                                   IN THE
                           TENTH COURT OF APPEALS

                                 No. 10-07-00363-CR

STEVEN DOUGLAS FREEMAN,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                             From the 19th District Court
                              McLennan County, Texas
                             Trial Court No. 2007-297-C2


                                      OPINION


          A jury convicted Steven Douglas Freeman of felony driving while intoxicated,

and the trial court sentenced him to forty years in prison. Freeman contends that the

trial court abused its discretion by (1) excluding the testimony of his expert witness; (2)

refusing to give the jury a spoliation instruction; and (3) declaring a juror disabled. We

affirm.
                               FACTUAL BACKGROUND

         Officer David Westmoreland stopped Freeman for traveling through a gas

station without stopping, making turns without signaling, drifting onto the shoulder,

and crossing over the center stripe. Freeman pulled over appropriately. Westmoreland

detected an odor of alcohol emitting from Freeman’s breath and noticed that Freeman’s

eyes were glassy. Westmoreland located an open can of beer under the passenger’s seat

and two unopened beer cans behind the bench seat of the truck. The female passenger

claimed ownership of the open beer can.

         Westmoreland conducted three field sobriety tests. The horizontal and vertical

nystagmus tests both revealed lack of smooth pursuit or involuntary jerking of the eyes.

Freeman could not perform the heal to toe test as instructed, specifically failing to

maintain the instructional phase or walk heal to toe, making an improper turn, and

stepping offline. During the one leg stand, Freeman used his arms for balancing and

put his foot down twice, but completed the test. The stop was videotaped.

         Westmoreland concluded that Freeman was impaired, and arrested Freeman.

Freeman was videotaped at the jail while receiving warnings and agreeing to an

intoxilyzer test.   These tests, taken about an hour and a half after Westmoreland

initiated the traffic stop, yielded results of 0.146 and 0.145.

         Before trial, the tape of the field sobriety tests was recorded over pursuant to

department policy. The jail tape, however, was available and was played for the jury at

trial.




Freeman v. State                                                                   Page 2
                                 SPOLIATION INSTRUCTION

        In his second point, Freeman challenges the trial court’s refusal to give the jury a

spoliation instruction regarding the missing tape of the field sobriety tests.

                                         Standard of Review

        “[U]nder the Due Course of Law provision of article I, section 19 [of the Texas

Constitution], the State has a duty to preserve material evidence which has apparent

exculpatory value, encompassing both exculpatory evidence and evidence that is

potentially useful to the defense.” Pena v. State, 226 S.W.3d 634, 651 (Tex. App.—Waco

2007, pet. granted).1 An adverse inference instruction is the appropriate remedy for loss

or destruction of evidence. Id. at 655. We review a trial court’s refusal to submit a

requested jury instruction for abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103,

122 (Tex. Crim. App. 2000).

                                             Preservation

        Freeman argues that the State had a duty to preserve the tape and the jury was

entitled to an instruction advising them that an adverse inference may be drawn from

the State’s destruction of the tape. The State contends that Freeman’s request for a

spoliation instruction is insufficient to preserve his complaint for appellate review,

having failed to object on constitutional grounds.

1        Citing Gibson v. State, 233 S.W.3d 447 (Tex. App.—Waco 2007, no pet.), the State argues that Pena
is inapplicable to cases where the evidence does not form the basis of the offense. We are not persuaded
by this argument. In Pena, we held that the State had a duty to preserve marihuana plants in a possession
case. See Pena v. State, 226 S.W.3d 634, 654-55 (Tex. App.—Waco 2007, pet. granted). In Gibson, we
declined to extend Pena to the failure to preserve any of Gibson’s blood sample for independent testing.
See Gibson, 233 S.W.3d at 454. However, in Terrell v. State, 228 S.W.3d 343 (Tex. App.—Waco 2007, pet.
granted), we specifically applied Pena to the “State’s failure to preserve the audiotape and videotape of
Terrell’s police interview and the audiotape of the victim’s police interview.” Terrell, 228 S.W.3d at 345-
47. Pena similarly applies to the facts of this case.


