

Opinion issued October 6, 2011
 

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00679-CR
———————————
Donna Jean Zill a/k/a Donna Zill, Appellant
V.
The State of
Texas, Appellee

 

 
On Appeal from the 56th District Court
Galveston County, Texas

Trial Court Case No. 09-CR-1522
 

 
O P I N I O N
          A
jury convicted appellant, Donna Jean Zill, of the third degree felony offense
of driving while intoxicated—third
offense, and assessed punishment at four years’ confinement and a $2,000 fine.[1]  In three issues, appellant contends that (1)
the State failed to present sufficient evidence to show that she was
intoxicated; (2) the trial court erroneously admitted testimony regarding the
Vertical Gaze Nystagmus (“VGN”) test; and (3) her trial counsel rendered
ineffective assistance by failing either to object to the VGN testimony or to
request that the trial court conduct a “gatekeeper” hearing before introduction
of the VGN testimony.
          We
affirm.
Background
          Around
2:30 a.m. on May 23, 2009, Texas Department of Public Safety Trooper J.
Petrillo was patrolling the Bacliff/San Leon area when he saw appellant driving
toward him “at a high rate of speed.”  Trooper
Petrillo confirmed by radar that appellant was driving 77 miles-per-hour in a 50
miles-per-hour speed zone.  Trooper
Petrillo turned around and turned on his emergency lights, which activated his
in-car video camera.  He acknowledged
that, other than the speeding, he did not notice any other problems with
appellant’s driving, such as weaving between lanes or fluctuations in
speed.  He testified that appellant
immediately and properly pulled over into a parking lot.
          As
Trooper Petrillo approached the driver’s side window, appellant immediately
handed him her ID card and then provided proof of insurance.  Appellant did not provide her driver’s
license, but she was able to correctly recite her license number.  Trooper Petrillo observed that appellant’s
eyes were glassy, and he testified that he noticed a “strong odor” of alcohol
when he walked up to the driver’s side door. 
Trooper Petrillo asked appellant where she was driving from, and she
responded that she was coming from the San Leon Beach Pub.
          Trooper
Petrillo asked appellant to step out of her vehicle, and, as she did so, she
“kind of held onto the door and then she swayed back toward the driver’s seat
before she started to walk back to the back of the patrol car.”  After appellant complied with Trooper
Petrillo’s instruction to walk to the front of his patrol car, he asked her if
she had been drinking.  Appellant
responded that she had been drinking at the San Leon Beach Pub, and although
she first stated that she had had three cans of beer, she then stated that she
had had four cans.  Trooper Petrillo
testified that appellant’s speech was “mumbled and slurred” and that she was
“slow to respond to questions.”
          Before
performing the Horizontal Gaze Nystagmus (“HGN”) field sobriety test, Trooper
Petrillo asked appellant if she had any head injuries.  Appellant did not specifically tell Trooper
Petrillo that she had had a head injury, but she did state that she “had died
about three years ago.”  Trooper Petrillo
stated that he did not ask any follow-up questions because he did not feel that
a potential head injury that occurred three years ago was relevant.  Trooper Petrillo also stated that before
beginning the HGN test, he checked for unequal pupil size and unequal tracking,
both of which can indicate a head injury. 
According to Trooper Petrillo, appellant had equal pupil size and equal
tracking.  Trooper Petrillo testified
that he observed six out of six clues of intoxication when he performed the HGN
test.  He also testified that, during the
test, appellant
had difficulty following the
instructions when [asked] to keep her head still and just follow the stimulus
with the eyes.  She kept wanting to turn
the head and move her whole head.  She
was staggering a little bit or unsteady on her feet, swaying.  And the odor of alcohol [was] coming from her
breath.  And as she was talking, she was
mumbling and her speech was very slurred.
 
Additionally, appellant mumbled and repeated “the
same things over and over throughout” her encounter with Trooper Petrillo.
During Trooper Petrillo’s testimony
regarding appellant’s performance of the HGN test, he and the prosecutor had
the following exchange:
[The
State]: What other nystagmus might you
find in administering [the HGN]?
 
[Petrillo]:    Well, there’s numerous nystagmus.  There’s certain examples like caloric
nystagmus or anything with vestibular, rotational, post-rotational.
 
[The
State]: I won’t get into those in
detail.  Will you check for vertical
nystagmus?
 
[Petrillo]:    Yes, we do.
 
[The State]: And why would you check for that?
 
