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Opinion filed December 1, 2005
In The
Eleventh Court of Appeals
__________
No. 11-04-00081-CR
__________
FRANCIS STEVEN BUCSKO, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the County Court
Eastland County, Texas
Trial Court Cause No. 02-161
O P I N I O N
The jury convicted Francis Steven Bucsko of driving while intoxicated, and the trial court assessed his punishment at 180 days confinement and a $2,000 fine. The trial court suspended the imposition of the confinement portion of the sentence and placed appellant on community supervision for 2 years. We affirm.
In two points of error, appellant complains that the trial court impermissibly bolstered the credibility of a witness in front of the jury. During the trial, Bob Browder, a technical supervisor with the Texas Department of Public Safety, testified about the operation of the Intoxilyzer 5000. Browder explained the mechanics and maintenance of the machine. Browder further testified that the test on appellant=s breath sample showed an alcohol concentration of 0.157 and 0.158.[1] At the conclusion of Browder=s testimony, the trial court asked if Browder could be released to go home, and the following exchange occurred:
DEFENSE COUNSEL: Judge, if we have time I would like for him to expound a little bit more on his knowledge in all that he=s learned over the years.
WITNESS: Are you getting paid by the hour, Counsel?
THE COURT: Ladies and gentlemen --
DEFENSE COUNSEL: I don=t have any objection.
THE COURT: - - you will probably understand at this juncture why we lovingly call Mr. Browder Professor Browder. So, Mr. Bob, you are excused to go. We ap-preciate you, sir, and have a safe trip home.
Appellant did not object to the comment by the trial court.
Appellant argues that the trial court=s comment bolstered the credibility of the witness in violation of TEX. CODE CRIM. PRO. ANN. art. 38.05 (Vernon 1979) which prohibits the trial court from discussing or commenting upon the evidence. In viewing the comment in context, we do not find that the trial court=s comment bolstered the credibility of the witness. Moreover, because appellant did not object to the trial court=s comment, he has failed to preserve his argument for review. TEX.R.APP.P. 33.1(a). Additionally, appellant has not shown that he was harmed by any error. TEX.R.APP.P. 44.2(b). Appellant=s first and second points of error are overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
December 1, 2005
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.
[1]A person is intoxicated if he has an alcohol concentration of 0.08 or more. TEX. PEN. CODE ANN. ' 49.01(2)(B) (Vernon 2003).