                                  NO. 07-11-00222-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                 DECEMBER 20, 2012


                       MICHAEL ANTHONY PENA, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


             FROM THE 121ST DISTRICT COURT OF YOAKUM COUNTY;

                  NO. 2871; HONORABLE KELLY G. MOORE, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant, Michael Anthony Pena, appeals his conviction for the offense of

driving while intoxicated with a child passenger. 1 Following a pre-sentence investigation

report and after a hearing on punishment before the trial court, appellant was sentenced

to confinement in a State Jail Facility (SJF) for two years with the confinement

suspended and appellant placed on community supervision for a period of four years.

Appellant appeals contending that the trial court erred: 1) in allowing evidence of the

results of a blood test run at the Yoakum County Hospital to be admitted, 2) in

      1
          See TEX. PENAL CODE ANN. § 49.045. (West 2011).
permitting the State’s witness to express an opinion about appellant’s intoxication at the

time of the arrest based upon retrograde extrapolation of his blood alcohol level at the

time of the blood draw, and 3) in omitting an instruction on “normal use” of appellant’s

faculties. We affirm.


                            Factual and Procedural Background


       Appellant does not challenge the sufficiency of the evidence; therefore, we will

discuss only so much of the facts as required for our decision.          On July 6, 2010,

appellant was stopped for speeding in Yoakum County. After encountering appellant

during the traffic stop, Department of Public Safety Trooper Robles 2 suspected that

appellant was intoxicated. As a result of his suspicion, Robles initiated an investigation

for driving while intoxicated. After conducting field sobriety tests on appellant, Robles

requested appellant take a preliminary breath test.                Based upon appellant’s

performance on these tests, Robles decided to arrest appellant for driving while

intoxicated with a child passenger. 3


       After arresting appellant, Robles took appellant to the Yoakum County Hospital to

obtain blood samples for testing. Appellant agreed to provide the blood specimens.

Subsequently, two specimens of appellant’s blood were obtained by the medical

technologist on duty, Christopher Ibonaw. One sample was sent to the Department of




       2
           Robles had promoted to Sergeant by the time of trial.
       3
       The record is clear that appellant’s son, who was under 15 years of age, was a
passenger in the vehicle at the time of the arrest.
                                              2
Public Safety (DPS) regional laboratory for testing. The other sample was tested at the

hospital.


       The sample tested locally was tested as a blood serum sample by analysis in a

Siemens Dimension RxL analyzer. Testimony at trial revealed that the blood serum

sample tested positive for alcohol with a concentration of 102 milligrams per deciliter of

blood serum. Prior to admission of State’s Exhibit 9, the report of the blood serum

analysis, appellant objected on the grounds of the reliability of the analyzer. The trial

court overruled the objection.    Additionally, appellant’s trial counsel appeared to be

objecting to the reliability of the medical technologist taking the sample and running the

analyzer, although a review of the record reveals that such an objection was not clear.


       The sample sent to the DPS regional lab was tested by Scott Williams, a forensic

scientist.   Williams testified that the sample was tested using headspace gas

chromatography. Williams testified that appellant’s blood alcohol level was 0.09 grams

of alcohol per 100 milliliters of blood. After being recalled by the State, Williams was

asked if he could provide an opinion about appellant’s blood alcohol level at the time of

appellant’s arrest based upon extrapolation techniques. Williams said that he could and

eventually opined that appellant’s blood alcohol level at the time of his arrest was 0.108,

well above the 0.08 legal presumption level. Prior to Williams’s testimony, appellant

objected that Williams lacked sufficient data on which to base his extrapolation

testimony. The trial court overruled this objection.


       At the conclusion of the evidence, the trial court prepared the “Charge of the

Court.” Appellant did not object to the proposed charge, however, appellant did request

                                             3
the trial court include within the charge a definition of the term “normal use,” which the

trial court denied. The jury returned a verdict of guilty and appellant proceeded to try

the issue of punishment before the trial court.          After receiving a pre-sentence

investigation report and evidence regarding punishment, the trial court assessed

appellant’s punishment at confinement in an SJF for two years but suspended the term

of confinement and placed appellant on community supervision for a period of four

years.


