Affirmed and Opinion filed April 13, 2006.
In The
Fourteenth Court of Appeals
____________
NO. 14-05-00494-CR
____________
STEVEN LEWIS BEDWELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Cause No. 45,893
O P I N I O N
Appellant entered a plea of not guilty to felony driving while intoxicated (DWI). He was convicted, and the court assessed punishment at ten years= confinement in the Texas Department of Criminal JusticeCInstitutional Division. In four issues, appellant contends (1) the evidence is legally and factually insufficient to support the conviction, and (2) the trial court erred in admitting evidence of extraneous offenses. We affirm.
Background
On September 24, 2003 at 9:30 in the morning, Officer Steven Alexander of the Brazoria County Sheriff=s Department received a dispatch advising of a reckless driver. He followed the driver and observed him driving erratically, crossing the white side line and crossing the yellow center strip several times. When Alexander turned on his emergency lights, appellant made a U-turn in front of oncoming traffic into a driveway. Alexander blocked appellant=s retreat and appellant stopped. When appellant exited his car, Alexander testified he observed that appellant was extremely intoxicated. Alexander testified appellant experienced difficulty standing, his speech was slurred, and he was A[q]uite oblivious to the fact that he was even alive.@ Alexander asked appellant why he was driving erratically, and appellant responded that he was taking several medications that affected him adversely. Alexander believed that appellant had lost the normal use of his mental and physical faculties through the ingestion of drugs.
Alexander called Department of Public Safety Trooper Jerone Johnson to conduct further tests because Johnson was more familiar with the field sobriety tests to be administered. Appellant told Johnson he was taking three or four medications, one of which was a muscle relaxer. Appellant had taken Lorazepam, which contained a label warning the user to use care in operating machinery or a motor vehicle. Johnson administered the walk-and-turn test and the one-leg-stand test and determined that appellant was heavily intoxicated. Using the videotaping equipment in his patrol vehicle, Johnson recorded the administration of the field sobriety tests. The videotape was shown to the jury.
Sufficiency of the Evidence
In his first and second issues, appellant contends that the evidence is legally and factually insufficient to support a conviction for DWI. Specifically, appellant contends that the State failed to prove, through expert testimony, that appellant was intoxicated as a result of taking prescription medication. In considering a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Although we examine all of the evidence presented at trial, we may not re‑weigh the evidence or substitute our judgment for that of the jury. Id.
For the jury to find appellant guilty of DWI, the charge required the State to prove that appellant operated a motor vehicle in a public place, while intoxicated by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of those substances, or any other substance into the body. Tex. Pen. Code Ann. '' 49.01(2), 49.04. Appellant does not challenge the State=s proof that appellant was operating a motor vehicle in a public place. Appellant contends that the State presented no expert testimony that any of the drugs taken by appellant, individually or in combination, impaired appellant at the time of his arrest.
In Smithhart v. State, 503 S.W.2d 283 (Tex. Crim. App. 1973), the Court of Criminal Appeals determined that while a non-expert witness may express an opinion that a person was under the influence of alcohol based on the witness=s observation, the rule as to whether a non-expert may testify whether a person is under the influence of drugs is different. Id. at 284. In Smithhart, the court determined that a peace officer with only four months= experience was not qualified to testify as to whether the accused was under the influence of drugs. Id. at 285. The court held, however, that the State could show through circumstantial evidence that the accused was driving while under the influence of drugs.
In this case, the jury could have relied on circumstantial evidence and appellant=s admissions to determine he was driving while intoxicated. Both Alexander and Johnson testified that appellant was obviously intoxicated and had difficulty maintaining his balance. Alexander testified that appellant was driving erratically and was a danger to himself and others. Appellant admitted to the officers on videotape that he had taken at least three prescription medications that morning, which made him sleepy. The videotape of the field sobriety tests shows that appellant=s speech was slurred and that he could not maintain his balance while performing the tests. Appellant=s demeanor and his performance on the sobriety tests provided circumstantial evidence on which the jury could have relied in its determination that appellant did not have the normal use of his mental or physical faculties by reason of the introduction of one or more substances into his body. Therefore, a rational trier of fact could have found the essential elements of DWI beyond a reasonable doubt. Appellant=s first issue is overruled.
When conducting a factual sufficiency review, we view all of the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Appellant=s mother testified that appellant lived with her and that he was ill, not intoxicated, on the morning of his arrest. She testified that when appellant took his prescribed medication, his speech often became slurred. She further testified that appellant=s illness sometimes affected his balance. As the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given their testimony, the jury may believe or disbelieve all or any part of a witness=s testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). A jury=s decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997). Here, the jury chose to believe the officers= testimony that appellant was intoxicated on the morning of the arrest. Therefore, the jury was rationally justified in finding guilt beyond a reasonable doubt. Appellant=s second issue is overruled.