Freeman v. State                                                                                    Page 3
        In Carroll v. State, 266 S.W.3d 1 (Tex. App.—Waco 2008, no pet. h.), Carroll

challenged the trial court’s refusal to submit a spoliation instruction to the jury

“concerning the State’s failure to preserve videotapes of Carroll’s stop and arrest.”

Carroll, 266 S.W.3d at 3. Carroll had neither “raise[d] a Due Course of Law complaint in

the trial court” nor requested a spoliation instruction. Id. His complaint was not

preserved.

        Here, Freeman did not raise a constitutional claim in the trial court, but unlike

Carroll, he did request a spoliation instruction based on destruction of the tape. His

instruction raised the issue of the State’s duty to preserve the tape.2 He has preserved

his issue for appellate review.




2
        Freeman’s proposed spoliation instruction states:

        During the trial of this case, the issue has arisen whether or not the state was in
        possession of a video tape [sic] taken of the defendant either before and during the
        detention and arrest, and having said possession, either destroyed or allowed the breath
        sample and/or simulator solution [videotape] to be destroyed.

        Our law provides that the capacity to preserve evidence is equivalent to the actual
        possession of the evidence.

        When the State intentionally destroys evidence, and when that fact is established, you the
        jury are instructed that you may draw the inference that the evidence destroyed was
        unfavorable to the state and would have been favorable to the defendant.

        Accordingly, should you believe by a preponderance of the evidence that the State of
        Texas had the capacity to preserve the videotape of the defendant, then you may infer
        that any such evidence would have produced a result favorable to the defendant.

In Pena, we offered two examples of spoliation instructions:

        You may take note of the fact that the state had obtained bodily fluid samples from the
        body of the victim, that such samples are, as a matter of law, material evidence in that
        scientific tests are available which may exclude an individual from that class of persons
        who could have committed the crime, that the state lost or destroyed the samples, and
        that the defendant therefore did not have an opportunity to conduct such tests. The fact


Freeman v. State                                                                                     Page 4
                                                Analysis

        Freeman’s right to a spoliation instruction depends on: (1) whether the evidence

would have been subject to discovery or disclosure; (2) whether the State had a duty to

preserve the evidence; and (3) if the State breached a duty to preserve, what

consequences should flow from the breach. Pena, 226 S.W.3d at 651.

        There is no doubt that the tape of the sobriety tests was subject to disclosure and

the State failed to preserve the tape. See Terrell v. State, 228 S.W.3d 343, 346 (Tex. App.—

Waco 2007, pet. granted) (audiotape and videotape of an interview with Terrell and an

audiotape of an interview with the victim were subject to disclosure and were not

preserved). Freeman’s expert, forensic toxicologist Dr. Gary Wimbish, suggested that

Freeman’s appearance on the jail tape was not consistent with his intoxilyzer results

and found it “unfortunate” that the tape of the sobriety tests was unavailable. The State



        that the state lost or destroyed the samples does not, in itself, require that you acquit the
        defendant. It is, however, one factor for you to consider in your deliberations.

        …

        The State has a duty to gather, preserve, and produce at trial evidence which may
        possess exculpatory value. Such evidence must be of a nature that the defendant would
        be unable to obtain comparable evidence through reasonably available means. The State
        has no duty to gather or indefinitely preserve evidence considered by a qualified person
        to have no exculpatory value, so that an as yet unknown defendant may later examine
        the evidence.

        If, after considering all of the proof, you find that the State failed to gather or preserve
        evidence, the contents or qualities of which are in issue and the production of which
        would more probably than not be of benefit to the defendant, you may infer that the
        absent evidence would be favorable to the defendant.

Pena v. State, 226 S.W.3d 634, 656 (Tex. App.—Waco 2007, pet. granted). Freeman’s instruction contains
similarities to the instructions offered in Pena and, unlike in civil cases, was not required to contain
“substantially correct wording.” See id.; TEX. R. CIV. P. 278.



Freeman v. State                                                                                        Page 5
admitted that “perhaps [Wimbish’s] testimony could be helpful” to the jury if he had

reviewed a tape of the sobriety tests:

       Had there been something with the field sobriety test and [Wimbish]
       wanted to say they were done wrong or that the officer was misusing the
       information to make a conclusion, that would be one thing because those
       are scientific tests, but we don’t have that here.

