Affirmed and Majority and Concurring Memorandum Opinions filed November 25, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00327-CR
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ERICA LOURDES SEDENO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 7
Harris County, Texas
Trial Court Cause No. 1385835
M E M O R A N D U M O P I N I O N
A jury found appellant, Erica Lourdes Sedeno, guilty of the misdemeanor offense of driving while intoxicated. See Tex. Penal Code Ann. ' 49.04 (Vernon 2003). The trial court sentenced appellant to 180 days= confinement in the Harris County jail, probated for one year, and assessed a $300 fine. On appeal, appellant argues the trial court erred in (1) refusing to allow appellant to refresh the State=s witness=s recollection with information from a training manual; (2) prohibiting appellant from admitting evidence that the horizontal gaze nystagmus test (HGN) was only 77% accurate in predicting intoxication and not completely accurate as the State led the jury to believe; (3) depriving appellant of her Sixth Amendment right to confront and cross-examine; and (4) depriving appellant of her Sixth Amendment right to present a defense by restricting cross-examination. Finding no error, we affirm.
Factual and Procedural Background
On June 26, 2006, Sergeant Curtis Young of the Houston Police Department observed appellant making an illegal left-hand turn. Sergeant Young pulled appellant over, and as he approached the vehicle, he noticed appellant=s eyes were glassy, smelled a strong odor of alcohol, and noticed appellant was very talkative. Sergeant Young asked appellant if she had been drinking, and appellant admitted she had consumed two glasses of wine and one beer. Sergeant Young then asked appellant to step out of the car so he could perform field sobriety tests. Due to appellant=s performance on the field sobriety tests, Sergeant Young arrested appellant for driving while intoxicated.
Upon arrival at the police station, Sergeant Young turned appellant over to Officer Marisol Gonzalez. Officer Gonzalez also performed field sobriety tests on appellant, which were videotaped. Appellant=s performance again indicated intoxication. Appellant, however, refused to provide a sample of her breath. Appellant was subsequently charged by information with driving while intoxicated.
During trial, Sergeant Young testified regarding the standardized field sobriety tests he performed on appellant. Sergeant Young testified the first test he performed was the HGN. Sergeant Young explained what the HGN test was and how he performed it. In addition, Sergeant Young testified appellant exhibited all six clues on the HGN test.
On cross-examination, appellant=s attorney, Andrew Jefferson, also questioned Sergeant Young regarding the HGN test. The following discussion is the basis of appellant=s complaint on appeal:
Q: (Mr. Jefferson) All right. Now, let=s make sure the jury understands what you and I know. The HGN is accurate for predicting impairment 77 percent of the time, correct?
[PROSECUTOR]: Objection, relevance.
THE COURT: He can answer if he knows.
THE WITNESS: I=m not sure what the percentage is on it.
Q: (Mr. Jefferson) Well, you have the book [the National Highway Traffic Safety Administration (NHTSA) manual] in front of you. Do you want me to research it for you?
MR. JEFFERSON: May I approach?
THE COURT: The bench, approach the bench.
(At the bench, on the record.)
THE COURT: You=re not going to do this. The book is not in evidence. We=re not going to put numbers out there. I let you ask; he says he doesn=t know. We=re moving on.
[PROSECUTOR]: Thank you, Judge.
THE COURT: You need to move on.
MR. JEFFERSON: See - -
THE COURT: I let you ask him. He says he doesn=t know. That=s the end.
MR. JEFFERSON: May I approach?
THE COURT: Yes, but I=ve just ruled. Would you take the jury, please.
THE BAILIFF: All rise.
(Jury out.)
THE COURT: Okay. I=ve let you ask him. He says he doesn=t know. I=m not going to let you then teach it to him.
MR. JEFFERSON: Okay.
THE COURT: I mean, I don=t think that would be appropriate so we=re moving on. I really don=t like when we start this percentage thing because then we get in to, well, what if we do all four. If I let you open the door to all this, you know - -
MR. JEFFERSON: He ought to know the answers to all their questions.
THE COURT: I don=t know if he knows or not because that=s (sic) studies done; and different studies have different basis; and if we go through this whole thing everybody=s studies come up with a different number.
MR. JEFFERSON: Okay. Well, Judge, the State brought this man in here.
THE COURT: I understand he was an expert, which is why I let you ask him, but he said I don=t know, okay. So now we=re not going to put words in his mouth and tell him he knows, are we? He said he didn=t know. If he had said, yes, it=s so and so and so and so; but that didn=t come out. He said he didn=t know. I can=t make him know.
MR. JEFFERSON: I=ve got the book here and he=s acknowledged that this is the book he relies on; he=s been taught from.
THE COURT: I don=t know if it=s the same edition. They release a new edition every year as you well know.
MR. JEFFERSON: Well, he can say that.
THE COURT: Well, I don=t know what he=s going to say, which is why the jury is not in here.