[Petrillo]:    Checking for vertical nystagmus would just
indicate a high level of intoxication.
 
[The
State]: Would an absence of vertical
nystagmus indicate that a person’s not intoxicated?
 
[Petrillo]:    No.
 
[The
State]: So, can a person be intoxicated
and not have vertical nystagmus?
 
[Petrillo]:    Yes.
 
. . . .
 
[The
State]: When you gave the Defendant the
HGN, how many clues of the test did you note?
 
[Petrillo]:    Six clues.
 
[The State]: And did you note any vertical nystagmus?
 
[Petrillo]:    No.
 
Defense counsel did not object to any of the
references to vertical nystagmus.
          Trooper
Petrillo testified that he then started to administer the Walk and Turn field
sobriety test to appellant.  Before he
finished explaining the test and before he asked appellant if she had any
injuries that would impair her performance on the test, appellant improperly
began the test.  Trooper Petrillo asked
appellant to return to the starting position, and, after he asked whether she
had any injuries, she told him that she had had her right knee replaced, that
her left knee needed to be replaced, and that she also needed surgery on her
shoulder.  Trooper Petrillo decided not
to have appellant perform the Walk and Turn and One-Leg Stand field sobriety tests
because of her injuries.
          Trooper
Petrillo testified that by this point during the traffic stop, he had
determined that appellant was intoxicated based on “the odor of alcohol, the
glassy eyes, the slurred speech, the unsteady balance, and the six clues of
HGN.”  He stated that appellant turned
around and put her hands behind her back after he asked her to do so, but when
he pulled out his handcuffs, she started to walk away toward the passenger
compartment of her truck and told him “no.” 
Appellant was “visibly upset,” yelled obscenities, and told Trooper
Petrillo that he “was going to have to shoot her.”  She continued to yell obscenities and act
belligerent after Trooper Petrillo handcuffed her and placed her in the front
seat of his patrol car.  Appellant
refused to submit to either a breath or blood sample.[2]
          On
cross-examination, Trooper Petrillo acknowledged that he did not include in his
offense report any “good” driving facts that suggested that appellant had use
of her mental faculties—i.e., that
she appropriately used her turn signal and immediately pulled over after seeing
Petrillo’s emergency lights.  He also
acknowledged that he did not include in his offense report any information about
appellant stumbling after getting out of her truck or having general problems
with her balance and coordination.  Trooper
Petrillo agreed with defense counsel that appellant informed him that she had
to open the driver’s side door by using the outside handle, but he further
testified that she stumbled back toward the driver’s seat and had to use the
door handle for support after she had already gotten out of her truck.  He further agreed that appellant “candid[ly]”
told him how many beers she had had that evening, and he acknowledged that he
did not ask her when in the evening she had consumed those beers.
          Trooper
Petrillo testified that appellant giggled throughout the traffic stop and that
this behavior “caught [his] attention,” but he believed that this behavior was
the result of intoxication and, therefore, he did not ask her any questions
about possible brain damage.  He agreed
that appellant’s response to his question about whether she had any head
injuries was unusual, and he confirmed that he did not ask her any follow-up
questions to determine if a head injury was the cause of her behavior.  Trooper Petrillo further agreed that
appellant’s behavior—such as her
giggling and repetition of statements—could be a side effect of a brain injury.
          Defense
counsel also asked Trooper Petrillo the following questions about vertical
nystagmus on cross examination:
[Defense]:   And you testified that the vertical nystagmus
is done to decide whether there’s a high level of intoxication in a person,
correct?
 
[Petrillo]:    Correct.
 
[Defense]:   And you did this.  You performed this test on Ms. Zill and it
wasn’t there, correct?
 
[Petrillo]:    Correct.
 
