Affirmed and Memorandum Opinion filed August 28, 2018.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-16-00994-CR

                           JERRY YORK, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

                On Appeal from the Co Crim Ct at Law No. 16
                           Harris County, Texas
                      Trial Court Cause No. 2078507

                 MEMORANDUM                     OPINION


      Appellant Jerry York appeals his conviction of misdemeanor driving while
intoxicated (DWI) following a jury trial. See Tex. Penal Code Ann. § 49.04(a), (b)
(West Supp. 2017). The trial court assessed punishment at 180 days’ confinement
in the Harris County Jail but suspended the sentence with community supervision
for one year.

      Appellant raises three issues challenging his conviction. In his first issue,
appellant contends the trial court erred by refusing to include an instruction in the
jury charge regarding the results of his breath analysis test. We overrule this issue
because the requested instruction would have amounted to an improper comment on
the weight of the evidence and was confusing.

      In his second issue, appellant argues counsel for the State engaged in improper
jury argument regarding the definition of intoxication in the jury charge. We
overrule this issue because appellant did not object to the argument and thus failed
to preserve error for review.

      In his third issue, appellant argues the trial court erred by admitting testimony
regarding his performance on a horizonal gaze nystagmus (HGN) test, which he
contends was improperly administered. We overrule this issue because any variation
in the administration of the test was slight and, even if the trial court erred in
admitting the testimony, the error was harmless in light of other evidence. We affirm
the trial court’s judgment.

                                   BACKGROUND

      At approximately 1:13 a.m. on March 6, 2016, Officer John Palacios was on
duty as a patrol officer with the Houston Police Department. The officer observed
appellant driving eastbound on Westheimer in a black Ford F-150 truck. Officer
Palacios saw appellant move across four lanes of traffic without using a turn signal
and then fail to maintain a single lane. After stopping appellant, Officer Palacios
noticed that appellant’s breath had a strong odor of alcohol and his eyes were red
and gl[a]ssy. Officer Palacios asked appellant whether he had been drinking.
Appellant admitted having consumed two margaritas earlier in the day and, prior to
that, an unknown quantity of other drinks. Appellant stated he was coming from a
pub but was unable to recall the name of the pub. Appellant had no difficulty
producing his driver’s license and documents, nor did he slur his speech.
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       Officer Palacios asked appellant to perform field sobriety tests at the scene. 1
Appellant informed Officer Palacios that he suffers from a compressed disc that
affects his ankle, though the officer testified appellant did not appear to be physically
handicapped or in pain.         Appellant stated he would be able to perform the
standardized field-sobriety tests.         Officer Palacios then administered three
standardized tests developed by the National Highway Traffic and Safety
Administration: the HGN test, the walk-and-turn test, and the one-leg-stand test.
The HGN test, which requires the subject to horizontally track a stimulus with their
eyes, reveals any involuntary jerking of the eyeball caused by the introduction of
alcohol into the system. Palacios testified that during the HGN test, appellant
exhibited six out of six possible clues for intoxication. During the walk-and-turn
test, Officer Palacios noted four out of eight clues for intoxication, and on the one-
leg-stand test, he noted two out of four clues. Officer Palacios concluded that
appellant was intoxicated based on the loss of use of his mental and physical
faculties, and that further investigation was warranted at the station. Officer Palacios
detained appellant and transferred him to the central intoxication station of the
Houston Police Department.

       At the central intoxication station, DWI Technician David Cameron
administered the same standardized field sobriety tests to appellant on camera. With
regard to the standardized field sobriety tests, Technician Cameron observed six out
of six clues on the HGN test, six out of eight clues on the walk-and-turn test, and
three out of four clues on the one-leg-stand test. Appellant objected to the admission
of testimony regarding the results of the HGN test performed by Cameron, asserting
that Cameron did not perform the test properly. Appellant argued that during one


       1
          The patrol car operated by Officer Palacios was not equipped with video equipment and
neither the stop nor the field sobriety tests were captured on video.