         Appellant has appealed the judgment of the trial court through four issues. The

first two issues deal with the trial court’s admission of the results of the blood serum

test. The third issue contends that Scott Williams was not qualified to give an opinion

regarding appellant’s blood alcohol level at the time of his arrest.      The last issue

contends that the trial court erred in refusing to give the definition of “normal use” as

requested. We will affirm the judgment of the trial court.


                                    Blood Serum Test


         Appellant has lodged two separate objections to the results of the blood serum

test performed at Yoakum County Hospital. First, appellant contends that the trial court

erred in overruling his objection that there was no showing that the device used to

analyze the blood serum for alcohol content was reliable. Next, appellant contends that

the Yoakum County Hospital was functioning as a crime laboratory for purposes of

forensic analysis of the blood serum but was not accredited pursuant to article 38.35 of

the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.35

(West Supp. 2012).

                                             4
       A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of

discretion. See Coble v. State, 330 S.W.3d 253, 272 (Tex.Crim.App. 2010). Even if we

assume, for purposes of this opinion, that appellant is correct in both of his contentions

regarding the results of the blood serum test, there is still no harm suffered by appellant.

We review error of this nature for non-constitutional harm. See TEX. R. APP. P. 44.2(b). 4

Rule 44.2(b) states that, “Any other error, defect, irregularity, or variance that does not

affect substantial rights must be disregarded.” A substantial right is affected when the

error had a substantial and injurious effect or influence in determining the jury’s verdict.

Coble, 330 S.W.3d at 280. In conducting a harm analysis under Rule 44.2(b), we

review the entire record to ascertain the effect or influence of the wrongfully admitted

evidence. See Barshaw v. State, 342 S.W.3d 91, 93-94 (Tex.Crim.App. 2011); Motilla

v. State, 78 S.W.3d 352, 355-56 (Tex.Crim.App. 2002).


       The record reveals that appellant was initially stopped for a traffic violation,

speeding. After visiting with appellant inside his vehicle, Robles detected a mild odor of

an alcoholic beverage coming from appellant. As a result, Robles decided to conduct

field sobriety tests on appellant. Appellant was asked to perform three of the standard

field sobriety tests: the horizontal gaze nystagmus, the walk-and-turn, and the one leg

stand. Robles testified at length about appellant’s performance on each test and that

appellant exhibited signs of intoxication while performing each of the tests.        At the

conclusion of the standard field sobriety tests, appellant was also asked to take a

preliminary breath test. After administering all of the tests to appellant, Robles testified


       4
         Further reference to the Texas Rules of Appellate Procedure will be by
reference to “Rule ____.”
                                             5
that he was of the opinion that appellant was intoxicated and, therefore, placed him

under arrest for driving while intoxicated with a child passenger.       During Robles’s

interview with appellant, appellant admitted to having drank beer prior to being stopped

for speeding. Robles testified that appellant initially said he had drunk only two beers

but later changed his statement to two or three beers. After placing appellant under

arrest, Robles took him to the Yoakum County Hospital where two blood samples were

drawn. One sample is the one to which appellant is objecting. The second sample was

sent to the regional DPS lab for analysis. Scott Williams, forensic scientist at the DPS

lab, testified that he analyzed the sample of appellant’s blood for the presence and

amount of alcohol using headspace gas chromatography. As a result of his testing, he

determined that appellant’s blood sample contained 0.09 grams of alcohol per one

hundred milliliters of blood. This testimony was received without objection.


