Opinion
No. 05-10-00195-CR
Opinion Filed August 2, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 3, Collin County, Texas, Trial Court Cause No. 003-86003-09.
Before Justices BRIDGES, LANG-MIERS, and MURPHY.
MEMORANDUM OPINION
Davis Garner, Jr. appeals his driving-while-intoxicated conviction. In four points of error, Garner challenges expert testimony as to retrograde extrapolation, time restrictions on cross-examination of the arresting officer, and the sufficiency of the evidence to support assessment of court-appointed attorney's fees as court costs. We conclude the trial court erred in assessing the fees and modify the judgment and accompanying order accordingly. The judgment and order are affirmed as modified.
Background
Garner was stopped by a Wylie police officer in the early morning hours of July 19, 2009. The officer testified Garner's eyes were red and watery, his speech was slurred, and the officer detected an odor of alcohol coming from the vehicle. Garner admitted drinking two beers and refused to take a portable Breathalyzer test. After some reluctance to step out of the car, he submitted to three standardized field-sobriety tests. He exhibited all six clues on the horizontal gaze nystagmus test, three clues on the walk-and-turn test, and two clues on the one-leg stand test. After further questioning about the amount of alcohol consumption, Garner admitted to having four beers. Believing Garner was intoxicated due to alcohol, the officer arrested Garner. During booking, Garner also admitted he had a "shot" in addition to the beers. He estimated his last drink was approximately forty-five minutes before the 2:29 a.m. stop. Garner refused to give a breath or blood sample, so the officer obtained a warrant and transported him to the hospital. Garner's blood, drawn at 4:36 a.m., showed a blood-alcohol concentration of 0.12. At trial, the State presented testimony from the arresting officer, the nurse who drew Garner's blood, and the forensic chemist who analyzed the blood. The arresting officer testified to the stop, his interaction with Garner, and details of the blood draw. He testified that Garner was five feet, eleven inches tall and weighed approximately two hundred pounds. The forensic chemist testified by hypothetical, using a man Garner's size with the same type of alcohol consumed, time of last drink, and time and result of blood test, and opined that man would have had between five and eight drinks in his system-five if he was still absorbing alcohol and eight if he was already in the elimination phase at 2:29 a.m. The in-car video from the arresting officer's patrol vehicle also was admitted as evidence. The jury convicted Garner of driving while intoxicated. The parties agreed to punishment of 150 days in jail, probated for eighteen months, an $800 fine plus court costs, and additional conditions that included supervision. The trial court ordered that Garner's attorney's fees be assessed as court costs. Garner appeals the judgment and that portion of the community-supervision order assessing attorney's fees.Discussion Retrograde Extrapolation and Hypothetical Testimony
Garner briefs his first two points of error together and challenges the admission of the forensic chemist's testimony regarding retrograde extrapolation. "Retrograde extrapolation is the computation back in time of the blood-alcohol level-that is, the estimation of the level at the time of driving based on a test result from some later time." Mata v. State, 46 S.W.3d 902, 908-09 (Tex. Crim. App. 2001). Garner contends in his first point of error that the trial court erred in denying his "request for a rule 702 hearing to determine the qualifications of [the forensic chemist] to testify as an expert as to retrograde extrapolation." In his second point of error, Garner argues the trial court erred in allowing the chemist to testify as to general retrograde extrapolation without applying it specifically to him. After testimony by the arresting officer, the State called a forensic chemist for the Texas Department of Public Safety at the Garland Crime Laboratory. After testifying during the State's direct examination that he became familiar with the way alcohol interacts with the body from training at the Austin Headquarters Laboratory and the Garland Laboratory, Garner's counsel interjected and stated, "if they're going to qualify him as an expert in blood alcohol, I'd like to take him on voir dire." The trial court denied the request for "the time being." After further testimony regarding the chemist's experience and the prosecutor stated, "I want to ask you some questions now regarding the way alcohol affects the body," Garner's counsel stated, "Judge, I'm going to repeat my question to take him on voir dire if he's going to testify as an expert witness." The trial court again stated, "For the time being, request denied." After answering a question about the rate the body eliminates alcohol, Garner's counsel asked for "a running objection to taking him on voir dire," which the trial court denied. Garner's