                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-11-00270-CR

ALEX TAYLOR FORD,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee


                          From the 85th District Court
                              Brazos County, Texas
                        Trial Court No. 10-01413-CRF-85


                         MEMORANDUM OPINION


      Alex Ford was charged and convicted of the felony offense of intoxication

assault. TEX. PENAL CODE ANN. § 49.07 (West 2011). Punishment was enhanced to a

second degree felony because the assault was alleged to have been committed against a

police officer. Id. § 49.09(b-1) (West Supp. 2012). Ford was sentenced to six years in

prison. We affirm.

                                    BACKGROUND

      Ford was a 21-year-old living in Houston but partying one night in College
Station in a borrowed Maserati. After going to several bars and drinking anywhere

from 5 to 15 drinks, she and several acquaintances piled in the Maserati to take one of

them home. Ford drove wildly. After dropping off one person, Ford and the remainder

of the group decided to go to Whataburger. She was speeding, going approximately 80

miles an hour, when she approached a curve in the road and hit a police cruiser head

on. The officer’s hip and ankle were severely damaged. No one, however, was killed.

                              RETROGRADE EXTRAPOLATION

        By Ford’s first issue, she complains that the trial court erred in overruling her

objection to the State’s expert testimony of Dr. Dennis regarding retrograde

extrapolation. The State contends that Ford did not preserve her complaint for review

because the objection at trial was not the same as the argument made on appeal and

because Ford did not continue to object each time evidence of retrograde extrapolation

was offered.

        As a prerequisite to presenting a complaint on appeal, a party must have made a

timely and specific request, objection, or motion to the trial court. TEX. R. APP. P.

33.1(a)(1)(A). Additionally, a party's "point of error on appeal must comport with the

objection made at trial." Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); see

also Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (point of error raised on

appeal must correspond to objection made at trial); Grant v. State, 345 S.W.3d 509, 512

(Tex. App.—Waco 2011, pet. ref’d). It is also necessary that the objecting party must


Ford v. State                                                                        Page 2
continue to object each time the objectionable question or evidence is offered, obtain a

running objection, or request a hearing outside the jury's presence in order to preserve a

complaint for appellate review. See Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim.

App. 2003); Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999); Grant, 345

S.W.3d at 512-513.

        After Dr. Dennis testified about elimination rate of alcohol and tolerance, the

State asked a hypothetical question to which Ford objected. Both are set out below.

        Q.     I have a couple of questions that I would like to ask you. If you
        found—you took a woman—female that was 5-foot 2 inches tall and 110
        pounds and that female began drinking at 11:30 and they drank until 1:00
        or 1:30, in order for that person to be under a .08 at 3:07 in the morning,
        how much could they have consumed?

        Objection: Your Honor, at this time I’m going to object to any kind of
        retrograde extrapolation without more showing from the State if they
        had—how much food was been consumed and those kind of —I mean,
        my understanding of the law is you’ve got to have a better showing than
        just this, Your Honor.

        Ford appears to be objecting about the lack of a predicate; that is, not enough

information has been presented before the hypothetical could be asked. On appeal, she

complains that Dr. Dennis was not qualified to testify about retrograde extrapolation

and that his testimony was neither relevant nor reliable. What Ford argues on appeal

does not comport with the objection made at trial.

        Further, Dr. Dennis answered more questions regarding retrograde extrapolation

such as what the hypothetical female’s blood alcohol concentration would be at 3:07


Ford v. State                                                                         Page 3
a.m. after drinking seven drinks between 11:30 p.m. and 1:30 a.m. and whether Dr.

Dennis could conceive of a situation, after reading Ford’s statement, where Ford’s blood

alcohol concentration would be below .08 at 3:07. Ford did not object again to the

doctor’s testimony in this area and did not request a running objection.

        Ford’s complaint about the retrograde extrapolation testimony is not preserved,

and her first issue is overruled.