Trooper Petrillo also testified that he was
eventually able to evaluate appellant on the HGN test, but he had to repeat his
instruction not to move her head several times. 
He further testified that when appellant attempted the Walk and Turn
test, she did not have a problem with her balance, but she did exhibit two
clues:  she did not walk heel to toe in a
straight line and she did not wait for him to finish the instructions.
          After
the trial court admitted appellant’s medical records, defense counsel recalled
Trooper Petrillo and asked him several questions about the contents of those
records.  The records reflected that
appellant suffered a head injury in 1987—twenty-two years before the events of this case—and she was combative and belligerent, used
abusive language and inappropriate words, had a short attention span, and was
“responding and doing things that made no sense” while at the hospital after
her injury.  Trooper Petrillo agreed that
appellant exhibited similar behavior when he stopped her.
          Appellant
called Connie Byrum, the manager of the San Leon Beach Pub, where appellant
worked as a bartender, to testify on her behalf.  Byrum testified that on May 22, 2009, appellant’s
shift ended at 7:00 p.m.  After appellant
finished working, she stayed at the bar and Byrum served her a beer.  After the pub started getting busy, Byrum
asked appellant if she could help stock and serve drinks.  She stated that she served appellant a second
beer around 1:30 a.m., when the crowd at the pub began to ease, and that no one
else could have served appellant any drinks because Byrum was the only one
tending bar that night.  Byrum testified
that appellant appeared tired, but she did not think that appellant was
intoxicated when she left the pub to go home.
Byrum testified that she was aware
that appellant had suffered a brain injury in the past and that appellant would
mumble and talk to herself as a result.  She
also stated that appellant would “get angry and use vulgar language” when she
was frustrated.
On cross-examination, Byrum agreed
that she was busy with other customers and therefore was not aware of
appellant’s actions “every minute of the night.”  To Byrum’s knowledge, appellant had only two
beers that evening.  Byrum testified that
when appellant is intoxicated, she giggles to herself, slurs her words, repeats
herself, and has glassy eyes.[3]
Appellant testified on her own
behalf.  She stated that since her head
injury in 1987, which occurred when she either jumped or fell from a moving
truck, she does not handle stress well and often rambles and rants without
being able to control what she is saying. 
She further testified that she had two additional prior head
injuries:  (1) she was hit in the head
with an unknown object around eight to ten years before trial and (2) she was
hit on the head with a pool stick on September 1, 2008.  The trial court admitted medical records
relating to the 1987 injury, but not to the two subsequent injuries.
Appellant arrived at work on May
22, 2009, at 11:45 a.m. and worked a seven-hour shift.  She testified that she had her first beer
around 7:30 that evening, after she had finished her shift, and a second beer,
both of which were served by Byrum, after 1:00 a.m.  She further testified that a customer bought
her a third beer around 1:30 a.m., which she sipped, and another customer
bought her a fourth beer at closing time, but she did not drink that beer.  Appellant stated that she told Trooper
Petrillo about the fourth drink, even though she did not drink it, “to be
totally honest” and that he did not give her a chance to explain that she did
not actually drink it.
Appellant testified that when
Trooper Petrillo approached her door, she was looking for her current insurance
policy and that is why she did not immediately respond to his question asking
where she was coming from.  She also
testified that she did not wait for Trooper Petrillo to finish the instructions
for the Walk and Turn test because she did not believe that he was going to
“articulate [the instructions] to that extent,” and she wanted to get the test
over with because she was not intoxicated. 
Appellant stated that she was frustrated and “feeling a lot of stress,”
which is why she told Trooper Petrillo to “just shoot [her]” when he prepared
to handcuff her.  She further testified
that she did not feel safe sitting in the front seat of the patrol car, and she
was not able to control her emotions and her behavior at that time.  She stated that she was talking and giggling
to herself because she was under stress, not because she was intoxicated.
On cross-examination, appellant
described her previous head injuries and stated that she had only discovered
the extent of her injuries approximately one month before the trial.  Appellant agreed that her trial was more
stressful than the traffic stop and that she had been able to control her emotional
responses and behavior while in the courtroom. 
She also agreed with the State that the medical records following her
1987 injury did not state that her “combative behavior and abusive language was
a result of [her] accident.”[4]
Appellant further agreed that,
based on her experience as a bartender, she can detect when someone is
intoxicated.  She agreed that slurring
words, attempting to get into arguments, stumbling and swaying, red, bloodshot,
or glassy eyes, the odor of alcohol, admitting to having a few drinks, slowly
responding to questions, continuous giggling, and inability to follow directions
are all signs of intoxication.  She also
agreed that some people might not be aware that they are intoxicated and that
“their perception of their own condition may be [a] little altered.”
Appellant stipulated that she had
two prior convictions for operating a motor vehicle while intoxicated.  The jury found appellant guilty of the offense
of driving while intoxicated—third
offense, and assessed punishment at four years’ confinement and a $2,000
fine.  Appellant moved for a new trial;
however, she argued only that the verdict was contrary to the law and the
evidence.  She did not argue that her
trial counsel rendered ineffective assistance.
Sufficiency of the Evidence
          In
her first issue, appellant contends that the State failed to present legally
and factually sufficient evidence that she was intoxicated.[5]
A.              
Standard of Review
When reviewing the sufficiency of
the evidence, we view the evidence in the light most favorable to the verdict
to determine whether any rational fact finder could have found the essential
elements of the offense beyond a reasonable doubt.  Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010).  The jurors are
the exclusive judges of the facts, the credibility of the witnesses, and the
weight to be given to the testimony.  Brooks, 323 S.W.3d at 899; Bartlett v. State, 270 S.W.3d 147, 150
(Tex. Crim. App. 2008).  A jury may
accept one version of the facts and reject another, and it may reject any part
of a witness’s testimony.  See Margraves v. State, 34 S.W.3d 912,
919 (Tex. Crim. App. 2000), overruled on
other grounds, Laster v. State,
275 S.W.3d 512 (Tex. Crim. App. 2009); see
also Henderson v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.]
2000, pet. ref’d) (holding jury can choose to disbelieve witness even when
witness’s testimony is uncontradicted). 
We may not re-evaluate the weight and credibility of the evidence or
substitute our judgment for that of the fact finder.  Williams
v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).  We afford almost complete deference to the
jury’s determinations of credibility.  See Lancon v. State, 253 S.W.3d 699, 705
(Tex. Crim. App. 2008).  We resolve any
inconsistencies in the evidence in favor of the verdict.  Curry
v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007) (“When the record supports conflicting inferences, we presume that the
factfinder resolved the conflicts in favor of the prosecution and therefore
defer to that determination.”).
 