       Accordingly, the tape was potentially useful to Freeman. See Martinez v. State,

No. 13-06-00665-CR, 2008 Tex. App. LEXIS 515, at *30 (Tex. App.—Corpus Christi Jan.

24, 2008, pet. ref’d) (not designated for publication) (State had a duty to preserve tape of

field sobriety tests that was “potentially useful…Martinez testified that the tape would

have shown that he did not consent to the search”). We, therefore, proceed to the third

factor, which requires us to consider: (1) the degree of negligence or bad faith involved,

(2) the importance of the lost evidence, and (3) the sufficiency of the other evidence

adduced at the trial to sustain the conviction. Pena, 226 S.W.3d at 651.

Negligence or Bad Faith

       Westmoreland testified that, at the time of Freeman’s arrest, department policy

did not require the copying of tapes.            This policy has since been changed.

Westmoreland did not see a need to copy the tape of Freeman’s sobriety tests because of

the intoxilyzer results and the various other clues of intoxication.

       In Martinez, the defendant complained about the State’s destruction of a tape of

field sobriety tests, alleging that the tape would have shown that he did not consent to a

search of his vehicle. See Martinez, 2008 Tex. App. LEXIS 515, at *18. Officer Lanny

Swanson believed that the tape had expired before Martinez was stopped. Id. at *20.



Freeman v. State                                                                      Page 6
Swanson testified that he would have saved the tape had one been made.                                  Id.

Otherwise, the department holds the tape for ninety days, unless it needs to be retained,

after which the tape is reused. Id. Applying Pena, the Corpus Christi Court noted that

“if the tape existed, it was reused after ninety days in compliance with state law.”3 Id. at

*31.   There was no evidence of either “bad faith on the part of the police or the

prosecutor” or “intentional misconduct.” Id.

       In Terrell, Officer Kelly Davis was unable to locate a videotape and audiotape of

an interview with Terrell or an audiotape of an interview with the victim. See Terrell,

228 S.W.3d at 346. Nor was Davis aware of what had happened to the tapes. Id. The

detective who interviewed Terrell did not testify. Id. We held that the record contained

no evidence of bad faith or intentional misconduct by the officer or prosecutors. Id. at

347.

       Here, Westmoreland followed then existing department policy when deciding

not to copy the tape. See Martinez, 2008 Tex. App. LEXIS 515, at *31. The record does

not contain evidence of any bad faith or intentional misconduct on the part of

Westmoreland or the prosecutors. See id.; see also Terrell, 228 S.W.3d at 347.



3      Article 2.135 of the Code of Criminal Procedure provides:

       Except as otherwise provided by this subsection, a law enforcement agency that is
       exempt from the requirements under Article 2.134 shall retain the video and audio or
       audio documentation of each traffic and pedestrian stop for at least 90 days after the date
       of the stop. If a complaint is filed with the law enforcement agency alleging that a peace
       officer employed by the agency has engaged in racial profiling with respect to a traffic or
       pedestrian stop, the agency shall retain the video and audio or audio record of the stop
       until final disposition of the complaint.

TEX. CODE CRIM. PROC. ANN. art. 2.135(b) (Vernon 2005) (emphasis added).


Freeman v. State                                                                                     Page 7
Importance

       Freeman argues that the tape of the sobriety tests was important to his case

because, without the tape, the jury was forced to rely on Westmoreland’s impressions

and conclusions without having the opportunity to evaluate the accuracy of those

impressions and conclusions for themselves. However, the jury was entitled to rely on

Westmoreland’s testimony alone when determining whether Freeman was intoxicated

See Hartman v. State, 198 S.W.3d 829, 835 (Tex. App.—Corpus Christi 2006, pet. dism’d)

(“[T]he testimony of an officer that a person is intoxicated provides sufficient evidence

to establish the element of intoxication.”).

       Freeman also contends that Wimbish’s testimony was excluded because the tape

was unavailable for review. He points to the State’s admission that “perhaps [the

expert’s] testimony could be helpful” had he reviewed a tape of the sobriety tests.