MR. JEFFERSON: He=s the witness. Don=t help him; don=t help him.
THE COURT: Mr. Jefferson, now what is it you want to ask him?
MR. JEFFERSON: I want to ask him if he will look at Page Roman Numeral 7-6.
THE COURT: What year is that book? Let=s start with this.
MR. JEFFERSON: 2002.
THE COURT: I have no idea what he was trained on. You can ask him.
MR. JEFFERSON: He=s already been asked about the book. He said it looked like the book he was trained from. He=s the witness, Judge.
THE COURT: I know because I do this everyday. There=s a different book every year. Ask him, don=t ask me. Let=s go while the jury is out.
Q: (By Mr. Jefferson) I want to show you Roman Numeral 7-6.
A: Yes, sir.
Q: And the statement that, under horizontal gaze nystagmus, with four or more clues present this test is 77 percent accurate?
A: That=s with 0.10. That=s not what we use here. With a 0.08 it=s a higher average.
Q: Do you know what the average is?
A: Guessing, no.
Q: Do you know?
A: No, but I know we don=t - - the law here is not 0.10.
Q: But you don=t know what the level of accuracy is for HGN?
A: No, sir.
Q: Is it a hundred percent?
A: Not that I=m aware of, no, sir.
MR. JEFFERSON: That=s all I have, Judge. I=m ready.
THE COURT: Bring the jury.
THE BAILIFF: All rise.
(Jury in.)
THE COURT: Please be seated. Please proceed.
. . . .
Q: (By Mr. Jefferson) All right. On the level of accuracy for the HGN test, I believe you=re telling us that you do not know at what level the test is accurate. You know it=s not a hundred percent accurate, correct?
A: That=s correct.
Discussion
A. Did the Trial Court Err in Refusing to Allow Appellant to Refresh Sergeant Young=s Recollection with Information from the NHTSA Manual?
In her first issue, appellant argues the trial court erred when it refused to allow appellant to refresh Sergeant Young=s recollection regarding the effectiveness of the HGN test. Appellant argues Sergeant Young had previously recognized the NHTSA manual as one similar to the manual from which he was taught; therefore, once Sergeant Young testified he did not know the accuracy of the HGN test, appellant should have been allowed to refresh Sergeant Young=s recollection with the manual.
To preserve an issue for appellate review, a party is required to show (1) a timely complaint was made to the trial court, which stated the grounds for the ruling with sufficient specificity to make the trial court aware of the complaint and (2) the trial court ruled on the party's complaint, or the trial court refused to rule and the party objected to that refusal. Tex. R. App. P. 33.1(a). This requirement reflects the policy that issues should initially be presented to the trial court so as to provide the trial court with an opportunity to prevent error. Harris v. State, 204 S.W.3d 19, 27 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d). Furthermore, an objection at trial must comport with an appellant=s objection on appeal. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). An objection stating one legal basis may not be used to support a different legal theory on appeal. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).
After reviewing the relevant portion of the record, we conclude appellant failed to preserve error on this issue. During his discussion with the trial court, Jefferson never mentioned that he wished to use the NHTSA manual to refresh Sergeant Young=s recollection nor did he mention Texas Rule of Evidence 612, which deals with refreshing a witness=s recollection. See Tex. R. Evid. 612. Jefferson made comments such as: AWell, you have the book in front of you. Do you want me to research it for you?@; and AHe ought to know the answers to all their questions@; and AI want to ask him if he will look at page Roman Numeral 7-6@; and AHe=s already been asked about the book. He said it looked like the book he was trained from. He=s the witness Judge.@ However, we conclude Jefferson=s comments to the trial court did not state his complaint with sufficient specificity to make the trial court aware he wished to refresh Sergeant Young=s recollection with the NHTSA manual. See Tex. R. App. P. 33.1(a). Therefore, appellant failed to preserve this error for appellant review because his objection at trial does not comport with his objection on appeal. See Wilson, 71 S.W.3d at 349. We overrule appellant=s first issue.
B. Did the Trial Court Err in Prohibiting Appellant from Admitting Evidence that the HGN Test was only 77% Accurate?
In her second issue, appellant argues the trial court erred when it prohibited appellant from admitting evidence from the NHTSA manual that the HGN test was only 77% accurate in predicting intoxication and not completely accurate as the State led the jury to believe. Appellant argues this evidence would have discredited Sergeant Young=s alleged expertise in HGN testing and shown his lack of knowledge. In addition, appellant claims the evidence would have shown the jury the HGN test, which was allegedly validated as a predictor of intoxication, was subject to a 23% error rate.
1. Standard of Review
An appellate court reviews a trial court=s decision to admit or exclude evidence under an abuse of discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). If the trial court=s decision was within the bounds a reasonable disagreement, the appellate court should not disturb its ruling. Id.