                                              3
phase of the test, Cameron held the stimulus for three seconds—rather than the
prescribed four seconds—during each of four passes. Cameron testified that failure
to hold the stimulus for four seconds would be improper, but that he counted four
seconds when performing the test. The trial court reviewed a video of the test and
held that the difference in timing was not sufficiently significant to render the results
invalid. The trial court overruled appellant’s objection and denied the motion to
suppress.2

       At the station, appellant also consented to provide a breath specimen for a
breath-alcohol test. At approximately 2:38 a.m., Cameron administered a breath-
alcohol test on appellant using the Intoxilyzer 5000. The test revealed a breath-
alcohol content of .116 at 2:38 a.m. and .113 at 2:41 a.m. Cameron concluded
appellant was intoxicated.

       Naketia Rogers, a technical supervisor with the Texas Department of Public
Safety, also testified. Rogers is responsible for the maintenance and monitoring of
the intoxilyzer machines in Harris County. She is also a forensic scientist and
member of the Alcohol Testing Alliance and the International Association of
Chemical Testing. After explaining the maintenance on the machine and how it
works, Rogers conceded that because she did not know the time of appellant’s last
drink, she could not perform retrograde extrapolation. As a result, the breath-alcohol
test administered to appellant measured appellant’s breath alcohol content only at
the time of the test, not at the time of driving.

       After the State rested, appellant moved for a directed verdict on the element
of intoxication as defined in the Penal Code. Appellant argued there was insufficient


       2
         At trial, appellant presented expert testimony criticizing Cameron’s administration of the
HGN test and offering alternative explanations for appellant’s performance on the two other field
sobriety tests.

                                                4
evidence either that he had lost the use of his mental or physical faculties or that he
had an alcohol concentration of .08 or more. See Tex. Penal Code § 49.01(2)(A),
(B) (defining intoxicated as not having normal use of mental or physical faculties by
reason of the introduction of alcohol or having an alcohol concentration of .08 or
more). The trial court denied the motion for directed verdict as to loss of normal use
of mental or physical faculties. With regard to the per se theory of intoxication based
on alcohol concentration of .08 or more, the trial court agreed with appellant. The
trial court concluded that because the State’s expert could not perform retrograde
extrapolation, there was no evidence showing appellant’s alcohol concentration at
the time of driving. The trial court made clear that the breath test results remained
admissible and relevant to other issues, but that the per se theory of intoxication
based on alcohol concentration would not be submitted to the jury.

      During the charge conference, appellant requested a limiting instruction
regarding use of the breath analysis. The trial court considered the requested
instruction, noting that the parties did discuss the theory of intoxication based on .08
alcohol concentration during voir dire. The court ultimately denied the requested
instruction, however, citing a concern that it would be a comment on the weight of
the evidence. During closing argument, appellant’s counsel highlighted the fact that
the trial court did not instruct the jury on the .08 definition of intoxication because
the State failed to prove it. The prosecutor argued in her closing argument that there
were three ways to prove intoxication and that the jury only had to believe the State
proved one of those three ways beyond a reasonable doubt. After discussing the
other evidence of intoxication in the case, the prosecutor urged the jury to find
appellant was driving while intoxicated. The jury returned a verdict of guilty and
this appeal followed.



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                                      ANALYSIS

I.    The trial court properly refused appellant’s requested jury instruction.

      In his first issue, appellant argues the trial court erred by refusing his request
for a jury charge instruction that would have limited the jury’s consideration of the
testimony concerning the results of his breath-alcohol test. In reviewing a complaint
of charge error, we first consider whether error exists. See Almanza v. State, 686
S.W.2d 157, 174 (Tex. Crim. App. 1984); Navarro v. State, 469 S.W.3d 687, 698
(Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). If error exists, we then analyze
whether the error was harmful under the procedural framework in Almanza. See
Navarro, 469 S.W.3d at 698. Under Almanza, if the appellant properly objected at
trial, then reversal is required upon a showing of some harm. Ngo v. State, 175
S.W.3d 738, 743 (Tex. Crim. App. 2005); Navarro, 469 S.W.3d at 698.

      Article 36.14 of the Code of Criminal Procedure requires the trial court to
provide “a written charge distinctly setting forth the law applicable to the case.” Tex.
Code Crim. Proc. Ann. art. 36.14 (West 2007). The trial court must do so without
expressing an opinion as to the weight of the evidence, summing up the testimony,
discussing the facts, or including argument that would arouse the sympathy or
passions of the jury. Id. In this case, the trial court included a definition of
intoxication that stated: “[i]ntoxicated” means not having the normal use of one’s
mental or physical faculties by reason of the introduction of alcohol into the body.”
This definition tracks that provided in the Texas Penal Code and is known as the
impairment theory of intoxication. Tex. Penal Code § 49.01(2)(A); Kirsch v. State,
306 S.W.3d 738, 743 (Tex. Crim. App. 2010). As noted above, the trial court granted
appellant’s motion for directed verdict with regard to the second theory of
intoxication—known as per se intoxication—because of a lack of evidence of
alcohol concentration of .08 or more at the time of driving, and that theory was not

                                           6
included in the charge.

