COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00430-CR
NO. 02-11-00431-CR
ARTURO ARMIJO APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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CONCURRING MEMORANDUM OPINION 1
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In Appellant’s sole point, he attacks the admission of the State’s evidence
of retrograde extrapolation because the State’s expert, Dr. Robert Johnson,
“lacked many of the facts necessary to offer such opinion.” No one disputes the
timeline pertinent to Appellant’s objection to the State’s evidence of retrograde
extrapolation: (1) Johnson explained retrograde extrapolation and hypothesized
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See Tex. R. App. P. 47.4.
that a 5'7", 180-pound male would have had a BAC of .24 at the time of arrest if
his BAC registered .20 four hours after his arrest; (2) Appellant questioned
Johnson on voir dire outside the presence of the jury, and Johnson admitted he
had insufficient facts upon which to base his scientific opinion; and (3) Appellant
objected to Johnson’s testimony, which the trial court overruled. Before objecting
to Johnson’s retrograde-extrapolation testimony, Appellant waited until after
Johnson stated that he could estimate what “somebody’s blood alcohol
concentration would have been at an earlier point in time” and after Johnson
opined that the State’s hypothetical, which matched Appellant’s situation, would
result in a BAC of .24. Appellant fails to justify his delay in objecting to Johnson’s
testimony. Accordingly, Appellant’s objection was untimely, which forfeits any
complaint as to Johnson’s retrograde-extrapolation testimony. See Luna v.
State, 268 S.W.3d 594, 604 (Tex. Crim. App.), cert. denied, 558 U.S. 833 (2008);
Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App.), cert. denied, 516 U.S.
832 (1995); see also Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a). I would
overrule Appellant’s sole point under rule 33.1(a) and, thus, respectfully concur in
the judgments affirming the trial court.
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LEE GABRIEL
JUSTICE
LIVINGSTON, C.J., joins.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 1, 2013
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