NO. 07-11-00222-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
DECEMBER 20, 2012
MICHAEL ANTHONY PENA, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 121ST DISTRICT COURT OF YOAKUM COUNTY;
NO. 2871; HONORABLE KELLY G. MOORE, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Michael Anthony Pena, appeals his conviction for the offense of
driving while intoxicated with a child passenger. 1 Following a pre-sentence investigation
report and after a hearing on punishment before the trial court, appellant was sentenced
to confinement in a State Jail Facility (SJF) for two years with the confinement
suspended and appellant placed on community supervision for a period of four years.
Appellant appeals contending that the trial court erred: 1) in allowing evidence of the
results of a blood test run at the Yoakum County Hospital to be admitted, 2) in
1
See TEX. PENAL CODE ANN. § 49.045. (West 2011).
permitting the State’s witness to express an opinion about appellant’s intoxication at the
time of the arrest based upon retrograde extrapolation of his blood alcohol level at the
time of the blood draw, and 3) in omitting an instruction on “normal use” of appellant’s
faculties. We affirm.
Factual and Procedural Background
Appellant does not challenge the sufficiency of the evidence; therefore, we will
discuss only so much of the facts as required for our decision. On July 6, 2010,
appellant was stopped for speeding in Yoakum County. After encountering appellant
during the traffic stop, Department of Public Safety Trooper Robles 2 suspected that
appellant was intoxicated. As a result of his suspicion, Robles initiated an investigation
for driving while intoxicated. After conducting field sobriety tests on appellant, Robles
requested appellant take a preliminary breath test. Based upon appellant’s
performance on these tests, Robles decided to arrest appellant for driving while
intoxicated with a child passenger. 3
After arresting appellant, Robles took appellant to the Yoakum County Hospital to
obtain blood samples for testing. Appellant agreed to provide the blood specimens.
Subsequently, two specimens of appellant’s blood were obtained by the medical
technologist on duty, Christopher Ibonaw. One sample was sent to the Department of
2
Robles had promoted to Sergeant by the time of trial.
3
The record is clear that appellant’s son, who was under 15 years of age, was a
passenger in the vehicle at the time of the arrest.
2
Public Safety (DPS) regional laboratory for testing. The other sample was tested at the
hospital.
The sample tested locally was tested as a blood serum sample by analysis in a
Siemens Dimension RxL analyzer. Testimony at trial revealed that the blood serum
sample tested positive for alcohol with a concentration of 102 milligrams per deciliter of
blood serum. Prior to admission of State’s Exhibit 9, the report of the blood serum
analysis, appellant objected on the grounds of the reliability of the analyzer. The trial
court overruled the objection. Additionally, appellant’s trial counsel appeared to be
objecting to the reliability of the medical technologist taking the sample and running the
analyzer, although a review of the record reveals that such an objection was not clear.
The sample sent to the DPS regional lab was tested by Scott Williams, a forensic
scientist. Williams testified that the sample was tested using headspace gas
chromatography. Williams testified that appellant’s blood alcohol level was 0.09 grams
of alcohol per 100 milliliters of blood. After being recalled by the State, Williams was
asked if he could provide an opinion about appellant’s blood alcohol level at the time of
appellant’s arrest based upon extrapolation techniques. Williams said that he could and
eventually opined that appellant’s blood alcohol level at the time of his arrest was 0.108,
well above the 0.08 legal presumption level. Prior to Williams’s testimony, appellant
objected that Williams lacked sufficient data on which to base his extrapolation
testimony. The trial court overruled this objection.
At the conclusion of the evidence, the trial court prepared the “Charge of the
Court.” Appellant did not object to the proposed charge, however, appellant did request
3
the trial court include within the charge a definition of the term “normal use,” which the
trial court denied. The jury returned a verdict of guilty and appellant proceeded to try
the issue of punishment before the trial court. After receiving a pre-sentence
investigation report and evidence regarding punishment, the trial court assessed
appellant’s punishment at confinement in an SJF for two years but suspended the term
of confinement and placed appellant on community supervision for a period of four
years.