Wimbish’s testimony suggests that the tape could be helpful to Freeman, given that his

appearance on the tape may have been inconsistent with the subsequent intoxilyzer

results.   However, Westmoreland’s testimony suggests that the tape would not be

helpful. He testified that Freeman’s performance during the sobriety tests contributed

to his conclusion that Freeman was intoxicated. This conclusion was confirmed by

other clues of intoxication that he had observed and Freeman’s intoxilyzer results,

leading him to decide that a copy of the tape was unnecessary. He further testified that

Freeman’s appearance on the jail tape was “basically the way he was” on the roadside.

The tape’s significance is at least disputed. See Martinez, 2008 Tex. App. LEXIS 515, at

*31 (“The significance of the missing tape is disputed--Swanson testified that the tape


Freeman v. State                                                                   Page 8
would have helped his case, while Martinez argues it would have shown he did not

consent to search”; “the second element weighs neither in favor of nor against a due

course of law violation.”).

Other Evidence

       After observing Freeman “repeatedly cross[] over both sides of the stripe” and

commit other traffic violations, Westmoreland suspected either “driving while

intoxicated or driving while impaired.”       These suspicions grew stronger once he

smelled alcohol on Freeman’s breath and noticed Freeman’s glassy eyes.                 The

intoxilyzer results confirmed that Freeman was intoxicated.

       Even without field sobriety tests, the record contains other evidence of

intoxication. See Lewis v. State, 191 S.W.3d 335, 341 (Tex. App.—Waco 2006, pet. ref’d)

(“The odor of an alcoholic beverage on Lewis’s breath and his bloodshot eyes are

indicators of intoxication.”); see also James v. State, 102 S.W.3d 162, 172 (Tex. App.—Fort

Worth 2003, pet. ref’d) (“Erratic or unsafe driving may furnish a sufficient basis for a

reasonable suspicion that the driver is intoxicated even absent evidence of violation of a

specific traffic law.”). The missing tapes were not critical to whether the State could

establish Freeman’s guilt beyond a reasonable doubt. See Terrell, 228 S.W.3d at 347.

       In summary, the tape of the field sobriety tests was subject to discovery. The

State had a duty to preserve this evidence, which the State breached. Regarding the

consequences which should flow from this breach, the State’s negligence was slight.

The importance of the lost evidence is conflicting. The remaining evidence is more than

sufficient to establish Freeman’s intoxication. Therefore, we hold that the trial court did


Freeman v. State                                                                     Page 9
not abuse its discretion by refusing to submit a spoliation instruction to the jury. We

overrule Freeman’s second point.

                                  EXPERT TESTIMONY

       In his first point, Freeman contends that the trial court abused its discretion by

excluding Wimbish’s expert testimony.

                                    Standard of Review

       “If scientific, technical, or other specialized knowledge will assist the trier of fact

to understand the evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education may testify thereto in the

form of an opinion or otherwise.” TEX. R. EVID. 702. Evidence derived from a scientific

theory must satisfy three criteria: (a) the underlying scientific theory must be valid; (b)

the technique applying the principle must be valid; and (c) the technique must have

been properly applied on the particular occasion. Kelly v. State, 824 S.W.2d 568, 573 (Tex

Crim. App. 1992); Sanders v. State, 191 S.W.3d 272, 277 (Tex. App.—Waco 2006), cert.

denied 127 S. Ct. 1141, 166 L. Ed. 2d 893 (2007).

       Factors affecting this determination include, but are not limited to: (1) the extent

to which the underlying scientific theory and technique are accepted as valid by the

relevant scientific community, if such community can be ascertained; (2) the

qualifications of the expert testifying; (3) the existence of literature supporting or

rejecting the underlying scientific theory and technique; (4) the potential rate of error of

the technique; (5) the availability of other experts to test and evaluate the technique; (6)

the clarity with which the underlying scientific theory and technique can be explained


Freeman v. State                                                                       Page 10
to the court; and (7) the experience and skill of any person who applied the technique

on the occasion in question. Kelly, 824 S.W.2d at 573; Sanders, 191 S.W.3d at 277. We

review a trial court’s ruling on the admissibility of expert testimony for abuse of

discretion. See Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006).

