In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00090-CR ______________________________
DENNIS BARFIELD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law Harrison County, Texas Trial Court No. 2005-0852
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
When Harrison County Sheriff Tom McCool and Sergeant Bryan Hill of his office encountered motorcyclist Dennis Barfield late one night in 2005, Sergeant Hill asked Barfield how much he had had to drink. Barfield replied, "Too damn many." The officers testified at trial that Barfield was impaired because of his consumption of alcohol, based on the presence of a strong odor of alcohol, intoxication indicators from the horizontal gaze nystagmus test, Barfield's unsteadiness, and his admission that he had drunk about six beers. The State also introduced the results of a breath sample analyzed by an Intoxilyzer 5000--which indicated in two tests that Barfield had a 0.112 and a 0.108 blood-alcohol content. The trial court instructed the jury that it could find Barfield guilty of driving while either not having the normal use of his faculties because of alcohol, or having a measured blood-alcohol content of 0.08 or more. The jury convicted Barfield for driving while intoxicated. (1)
Barfield structures his appellate brief into two stated points of error, but we conclude he substantively makes out but one. Barfield's first point complains that the Intoxilyzer 5000 should have been subject to cross-examination; his second contending that denying him the right to cross-examine the State's Intoxilyzer expert was error. After reviewing the substance of his arguments and the record on which they are based, we will address Barfield's real contention--the one actually developed and briefed (2)--that the trial court improperly limited his cross-examination of the State's breath-testing expert, Rex Swords.
The record provides context for our review. After the State introduced evidence about the results of the Intoxilyzer test, Barfield's counsel then cross-examined the technical supervisor who maintained the device. After eighty pages of cross-examination by Barfield's counsel, the trial court stated that it would allow no more questions. In so doing, the court did not state that the machine was per se unassailable, but instead opined that the science behind the machine had been found to be reliable, and that the remaining issues were whether the State had proved the machine was operating properly and whether the operator followed the requisite procedures. (3)
Barfield's counsel argued that this ruling violated his due-process right to confront and cross-examine the witness. He later made a fifty-page bill of exceptions during which he questioned the expert further about the operation of the device.
Barfield specifically complains the trial court improperly excluded him from pursuing five areas of examination that were necessary in order to enable the jury to properly weigh the validity of the results produced by the breath-testing machine: (1) that the machine stores internally, and can print out a report showing, the number of times that machine has malfunctioned, (2) that the machine allows a tolerance of plus or minus .02 of alcohol in 210 liters of breath, (3) elements other than ethyl alcohol in a subject's breath could affect the machine's results, (4) the machine's warranty does not warrant that it will properly analyze for blood-alcohol content, and (5) the machine's inability to test the temperature of a subject's breath, plus the presence of heating elements in the machine, can lead to a falsely high reading for blood-alcohol content or can lead to an invalid result.
(1) Reporting on Machine Malfunctions
Barfield's counsel asked Swords about the types of malfunctions that could occur and the error messages the machine would print out when different variables were not within proper parameters. He asked Swords if he knew how many tests were run using the machine during a twenty-five-day period during which the test at bar was performed--Swords did not know individually, and did not have records with him which would have shown this number. Swords acknowledged that there were a number of factors which would invalidate a test, and set out in some detail both the factors and the way that the machine would indicate that such errors had occurred. Counsel did not specifically ask Swords whether the machine kept records that could be printed out to show how many times the machine had malfunctioned. Even when counsel did ask that question, the response was that Swords was unsure about whether a printout showing the number of invalid tests could be generated.
(2) Machine Tolerance Allowed
The fact that the machine had a .02 (4) tolerance for its control tests--tests run on known, "control" samples at the time the subject's breath was to be tested, to determine whether the machine was operating properly--was clearly raised and placed before the jury during cross-examination.
(3) Elements Other than Ethyl Alcohol in a Subject's Breath
Swords acknowledged that other elements could affect the results, and he was questioned before the jury at length about some of those elements: radio interference, alcohol vapors in the mouth instead of the lungs, and alcohol in the air in the room. Swords also testified there was a presumption that, if other substances were present, the machine would register interference with the test.