B.              
Driving While Intoxicated—Third Offense
To establish that appellant
committed the offense of driving while intoxicated—third offense, the State was required to prove
that appellant was “intoxicated while operating a motor vehicle in a public
place” and that appellant had been previously convicted “two times of any other
offense relating to the operating of a motor vehicle while
intoxicated . . . .” 
Tex. Penal Code Ann.
§§ 49.04(a), 49.09(b)(2) (Vernon 2011). 
A person is intoxicated if she does not have “the normal use of mental
or physical faculties by reason of the introduction of
alcohol . . . into the body.”  Id.
§ 49.01(2)(A) (Vernon 2011).
The Court of Criminal
Appeals has identified several characteristics that constitute evidence of
intoxication, including slurred speech, bloodshot or glassy eyes, unsteady
balance, a “staggering gait,” and the odor of alcohol on the person or on her
breath.  See Cotton v. State, 686 S.W.2d 140, 142–43 & 142 n.3 (Tex.
Crim. App. 1985); see also Kirsch v.
State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010) (“Other evidence that
would logically raise an inference that the defendant was
intoxicated . . . includes, inter alia, erratic driving, post-driving behavior such as
stumbling, swaying, slurring or mumbling words, inability to perform field
sobriety tests or follow directions, bloodshot eyes, [and] any admissions by
the defendant concerning what, when, and how much he had been
drinking . . . .”). 
The testimony of a police officer regarding the defendant’s behavior and
the officer’s opinion that the defendant is intoxicated provides sufficient
support to uphold a jury verdict.  See Annis v. State, 578 S.W.2d 406, 407
(Tex. Crim. App. 1979) (holding arresting officer’s testimony regarding his
observations of defendant’s driving, physical appearance, post-driving
behavior, and his conclusion of intoxication sufficient); Whisenant v. State, 557 S.W.2d 102, 105 (Tex. Crim. App. 1977)
(holding same when officer testified that defendant drove erratically, had
strong smell of alcohol on breath, appeared sleepy, slurred words, and admitted
to drinking and officer concluded defendant was intoxicated); Henderson, 29 S.W.3d at 622 (“The
testimony of a police officer that an individual is intoxicated is probative
evidence of intoxication.”).
A defendant’s poor
performance on the standardized field sobriety tests is further evidence of
intoxication.  See Finley v. State, 809 S.W.2d 909, 913 (Tex. App.—Houston [14th
Dist.] 1991, pet. ref’d) (“Texas courts consistently uphold DWI convictions
based upon the opinion testimony of police officers who observed the
defendant’s unsatisfactory performance in field sobriety tests.”); see also Kirsch, 306 S.W.3d at 745
(listing “inability to perform field sobriety tests or follow directions” as
evidence that raises inference of intoxication).  The jury may also consider the defendant’s
refusal to submit a blood or breath specimen as evidence of intoxication.  See
Tex. Transp. Code Ann.
§ 724.061 (Vernon 2011); Bartlett,
270 S.W.3d at 153 (“Evidence of the appellant’s refusal to submit to a breath
test is relevant for precisely the reason that the trial court identified in
the contested jury instruction, namely, that it tends to show a consciousness
of guilt on his part.”); Russell v. State,
290 S.W.3d 387, 397 (Tex. App.—Beaumont 2009, no pet.) (“In addition, the jury
in this case could have inferred from Russell’s refusal to take a breath test
that Russell believed he was intoxicated.”). 
Additionally, “[s]peeding can indicate impaired mental judgment and,
therefore, is a factor to be considered . . . .”  Tex.
Dep’t of Pub. Safety v. Gilfeather, 293 S.W.3d 875, 880 (Tex. App.—Fort
Worth 2009, no pet.) (considering speeding as factor in determining whether
officer had probable cause to arrest for driving while intoxicated); Arthur v. State, 216 S.W.3d 50, 55 (Tex.
App.—Fort Worth 2007, no pet.) (holding that speeding is factor to be
considered in determining whether officer had reasonable suspicion to detain
for field sobriety tests).
Here, Trooper Petrillo
testified that his radar confirmed that appellant was driving 77 miles-per-hour
in a 50 miles-per-hour speed zone.  Trooper
Petrillo noticed a “strong odor” of alcohol when he walked up to the driver’s
side door, and he testified that throughout the traffic stop appellant’s eyes
were glassy, her speech was slurred, her breath smelled of alcohol, she mumbled
and giggled to herself, she was slow to respond to questions, and she became
belligerent.  Appellant admitted to him that
she had had four beers on the evening of the traffic stop.  Trooper Petrillo further testified that
