                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00255-CR

JAMES O. SANDERSON,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee


                          From the County Court at Law
                             Walker County, Texas
                             Trial Court No. 10-0874


                           MEMORANDUM OPINION


       James Sanderson appeals from his conviction for the offense of driving while

intoxicated. TEX. PEN. CODE ANN. §§ 49.04, 49.09(a) (West 2011). Sanderson complains

that the trial court erred by sustaining the State’s objection to his questioning regarding

the Intoxilyzer 5000 machine for purposes of determining reasons why an individual

would refuse to give a specimen of his breath on that machine. Because we find no

reversible error, we affirm.
Admission of Evidence

        In his sole issue, Sanderson complains that the trial court erred by sustaining an

objection by the State to the relevance of a question propounded during cross-

examination of the arresting officer relating to how the Intoxilyzer 5000 works for

purposes of taking a breath specimen. At a discussion outside of the presence of the

jury, Sanderson indicated that the intent of the questioning was to explain the

functioning of the breathalyzer and how it works for purposes of showing whether

there would be a reason why someone would not want to provide a specimen. The trial

court sustained the objection. No offer of proof was made.

Preservation of Error

        In order to preserve error regarding a trial court’s decision to exclude evidence,

the complaining party must comply with Texas Rule of Evidence 103 by making an

“offer of proof” which sets forth the substance of the proffered evidence. TEX. R. EVID.

103; Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). Texas Rule of Evidence

103(a)(2) provides: “Error may not be predicated upon a ruling which . . . excludes

evidence unless a substantial right of the party is affected, and . . . the substance of the

evidence was made known to the court by offer, or was apparent from the context

within which questions were asked.” TEX. R. EVID. 103(a)(2); Mays, 285 S.W.3d at 889.

The offer of proof may consist of a concise statement by counsel, or it may be in

question-and-answer form. Mays, 285 S.W.3d at 889. If in the form of a statement, the


Sanderson v. State                                                                    Page 2
proffer must include a reasonably specific summary of the evidence offered and must

state the relevance of the evidence unless the relevance is apparent, so that the court can

determine whether the evidence is relevant and admissible. Id. at 889-90.

        “The primary purpose of an offer of proof is to enable an appellate court to

determine whether the exclusion was erroneous and harmful.” Id. at 890 (internal

citations omitted). A secondary purpose is to give the trial court an opportunity to

reconsider its ruling in light of the actual evidence sought to be admitted. Id. There is

nothing in the record regarding the substance of the evidence Sanderson was seeking to

be admitted either by his statement or by questioning of the officer. As such, any

alleged error has not been preserved. Issue one is overruled.

Conclusion

        Because we find no reversible error, we affirm the judgment of the trial court.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 2, 2012
Do not publish
[CR25]




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