                             NUMBER 13-11-00188-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


ADRIAN VASQUEZ,                                                                         Appellant,

                                                  v.

THE STATE OF TEXAS,                                                                     Appellee.


            On appeal from the County Criminal Court at Law No. 1
                          of Harris County, Texas.


                             MEMORANDUM OPINION1
              Before Justices Rodriguez, Benavides, and Perkes
                  Memorandum Opinion by Justice Perkes
        Appellant, Adrian Vasquez, appeals his conviction for driving while intoxicated

(“DWI”), second offense, a Class A misdemeanor. See TEX. PENAL CODE ANN. §§ 49.04,

49.09 (a) (West Supp. 2010). After a jury found appellant guilty, appellant pleaded true

to an enhancement allegation that he had a prior DWI conviction.                      The trial court

        1
          This case is before this Court on transfer from the Fourteenth Court of Appeals pursuant to an
order issued by the Supreme Court of Texas. See TEX GOV'T CODE ANN. § 73.001 (West 2005).
sentenced appellant to a term of one year of confinement in the Harris County Jail, and

ordered him to pay a $500 fine and $497 in court costs. The trial court suspended the

imposition of appellant’s confinement and placed appellant on community supervision

for a period of two years. However, as a condition of community supervision, the trial

court ordered appellant to spend a weekend and certain off-work hours, totaling five

days, in the Harris County Jail.    The trial court also suspended appellant’s driver’s

license for two years.

       By two issues, appellant argues: (1) the evidence is “factually insufficient” to

support the jury’s guilty verdict; and (2) the trial court erred when it admitted a police

officer’s expert testimony that appellant failed the horizontal gaze nystagmus (HGN)

sobriety test because the officer allegedly admitted on cross-examination that his

certification to perform the HGN test had lapsed before he field tested appellant. We

affirm, but modify the judgment to: (1) delete a reference to a .08 blood-alcohol content

that is unsupported by the record; and (2) list the sections of the Penal Code under

which appellant was convicted.

                              I. FACTUAL BACKGROUND

       In the early morning hours of August 22, 2010, City of Deer Park police officer,

Jason Huff, was performing patrol and traffic duties when he observed a blue jeep that

appeared to be speeding. He confirmed his suspicion when his in-car radar showed

that the jeep was traveling at a speed of sixty-eight miles-per-hour in a posted fifty mile-

per-hour zone. Officer Huff used his emergency lights, and the driver of the vehicle

pulled over to the shoulder of the road.

       Officer Huff made contact with the driver and identified him as appellant, Adrian

Vasquez. Officer Huff inquired why appellant was driving so fast, but appellant did not

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have an explanation. Upon contact with appellant, Officer Huff immediately noticed the

odor of an alcoholic beverage on appellant’s breath, and saw that appellant’s eyes were

red and glassy. Appellant told him that he had just come from a friend’s house and that

he had not been drinking. Officer Huff had appellant exit his vehicle to perform standard

field-sobriety tests to see if he was capable of operating a motor vehicle.

        Officer Huff demonstrated the HGN test and gave appellant instructions on how

to perform the test. A failing score on the HGN test is four or more clues. Appellant

demonstrated six clues, which is the maximum number of clues possible. Appellant

also performed poorly on both of the divided-attention tests: the walk-and-turn and the

one-leg stand. After appellant failed all three tests, Officer Huff inquired again about

whether appellant had ingested alcohol or medication. Appellant advised him that he

was taking Ambien, a sedative.             The totality of his investigation led Officer Huff to

believe that appellant had lost the normal use of his mental and physical faculties and

that he was intoxicated. After appellant was arrested for DWI, he refused to provide a

sample of his breath.2

                                           II. DISCUSSION

A. Sufficiency of the Evidence

        By his first issue, appellant claims that the evidence is “factually insufficient” to

show he drove while intoxicated. Appellant emphasizes that because Officer Huff’s

“Doppler radar” had to “shoot” through another patrol car to determine appellant’s speed


        2
           In his opening statement, defense counsel told the jury that appellant would testify that he had
not taken Ambien on the night that Officer Huff stopped him. According to his opening statement,
appellant would explain to the jury that he was traveling home after work, that he was never prescribed
Ambien, and that he did not know why he messed up and told Officer Huff that he had taken Ambien.
Appellant would then explain that he struggled with obesity and other health issues and that he had taken
a drug called Advair on the night that he was stopped. After the State presented its case, however,
appellant decided not to testify at trial. Therefore, Officer Huff was the only witness to testify at trial.

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of travel when Officer Huff first saw appellant, the evidence is factually insufficient to

support the jury’s verdict. We disagree.