appellant “swayed” after getting out of her truck and during the HGN test.  Trooper Petrillo also stated that appellant
exhibited six out of six clues on the HGN test and that he had to tell her
several times to keep her head still during the test.  Although Trooper Petrillo did not have
appellant complete the Walk and Turn test due to her knee injuries, he
testified that she exhibited two clues—failure to walk heel to toe in a straight line and failure to follow
instructions—before he ended the test.  Trooper Petrillo testified that, in his
opinion, appellant was intoxicated and that he based this opinion on “the odor
of alcohol, the glassy eyes, the slurred speech, the unsteady balance, and the
six clues of HGN.”  Appellant also
refused to submit to either a blood or breath sample.
Appellant contends that her
conduct and behavior was a result of her 1987 head injury and not
intoxication.  Appellant’s medical
records indicate that while she was in the hospital after this injury she was
“combative and abusive” and that she had problems with her attention span.  Appellant and Connie Byrum, appellant’s
manager at the San Leon Beach Pub, both testified that appellant commonly
mumbles and giggles and talks to herself as a result of her prior head injury.  Appellant further testified that she “rants
and raves” when she is under stress. 
Appellant and Byrum also both testified that appellant was merely tired
and was not intoxicated when she left the pub.
It is the province of the
jury to decide conflicts in the evidence, and, in a sufficiency of the evidence
review, we will not re-evaluate the weight and credibility of the evidence or
substitute our judgment for that of the jury. 
See Williams, 235 S.W.3d at
750; see also Lancon, 253 S.W.3d at
705 (providing that we afford almost complete deference to jury determinations
of credibility).  We resolve all
inconsistencies in the evidence in favor of the verdict.  Curry,
30 S.W.3d at 406; see also Clayton,
235 S.W.3d at 778.  Furthermore, even
when there is no conflict in the evidence, “the jury may give no weight to some
evidence, and thereby reject part or all of a witness’ testimony.”  Kimball
v. State, 24 S.W.3d 555, 561 (Tex. App.—Waco 2000, no pet.); see also Henderson, 29 S.W.3d at 623
(holding that jury may disbelieve witness even when testimony is uncontradicted).
Although appellant’s
behavior during the traffic stop may have been consistent with a head injury,
her behavior also constitutes recognized evidence of intoxication.  See,
e.g., Kirsch, 306 S.W.3d at
745.  The jury was fully entitled to
believe Trooper Petrillo’s testimony that appellant was intoxicated and
disbelieve appellant’s alternative explanation that her prior head injuries
caused her behavior.  See Russell, 290 S.W.3d at 396–98
(holding evidence sufficient to support intoxication finding despite
appellant’s contention that his behavior and symptoms were caused by
hypoglycemia and diabetes).  The jury was
also entitled to disbelieve Byrum’s testimony that appellant was tired and not
intoxicated and appellant’s testimony that, although she told Trooper Petrillo
that she had had four drinks, she only drank two of those drinks.
As further indications that
the State did not present sufficient evidence, appellant points to (1) Trooper
Petrillo’s acknowledgment that his initial offense report did not include any information
about appellant’s swaying, stumbling, or having balance problems; (2) appellant’s
own testimony that she did not have trouble getting out of her truck and that
her truck door only opened a certain way and thus she had to “side step” when
getting out of her truck; and (3) the video of the traffic stop, which she
contends shows her walking steadily with no balance problems when she attempted
the Walk and Turn test.[6]
The trial court admitted a
redacted version of the video of the traffic stop.  This video began when Trooper Petrillo turned
on his emergency lights.  It contained
appellant’s field sobriety tests, her behavior in Petrillo’s patrol car, and
her refusal to submit a blood or breath sample. 
Thus, the jury was able to view the video recording and determine for itself
what physical characteristics—such as
swaying or stumbling—appellant
displayed during the traffic stop and whether appellant’s behavior appeared to
be the result of her prior head injuries or intoxication.  See id.
at 397 (“[B]ecause the jury saw the videotape of the stop, it could draw its
own conclusions from observing Russell’s behavior in deciding whether he
appeared intoxicated.”).
Viewing all of the evidence
in the light most favorable to the jury’s verdict, we hold that the evidence
was sufficient for a rational fact finder to have found beyond a reasonable