(4) The Machine's Warranty
There was no attempt made to place before the jury the fact that the Intoxilyzer's warranty did not warrant its accuracy for breath testing.
(5) Temperature Problems
The facts that the Intoxilyzer could not measure the subject's breath temperature and that it had heating elements to heat the breath, were examined and placed before the jury at length during the course of Barfield's cross-examination of Swords. Although different words were used when the subject was covered during the bill of exceptions, Barfield cannot contend successfully that he had no, or insufficient, opportunity to cross-examine the State's expert on this matter. In fact, he did, at length and effectively.
As the State points out, Barfield was allowed, during his some eighty pages of initial cross-examination of Swords and his some seven pages of recross-examination of Swords--all before the jury--to get into evidence all but the warranty information.
Although a defendant's right to confrontation and cross-examination is constitutionally safeguarded, the right is not absolute. Chambers v. Mississippi, 410 U.S. 284, 295 (1973); Huff v. State, 897 S.W.2d 829, 839 (Tex. App.--Dallas 1995, pet. ref'd). The trial court retains great latitude in imposing reasonable limitations on cross-examination. Virts v. State, 739 S.W.2d 25, 28 (Tex. Crim. App. 1987). The court may properly limit the scope of cross-examination to prevent harassment, prejudice, confusion of the issues, harm to the witness, and repetitive or marginally relevant interrogation. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). When considering whether a trial court's decision to exclude testimony is error, we must determine whether the trial court abused its discretion. Love v. State, 861 S.W.2d 899, 903 (Tex. Crim. App. 1993). This inquiry depends on the facts of each case. Id. at 904; Roberts v. State, 963 S.W.2d 894, 901 (Tex. App.--Texarkana 1998, no pet.).
The trial court permitted considerable cross-examination, but ultimately, after allowing a considerable amount of highly repetitive testimony, terminated the examination. The critical issues were before the jury by cross-examination, and based on the length and nature of the questioning, we do not believe that the trial court abused its discretion by ending the examination when it did. Counsel has provided no cogent argument based on the record or on the law to show this Court the contrary.
Given the sequence of events set out above, we conclude Barfield had, and exercised, his adequate opportunity to cross-examine the State's expert witness about the matters asserted in his brief.
Further, even if we found that Barfield's rights were violated, counsel has made no effort to perform any type of harm analysis that might show how any error contributed to his conviction or punishment. See Tex. R. App. P. 44.2(a). (5)
In that regard, we note that the jury charge permitted conviction for driving while intoxicated either because of proof of intoxication by testimony or by test. Even if the evidence failed as to the measurement of the breath sample, on this record, the jury could have convicted based on Barfield's own statements and the officers' testimony.
We affirm the judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: January 24, 2007
Date Decided: January 26, 2007
Do Not Publish
1. He was sentenced to 180 days' confinement and a $2,000.00 fine.
2. In his appellate brief, as he begins to argue his point of error number one, Barfield asks whether Intoxilyzer results are admissible without meeting a three-pronged test of reliability. However, he does not develop any complaint about the admission of the Intoxilyzer test results, nor does he point out any place at which he objected to the admission of those results. His principal discussion under point one addresses alleged deficiencies of the breath-testing machine, including tolerances and lack of temperature control. The real focus under that point is his argument that he should have been permitted to more extensively attack the manner in which the machine applies the scientific principles behind breath testing to determine blood-alcohol content.
As he begins his argument of what he calls point of error number two, Barfield argues that an Intoxilyzer result is not automatic proof of guilt. He also accuses the trial court of erroneously overruling Barfield's objections--without specifying what objections were overruled--and wrongfully misleading the jury on how it was to evaluate the evidence. He additionally seems to complain that the trial court instructed the jury to find guilt based on the Intoxilyzer results. However, he specifies no jury instruction that was allegedly erroneous, and it appears that his argument in that regard is also suggesting that the trial court misled the jury to believe that it was required to accept the results as correct.
We will read his argument to assert one error, the limitation of his cross-examination of the State's breath-testing expert. Because of lack of specificity and multifariousness in his briefing, Barfield waives any other alleged error.