      Appellant requested that the trial court also include the following instruction
in the charge:

      You are instructed that evidence was admitted regarding a blood
      alcohol analysis; however, you are not to consider this as evidence that
      Defendant may have been at or above a .08 at the time of driving or as
      evidence regarding his breath alcohol result. You may, if you choose
      to, consider it for other purposes, should you choose to do so.

The State argues that the trial court properly refused this instruction because
appellant did not request a limiting instruction at the time evidence of the breath
alcohol test was admitted. See Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim.
App. 2001) (if appellant fails to request limiting instruction at time evidence is
offered where it is apparent limiting instruction would be proper, trial court has no
obligation to include instruction in jury charge). According to the State, appellant
knew that Rogers could not perform retrograde extrapolation on the results and in
fact objected to the State presenting any retrograde extrapolation.         Therefore,
appellant should have requested a limiting instruction at that point. Appellant
contends he was not required to request the instruction at the time the evidence was
offered because he did not then know that the trial court would grant a directed
verdict on the per se theory of intoxication. See Hammock, 46 S.W.3d at 895 n.7
(noting that in some cases a defendant will not know evidence is subject to a limiting
instruction until it becomes apparent later in trial). The requested instruction was
based on the trial court’s decision to take the per se theory away from the jury. Thus,
we agree with appellant that his request for an instruction was not untimely.

      We conclude that the trial court properly refused the requested instruction,
however, because the instruction amounted to an impermissible comment on the
weight of the evidence. The trial court admitted State’s Exhibit 5, the breath test

                                          7
results, without any limitation. Rogers discussed the results and explained that
without retrograde extrapolation, the breath results were representative of breath
alcohol concentration at the time of the test but not at the time of driving. Unless a
statute, rule of evidence, or judicial precedent restricts admissibility of evidence to
a specific, limited purpose, the trial court is forbidden from instructing or limiting
the jury’s consideration of the admitted evidence in a criminal case. Kirsch, 306
S.W.3d at 747. To do so amounts to a comment on the weight of the evidence. Id.
As the Court of Criminal Appeals explained in Kirsch, “[t]here is . . . no Texas
statute, rule of evidence, or judicial precedent that limits the jury’s consideration of
an otherwise admissible BAC-test result.” Id. Thus, an instruction to the jury that
it could not consider the breath-alcohol test results in the manner requested by
appellant would be an improper comment on the weight of the evidence. See id.
(concluding trial court commented on weight of evidence by instructing jury that
BAC-test results should only be considered for limited purpose of showing the
individual who was tested had ingested alcohol at some point before the time of the
test).

         We also conclude the trial court did not err in refusing the requested
instruction because it was confusing and incorrect under the law. See Mutscher v.
State, 514 S.W.2d 905, 926 (Tex. Crim. App. 1974); Villani v. State, 116 S.W.3d
297, 308 (Tex. App.—Houston [14th Dist.] 2003, pet.ref’d) (“The trial court
properly refused to submit these instructions to the jury because each instruction
misstates the law.”) The instruction referenced a blood alcohol analysis, yet no
blood alcohol analysis was performed in this case. Rogers testified that blood tests
and breath tests are different and yield different results. Thus, an instruction
referencing blood alcohol when the only test performed was a breath alcohol test
could confuse the jury.


                                           8
       In addition, as the Court of Criminal Appeals has explained, the jury may
consider the results of a breath alcohol test in determining whether appellant was
intoxicated under either a per se theory or an impairment theory. The breath alcohol
analysis is probative, though not conclusive, of whether appellant was intoxicated at
the time of the offense. See State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App.
2005) (intoxilyzer results, even without retrograde extrapolation, “make it more
probable that [defendant] was intoxicated at the time of driving under both the per
se and impairment definitions of intoxication.”); see also Kirsch, 306 S.W.3d at 744
(“Although we stated that the test result was not ‘conclusive’ evidence of the
defendant’s intoxication at the time she was driving, it was probative. . . .”). Thus,
an instruction limiting the jury’s consideration of appellant’s breath alcohol results
would be incorrect, and the trial court did not abuse its discretion in refusing the
requested instruction. Mutscher, 514 S.W.2d at 926; Villani, 116 S.W.3d at 308.