      We review both a legal sufficiency challenge and a factual sufficiency challenge

under the same Jackson v. Virginia sufficiency standard. See Jackson v. Virginia, 433

U.S. 307, 318–19 (1979); Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010)

(plurality op.); Ervin v. State, 331 S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2010,

pet ref’d). In Brooks, the Court of Criminal Appeals eliminated factual sufficiency review

of the elements the State is required to prove beyond a reasonable doubt and stated “[i]t

bears emphasizing that a rigorous and proper application of the Jackson v. Virginia

legal sufficiency standard is as exacting a standard as any factual sufficiency standard

(especially one that is ‘barely distinguishable’ or indistinguishable from a Jackson v.

Virginia legal-sufficiency standard).”   Brooks, 323 S.W.3d at 905–06.      Thus, we no

longer refer separately to legal and factual sufficiency review. See id.

      Under the Jackson standard, when conducting a sufficiency review, a reviewing

court must ask whether any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt—not whether it believes the evidence at trial

established guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 894; Laster v.

State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). In doing so, we assess all of the

evidence in the light most favorable to the prosecution. Laster, 275 S.W.3d at 517

(quoting Jackson, 443 U.S. at 319). We must presume that the fact finder resolved any

conflicting inferences in favor of the prosecution and defer to that resolution. Jackson,

443 U.S. at 326. The jury will resolve questions as to the credibility of witnesses and

the weight to be given to their testimony. State v. Mercier, 164 S.W.3d 799, 813–14

(Tex. App.—Corpus Christi 2005, pet ref’d); Moody v. State, 830 S.W.2d 698, 699–700

                                            4
(Tex. App.—Houston 1992, pet ref’d). This Court will not overturn a verdict due to

insufficiency unless the supporting evidence is irrational or unable to support proof

beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App.

1991) (en banc).

       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof, or

unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried. Id. A person commits the offense

of driving while intoxicated if the person is intoxicated while operating a motor vehicle in

a public place. TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2010). A person is

intoxicated if that person does not have the normal use of his mental or physical

faculties by reason of the introduction of alcohol, a controlled substance, a drug, a

dangerous drug, a combination of those substances or any other substance into the

body. See id. § 49.01(2)(A).

       In DWI cases, the State may rely solely on circumstantial evidence to establish a

conviction, and in order for that evidence to be sufficient, there must be a temporal link

between the act of driving and defendant’s intoxication. Kuciemba v. State, 310 S.W.3d

460, 462 (Tex. Crim. App. 2010). For a question of sufficiency, the issue is whether the

evidence would allow the trier of fact to find, beyond a reasonable doubt, that a

temporal link exists. Scillitani v. State, 343 S.W.3d 914, 917 (Tex. App.—Houston [14th

Dist.] 2011, pet. ref'd). Circumstantial evidence is as probative as direct evidence when

                                             5
establishing guilt, and the appellate review of circumstantial evidence is the same as

used for direct evidence; therefore, a reviewing court draws no distinction between the

two. See Kuciemba, 310 S.W.3d at 462; Guevara v. State, 152 S.W.3d 45, 49 (Tex.

Crim. App. 2004).

       After reviewing the evidence, we conclude a rational jury could have found

beyond a reasonable doubt that appellant drove while intoxicated. See Jackson, 443

U.S. at 326. Officer Huff described his interaction with appellant and why he concluded

appellant did not have the normal use of his physical and mental faculties while he was

driving. Officer Huff testified that he and another officer had pulled over to the side of

the road, with their emergency lights activated for another traffic stop, when appellant

chose to “fly by” them “at 68 miles per hour.” Officer Huff elaborated that appellant’s

action indicated “a lack of response time” and a disregard for officer safety.         He

explained that officers can be killed when the “move-over law” is disregarded in this

manner. While Officer Huff conceded on cross-examination that there was a patrol car

between his radar gun and appellant when he determined appellant’s speed, he

expressed confidence in the accuracy of the reading. Officer Huff explained that the

Doppler radar is not like a vehicle-specific laser radar that reads in a straight path, but

rather a cone of waves that is emitted from the Doppler to determine speed.

       Officer Huff testified that once he stopped appellant, he noticed that appellant

had the odor of alcohol on his breath and that his eyes were red and glassy. Although

appellant denied consuming any alcohol, he admitted he took Ambien two hours before

Officer Huff pulled him over. Officer Huff explained that in his training and experience,

he had observed individuals who mixed Ambien with alcohol and that it heightened the

effects of intoxication.