                                         Analysis

       At a hearing outside the jury’s presence, Wimbish identified the criteria for

intoxication, such as (1) “abnormal oscillation”, including slurred speech, staggered

gate, sway, and circular sway; and (2) “aura”, meaning “the affects that one views when

they see a person who is intoxicated.” He testified that an individual can identify these

criteria by viewing a tape of the defendant performing field sobriety tests or any other

available tapes. A conclusion is formed by integrating the criteria with the individual’s

own “training and life-based experiences.” Wimbish admitted that the jury could use

their own life experience, but believed that his testimony would be helpful to the jury’s

decision because he could testify to the “science of the criteria” and explain what to look

for on the jail tape.

       From viewing the jail tape, Wimbish concluded that: (1) Freeman did not exhibit

any of the intoxication criteria; and (2) “[t]here is something wrong” because a “person

at a 0.14 and the clues that I’ve seen on the board should be decidedly intoxicated” and

“[t]here should be no question about him being intoxicated.” He would identify the

discrepancies between the intoxilyzer results and Freeman’s appearance on the jail tape.

       Wimbish testified that the jail tape lasted a “few minutes” and agreed with the

State that the tape depicts Freeman “[j]ust standing there” and saying “one sentence.”


Freeman v. State                                                                    Page 11
He was not prepared to testify to anything other than his conclusions from viewing the

jail tape and did not have any information from which to draw a conclusion about the

intoxilyzer results. Due to insufficient or “conflicting” information, he could not make

a determination as to whether Freeman was intoxicated.             He could respond to

hypotheticals if presented with evidence of extrapolation.

       The trial court asked whether Wimbish would testify that “what you see on the

videotape does not match the results of the breathalyzer.”          Wimbish responded,

“Something is awry.” When asked about that “something”, Wimbish testified:

       [T]he intoxilyzer instrument depends upon a blood-breath ratio of 2,100 to
       1 in order to estimate the blood alcohol concentration. I know statutorily
       that has been ruled out, but the ratio ranges for the blood-breath ratios are
       from 800 to 1 to 3,300 to 1. The instrument assumes 2,100 to 1 ratio for
       everyone. If his ratio were 1,000 to 1, the 0.14 would be a 0.07.

Wimbish did not know Freeman’s ratio, which would be determined by giving him

alcohol, collecting breath and blood at the same time, and then measuring the ratio.

       The State argued that Wimbish’s testimony was not helpful to the jury because:

(1) Freeman’s appearance on the tape is “perfectly obvious”; and (2) the jury does not

need “specialized knowledge” to decide whether “everyone at a certain level performs

exactly the same”, “we should expect to see different things on the video”, or a person’s

“appearance goes with their test”.

       Freeman argued that Wimbish’s testimony would “partially” address whether he

was intoxicated but would also explain how a person with Freeman’s intoxilyzer results

“would have reacted in the video and the symptoms.” The trial court noted that

Wimbish had not provided an opinion as to whether Freeman was intoxicated, but his


Freeman v. State                                                                       Page 12
testimony that “something is awry” suggests either that Freeman was not intoxicated or

“the machine is wrong.” The State was concerned that this testimony would cause the

jury to assume that something was wrong with the machine or that a blood test might

have been different or more accurate. Freeman argued that Wimbish’s experience with

observing people would enable him to tell the jury what to look for and what

conditions, criteria, and standards to use when determining whether Freeman was

intoxicated.

       The trial court expressed difficulty with Wimbish’s testimony that “something is

awry”; thus, “there is something wrong about something.” The trial court believed that

Freeman was attempting to offer testimony that the test is wrong.               It excluded

Wimbish’s testimony.