       To the extent appellant contends that his proposed instruction was sufficient
to alert the trial court to an omission in the jury charge,3 we conclude there was no
omission.     In accordance with the directed verdict on the per se theory of
intoxication, the court’s charge permitted the jury to find appellant guilty of
intoxication only under the impairment theory. The charge did not include the per
se theory, and the trial court allowed appellant to argue and point out in his closing
argument that the per se theory was no longer available to support a conviction.
Because the court’s charge correctly submitted the intoxication issue to the jury in
light of its ruling, there was no error in the omission of an instruction regarding
appellant’s breath alcohol test results. See Villani, 116 S.W.3d at 309. We overrule



       3
         See Stone v. State, 703 S.W.2d 652, 655 (Tex. Crim. App. 1986) (requested instruction
that was clearly incorrect because it misstated the law and constituted a comment on the weight of
the evidence nevertheless alerted trial court to omission in court’s charge).

                                                9
appellant’s first issue.

II.    Appellant is not entitled to a new trial based on allegedly improper jury
       argument.
       In his second issue, appellant contends he did not receive a fair trial because
the prosecutor improperly implied to the jury in closing argument that the jury could
consider “all three definitions of intoxication despite the Court granting a directed
verdict on the .08 BAC definition of intoxication.” Appellant specifically complains
of the following statements by counsel:

       And we discussed that there are three ways that I can prove intoxication
       to you. And you don’t have to believe that I have proved each of those
       three ways. You only have to believe I have proven it to you beyond a
       reasonable doubt one of those ways.
We conclude appellant did not preserve this challenge for our review because he
made no objection.

       To preserve a challenge to allegedly improper jury argument, a defendant
must object at the time of argument and pursue the objection to an adverse ruling.
Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Moreno v. State, 195
S.W.3d 321, 329 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). Appellant
argues that an exception to this rule exists if the jury argument is so prejudicial that
an instruction to disregard would not have cured the harm, citing Harris v. State, 784
S.W.2d 5, 12 (Tex. Crim. App. 1989). In Cockrell, the Court of Criminal Appeals
rejected the exception referred to in Harris. See Cockrell, 933 S.W.2d at 89 (“Before
a defendant will be permitted to complain on appeal about an erroneous jury
argument or that an instruction to disregard could not have cured an erroneous jury
argument, he will have to show he objected and pursued his objection to an adverse
ruling.”). By failing to object timely to the prosecutor’s statements at closing
argument and secure an adverse ruling, appellant has forfeited his right to complain

                                          10
on appeal. Id.; see Mathis v. State, 67 S.W.3d 918, 927 (Tex. Crim. App. 2002)
(declining request to overrule Cockrell); Moreno, 195 S.W.3d at 329. We overrule
appellant’s second issue.

III.   Appellant is not entitled to a new trial based on the failure to exclude
       testimony regarding the HGN test administered by Cameron.
       In his third issue, appellant argues the trial court erred in overruling his
objection to testimony regarding the HGN test performed by Cameron. Appellant
timely objected to Cameron’s testimony regarding the HGN test he performed and
moved to suppress the evidence at trial. The trial court overruled the motion and
denied appellant’s motion to suppress.

       We review a trial court’s decision on a motion to suppress for an abuse of
discretion, and we will overturn that ruling only if it is outside the zone of reasonable
disagreement. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011);
Avellaneda v. State, 496 S.W.3d 311, 315-16 (Tex. App.—Houston [14th Dist.]
2016, no pet.). We view the evidence in the light most favorable to the trial court’s
ruling. Avellaneda, 496 S.W.3d at 316. We defer to the trial court’s determinations
of fact that are supported by the record and review legal rulings de novo. See id.
Where no explicit findings of fact are made by the trial court, we infer the necessary
factual findings to support the trial court’s ruling if the record supports those
findings. Neale v. State, 525 S.W.3d 800, 806 (Tex. App.—Houston [14th Dist.]
2017, no pet.).