doubt that appellant was intoxicated at the time she was stopped by Trooper Petrillo.
We overrule
appellant’s first issue.
Admission of VGN Testimony
          In
her second issue, appellant contends that the trial court erred in admitting
testimony from Trooper Petrillo regarding the VGN test.  Although appellant acknowledges that her trial
counsel did not object to this testimony, she contends that the admission of
this testimony constitutes “plain error.”[7]
          Generally,
to preserve error for appellate review, the appellant must make a timely
request, objection, or motion that states the grounds for the ruling sought
with sufficient specificity to make the trial court aware of the complaint.  Tex.
R. App. P. 33.1(a)(1)(A); Layton
v. State, 280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009).  The Court of Criminal Appeals has recognized,
however, that an appellant may raise for the first time on appeal claims that
certain “fundamental” rights were violated. 
Saldano v. State, 70 S.W.3d
873, 887 (Tex. Crim. App. 2002); see also
Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) (“All but the
most fundamental rights are thought to be forfeited if not insisted upon by the
party to whom they belong.  Many
constitutional rights fall into this category.”), overruled on other grounds, Cain
v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997).  In Saldano,
the court noted that the general error preservation requirement does not apply
to “two relatively small categories of errors: 
violations of ‘rights which are waivable only’ and denials of ‘absolute
systemic requirements.’  Such errors may
be raised for the first time on appeal.” 
70 S.W.3d at 888 (quoting Marin,
851 S.W.2d at 280); see also Marin,
851 S.W.2d at 279 (listing right to assistance of counsel and right to jury
trial as examples of “rights which are waivable only” and laws affecting
jurisdiction of trial court as examples of “absolute systemic requirements”).
          In Saldano, the Court of Criminal Appeals
addressed whether the appellant was required to object at trial to evidence
that potentially violated the Due Process and Equal Protection Clauses of the
Fourteenth Amendment as a prerequisite to appellate review of the issue.  70 S.W.3d at 889.  The court observed that it had “consistently
held that the failure to object in a timely and specific manner during trial
forfeits complaints about the admissibility of evidence.  This is true even though the error may
concern a constitutional right of the defendant.”  Id.
 Thus, the court held that “[b]ecause the
appellant did not object to the admission of the testimony of which he now
complains, the question he seeks to present has not been preserved for review
on appeal.”  Id. at 890; see also Marin,
851 S.W.2d at 280 (“[A]n important consequence of a party’s failure to petition
enforcement of his forfeitable rights in the trial court is that no error
attends failure to enforce them and none is presented for review on appeal.”).
          Appellant
cites the Tyler Court of Appeals’ decision in Stovall v. State, 140 S.W.3d 712 (Tex. App.—Tyler 2004, no pet.),
and the Fourteenth Court of Appeals’ decision in Quinney v. State, 99 S.W.3d 853 (Tex. App.—Houston [14th Dist.]
2003, no pet.), for the proposition that the trial court erroneously admitted
Trooper Petrillo’s testimony regarding VGN and that this action constitutes
fundamental error.  In Stovall, the Tyler court held that the
State bears “the burden of producing evidence of the underlying scientific
theory behind the expert testimony” regarding VGN and that the trial court
erred in refusing to conduct a Daubert/Kelly “gatekeeper” hearing on the
reliability of VGN tests.  See 140 S.W.3d at 717, 718.  Similarly, in Quinney, the Fourteenth court held that the State, as the proponent
of VGN evidence, bears the burden of “present[ing] evidence
of . . . the scientific theory underlying [that]
test.”  See 99 S.W.3d at 859–60 (holding erroneous admission of VGN
evidence without demonstration of its reliability harmless in light of strong
evidence of intoxication).  Although both
of these cases support the proposition that admission of VGN evidence without first
proving the reliability of the test is error, they do not support the
proposition that such admission is fundamental
error and thus may be raised for the first time on appeal.[8]
          If a
defendant fails to object at trial to the admission of evidence, she fails to
preserve her complaint about that evidence for appellate review, even if the
erroneous admission implicates a constitutional right.  See
Saldano, 70 S.W.3d at 889.  Appellant
cites no authority for the proposition that testimony regarding the VGN test