       On appeal, Freeman contends that Wimbish’s testimony would have helped the

jury “understand[] the results of the field sobriety tests, Freeman’s appearance on the

jail video, the assumptions behind the science of the intoxilyzer machine, tolerance to

alcohol, and how these factors might weigh on [its] decision whether Freeman was

intoxicated.” The State responds that Wimbish’s testimony was neither helpful nor

reliable because: (1) he failed to explain the basis for his belief that “something is awry”;

(2) he lacked any “basis for believing that [Freeman’s] blood-breath ratio was different

from the assumed ratio”; (3) he had nothing to review that would enable him to apply

his “training in field sobriety tests or intoxicated behavior analysis”; and (4) the jury did

not need expert testimony to determine whether the clues of intoxication were present.




Freeman v. State                                                                      Page 13
       In Platten v. State, No. 12-03-00038-CR, 2004 Tex. App. LEXIS 588 (Tex. App.—

Tyler Jan. 21, 2004, pet. ref’d) (not designated for publication), the trial court excluded

Wimbish’s testimony “about [Platten’s] appearance on the videotape and whether the

factors of intoxication were identifiable from the videotape.” Platten, 2004 Tex. App.

LEXIS 588, at *5. No field sobriety tests had been performed. See id. During a Daubert

hearing, Wimbish explained that his testimony was “based on the science of forensic

toxicology as it relates to alcohol and its effect on the individual through suppression or

depression of the central nervous system.” Id. at *9-10. The tape would be the “primary

focus of his testimony.” Id. at *10. He evaluated the tape “based on independently

recognized principles that have been studied, applied, and peer reviewed.” Id. He

“applied certain ‘objective criteria’ he had derived from the criteria commonly used to

determine whether a person is intoxicated.” Id. “[W]hen questioned about whether the

cited studies and peer reviews related to situations where, as here, no field sobriety tests

were conducted, he answered in the negative.” Id.

       The Tyler Court noted that Wimbish failed to: (1) “establish that a rate of error

could be assigned where a determination of intoxication is made from viewing a

videotape and no field sobriety tests are conducted”; (2) “cite any scientific theory

supporting a conclusion that intoxication can be determined solely from viewing a

videotape nor could he refer the court to any literature supporting or rejecting that

conclusion”; (3) present any “publications or peer-reviewed data relating to a

determination of intoxication without field sobriety test data”; or (4) “establish that this

method is generally accepted in the relevant community.” Id. at *10-11. “[W]hether


Freeman v. State                                                                     Page 14
[Platten] appeared intoxicated on the videotape was not outside the knowledge and

experience of the average juror.” Id. at *11. For these reasons, the trial court had

properly excluded Wimbish’s testimony. See id. at *11-12.

       Freeman argues that, unlike Platten, field sobriety tests were actually conducted,

but the tape was unavailable. We have already determined that the State did not act in

bad faith by failing to retain the tape, the tape is of conflicting importance, and the

record contains other evidence of intoxication.            Although the circumstances are

different in this case, the reasoning in Platten is still applicable.

       Freeman next argues that Wimbish has testified in two other cases. In Gutierrez

v. State, No. 05-05-00533-CR, 2006 Tex. App. LEXIS 2136 (Tex. App.—Dallas Mar. 21,

2006, pet. ref’d) (not designated for publication), Wimbish reviewed a tape of Gutierrez

performing field sobriety tests. See Gutierrez, 2006 Tex. App. LEXIS 2136, at *5-6. He

testified that the tests were improperly administered and explained the basis for this

conclusion. Id. at *6. He testified that “additional clues of intoxication include slurring

of speech, swaying, or inappropriate oscillation.” Id.

       In Blanchard v. State, No. 05-05-01194-CR, 2006 Tex. App. LEXIS 7532 (Tex.

App.—Dallas Aug. 24, 2006, no pet.) (not designated for publication), Wimbish

reviewed tapes of Blanchard performing field sobriety tests at both the roadside and the

jail. See Blanchard, 2006 Tex. App. LEXIS 7532, at *9. Blanchard “demonstrated signs of

intoxication on the videotape from the roadside but demonstrated no signs of

intoxication on the videotape from the jail.” Id. at *9-10. Wimbish reasoned that: (1)

Blanchard’s “eyes were able to converge”, which should not happen if under the


Freeman v. State                                                                    Page 15
influence of marihuana; and (2) Blanchard had horizontal gaze nystagmus, which is not

caused by marihuana use.        Id. at *10.   He believed that Blanchard suffered from

postprandial narcolepsy, having eaten a “large meal after many hours of being awake

and tired”, which causes drowsiness. Id. By the time he arrived at the jail, Blanchard

had awakened and was able to “respond appropriately to the field sobriety tests.” Id.