counsel then stated, "Judge, I'd ask for a 702 hearing then." The trial court denied that request "[f]or the time being." Direct examination continued regarding the elimination rate of alcohol, and Garner's counsel objected, stating "Judge, I'd object under the Mada [sic] case, it is the Court of Criminal Appeals of 2004 on a hypothetical example here that does not pertain to the defendant and requires expert qualifications, Judge." The court overruled the objection. After the State concluded its direct examination of the chemist, Garner's counsel conducted an extensive cross-examination that included the witness's curriculum vitae, publications, experience regarding forensic analysis, and the court of criminal appeals's opinion in Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001), regarding limitations on retrograde extrapolation. Following that examination, Garner's counsel moved to strike the blood sample on the grounds it did "not have personal applicability to Davis Garner, and it's only an estimate" and "it was collected in a non-sanitary location." The trial court denied the requests and counsel continued his cross-examination. The next day, after the chemist's testimony was complete and the State had rested its case, Garner re-urged several motions, including his "motion to suppress" the chemist's testimony "regarding qualifying him as an expert under [Mata]." The trial court denied Garner's motions. On appeal, Garner phrases his first point of error as the trial court's denial of his request for a "Rule 702 hearing to determine the qualifications" of the chemist for purposes of testifying as an expert as to retrograde extrapolation. Garner conflates issues of qualification and reliability, however. The substance of his argument is that the science of retrograde extrapolation is not reliable under the court of criminal appeals's decision in Mata and that the chemist did not apply the science properly to Garner. See Mata, 46 S.W.3d at 916 (retrograde extrapolation can be reliable; expert must apply and explain science with clarity, demonstrate understanding of difficulties of science, demonstrate awareness of subtleties and risks of science, and clearly and consistently apply science). We are limited in our review of Garner's first two points of error to his complaints to the trial court and address his points in that context. See Tex. R. App. P. 33.1(a)(1). A prerequisite to presenting a complaint for appellate review is a specific complaint that complies with the rules of evidence or the rules of appellate procedure. Id.; Tex. R. Evid. 103; Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004). The complaint made at the trial court must comport with the complaint on appeal. Heidelberg, 144 S.W.3d at 537. The qualification of an expert witness to testify is distinct from reliability and relevance and must be evaluated independently. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). As a result, an objection based on one requirement does not preserve error as to another. See Shaw v. State, 329 S.W.3d 645, 655 (Tex. App.-Houston [14th Dist.] 2010, pet. ref'd). Specifically, an objection on the basis of qualification is insufficient to apprise the trial court of a challenge to the reliability of the expert's opinions. See Turner v. State, 252 S.W.3d 571, 584 n. 5 (Tex. App.-Houston [14th Dist.] 2008, pet. ref'd). Garner has failed to preserve error for his complaint on appeal as to the reliability of retrograde extrapolation and application of the science by the State's expert. See Stewart v. State, 995 S.W.2d 251, 258 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (concluding appellant had not preserved reliability when only objected on grounds of expert's qualifications). His first statement was "if they're going to qualify him as an expert in blood alcohol, I'd like to take him on voir dire." The next reference was to "repeat" his request to take the chemist on voir dire. He then requested "a running objection to taking [the expert] on voir dire," which the trial court denied. At that point, Garner asked for "a 702 hearing then." To the extent Garner was lodging an objection, his complaint was that the trial court was not permitting him to take the chemist on voir dire, not to the substance of what the voir dire would have revealed. Even if we construed these requests as objections to the qualifications of the expert, Garner never objected that the science of retrograde extrapolation was unreliable, which is what he now argues. He also never mentioned at trial or on appeal a "rule 705" hearing. See Tex. R. Evid. 705(b) (prior to exert testimony, party against whom opinion is offered "shall . . . be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based"); Jenkins v. State, 912 S.W.2d 793, 814 (Tex. Crim. App. 1993) (op. on reh'g) (concluding request to take witness on voir dire to "prove up" qualifications was not rule 705(b) request to explore "underlying facts or data" of expert's opinion). Garner's requests did not preserve the argument contained his first point of error as to the reliability of the chemist's testimony related to retrograde extrapolation. When Garner's requests for "voir dire" were not granted, he asked for "a 702 hearing then." Garner's requests merely referring to "rule 702" are insufficient to give the trial court notice of his objection. See, e.g., Gregory v. State, 56 S.W.3d 164, 182 (Tex. App.