This Court has repeatedly warned litigants not to combine multiple issues into a single point of error, thereby risking our overruling the composite point of error as multifarious. See, e.g., Dickey v. State, 189 S.W.3d 339, 341 (Tex. App.--Texarkana 2006, no pet.); Newby v. State, 169 S.W.3d 413, 414 (Tex. App.--Texarkana 2005, no pet.); Harris v. State, 133 S.W.3d 760, 764 n.3 (Tex. App.--Texarkana 2004, pet. ref'd); Parra v. State, 935 S.W.2d 862, 875 (Tex. App.--Texarkana 1996, pet. ref'd).
3. Barfield does not directly attack that pronouncement of the trial court. That may be because the trial court's statement is correct. The Legislature has determined that the science underlying breath testing is valid, and its application is valid if administered by individuals certified by, and using methods approved by the rules of, the Texas Department of Public Safety. Reynolds v. State, 204 S.W.3d 386, 390 (Tex. Crim. App. Oct. 18, 2006); see Tex. Transp. Code Ann. § 724.064 (Vernon 1999); see also Mireles v. Tex. Dep't of Public Safety, 9 S.W.3d 128, 131-32 (Tex. 1999); Stevenson v. State, 895 S.W.2d 694, 696 (Tex. Crim. App. 1995).
4. Fully stated, the tolerance is .02 grams of alcohol per 210 liters of breath.
5. See Long v. State, No. PD-1888-04, 2006 WL 2861076, at *1 (Tex. Crim. App. Oct. 4, 2006); Jones v. State, 119 S.W.3d 766, 777 (Tex. Crim. App. 2003) ("The reviewing court should 'calculate, as nearly as possible, the probable impact of the error on the jury in light of the other evidence.'").
he Texas Family Code, which provides for termination of parental rights in cases where the parent knowingly commits a crime and is incarcerated or imprisoned and is unable to care for the child for two years from the date of the filing of the petition. S.E.W. did not challenge the constitutionality of Section 161.001(q) in the trial court, he raises this issue for the first time on appeal.
As a rule, a claim, including a constitutional claim, must have been asserted in the trial court in order to be raised on appeal. Tex. R. App. P. 33.1; Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993); Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807, 813 (Tex. 1959); Walker v. Employees Retirement Sys., 753 S.W.2d 796, 798 (Tex. App.-Austin 1988, writ denied).
A facial challenge to the constitutionality of a statute may be raised for the first time on appeal. Rose v. State, 752 S.W.2d 529, 552-53 (Tex. Crim. App. 1987) (op. on reh'g); Rabb v. State, 730 S.W.2d 751, 752 (Tex. Crim. App. 1987). In a facial challenge, the challenging party contends that the statute, by its terms, always operates unconstitutionally. See Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 518 (Tex. 1995) (citing New York State Club Ass'n v. New York City, 487 U.S. 1, 11, 108 S. Ct. 2225, 2233, 101 L. Ed. 2d 1 (1988); United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100, 95 L. Ed. 2d 697 (1987)). In other words, a challenger must establish that no set of circumstances exists under which the statute would be valid. Salerno, 481 U.S. at 745; Wilson v. Andrews, 10 S.W.3d 663, 670 (Tex. 1999); Brenneman v. State, 45 S.W.3d 729, 732 (Tex. App.-Corpus Christi 2001, pet. ref'd). The United States Supreme Court further observed in Salerno that just because a statute "might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." Salerno, 481 U.S. at 745; see also New York v. Ferber, 458 U.S. 747, 767, 102 S. Ct. 3348, 73 L. Ed. 2d 1113, 1129 (1982); United States v. Raines, 362 U.S. 17, 21-22, 80 S. Ct. 519, 4 L. Ed. 2d 524 (1960). However, an "as applied challenge" only requires the challenger to demonstrate that the statute operates unconstitutionally when applied to the challenger's particular circumstances. Garcia, 893 S.W.2d at 518 n.16.