       The trial court submitted a charge that tracked the statutory definition of

intoxication. See TEX. PENAL CODE ANN. § 49.01(2) (West 2011). 5 The charge reads as

follows:


       “Intoxicated” means 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 having an alcohol
       concentration of 0.08 or more.
       The record reveals that, during final arguments, the State recounted the evidence

that, according to the State, demonstrated both a loss of the normal use of mental and

physical faculties and a blood alcohol concentration above 0.08. In reference to the

       5
        Further reference to the Texas Penal Code will be by reference to “section
____” or “§ _____.”
                                            6
latter, the State referred to both the blood serum test and the DPS whole blood analysis.

Additionally, during closing arguments, the State talked at length about signs of loss of

normal use of mental or physical faculties, particularly impaired judgment. According to

the State, one of the clearest signs of loss of judgment was appellant’s decision to get in

the car with his minor son after consuming beer.


      From our review of the entire record, we have a fair assurance that the error in

admitting the blood serum testimony did not influence the jury, or had but a slight effect.

See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). Accordingly, the

blood serum evidence, which we assumed for purpose of analysis was erroneously

admitted, did not have a substantial and injurious effect on the verdict. See Coble, 330

S.W.3d at 280. Therefore, as to both of appellant’s contentions regarding the blood

serum analysis, the error was harmless.


                          Retrograde Extrapolation Testimony


      Appellant’s third issue contends that the trial court committed reversible error by

allowing Scott Williams to render an opinion as an expert witness regarding appellant’s

blood alcohol level at the time of his arrest. We review the decision of the trial court to

admit expert testimony under an abuse of discretion standard. See id. at 272.


      Before addressing the question posed by appellant’s issue, we must first

ascertain whether the issue before the Court comports with the objection lodged in the

trial court. It is a well understood principal of appellate law that the objection lodged

before the trial court must comport with the issue that is asserted on appeal. See

Martinez v. State, 345 S.W.3d 703, 705 (Tex.App.—Amarillo 2011, no pet.) (citing Pena
                                            7
v. State, 285 S.W.3d 459, 464 (Tex.Crim.App. 2009)). If the objection at trial does not

comport with the ground asserted on appeal, nothing is preserved for appellate review.

Id.


       Scott Williams was recalled as a witness for the apparent purpose of giving his

opinion about appellant’s blood alcohol level at the time of his arrest based upon the

analysis of the blood sample taken approximately 35 minutes later. When Williams was

being asked preliminary questions, appellant’s trial counsel interposed the following

objection:


       Your Honor, I’m going to object under the rules of procedure as far as
       Rule 705, 702, and 703. 6 The expert lacks sufficient information to form
       an expert opinion in this case. And under rule 705(c), he has to have
       sufficient data in a particular case. There’s insufficient data because he’s
       testified he’s going to be making an estimate based on variables, and it’s
       too uncertain to form an opinion that would be proof beyond a reasonable
       doubt in this case.




The trial court overruled the objection. Later in the testimony, Williams was asked his

opinion about appellant’s blood alcohol concentration at the time of his arrest.

Appellant’s trial counsel then lodged the following objection:


       Your Honor, I also object to this because he’s not laid the proper
       foundation. We don’t have access to his calculations that he’s going to
       testify from.




       6
        Although counsel said rules of procedure, it is clear that he was referring to the
Rules of Evidence.
                                             8
       On appeal, although appellant couches his contention as an attack on the

reliability of Williams’s testimony, his argument merely attacks the qualifications of

Williams to render an opinion. An objection to Williams’s expertise or qualifications to

render an opinion was never presented to the trial court. A fair reading of the objection

and the context of the objection leads to the conclusion that the issue on appeal does

not comport with the contention before this Court. See Martinez, 345 S.W.3d at 705.

Accordingly, nothing has been preserved for appellate review.          Id.   We, therefore,

overrule appellant’s third issue.


                                    Definition of Normal Use


       Appellant’s final issue contends that the trial court’s refusal to include a proposed

definition of normal use, as submitted by appellant, was error and that this error was

harmful. The record reflects that the trial court prepared a proposed charge and asked

trial counsel if he had any objections or additional requests.         Trial counsel then

requested the following definition of normal use: Normal use “means the manner in

which the normal intoxicated person would be able to use his faculties.” 7 The trial court

denied the request.