-Houston [14th Dist.] 2001, pet. dism'd) (objections based simply on "Rule 702 and Daubert alone" not adequate to inform trial court of specific complaint); Scherl v. State, 7 S.W.3d 650, 651-52 (Tex. App.-Texarkana 1999, pet. ref'd) (objection "under Rule 702, Daubert, Kelly, and Hartman" insufficient to inform trial court of complaint). The context of Garner's requests does not reveal any additional specificity, nor does Garner's brief on appeal clarify his objection; although his point of error is phrased in terms of qualifications of the chemist, Garner's argument addresses the distinct requirement of reliability of the science of retrograde extrapolation as applied to Garner. To the extent Garner requested "a 702 hearing," he did not preserve anything for appellate review. Garner's final request relating to the chemist's qualifications was after the State had rested its case. Garner moved "to suppress" the chemist's testimony, which we interpret as a motion to strike testimony. The thrust of his argument appeared to be that the expert was not qualified and the science of retrograde extrapolation was unreliable under Mata. To be timely and preserve error, a motion to strike must be made "as soon as the objectionable nature of the evidence [becomes] apparent." Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); see also Rhoades v. State, 934 S.W.2d 113, 127 (Tex. Crim. App. 1996) ("The motion to strike is itself subject to a requirement of timeliness."). A motion to strike made any later does not preserve error. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); see also Jasso v. State, 112 S.W.3d 805, 813 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd) ("The standard set by our high court for the timely assertion of objections is both demanding and unforgiving."). Garner's motion, made after the chemist had been examined, cross-examined, excused, and after the State had rested its case, was not timely and did not preserve error. Cf. Lagrone v. State, 942 S.W.2d 602, 617-18 (Tex. Crim. App. 1997) (concluding objection untimely when made only four words following testimony and after opposing counsel had passed witness). Garner concludes in his first point of error that the trial court committed reversible error "in denying [him] the opportunity to examine the State's witness, a chemist, as to his ability to actually testify as an expert on the issue of retrograde extrapolation and in allowing him to testify based upon a faulty analysis of the evidence." Based on Garner's requests and motions described in totality above, Garner's complaints to the trial court were insufficiently specific, untimely, or do not comport with his argument on appeal. We thus conclude he failed to preserve error and we overrule Garner's first point of error. Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103; Heidelberg, 144 S.W.3d at 537. Garner asserts in his second point of error that the trial court erroneously allowed the forensic chemist to testify as to general retrograde extrapolation without applying the science specifically to Garner. Under his "Argument and Authorities" for this point, Garner's total argument is: "The facts, authority and arguments made in Point of Error, One, being substantially similar are incorporated by reference in this Point of Error. Distinction is made as to separate points of Error out of an abundance of caution." Garner has provided no authority in either his first or second point of error to support his contention under his second point of error. He therefore has not briefed his second point of error adequately and has waived any error. See Tex. R. App. P. 38.1(i); see also Chanthakoummane v. State, No. AP-75794, 2010 WL 1696789, at *19 n. 6 (Tex. Crim. App. Apr. 28, 2010) (not designated for publication) (refusing to address argument on appeal after concluding argument is inadequately briefed when appellant merely incorporated authorities from another point of error). Even if Garner had not waived this point of error, we would find the point without merit. Garner appears to be arguing that the trial court abused its discretion in allowing the chemist to testify regarding the application of retrograde extrapolation to a hypothetical situation. We review the judge's decision to admit scientific evidence for an abuse of discretion. Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005). Under this standard, we should not disturb the trial court's decision if the ruling was within the zone of reasonable disagreement. Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008). The question drawing Garner's objection occurred during the State's direct examination of the chemist. Specifically, the State asked a hypothetical question: "Let's say we have a male, 5 11, 200 pounds, they're drinking beer or shots, last drink 45 minutes prior, the time of the stop is 2:29, a test was done at 4:36 that showed they had a test result of .12, okay? Now, do you have an opinion to approximately how many drinks would have been in their system at 2:29?" The chemist answered the hypothetical individual would have had between five and eight drinks in his system; five if the man was still absorbing alcohol, and eight if he were already in the elimination phase at 2:29 a.m. Hypothetical questions are sometimes employed to assist the trier of fact to understand the evidence or to determine a fact in issue. See Taylor v. State, 106 S.W.3d 827, 832-33 (Tex. App.-Dallas 2003, no pet.); see also Tex. R. Evid. 702. Additionally, assumptions on which a hypothetical is based need not be limited to those supported by the evidence; counsel may propound questions that assume facts in accordance with the theory of the case. Held v. State, 948 S.W.2d 45, 53 (Tex. App.-Houston [14th Dist.] 1997, pet. ref'd). All facts in the chemist's hypothetical here were tied to characteristics of Garner that were introduced into evidence during trial or known to the chemist: Garner's height, weight, the timing of his stop, the timing and results of his blood test, the timing of his last drink, and the type of alcohol consumed. Further, any assumptions in the hypothetical regarding whether all alcohol had been absorbed were appropriate, as the State's theory was that Garner was in the elimination phase. Accordingly, the trial court did not abuse its discretion in permitting the expert to testify regarding this hypothetical situation based on the evidence already before the jury. See Morales v. State, 32 S.W.3d 862, 866 (Tex. Crim. App. 2000) ("The reviewing court should, under Rule 702, examine the expert's testimony to assess whether the expert made an adequate effort to tie the relevant facts of the case to the scientific principles about which he testified."); see also Jordan v. State, 928 S.W.2d 550, 556 (Tex. Crim. App. 1996) (standard in applying rule 702 is not whether expert addressed every pertinent issue that could be raised by facts but "whether the expert's testimony took into account enough of the pertinent facts to be of assistance to the trier of fact on a fact in issue") (emphasis removed). Garner's second point of error is overruled.Limitation of Cross-Examination
In his third point of error, Garner contends the trial court erred by restricting his cross-examination of the arresting officer by imposing an arbitrary time limit. Although Garner argues on appeal that the trial court's discretion in limiting cross-examination "does not come into play" until after the defendant "has sufficiently exercised the constitutional right of cross-examination," Garner never made that objection or argument at trial. Accordingly, to the extent Garner complains his constitutional right to confront the arresting officer were violated, he has failed to preserve that issue for appellate review. See Reyna v. State, 168 S.W.3d 173, 179-80 (Tex. Crim. App. 2005). We interpret Garner's challenge as alleged error in excluding evidence Garner could have elicited on cross-examination. See Love v. State, 861 S.W.2d 899, 903 (Tex. Crim. App. 1993) (interpreting appellant's complaint that judge refused to allow defense to recall witness for further cross-examination as being predicated on exclusion of evidence). As such, the State argues that Garner's third point of error also was not preserved for review on appeal. We agree. To preserve error for the exclusion of evidence, a party must perfect an offer of proof unless the complaint is apparent from the context of the questions. Tex. R. Evid. 103(a)(2); Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). We recognize that, in situations where a defendant is not permitted to question a state's witness about a certain general subject that might affect the witness's credibility, there are less rigid requirements to preserve error on appeal. See Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1987). Yet Garner is not arguing that the evidence sought from cross-examination of the arresting officer would have bearing on the officer's "bias, interest, prejudice, inconsistent statements, traits of character affecting credibility, or evidence that might go to any impairment or disability affecting credibility." Mumphrey v. State, 155 S.W.3d 651, 664 (Tex. App.