, 253 S.W .3d 661, 671 (Tex. Crim.

App.), cert. denied, 129 S. Ct. 625 (2008).

Jury Selection in this Case

      During voir dire, the State asked prospective jurors whether they could

“imagine a set of circumstances” in which they could consider assessing the

minimum punishment of two years’ confinement for a felony DW I.

      Appellant asked the panel members to consider another option—that an

accused who is eligible may receive a probated sentence—asking them, “W hen you


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have somebody who’s been shown to be eligible for probation, what I’d like to know

is whether you can consider or conceive of a set of facts where you can give

probation.”

      Twenty-one or twenty-two prospective jurors responded that they could not

consider probation under those circumstances. Of these, the trial court granted

certain challenges for cause for other reasons. Appellant then challenged for cause

the remaining prospective jurors who could not consider probation. The State

argued that he was factually ineligible for probation (because of Appellant’s prior

felony convictions), and thus probation did not apply. The trial court overruled

Appellant’s challenges to the panel members in question.

      Appellant then used his peremptory challenges or “strikes” on six persons

whom he had attempted to challenge for cause based on their responses to the

“probation consideration” question. He did not, however, exercise strikes on four of

the jury members whom he had challenged on the ground that they had expressed

difficulty considering probation. Instead, he exhausted his remaining strikes on four

other venire members. Appellant then requested additional strikes. The trial court

denied his request, and the jury was seated and sworn.

      Because Appellant did not use all of his peremptory challenges on the

“objectionable” prospective jurors he contends the trial court erred to admit over his

challenge for cause, he has failed to properly preserve this issue on appeal. See

Tex. R. App. P. 33.1(a)(1); Busby, 253 S.W .3d at 670–71. In cases dealing with the


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trial court’s denial of a challenge for cause, an appellant is required to show that he

(1) exercised a peremptory on a challenged-for-cause venire member, which

challenge was erroneously denied; (2) exhausted his peremptory challenges; (3) was

denied a request for additional peremptory challenge; and (4) identified an

objectionable juror who served on the case. Johnson v. State, 43 S.W .3d at 5–6.

Most cases seem to assume, without discussion, that by the term “objectionable

juror” is meant a juror who was subject to a challenge for cause which challenge was

denied by the trial court.

      A case which is specific in this regard and quite similar to this case on this

issue is Brantley v. State, 48 S.W .3d 318 (Tex. App.—W aco 2001, pet. ref’d). In

Brantley, the defendant challenged for cause twenty-three jurors who indicated that

they could not consider the full range of punishment. The trial court granted seven

of those challenges and overruled sixteen. Two of those objectionable jurors sat on

the jury, and the trial court denied a request for additional peremptory challenges.

The defendant used four peremptory challenges on those who could not consider

probation, and the other six against venire members who had not been challenged

for cause. The court of appeals held that the defendant could have used the six

peremptory challenges on those who had been subject to a challenge for cause

which was erroneously denied—therefore, he could not show harm. Id. at 328.




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      As in Brantley, here, Appellant used four peremptory challenges on venire

members who he had not challenged for cause that he could have used on those

who he had challenged for cause. Because he did not, he does not show harm. Id.

      An additional basis for holding for the State is that Appellant did not timely

request additional peremptory challenges.        The time to make, or not make,

peremptory challenges is before the names of jurors are called by the clerk. Tex.

Code Crim. Proc. Ann. arts. 35.01 (Vernon Supp. 2009), 35.26 (Vernon 2006). This

is basic. In referring to the practice of allowing peremptory challenges after the

names of the jurors are called, one court, after concluding that a request for

additional peremptory challenges was untimely, opined, “Nor does it seem to us

such process would accord fair treatment to the opposing party who must exercise

peremptory challenges without benefit of knowing which venire members will be on

the jury.” McBean v. State, 167 S.W .3d 334, 338 n.3 (Tex. App.—Amarillo 2004,

pet. ref’d). Accordingly, we overrule Appellant’s first issue.