       Appellant was charged pursuant to section 49.045, which states that a person

commits an offense if they are intoxicated while operating a motor vehicle, and the

vehicle is occupied by a passenger who is younger than 15 years of age. The second

requirement is not at issue in this appeal. As stated earlier in this opinion, intoxicated


       7
        The State’s brief points out, and we assume to be correct, that the requested
charge should read “normal non-intoxicated person.”
                                               9
means loss of normal use of mental or physical faculties, as applicable in this case, by

reason of the introduction of alcohol into the body or having a blood alcohol

concentration of 0.08 or greater. See § 49.01(2). The statute does not define normal

use of mental or physical faculties. Thus, the statute provides for proof of intoxication

by either an objective standard, 0.08 blood alcohol concentration, or a subjective

standard, the loss of normal use of mental or physical faculties. Murphy v. State, 44

S.W.3d 656, 660 (Tex.App.—Austin 2001, no pet.). Because appellant submitted to the

taking of a blood sample and there is testimony from Robles about appellant’s actions in

driving and performance in standardized field sobriety tests, both definitions of

intoxication were before the jury.      What appellant is requesting is that this Court

conclude that it is error for a trial court to refuse to define a term, normal use, that is not

statutorily defined.


       The Texas Court of Criminal Appeals recently addressed the issue of a trial court

defining terms not otherwise defined.        See Kirsch v. State, 357 S.W.3d 645, 650

(Tex.Crim.App. 2012). The Kirsch case dealt with the undefined term of “operating.” Id.

The Court in Kirsch points out that Texas Government Code section 311.011 provides

that statutorily undefined words and phrases shall be “construed according to the rules

of grammar and common usage.” Id. (quoting TEX. GOV’T CODE ANN. § 311.011 (West

2005)). Section 311.011 of the Texas Government Code applies to construction of the

Penal Code. § 1.05(b) (West 2011). There is no contention that the term normal use

has acquired any technical or particular meaning which would require anything other

than construction according to the rules of grammar and common usage. See TEX.

GOV’T CODE ANN. § 311.011. Thus, we are left with a term that a jury may read to have
                                              10
any meaning which is acceptable in common parlance. Kirsch, 357 S.W.3d at 650

(citing Denton v. State, 911 S.W.2d 388, 390 (Tex.Crim.App. 1995)).


       The trial court’s charge is to set forth the law applicable to the case. See TEX.

CODE CRIM. PROC. ANN. art. 36.14 (West 2007). 8 Generally speaking, a charge not

derived from the Penal Code is not the applicable law under article 36.14. See Kirsch,

357 S.W.3d at 651 (citing Walters v. State, 247 S.W.3d 204, 214 (Tex.Crim.App. 2007)).

In this case, the trial court properly charged the jury on the law applicable to the case.

Therefore, the trial court’s denial of the requested definition did not violate the

constraints of article 36.14 and was not error. See arts. 36.14, 36.19.


       Appellant’s brief posits that, without the requested definition, a jury may be left

unknowing and misled about the question of whether appellant suffered any impairment.

However, the question posed by appellant assumes something that we may not

assume.    Appellant assumes that a jury will not be able to determine whether an

accused has lost the normal use of mental or physical faculties from a review of the

evidence. With nothing more than appellant’s posit on this issue, we cannot agree.

Further, where both the objective and subjective definitions of intoxication are alleged,

appellant seems to be asking this Court to require the State elect which method of

proving the offense it chooses to pursue. This last argument is made without reference

to any authority to support it. Further, we know of none. Accordingly, appellant’s issue

is overruled.



       8
          Further reference to the Texas Code of Criminal Procedure will be by reference
to “article ___” or “art. ___.”
                                           11
                                      Conclusion


       Having determined that there is no error in the trial court’s judgment, we affirm

the judgment rendered.




                                        Mackey K. Hancock
                                            Justice



Pirtle, J., concurring.



Do not publish.




                                          12