should be an exception to this general rule and should be considered
“fundamental” error, which may be raised for the first time on appeal.  See
Marin, 851 S.W.2d at 279 (“[C]ertain, relatively
few, rights must be protected by the system’s impartial representatives
unless expressly waived by the party to whom they belong.”) (emphasis added).  We therefore conclude that a defendant must
object in the trial court to the admission of VGN evidence to preserve her
complaint for appellate review.  Because
appellant’s trial counsel admittedly did not object to Trooper Petrillo’s
testimony regarding the VGN test, we hold that appellant has not preserved her
complaint that the trial court erroneously admitted VGN evidence without
requiring a showing of the test’s reliability.
          We
overrule appellant’s second issue.
Ineffective Assistance of Counsel
          In
her third issue, appellant contends that her trial counsel rendered ineffective
assistance by failing either to object to the introduction of VGN testimony or
to request that the trial court conduct a “gatekeeper” hearing before the
introduction of such testimony.
          To
prevail on an ineffective assistance of counsel claim, the appellant must
demonstrate, by a preponderance of the evidence, (1) that her trial counsel’s
performance was deficient and (2) that a reasonable probability exists that,
but for the deficiency, the result of the proceeding would have been
different.  Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052,
2064, 2068 (1984).  The appellant must
first show that her counsel’s performance fell below an objective standard of
reasonableness, which does not require showing that counsel’s representation
was without error.  Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App.
2006).  The second prong of Strickland requires the appellant to
demonstrate prejudice—a
reasonable probability that, but for her counsel’s unprofessional errors, the
result of the proceeding would have been different.  Strickland,
466 U.S. at 694, 104 S. Ct. at 2068; Thompson
v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).  A reasonable probability is a probability
sufficient to undermine confidence in the outcome.  Strickland,
466 U.S. at 694, 104 S. Ct. at 2068.  We
indulge a strong presumption that counsel’s conduct fell within the wide range
of reasonable professional assistance, and therefore the appellant must
overcome the presumption that the challenged action constituted “sound trial
strategy.”  Id. at 689, 104 S. Ct. at 2065; Williams
v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).  “Failure of appellant to make either of the
required showings of deficient performance and sufficient prejudice defeats the
claim of ineffective assistance.”  Rylander v. State, 101 S.W.3d 107, 110
(Tex. Crim. App. 2003); see also Williams,
301 S.W.3d at 687 (“An appellant’s failure to satisfy one prong of the Strickland test negates a court’s need
to consider the other prong.”).
          Both
the Tyler Court of Appeals and the Fourteenth Court of Appeals have held that
the State must present evidence of the reliability of, and the scientific
theory underlying, the VGN test and that the trial court errs in admitting such
evidence in the absence of this showing. 
See Stovall, 140 S.W.3d at
717; Quinney, 99 S.W.3d at 859.  In both Stovall
and Quinney, the State presented
evidence that the officer performing the sobriety tests observed vertical
nystagmus.  See Stovall, 140 S.W.3d at 716; Quinney,
99 S.W.3d at 856.  Here, in contrast,
Trooper Petrillo explicitly testified, on both direct and cross examination,
that appellant did not demonstrate vertical nystagmus.
          Moreover,
although appellant contends that trial counsel should have objected to Trooper
Petrillo’s “‘expert’ conclusion that the absence of VGN does not necessarily
equate to the absence of intoxication,” the State presented sufficient evidence
apart from Trooper Petrillo’s VGN testimony to support the jury’s conclusion
that appellant was intoxicated.  See Quinney, 99 S.W.3d at 859–60
(holding that trial court erroneously admitted VGN testimony when State did not
present evidence of test’s reliability, but concluding that error was harmless
in light of strong evidence of intoxication). 
We conclude that appellant has not established, by a preponderance of
the evidence, that a reasonable probability exists that but for trial counsel’s
allegedly deficient performance the result of the trial would have been
different.
          We
therefore hold that appellant has not demonstrated that her trial counsel
rendered ineffective assistance.
          We
overrule appellant’s third issue.