                                            6
       Appellant’s refusal to submit to a breathalyzer test was admissible for the jury’s

consideration. See TEX. TRANSP. CODE ANN. § 724.061 (West 2011); see also Mody v.

State, 2 S.W.3d 652, 655 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).        The jury

further heard evidence that appellant failed the three field-sobriety tests. Officer Huff

performed the HGN test first. This test measures the involuntary jerking of the eyes

associated with intoxication. Officer Huff noted that appellant exhibited six clues, which

is the maximum number of clues a person can score on this test, with four clues and

above indicating a failing score or intoxication. Officer Huff also performed two divided-

attention tests: the walk-and-turn test and the one-leg stand. Appellant failed both of

these tests, leading Officer Huff to believe that appellant was intoxicated by not having

the normal use of his mental and physical faculties.

       Appellant’s performance of these tests was captured by a video recorder inside

Officer Huff’s police vehicle. The recording was played for the jury during the trial to aid

in their understanding of the tests, and appellant’s performance. On cross-examination,

appellant’s counsel attacked Officer Huff’s methods in administering the tests, and he

sought to elicit testimony that Officer Huff’s HGN certification was expired at the time he

administered the test because his last certification allegedly occurred three years earlier

during training at the police academy.

       After listening to Officer Huff’s testimony surrounding appellant’s stop, and after

viewing the video recording of appellant’s performance of the field-sobriety tests, the

jury chose to give less weight to appellant’s cross-examination, in which he attempted to

discredit Officer Huff’s testimony, and to give greater weight to the State’s evidence.

The weighing of the evidence is within the jury’s province.        See e.g., Mercier, 164



                                             7
S.W.3d 799, 813–14. The evidence is sufficient to support the verdict. Appellant’s first

issue is overruled.

B.   Admission of the HGN Testimony

       By his second issue, appellant maintains that the trial court erred in admitting the

HGN testimony from Officer Huff because Officer Huff allegedly revealed on cross-

examination that his certification to administer the HGN test was expired at the time he

administered the HGN test to appellant. Appellant argues that as a result, the State did

not meet its burden to demonstrate Officer Huff was qualified to give expert testimony

concerning appellant’s performance on the HGN test.

       Nystagmus is the involuntary rapid oscillation of the eyeballs. See Emerson v.

State, 880 S.W.2d 759, 765 (Tex. Crim. App. 1994) (en banc). It is well documented

that alcohol ingestion causes abnormal HGN and as a result it has been concluded “that

the HGN test is the single most effective field-sobriety test in determining whether an

individual is alcohol-impaired.”   See id. at 766 (citing Nat’l Highway Traffic Safety

Admin., U.S. Dep't Transp., Improved Sobriety Testing 1 (1984)).            For testimony

concerning a defendant’s performance on the HGN test to be admissible, it must be

shown that the witness testifying is qualified as an expert in the administration of the

HGN test and its technique. Id. at 779. “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.” Id.

       However, a party’s complaint concerning a witness’s qualifications to testify must

be presented to the trial court by a timely, specific objection, or it is not preserved for

appellate review. See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a); see also Wilson v.

State, 7 S.W.3d 136, 145 (Tex. Crim. App. 1999) (holding that request for hearing

                                            8
concerning admissibility of expert testimony under Texas Rule of Evidence 705 and

request to voir dire expert witness did not preserve complaint concerning expert’s

qualifications because no objection to expert qualifications was made during or after

hearing on the admissibility of expert testimony); Curcuru v. State, No. 13-08-00734-

CR, 2010 WL 5020178, at *9 (Tex. App.—Corpus Christi Dec. 9, 2010, no pet.) (mem.

op., not designated for publication) (holding timely, specific objection is required to a

preserve a complaint concerning an expert witness’s qualifications to testify).

       In Neal v. State, the Texas Court of Criminal Appeals held that the defendant

failed to preserve for appellate review his complaint that the state’s expert witness was

not qualified to render an opinion on whether the defendant was mentally retarded. 256

S.W.3d 264, 279 (Tex. Crim. App. 2008). The defendant filed a motion requesting voir

dire of expert witnesses and the trial court held a hearing on the issue of the expert’s

qualifications. Id. The defendant, however, did not object to the admission of the

expert’s testimony based on inadequate qualifications.         Id. The Court held that by

failing to object once the trial court qualified the expert to testify, the defendant forfeited

his right to challenge the admission of the expert’s testimony on appeal. Id.