Care in the analysis of constitutional challenges must be taken because such challenges take different forms with different results. Rodriguez v. State, 71 S.W.3d 800, 802 (Tex. App.-Texarkana 2002, no pet.). A facial challenge to the constitutionality of a statute on which a defendant's conviction is based contests a court's jurisdictional power to enforce the statute under any circumstances; a challenge to the statute as applied in the defendant's particular circumstances does not. McGowan v. State, 938 S.W.2d 732, 739-42 (Tex. App.-Houston [14th Dist.] 1996), aff'd, 975 S.W.2d 621 (Tex. Crim. App. 1998). Thus, the former may be raised for the first time on appeal, while the latter is waived unless it is raised in the trial court. Id. at 741-42 (op. on reh'g); see also Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994) (holding that because a statute providing for the jury charge was neither facially unconstitutional nor void ab initio, the appellant was required to object at trial in order to preserve error for purposes of appeal); see generally 43A George E. Dix et al., Texas Practice: Criminal Practice and Procedure §§ 42.253-54 (2d ed. 2001).
Because S.E.W. specifically complains that the termination of his parental rights violates his constitutional rights under the Texas Constitution, he has made an "as applied challenge." By failing to raise a constitutional challenge in the trial court, he has waived this contention on appeal. We overrule S.E.W.'s second point of error.
In S.E.W.'s final point of error, he contends the evidence is factually insufficient to support the trial court's finding that it is in the best interest of B.S.W. to terminate his parental rights. Review of factual sufficiency of the evidence under a clear and convincing standard requires us to determine whether the evidence is sufficient to make the existence of the facts highly probable, not whether the evidence supporting the finding is sufficient to make the existence of fact more probable than not, as in ordinary civil cases. In re D.T., 34 S.W.3d 625, 632 (Tex. App.-Fort Worth 2000, pet. denied). That is, we must consider whether the evidence is sufficient to produce in the mind of the fact-finder a firm belief or conviction as to the truth of the allegation sought to be established. Id.; Faram v. Gervitz-Faram, 895 S.W.2d 839, 843 (Tex. App.-Fort Worth 1995, no writ). We are required to consider all of the evidence in the case in making this determination. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998). Accordingly, S.E.W. must show that the evidence is so weak or that the evidence to the contrary is so overwhelming that the trier of fact could not have reasonably concluded there was a high probability the termination was in the best interest of the child.
In Holley v. Adams, the Texas Supreme Court provided us with a nonexclusive list of factors to help determine the best interest of the child: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. 544 S.W.2d 367, 371-72 (Tex. 1976). This listing is by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent.
This case involves a young child born in August 1998 and therefore too young to express her desires. There is no evidence S.E.W. has ever cared for the child, providing her with physical, financial, or emotional support. The evidence clearly shows that the child may have lived with or been cared for by S.E.W's mother for awhile, but there is no evidence whatsoever that during that period, S.E.W. had any contact with the child. He is currently incarcerated, and no one offered on his behalf to care for the child. S.E.W. has never met B.S.W.; he has been incarcerated since before her birth. His testimony reveals he has had no contact with the mother of the child since the child's birth. He contends his family will support the child until his release; however, no family member came forward to seek custody of the child. S.E.W. complains the State furnished no home study or service plan; however, there was no home for the State to study. The mother's parental rights had already been terminated. Although there is some evidence S.E.W.'s mother may have cared for the child in the past. S.E.W. testified his attempts to contact his mother have been unsuccessful.
Under the third Holley factor, S.E.W.'s propensity toward anti-social behavior, as demonstrated by his criminal convictions and his behavior while in prison, is evidence that he may be an emotional or physical danger to B.S.W. now and in the future. S.E.W. has no job with which to support the child, and it is purely speculative as to when S.E.W. will be released from prison. S.E.W. filed no claim of paternity with the paternity registry and has not attempted to maintain contact with B.S.W. since his incarceration.
The evidence is factually sufficient to support the trial court's finding that it is in the best interest of the child to terminate S.E.W.'s rights. The State proved each of its required elements with clear and convincing evidence. We overrule S.E.W.'s final point of error.
We affirm the trial court's judgment.
Ben Z. Grant
Justice
Date Submitted: August 6, 2002
Date Decided: September 18, 2002
Publish
1. Twenty-eight states prohibit corruption of blood. This provision in the Texas Constitution
was in response to English common law, which provided that the estates of those convicted of a
felony would be forfeited to the king. See George D. Braden et al., Constitution of the State
of Texas: An Annotated and Comparative Analysis 74 (1977).