                                    PUNISHMENT EVIDENCE

        In her second and third issues, Ford contends the trial court erred by admitting

into evidence during the punishment phase, in violation of Texas Rules of Evidence 401

and 403, a statement made by Ford. TEX. R. EVID. 401, 403.

        Zach Bimslager, a passenger with Ford before the accident, testified at

punishment. He had been “bar hopping” and had asked Ford for a ride home. On the

way home, Ford drove aggressively: speeding, passing people in turn lanes, and almost

running red lights. It concerned him. At his house, when he and the other passengers

were commenting on how Ford was driving, Ford scoffed and commented that the

others were country bumpkins and that was the way people in Houston drove. Also at

the house, Zach asked Ford where she got the Maserati. Ford said she was a lawyer,

but Zach knew that she was not. So he asked again and she replied, “Pussy rules the

world.” Ford objected, prior to the completion of the statement, on the grounds that it

was irrelevant and even if relevant, its probative value was substantially outweighed by


Ford v. State                                                                     Page 4
its prejudicial effect.

Rule 401—Relevance

        At the punishment phase of a criminal trial, evidence may be presented as to any

matter that the court deems relevant to sentencing, including evidence of the

defendant's background or character. See TEX. CODE CRIM. PROC. ANN. art. 37.07 §

3(a)(1) (West Supp. 2012). Determining what is relevant is a question of what is helpful

to the jury in determining the appropriate sentence for a particular defendant in a

particular case. Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999); Woodward v.

State, 170 S.W.3d 726, 729 (Tex. App.—Waco 2005, pet. ref’d).

        Ford had filed an application for community supervision with the trial court.

The statement was relevant to show Ford’s character and helpful to the jury in

determining whether Ford was a good candidate for community supervision. The trial

court did not abuse its discretion in overruling Ford’s Rule 401 objection, and her

second issue is overruled.

Rule 403—Probative Value vs. Unfair Prejudice

        Although relevant, evidence may still be excluded under Rule 403 if the danger

of unfair prejudice substantially outweighs the probative value of the evidence. TEX. R.

APP. P. 403. Rule 403 favors admission of relevant evidence and carries a presumption

that relevant evidence will be more probative than prejudicial. Allen v. State, 108 S.W.3d

281, 284 (Tex. Crim. App. 2003); Jones v. State, 944 S.W.2d 642, 652-53 (Tex. Crim. App.


Ford v. State                                                                       Page 5
1996). The trial court has broad discretion in conducting a Rule 403 balancing test, and

we will not lightly disturb its decision. Allen, 108 S.W.3d at 284. All testimony and

physical evidence are likely to be prejudicial to one party or the other. Davis v. State,

329 S.W.3d 798, 806 (Tex. Crim. App. 2010); Jones, 944 S.W.2d at 653. It is only when

there exists a clear disparity between the degree of prejudice of the offered evidence

and its probative value that Rule 403 is applicable. Id. A proper Rule 403 analysis by

either the trial court or a reviewing court includes, but is not limited to, the following

factors: (1) the probative value of the evidence; (2) the potential to impress the jury in

some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4)

the proponent's need for the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim.

App. 2004).

          The statement was probative of Ford’s general attitude of selfishness. It took no

time to develop and although an offensive word was part of the statement, it was not

repeated after the trial court’s ruling,1 and was not likely to make the jury behave

irrationally in its decision. The State needed this statement to show Ford’s attitude and

to counter the coming testimony from family and friends as to Ford’s sweet nature and

tender-heartedness.

          After reviewing the evidence in light of the factors, we find the trial court did not

abuse its discretion in overruling Ford’s Rule 403 objection.                       Her third issue is


1   The statement was referenced again several times, however, by Ford’s counsel.

Ford v. State                                                                                   Page 6
overruled.

                                    CONCLUSION

        Having overruled the issues properly presented, we affirm the trial court’s

judgment.




                                       TOM GRAY
                                       Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 20, 2012
Do not publish
[CR25]




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