Appellant has appealed the judgment of the trial court through four issues. The
first two issues deal with the trial court’s admission of the results of the blood serum
test. The third issue contends that Scott Williams was not qualified to give an opinion
regarding appellant’s blood alcohol level at the time of his arrest. The last issue
contends that the trial court erred in refusing to give the definition of “normal use” as
requested. We will affirm the judgment of the trial court.
Blood Serum Test
Appellant has lodged two separate objections to the results of the blood serum
test performed at Yoakum County Hospital. First, appellant contends that the trial court
erred in overruling his objection that there was no showing that the device used to
analyze the blood serum for alcohol content was reliable. Next, appellant contends that
the Yoakum County Hospital was functioning as a crime laboratory for purposes of
forensic analysis of the blood serum but was not accredited pursuant to article 38.35 of
the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.35
(West Supp. 2012).
4
A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of
discretion. See Coble v. State, 330 S.W.3d 253, 272 (Tex.Crim.App. 2010). Even if we
assume, for purposes of this opinion, that appellant is correct in both of his contentions
regarding the results of the blood serum test, there is still no harm suffered by appellant.
We review error of this nature for non-constitutional harm. See TEX. R. APP. P. 44.2(b). 4
Rule 44.2(b) states that, “Any other error, defect, irregularity, or variance that does not
affect substantial rights must be disregarded.” A substantial right is affected when the
error had a substantial and injurious effect or influence in determining the jury’s verdict.
Coble, 330 S.W.3d at 280. In conducting a harm analysis under Rule 44.2(b), we
review the entire record to ascertain the effect or influence of the wrongfully admitted
evidence. See Barshaw v. State, 342 S.W.3d 91, 93-94 (Tex.Crim.App. 2011); Motilla
v. State, 78 S.W.3d 352, 355-56 (Tex.Crim.App. 2002).
The record reveals that appellant was initially stopped for a traffic violation,
speeding. After visiting with appellant inside his vehicle, Robles detected a mild odor of
an alcoholic beverage coming from appellant. As a result, Robles decided to conduct
field sobriety tests on appellant. Appellant was asked to perform three of the standard
field sobriety tests: the horizontal gaze nystagmus, the walk-and-turn, and the one leg
stand. Robles testified at length about appellant’s performance on each test and that
appellant exhibited signs of intoxication while performing each of the tests. At the
conclusion of the standard field sobriety tests, appellant was also asked to take a
preliminary breath test. After administering all of the tests to appellant, Robles testified
4
Further reference to the Texas Rules of Appellate Procedure will be by
reference to “Rule ____.”
5
that he was of the opinion that appellant was intoxicated and, therefore, placed him
under arrest for driving while intoxicated with a child passenger. During Robles’s
interview with appellant, appellant admitted to having drank beer prior to being stopped
for speeding. Robles testified that appellant initially said he had drunk only two beers
but later changed his statement to two or three beers. After placing appellant under
arrest, Robles took him to the Yoakum County Hospital where two blood samples were
drawn. One sample is the one to which appellant is objecting. The second sample was
sent to the regional DPS lab for analysis. Scott Williams, forensic scientist at the DPS
lab, testified that he analyzed the sample of appellant’s blood for the presence and
amount of alcohol using headspace gas chromatography. As a result of his testing, he
determined that appellant’s blood sample contained 0.09 grams of alcohol per one
hundred milliliters of blood. This testimony was received without objection.
The trial court submitted a charge that tracked the statutory definition of
intoxication. See TEX. PENAL CODE ANN. § 49.01(2) (West 2011). 5 The charge reads as
follows:
“Intoxicated” means not having the normal use of mental or physical
faculties by reason of the introduction of alcohol, a controlled substance, a
drug, a dangerous drug, a combination of two or more of those
substances, or any other substance into the body; or having an alcohol
concentration of 0.08 or more.