Wimbish concluded that Blanchard was not intoxicated. See id. at *11.

       Unlike the present case, neither Gutierrez nor Blanchard addresses the admissibility

of Wimbish’s testimony or involves a situation where a tape of field sobriety tests was

unavailable. Gutierrez and Blanchard are inapplicable to Freeman’s case.

       Freeman argues that Wimbish’s testimony was offered (1) not to challenge

whether the intoxilyzer machine was working, but to address the science behind the

machine, specifically that the machine is “based upon assumptions that would not

allow for variations between individuals and could produce an inaccurate result”; and

(2) to explain Westmoreland’s testimony about the results of the field sobriety tests that

the jury could not view and help the jury “reach[] a decision as to intoxication by

explaining, from his education, training, and experience, how the jury could look at the

one video they did have, the jail video, and make a more informed decision as to

whether Freeman was intoxicated.” In light of Wimbish’s testimony that “something is

awry,” it appears that he would have testified that Freeman’s appearance on the jail

tape is inconsistent with his intoxilyzer results.

       Yet, Wimbish admitted that he has previously been prohibited from testifying to

a defendant’s appearance without the aid of field sobriety tests. Neither did Wimbish


Freeman v. State                                                                    Page 16
know Freeman’s blood-breath ratio. As in Platten, Wimbish provided no data, scientific

theory, or documentary evidence to support his position that intoxication can be

determined from viewing a videotape without evidence of field sobriety tests. He made

no attempt to “establish that this method is generally accepted in the relevant

community.” Platten, 2004 Tex. App. LEXIS 588, at *10-11. Moreover, whether an

individual appears intoxicated is “not outside the knowledge and experience of the

average juror.” Id. at *11. The jury did not need Wimbish’s testimony in order to

evaluate Freeman’s appearance on the jail tape.

       Accordingly, we cannot say that the trial court abused its discretion by excluding

Wimbish’s testimony. We overrule Freeman’s first point.

                                  DISABLED JUROR

       In his third point, Freeman complains about the trial court’s decision to declare a

juror disabled and proceed with eleven jurors.

                                  Standard of Review

       A juror is disabled only when he is physically, emotionally, or mentally impaired

in some way that hinders his ability to perform the duties of a juror. See Brooks v. State,

990 S.W.2d 278, 286 (Tex. Crim. App. 1999); see also Ricketts v. State, 89 S.W.3d 312, 318

(Tex. App.—Fort Worth 2002, pet. ref’d). The disabling condition may result from

physical illness, mental condition, or emotional state. Reyes v. State, 30 S.W.3d 409, 411

(Tex. Crim. App. 2000); Ricketts 89 S.W.3d at 318. Whether a juror is disabled is within

the sole discretion of the trial court; therefore, we review this issue under an abuse-of-

discretion standard. Routier v. State, 112 S.W.3d 554, 588 (Tex. Crim. App. 2003).


Freeman v. State                                                                     Page 17
                                           Analysis

       On the morning of trial, a juror contacted the trial court to complain of nausea,

diarrhea, and vomiting. There had been an outbreak of the rotavirus at the juror’s

daughter’s day care. The virus could last from three to eight days. Freeman wanted

this juror to remain on the panel because he had used his strikes on other members of

the jury in order to keep this particular juror. He requested that trial be recessed until

the juror could serve. The trial court recessed for the day to await more information

from the juror.

       The following day, the juror’s husband informed the trial court that the juror

would be confined to her house and bed for several days. The trial court declared the

juror disabled. Freeman objected, arguing that the disability was not of a “lasting” type

and the juror could probably serve sometime the next week. Freeman explained that

the juror was important to the case because she had actively participated during voir

dire and would “add a lot of information and activity and deliberation” to the panel.

The trial court overruled the objection.

       On appeal, Freeman urges that the juror’s condition did not impair her ability to

serve, but merely delayed her ability to serve. Thus, he contends that the trial court

should have recessed until the juror could serve.