       Testimony concerning HGN test results is scientific evidence subject to the
requirements of Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). See
Emerson v. State, 880 S.W.2d 759, 763 (Tex. Crim. App. 1994); Plouff v. State, 192
S.W.3d 213, 218 (Tex. App.—Houston [14th Dist.] 2006, no pet.). As scientific
evidence, testimony concerning an HGN test must satisfy the admissibility standards

                                           11
of Texas Rule of Evidence 702. Plouff, 192 S.W.3d at 218. Rule 702 requires
scientific testimony to be both relevant and reliable. Id. To be reliable, the evidence
must be based on: (1) a valid scientific theory; (2) a valid technique applying the
theory; and (3) a validly applied technique on the occasion in question. Id. (citing
Kelly, 824 S.W.2d at 572).

       Appellant argues that Technician Cameron did not correctly apply the HGN
test to appellant under the NHTSA standards because Cameron held the stimulus
during the “distinct and sustained nystagmus” phase for only three seconds—rather
than the required minimum of four seconds—on each pass.                           Appellant cites
testimony from Officer Palacios, Technician Cameron, and his own expert, Dr.
Valentine, that the test would be improperly applied if the stimulus were held less
than four seconds.

       We conclude the trial court did not err in denying the motion to suppress.
Cameron testified that he counted to four and properly administered the test. But
even assuming he did not, a difference of one second would amount to only a slight
variation in timing that does not affect the admissibility of the HGN test. See Neale,
525 S.W.3d at 810 (“such slight deviations in timing do not affect the validity of the
test; instead, these differences go to the weight of the evidence, rather than its
admissibility”).4

       Yet even if the trial court erred in admitting Cameron’s testimony concerning
the HGN test, the error would be harmless. Error in the admission of evidence is
nonconstitutional error. See Plouff, 192 S.W.3d at 222. We review the error in the

       4
          See also Compton v. State, 120 S.W.3d 375, 378-79 (Tex. App.—Texarkana 2003, pet.
ref’d) (variation in time taken to position eyes did not affect reliability of HGN test); cf. McRae v.
State, 152 S.W.3d 739, 743 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (finding more than
slight variation where officer admitted to making several misstatements concerning the test and
that the HGN test was not valid)

                                                 12
context of the entire record to determine whether the error affected the substantial
rights of the defendant. Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App.
2002). Absent an effect on the substantial rights of the defendant, a reviewing court
must disregard the error. Tex. R. App. P. 44.2(b); Plouff, 192 S.W.3d at 222. A
defendant’s substantial rights are affected if the error had a substantial and injurious
effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266,
271 (Tex. Crim. App. 1997). In determining whether error is harmful, we are guided
by “whether the State emphasized the error, whether the erroneously admitted
evidence was cumulative, and whether it was elicited from an expert.” Bagheri v.
State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003).

      Although the prosecutor briefly mentioned Cameron’s HGN test in her
closing argument, the State did not dwell on or emphasize the testimony before the
jury. In addition, the testimony from Technician Cameron was cumulative of other
properly admitted evidence. The jury heard the testimony of Officer Palacios
regarding the HGN test he administered to appellant at the scene. Appellant
acknowledged that Officer Palacios is qualified by training to administer the HGN
test and that he did so properly. Like Technician Cameron, Officer Palacios found
appellant exhibited six out of six clues on the HGN test. The jury also heard other
evidence of intoxication, including appellant’s admission that he had been drinking,
his failure to recall the pub from which he was driving at the time of the stop, and
the clues he exhibited on the other standardized field sobriety tests. Although
Technician Cameron was considered an expert, so was Officer Palacios with regard
to the unchallenged HGN test, thus weighing against a finding of harm. We
conclude that, in the context of the entire record, any error in admitting testimony
regarding Cameron’s HGN test did not affect appellant’s substantial rights and did
not have a substantial or injurious effect on the jury’s verdict. See King, 953 S.W.2d


                                          13
at 271; Plouff, 192 S.W.3d at 223. Accordingly, we overrule appellant’s third issue.

                                   CONCLUSION

      Having overruled each of appellant’s issues on appeal, we affirm the trial
court’s judgment.




                                      /s/    J. Brett Busby
                                             Justice



Panel consists of Chief Justice Frost and Justices Busby and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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