       In this case, the record shows that appellant failed to preserve his complaint

concerning Officer Huff’s qualifications for appellate review. After the State made its

opening statement, and just after the trial court informed the State that it was permitted

to call its first witness, appellant’s counsel approached the bench and objected because

the State had called Officer Huff an expert in its opening statement. Appellant’s counsel

informed the trial court that as a result, he was “requesting a Daubert/Kelly hearing.”

The State responded by saying that it could lay the predicate concerning Officer Huff’s

qualifications prior to asking him about any standardized field-sobriety tests. The State

                                              9
further pointed out that appellant failed to raise this issue by a motion in limine,

notwithstanding the fact that the State had given defense counsel notice of its intention

to call Officer Huff as an expert witness. After determining that appellant had not earlier

filed a request for a hearing, the trial court stated that it would note defense counsel’s

request for a hearing, but that it would give the State the opportunity to establish Officer

Huff’s qualifications to testify as an expert during the trial prior to eliciting an expert

opinion from Officer Huff.

       Officer Huff testified that he completed his training at a police academy three

years prior to trial.   While at the police academy, Officer Huff received specialized

“intoxicated driver . . . [Standardized Field-Sobriety Testing] training,” which spanned

three days, approximately twenty-four hours. Officer Huff testified that at the time of

trial, he was certified in administering the HGN test, and that he did not have to be

recertified at any point. Officer Huff testified about the technique and administration of

the HGN test and about appellant’s test results. During the State’s examination of

Officer Huff, defense counsel never objected concerning Officer Huff’s qualifications or

asked to conduct voir dire of Officer Huff. Further, defense counsel did not object to

Officer Huff’s testimony on direct-examination concerning HGN.            When the State

attempted to elicit vertical gaze nystagmus (VGN) testimony from Officer Huff, defense

counsel objected that this type of testimony was inadmissible without a hearing on the

issue of its admissibility. In making his objection concerning VGN, defense counsel told

the trial court that HGN testimony is admissible “absent a Daubert/Kelly, 702 hearing,”

but that VGN testimony is not. The State agreed not to elicit the VGN testimony.

       The next morning, before commencing his cross-examination of Officer Huff,

defense counsel informed the trial court that he would attempt to impeach Officer Huff

                                            10
under title 37, section 221.9 of the Texas Administrative Code, which he stated requires

recertification in HGN testing every two years. This conversation occurred outside the

presence of the jury. On cross-examination, Officer Huff testified that he could not

recall the exact date, during his time at the police academy, that he became certified to

administer the HGN. On redirect-examination, Officer Huff testified that he had not

received any complaints concerning his certification status; that to his knowledge he

was still certified to administer the HGN; and that he received training in administering

standardized field-sobriety tests within the prior two years. At no time did defense

counsel raise an objection to Officer Huff’s allegedly lapsed certification to administer

the HGN test, nor did he move to strike Officer Huff’s HGN testimony on the basis that

he was not qualified to administer the HGN test to appellant.

        We conclude that appellant failed to preserve his complaint concerning Officer

Huff’s qualification to give expert HGN testimony.3 See TEX. R. APP. P. 33.1(a); TEX. R.

EVID. 103(a); Neal, 256 S.W.3d at 279. We further note, however, that even had the

issue been preserved for review, the record is not clear that Officer Huff was not

qualified to testify about the HGN test. Officer Huff testified that he was certified to

administer the HGN test at the time he administered it to appellant. Appellant’s second

issue is overruled.

C. Modification of the Trial Court’s Judgment

        In its judgment, the trial court noted that appellant’s offense was “DWI 2nd

Offender BAC .08.” Under “Statute for Offense,” the trial court indicated “N/A.” The

        3
          Requesting a hearing on expert qualifications generally does not preserve an objection that the
witness was unqualified if there is a failure to object once facts are admitted into evidence showing the
alleged lack of qualification. See Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008). Even
though appellant initially objected to Officer Huff’s testimony, appellant did not object at the time the
testimony was offered, nor did appellant object or move to strike after the testimony was admitted. See
id.
                                                  11
State, however, did not prove appellant’s DWI by showing a specific blood-alcohol

content (“BAC”), nor was it required to do so under the charging instrument in this case.

Rather, the record shows that appellant was prosecuted under sections 49.04 and

49.09 of the Texas Penal Code. See TEX. PENAL CODE ANN. §§ 49.04, 49.09 (a) (West

Supp. 2010). We, therefore, modify the trial court’s judgment to strike the term “BAC

.08” from the offense, and change it to show that appellant was prosecuted under

sections 49.04 and 49.09 of the Texas Penal Code. See id.

                                  III. CONCLUSION

      As modified, we affirm the trial court’s judgment.




                                                Gregory T. Perkes
                                                Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the
23rd day of August, 2012.




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