The record reveals that, during final arguments, the State recounted the evidence
that, according to the State, demonstrated both a loss of the normal use of mental and
physical faculties and a blood alcohol concentration above 0.08. In reference to the
5
Further reference to the Texas Penal Code will be by reference to “section
____” or “§ _____.”
6
latter, the State referred to both the blood serum test and the DPS whole blood analysis.
Additionally, during closing arguments, the State talked at length about signs of loss of
normal use of mental or physical faculties, particularly impaired judgment. According to
the State, one of the clearest signs of loss of judgment was appellant’s decision to get in
the car with his minor son after consuming beer.
From our review of the entire record, we have a fair assurance that the error in
admitting the blood serum testimony did not influence the jury, or had but a slight effect.
See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). Accordingly, the
blood serum evidence, which we assumed for purpose of analysis was erroneously
admitted, did not have a substantial and injurious effect on the verdict. See Coble, 330
S.W.3d at 280. Therefore, as to both of appellant’s contentions regarding the blood
serum analysis, the error was harmless.
Retrograde Extrapolation Testimony
Appellant’s third issue contends that the trial court committed reversible error by
allowing Scott Williams to render an opinion as an expert witness regarding appellant’s
blood alcohol level at the time of his arrest. We review the decision of the trial court to
admit expert testimony under an abuse of discretion standard. See id. at 272.
Before addressing the question posed by appellant’s issue, we must first
ascertain whether the issue before the Court comports with the objection lodged in the
trial court. It is a well understood principal of appellate law that the objection lodged
before the trial court must comport with the issue that is asserted on appeal. See
Martinez v. State, 345 S.W.3d 703, 705 (Tex.App.—Amarillo 2011, no pet.) (citing Pena
7
v. State, 285 S.W.3d 459, 464 (Tex.Crim.App. 2009)). If the objection at trial does not
comport with the ground asserted on appeal, nothing is preserved for appellate review.
Id.
Scott Williams was recalled as a witness for the apparent purpose of giving his
opinion about appellant’s blood alcohol level at the time of his arrest based upon the
analysis of the blood sample taken approximately 35 minutes later. When Williams was
being asked preliminary questions, appellant’s trial counsel interposed the following
objection:
Your Honor, I’m going to object under the rules of procedure as far as
Rule 705, 702, and 703. 6 The expert lacks sufficient information to form
an expert opinion in this case. And under rule 705(c), he has to have
sufficient data in a particular case. There’s insufficient data because he’s
testified he’s going to be making an estimate based on variables, and it’s
too uncertain to form an opinion that would be proof beyond a reasonable
doubt in this case.
The trial court overruled the objection. Later in the testimony, Williams was asked his
opinion about appellant’s blood alcohol concentration at the time of his arrest.
Appellant’s trial counsel then lodged the following objection:
Your Honor, I also object to this because he’s not laid the proper
foundation. We don’t have access to his calculations that he’s going to
testify from.
6
Although counsel said rules of procedure, it is clear that he was referring to the
Rules of Evidence.
8
On appeal, although appellant couches his contention as an attack on the
reliability of Williams’s testimony, his argument merely attacks the qualifications of
Williams to render an opinion. An objection to Williams’s expertise or qualifications to
render an opinion was never presented to the trial court. A fair reading of the objection
and the context of the objection leads to the conclusion that the issue on appeal does
not comport with the contention before this Court. See Martinez, 345 S.W.3d at 705.
Accordingly, nothing has been preserved for appellate review. Id. We, therefore,
overrule appellant’s third issue.
Definition of Normal Use
Appellant’s final issue contends that the trial court’s refusal to include a proposed
definition of normal use, as submitted by appellant, was error and that this error was
harmful. The record reflects that the trial court prepared a proposed charge and asked
trial counsel if he had any objections or additional requests. Trial counsel then
requested the following definition of normal use: Normal use “means the manner in
which the normal intoxicated person would be able to use his faculties.” 7 The trial court
denied the request.