                      ADMISSION OF D EMONSTRATIVE E VIDENCE

      Appellant claims, in issues two and three, that the trial court erred by admitting

State’s Exhibit 2, a CD which the State introduced to assist the arresting officer in

explaining the effects of alcohol on a person’s eyes with and without increased

nystagmus. The trial court overruled Appellant’s objections, admitted the CD, and

then permitted Officer Klar to use the CD in his testimony. Appellant now complains

that the CD was inadmissible both because the CD was more prejudicial than


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probative under rule 403 of the Texas Rules of Evidence and because the State

failed to lay the proper predicate as required by rule 701. Appellant also asserts that

the trial court erred by admitting the arresting police officer’s testimony regarding his

administration of the HGN test to Appellant.

Standard of Review

      The admissibility of evidence is within the discretion of the trial court and will

not be overturned on appeal absent an abuse of discretion. Moses v. State, 105

S.W .3d 622, 627 (Tex. Crim. App. 2003); Reed v. State, 59 S.W .3d 278, 280 (Tex.

App.—Fort W orth 2001, pet. ref’d). As long as the trial court’s ruling lies within the

zone of reasonable disagreement, the appellate court should affirm. Moses, 105

S.W .3d at 627. The trial court, as gatekeeper, has the discretion to decide whether

a proponent of evidence has laid the proper predicate for its admission. Romero v.

State, 800 S.W .2d 539, 543–44 (Tex. Crim. App. 1990). W e review a trial court’s

decision to admit or exclude evidence under an abuse of discretion standard.

Montgomery v. State, 810 S.W .2d 372, 378–80 (Tex. Crim. App. 1991) (op. on

reh’g). Moreover, if the trial court’s ruling with regard to the admission of evidence

is correct under any theory of law applicable to the case, we will not disturb that

ruling on appeal. Romero, 800 S.W .2d at 543; Reed, 59 S.W .3d at 280–81.

      Before demonstrative evidence is admitted at trial, it must be properly

authenticated. Baker v. State, 879 S.W .2d 218, 220 (Tex. App.—Houston [14th

Dist.] 1994, pet. ref’d); see also Tex. R. Evid. 701.             Once authenticated,


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demonstrative evidence is admissible to help a witness demonstrate or explain his

testimony. Torres v. State, 116 S.W .3d 208, 213 (Tex. App.—El Paso 2003, no

pet.). Visual, real, or demonstrative evidence, regardless of which term is applied,

is admissible if it tends to solve some issue in the case and is relevant to the subject

at hand. Simmons v. State, 622 S.W .2d 111, 113 (Tex. Crim. App. 1981). HGN test

results are generally regarded as scientifically reliable and admissible when properly

authenticated. Emerson v. State, 880 S.W .2d 759, 768–69 (Tex. Crim. App.), cert.

denied, 513 U.S. 931 (1994).

Use of Demonstrative Evidence at Appellant’s Trial

      Here, Klar testified that he had reviewed State’s Exhibit 2, the CD, before trial

and that it depicted an example of nystagmus in a person in a controlled

environment without the increased nystagmus due to alcohol and that the CD would

help the jury understand his testimony regarding the HGN test that he had

administered to Appellant. Klar then told the jurors that he had administered the

HGN test to Appellant. He used State’s Exhibit 2 to help explain to the jurors what

he looked for in administering the HGN test to Appellant. Klar then told the jury that

when he administered the HGN test, Appellant exhibited six out of the six indicators

of intoxication.

      State’s Exhibit 2 was not offered as substantive evidence of Appellant’s

intoxication, but as a tool to help the arresting police officer explain the HGN test that

he performed on Appellant.        See Torres, 116 S.W .3d at 213.          Under these


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circumstances, the CD was admissible as demonstrative evidence of what the test

and procedure are in the conduct of an HGN test. See Tex. R. Evid. 701. Moreover,

the probative value of State’s Exhibit 2 was not substantially outweighed by the

danger that it would unfairly prejudice the jurors. Tex. R. Evid. 403; Montgomery,

810 S.W .2d at 389. Thus, the trial court’s ruling admitting the CD was not an abuse

of discretion. W e overrule issues two and three.

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

judgment.




                                             CHARLES BLEIL
                                             JUSTICE

PANEL: DAUPHINOT and MCCOY, JJ.; and CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 26, 2010




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