       In Moore v. State, 82 S.W.3d 399 (Tex. App.—Austin 2002, pet. ref’d), the Austin

Court addressed whether “a stomach ailment is insufficient to render a juror disabled

because such an illness is temporary.” Moore, 82 S.W.3d at 406. Noting that other

courts have upheld disability findings in cases where jurors “complained of other


Freeman v. State                                                                   Page 18
temporary illnesses that impaired their ability to perform the functions of a juror,” the

Austin Court held:

       A juror’s inability to come to the courthouse due to a severe
       gastrointestinal ailment provides some evidence of the requisite
       incapacity from performing the duties assigned to that juror that the trial
       court may consider in making a determination of disability. Although a
       stomach ailment is only temporary, it remains within the trial court’s
       discretion to determine whether this juror had become disabled.

Id. at 406-07 (emphasis added); see Hughes v. State, 787 S.W.2d 193, 195 (Tex. App.—

Corpus Christi 1990, writ ref’d) (juror suffered from nausea, headaches, and vomiting);

see also Routier, 112 S.W.3d at 588 (juror suffered from the flu).

       Here, the juror suffered from a stomach virus that caused vomiting, diarrhea,

and nausea. That such an illness is of a temporary nature does not preclude a finding of

disability. See Routier, 112 S.W.3d at 588; see also Moore, 82 S.W.3d at 407; Hughes, 787

S.W.2d at 195. We cannot say that the trial court abused its discretion by declaring the

juror disabled and proceeding with eleven jurors. We overrule Freeman’s third point.

       The judgment is affirmed.



                                                          FELIPE REYNA
                                                          Justice
Before Chief Justice Gray,
       Justice Vance, and
       Justice Reyna
       (Chief Justice Gray concurring with note)*
       (Justice Vance dissenting with note)**
Affirmed
Opinion delivered and filed December 17, 2008
Publish
[CRPM]



Freeman v. State                                                                     Page 19
*       (Chief Justice Gray concurs in the judgment only and only to the extent that it
affirms the trial court’s judgment. A separate opinion will not issue. He notes,
however, that the first nine pages of the opinion rest entirely on this Court’s departure
from Arizona v. Youngblood, 408 U.S. 51, 57-58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988),
and reliance on a petition granted case from this Court, Pena v. State, 226 S.W.3d 634
(Tex. App.—Waco 2007, pet. granted). The only reason to publish this decision as an
Opinion is to try to build upon or justify the Court’s earlier erroneous decision. When
the spoliation instruction was offered in this case the defendant offered no authority for
it. In response to the request to give an instruction that would instruct the jury to infer
that the evidence on the destroyed tapes would have been adverse to the State, the
Assistant District Attorney, though not citing Yougblood clearly and correctly articulated
the proper legal standard before a spoliation instruction can be given: “you have to
have a finding of bad faith, that not only was it intentionally destroyed but that it was
destroyed in bad faith. It’s that bad faith element of that that lends itself to a, you
know, presumption by the jury that it was then, therefore, favorable to the defendant.
There has been no evidence in this case, there has been no suggestion that that was
done in bad faith.” Whereupon the trial court promptly denied the requested
instruction. Under this standard, the Youngblood standard, which I believe is the proper
and controlling standard, the trial court’s decision was not error. The specter of some
higher duty to preserve evidence in Texas under this Court’s articulation of the Due
Course of Law Clause that imposes a higher duty than the Due Process Clause of the
United States Constitution was never even suggested to the trial court.)

**      (Evidence that is destroyed inevitably affects the proper administration of justice.
I would hold that a law enforcement agency has a duty to preserve a videotape of a
traffic stop as long as a criminal case involving a person shown on the videotape
remains pending and that a defendant deprived of that potential evidence is entitled to
a spoliation instruction to the jury regarding the unavailability of that evidence. Here,
not only was the defendant deprived of potentially exculpatory evidence, his ability to
establish the admissibility of the proposed expert testimony was also compromised.
Thus, I would reverse the judgment and remand the cause for a new trial.)




Freeman v. State                                                                     Page 20