Appellant was charged pursuant to section 49.045, which states that a person
commits an offense if they are intoxicated while operating a motor vehicle, and the
vehicle is occupied by a passenger who is younger than 15 years of age. The second
requirement is not at issue in this appeal. As stated earlier in this opinion, intoxicated
7
The State’s brief points out, and we assume to be correct, that the requested
charge should read “normal non-intoxicated person.”
9
means loss of normal use of mental or physical faculties, as applicable in this case, by
reason of the introduction of alcohol into the body or having a blood alcohol
concentration of 0.08 or greater. See § 49.01(2). The statute does not define normal
use of mental or physical faculties. Thus, the statute provides for proof of intoxication
by either an objective standard, 0.08 blood alcohol concentration, or a subjective
standard, the loss of normal use of mental or physical faculties. Murphy v. State, 44
S.W.3d 656, 660 (Tex.App.—Austin 2001, no pet.). Because appellant submitted to the
taking of a blood sample and there is testimony from Robles about appellant’s actions in
driving and performance in standardized field sobriety tests, both definitions of
intoxication were before the jury. What appellant is requesting is that this Court
conclude that it is error for a trial court to refuse to define a term, normal use, that is not
statutorily defined.
The Texas Court of Criminal Appeals recently addressed the issue of a trial court
defining terms not otherwise defined. See Kirsch v. State, 357 S.W.3d 645, 650
(Tex.Crim.App. 2012). The Kirsch case dealt with the undefined term of “operating.” Id.
The Court in Kirsch points out that Texas Government Code section 311.011 provides
that statutorily undefined words and phrases shall be “construed according to the rules
of grammar and common usage.” Id. (quoting TEX. GOV’T CODE ANN. § 311.011 (West
2005)). Section 311.011 of the Texas Government Code applies to construction of the
Penal Code. § 1.05(b) (West 2011). There is no contention that the term normal use
has acquired any technical or particular meaning which would require anything other
than construction according to the rules of grammar and common usage. See TEX.
GOV’T CODE ANN. § 311.011. Thus, we are left with a term that a jury may read to have
10
any meaning which is acceptable in common parlance. Kirsch, 357 S.W.3d at 650
(citing Denton v. State, 911 S.W.2d 388, 390 (Tex.Crim.App. 1995)).
The trial court’s charge is to set forth the law applicable to the case. See TEX.
CODE CRIM. PROC. ANN. art. 36.14 (West 2007). 8 Generally speaking, a charge not
derived from the Penal Code is not the applicable law under article 36.14. See Kirsch,
357 S.W.3d at 651 (citing Walters v. State, 247 S.W.3d 204, 214 (Tex.Crim.App. 2007)).
In this case, the trial court properly charged the jury on the law applicable to the case.
Therefore, the trial court’s denial of the requested definition did not violate the
constraints of article 36.14 and was not error. See arts. 36.14, 36.19.
Appellant’s brief posits that, without the requested definition, a jury may be left
unknowing and misled about the question of whether appellant suffered any impairment.
However, the question posed by appellant assumes something that we may not
assume. Appellant assumes that a jury will not be able to determine whether an
accused has lost the normal use of mental or physical faculties from a review of the
evidence. With nothing more than appellant’s posit on this issue, we cannot agree.
Further, where both the objective and subjective definitions of intoxication are alleged,
appellant seems to be asking this Court to require the State elect which method of
proving the offense it chooses to pursue. This last argument is made without reference
to any authority to support it. Further, we know of none. Accordingly, appellant’s issue
is overruled.
8
Further reference to the Texas Code of Criminal Procedure will be by reference
to “article ___” or “art. ___.”
11
Conclusion
Having determined that there is no error in the trial court’s judgment, we affirm
the judgment rendered.
Mackey K. Hancock
Justice
Pirtle, J., concurring.
Do not publish.
12
Michael Anthony Pena v. State
Combined Opinion