 
Conclusion
          We
affirm the judgment of the trial court.
 
 
                                                                   Evelyn
V. Keyes
                                                                   Justice

 
Panel
consists of Justices Keyes, Higley, and Massengale.
Publish.  Tex.
R. App. P. 47.2(b).




[1]
          See Tex. Penal Code Ann.
§§ 49.04(a), 49.09(b)(2) (Vernon 2011).


[2]
          The trial court admitted a
redacted DVD recording of the entire traffic stop, which included appellant’s
refusal to submit a blood or breath sample.


[3]
          On redirect examination, Byrum
testified that appellant generally giggles and laughs to herself, even when she
has not been drinking.


[4]
          For example, the “History and
Physical Examination” section of appellant’s medical records states:  “[Patient] is restrained and combative.  She is using abusive language and
inappropriate words.”  The only medical
records admitted were from appellant’s six-day hospital stay following the 1987
injury.  There are no medical records
documenting whether appellant’s combative behavior and abusive language persisted
after her discharge from the hospital.


[5]
          In Brooks v. State, the Court of Criminal Appeals overruled Clewis v. State and its progeny and held
that evidence is to be reviewed solely under the sufficiency standard described
in Jackson v. Virginia.  323 S.W.3d 893, 912 (Tex. Crim. App. 2010)
(“[W]e decide that the Jackson v.
Virginia standard is the only standard that a reviewing court should apply
in determining whether the evidence is sufficient to support each
element . . . beyond a reasonable doubt.”); Ervin v. State, 331 S.W.3d 49, 52–54
(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority holding
in Brooks).


[6]
          As further evidence that she was
not intoxicated, appellant also points to her “good” driving facts:  she immediately pulled over after seeing
Trooper Petrillo’s emergency lights, she appropriately used her turn signal,
and she stopped in a safe and well-lit parking lot.  In a sufficiency of the evidence review,
however, we consider all of the evidence, and the totality of the evidence may
be sufficient to support a finding of intoxication even though the arresting
officer admits that the defendant’s driving “was not necessarily indicative of
intoxication.”  Hennessy v. State, 268 S.W.3d 153, 158 (Tex. App.—Waco 2008, pet.
ref’d).


[7]
          “The traditional term in Texas’
criminal law that corresponds to ‘plain error’ is ‘fundamental error.’”  Jimenez
v. State, 32 S.W.3d 233, 238 (Tex. Crim. App. 2000).  In addressing this issue, we refer to
“fundamental error” and not “plain error.”


[8]
          In an unpublished memorandum opinion, the
Austin Court of Appeals held that the appellant failed to preserve his
complaint that the trial court erroneously admitted VGN testimony because the
appellant “first adduced testimony regarding [his] lack of VGN and what that
indicated” during cross-examination of the arresting officer and did not object
to the State’s later questions regarding VGN “and its significance.”  Guardiola
v. State, No. 03-08-00399-CR, 2010 WL 1170204, at *5 (Tex. App.—Austin Mar.
23, 2010, no pet.) (mem. op., not designated for publication); see also Richards v. State, No.
09-04-488-CR, 2006 WL 61939, at *1 (Tex. App.—Beaumont Jan. 11, 2006, no pet.)
(mem. op., not designated for publication) (distinguishing Stovall because “[i]n this case, Richards admits he failed to
object at trial to the testimony complained of on appeal.  Error may not be predicated on a ruling that
admits evidence unless a timely objection appears on the record”).