Evidentiary Issues
In his third issue, appellant contends that the trial court erred in admitting evidence of an extraneous bad act. On cross-examination of Trooper Johnson, appellant asked about appellant=s normal speech pattern:
Q. [by defense counsel]: And do you know what Mr. Bedwell=s normal pattern of speaking might be like?
A. Yes, ma=am, I do.
Q. And how do you know that, sir?
A. Because I worked an accident on Mr. Bedwell where he left a straight road with no turns, left the road and struck a parked vehicle, and I spoke with him that day and I did not perform field sobriety test on him.
Q. And did you observe his voice was slurry that day as well?
A. No, it was not, ma=am.
On re-direct examination, the prosecutor asked the following questions:
Q. [by the prosecutor]: Okay. And during the questioning by the defense counsel you mentioned that you had another instance, another run-in with Mr. Bedwell, the defendant; is that correct?
A. That=s correct.
Q. Okay. And can you tell the jury about how long after your initial arrest of the defendant did this occur?
A. I would say approximately six months.
Q. And if you recall, can you tell them the events of what happened when you had your second run-in with the defendant?
Appellant objected that evidence of Johnson=s second encounter with appellant was irrelevant and that its prejudicial effect outweighed its probative value. The trial court permitted the testimony because appellant had earlier opened the door during cross-examination. Johnson testified that approximately six months after he arrested appellant, he investigated a one-car accident in which appellant was involved. Johnson testified that on the day of the accident, appellant had a clear voice and no signs of intoxication.
We review a trial court=s ruling on the admission of evidence for an abuse of discretion. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Once a matter is opened by the opposing party, evidence to fully explain the matter is admissible, even though the evidence might otherwise have been inadmissible. Parr v. State, 557 S.W.2d 99, 102 (Tex. Crim. App. 1977); Jensen v. State, 66 S.W.3d 528, 539 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). By questioning Johnson about whether he had observed appellant=s speech pattern at another time, appellant opened the door to the testimony about the subsequent accident. See Gilbert v. State, 874 S.W.2d 290, 296B97 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d) (asking a police officer why he was familiar with a defendant opened the door to evidence the officer had arrested the defendant for a narcotics violation). The trial court did not abuse its discretion in admitting evidence of appellant=s accident six months after the DWI arrest. Appellant=s third issue is overruled.
In his fourth issue, appellant contends that the trial court erred in admitting evidence of prior criminal acts. At the guilt-innocence stage of trial, appellant=s mother testified on his behalf. When asked about appellant=s past conduct, his mother testified as follows:
Q. Has he leveled up to what he=s done wrong with you in the past?
A. Yes, he has. He=s actually appeared in court when the Judge has told him to, knowing that he may even be going to jail. But he showed up, and he was there. He knows when he=s done it.
Outside the presence of the jury, the State contended that the mother=s testimony had opened the door to questioning about appellant=s prior criminal history. Appellant=s counsel argued the door had not been opened. The trial court held that the State could ask appellant=s mother if she had personal knowledge of appellant=s appearances in court. The court specifically instructed the State not to ask about the underlying convictions.
On cross-examination, the State asked appellant=s mother about the conditions of his probation and whether he had violated those conditions by driving without being accompanied by his mother. Appellant objected as follows:
[Defense Counsel]: Objection, Judge. That does not go to the DWI. That is not an element whatsoever towards this DWI.
[Prosecutor]: Your Honor, this witness has said that her son is honest with her and that she=s not going to lie for him and I believe that just isn=t true and this shows it.
[Defense Counsel]: Your Honor, again, I would say that does not go to any element.
THE COURT: I=ll allow this for limited purposes of assisting the jury, if it does assist the jury, in determining the credibility of this witness and not as underlying evidence of guilt in this particular case. It=s limited to her credibility.
The prosecutor subsequently questioned appellant=s mother on a number of specific court appearances and asked if she had personal knowledge that he appeared each time. Appellant objected, arguing the evidence was irrelevant and further objected as follows:
[Defense Counsel]: The legal objection is there has been a stipulation. The legal objection is that this evidence will be more prejudicial than will have probative value. This objection is he=s on a fishing expedition.
The trial court permitted the prosecutor to ask appellant=s mother about whether she remembered each of appellant=s court appearances. The court instructed the jury they were only to consider the evidence for the limited purpose of determining the credibility of the witness.
On appeal, appellant contends that the evidence was improper impeachment under Rule 609 of the Texas Rules of Evidence. To properly preserve an issue for appellate review, there must be a timely objection that specifically states the legal basis for the objection. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). An objection stating one legal basis may not be used to support a different legal theory on appeal. Cook v. State, 858 S.W.2d 467, 474 (Tex. Crim. App. 1993). The complaint appellant now raises does not comport with the objection he voiced at trial. At trial, appellant objected that the evidence was not relevant and its prejudicial effect outweighed its probative value. See Tex. R. Evid. 403, 404. On appeal, he argues the evidence was improper impeachment. See Tex. R. Evid. 609. An objection that evidence is irrelevant and prejudicial is different from an objection that evidence is being used to improperly impeach a witness. Therefore, appellant has waived error. Appellant=s fourth issue is overruled.
The judgment of the trial court is affirmed.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Opinion filed April 13, 2006.
Panel consists of Chief Justice Hedges and Justices Yates and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).