2. Analysis
The scope of appropriate cross-examination is necessarily broad. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996); see Tex. R. Evid. 611(b). However, the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. Tex. R. Evid. 611(a). In addition, the parameters of cross-examination remain within the sound discretion of the trial court, which must balance probative value against prejudicial risks including undue prejudice, embarrassment, harassment, confusion of the issues, and undue delay. Chambers v. State, 866 S.W.2d 9, 26B27 (Tex. Crim. App. 1993).
In this case, after Sergeant Young testified he did not know the accuracy rate of the HGN test, the trial court refused to allow appellant to delve into the specific statistics provided by the NHTSA manual. During the conference outside the jury=s presence, the trial judge expressed her concern about opening the door for the percentages of all the tests, how different studies result in different statistics, and how she was unsure whether the NHTSA edition appellant had was the same edition Sergeant Young used in training. After reviewing the record, we conclude the trial court was concerned with the effective presentation of the evidence, confusion of the issues, and undue delay, so it restricted appellant=s cross-examination into the specific statistics. See Tex. R. Evid. 611(a). Thus, we cannot say the trial court abused its discretion in excluding evidence from the NHTSA manual that the HGN test was only 77% accurate in predicting intoxication.
Furthermore, even if the exclusion was error, we conclude it was harmless. While appellant was not allowed to admit evidence regarding specific accuracy rates, appellant did succeed in admitting evidence that the HGN test was not 100% accurate. In the jury=s presence, Jefferson asked Sergeant Young, A[y]ou know [the HGN test is] not a hundred percent accurate, correct?@ and Sergeant Young responded, A[t]hat=s correct.@ Thus, appellant was allowed to discredit Sergeant Young=s alleged expertise and discredit the HGN test. Through this testimony, the jury was not left with the impression that the HGN test was completely accurate. Therefore, even if error did exist, it did not affect a substantial right, and we must disregard it. Tex. R. App. P. 44.2(b). We overrule appellant=s third issue.[1]
C. Did the Trial Court Deprive Appellant of her Sixth Amendment Right to Confront and Cross-Examine a Witness?
In her third issue, appellant argues by not allowing appellant to cross-examine Sergeant Young regarding the accuracy of the HGN test, the trial court violated her Sixth Amendment right to confront and cross-examine a witness.
The constitutional right of confrontation is violated when appropriate cross-examination is limited. Carroll, 916 S.W.2d at 497. However, even constitutional error may be waived by failure to raise the issue at trial. Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). Specifically, a defendant waives his constitutional right to confront witnesses if he does not object to the denial of that right at trial. Thacker v. State, 999 S.W.2d 56, 61 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d); see Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991). In addition, a party seeking to introduce evidence must meet an objection with an argument stating the basis for its admission. See Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005). If the proponent of the evidence does not clearly articulate to the trial court that the Confrontation Clause requires the admission of the challenged evidence, he fails to do everything necessary to bring to the judge's attention the evidence rule or statute in question and its precise and proper application to the evidence in question and error is not preserved. Id. at 179B80. It is not enough to merely attempt to introduce the evidence or to tell the judge that evidence is admissible. Id. at 179. The proponent, if he is the losing party on appeal, must have told the judge why the evidence was admissible. Id. at 177.
During trial, appellant did not object on Confrontation Clause grounds. In fact, appellant never mentioned the Sixth Amendment. Because appellant=s issue on appeal does not comport with the objection made a trial, he has waived error. See Wilson, 71 S.W.3d at 349; Prince v. State, 192 S.W.3d 49, 58 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d).
D. Did the Trial Court Deprive Appellant of Her Sixth Amendment Right to Present a Defense?
In her fourth issue, appellant argues the trial court deprived appellant of her Sixth Amendment right to present a defense by restricting her cross-examination of Sergeant Young concerning the accuracy of the HGN test.
As stated above, constitutional error may be waived by failure to raise the issue at trial. Briggs, 789 S.W.2d at 924. Once again, appellant failed to assert that the trial court=s refusal to allow this evidence violated her Sixth Amendment right to present a defense; therefore, appellant did not preserve error. See Reyna, 168 S.W.3d at 179; Wilson, 71 S.W.3d at 349. We overrule appellant=s fourth issue.
Conclusion
Having overruled all of appellant=s issues, we affirm the trial court=s judgment.
/s/ John S. Anderson
Justice
Judgment rendered and Majority and Concurring Memorandum Opinions filed November 25, 2008.
Panel consists of Justices Anderson, Frost, and Senior Justice Hudson.*
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] In her analysis, appellant also argues she should have been allowed to use the NHTSA manual as a learned treatise to impeach Sergeant Young. However, appellant failed to make this argument in the trial court. Therefore, appellant failed to preserve error. See Tex. R. App. P. 33.1(a); Wilson, 71 S.W.3d at 349.
* Senior Justice J. Harvey Hudson sitting by assignment.