-Texarkana 2005, pet. ref'd). Accordingly, a more forgiving standard of error preservation is inapplicable. Error can be preserved either by an offer of proof in question-and-answer form or in the form of a concise statement by counsel. Tex. R. Evid. 103(a)(2), (b); Mays, 285 S.W.3d at 889. If counsel elects to make an offer of proof in the form of a concise statement, this statement must include a reasonably specific summary of the proposed testimony. Love, 861 S.W.2d at 901; see also Mays, 285 S.W.3d at 890. The primary purpose of an offer of proof is to enable an appellate court to determine harmful error; a secondary purpose is to permit the trial judge to reconsider the ruling in light of the actual evidence. Mays, 285 S.W.3d at 890. During cross-examination of the arresting officer, the trial court notified Garner's counsel that she had ten minutes remaining for her examination. Counsel responded that she would "require a little bit more time," but did not object. She continued cross-examining the witness, and the trial court gave counsel a five-minute warning. Again, Garner's counsel did not object, but continued her cross-examination. Once that time expired, the trial court notified counsel that her time had run out, but there would be "[t]en minutes for redirect and then 10 minutes for re-cross examination." At that point, Garner's counsel stated she would "reiterate [her] objection" and asked for an opportunity to make an offer of proof. The trial court responded that she could make an offer of proof at "the proper time." The questioning of the arresting officer continued, with the State conducting a redirect examination within its allotted time. The trial court then permitted re-cross of the witness, and Garner's counsel completed her examination without additional mention of the time constraints. She then passed the witness, but requested that he not be excused. The jury was excused at the end of the day, and the trial court asked Garner's counsel how much time she needed to make her offer of proof; she responded "two minutes." After a discussion between the trial court and counsel regarding the offer of proof, the following exchange occurred:THE COURT: You have said you wish to make an offer of proof.
[DEFENSE]: Yes, Your Honor.
THE COURT: I believe the witness has been reserved for the purpose of doing so, that is making the offer of proof. I understand from you that you believe it will take less than two minutes or maybe up to two minutes.
[DEFENSE]: Yes, Your Honor.
THE COURT: What does the phrase offer of proof mean to you?
[DEFENSE]: Your Honor, I would like to present case laws that I have regarding the challenges under the constitution and that be made a record.
THE COURT: I see that we are misunderstanding one another. I detect that you have no further need for the witness that has been reserved at least in so far as the making of your offer of proof is concerned.
[DEFENSE]: That is correct, Your Honor.
THE COURT: Well, very well. It's possible you may recall him to the witness stand, I suppose.
[DEFENSE]: Yes, Your Honor.Following this exchange, the trial court instructed the arresting officer to return the next morning and permitted Garner's counsel to make her offer of proof. Garner's counsel proceeded to argue case law regarding the constitutionality of taking a blood sample and the appropriate chain of custody of such a sample; she did not discuss the substance of the arresting officer's testimony. The next day, Garner's counsel released the arresting officer and never recalled him for additional examination. Based on this record, we conclude Garner did not preserve his third point of error. First, Garner's counsel did not make an offer of proof in the form of a concise and specific summary of testimony to be elicited; instead, Garner's counsel presented argument without indication of how that argument was tied to the arresting officer's testimony or what testimony would be obtained had she had additional time for cross-examination. See Mays, 285 S.W.3d at 891; Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999). The trial court presented Garner's counsel the opportunity to make an offer of proof and to cross-examine the witness further. She simply elected not to make an offer of proof. See Mays, 285 S.W.3d at 891. Further, we question whether the trial court actually limited Garner's cross-examination of the arresting officer. The trial court offered Garner the opportunity to recall the witness the next day. Garner's counsel declined. Garner cannot now seek relief based on alleged error induced by his counsel's actions. See Woodall v. State, 336 S.W.3d 634, 644 (Tex. Crim. App. 2011). Similarly, Garner's argument that the "trial court allowed the State to present its case without interference or limitation" is misdirected. The record shows that the trial court notified each party of equal time limits for direct, cross, redirect, and re-cross examinations. Counsel made their own decisions about how to allocate that time. We overrule Garner's third point of error.
Assessment of Attorney's Fees as Court Costs
In his final point of error, Garner argues the trial court erred in assessing his court-appointed attorney's fees as court costs because there was insufficient evidence to support the order. We sustain the point of error. Article 26.05 of the code of criminal procedure provides that, if the trial court determines that a defendant has the financial resources that enable him to offset in whole or in part the costs of the legal services provided, the court shall order the defendant to pay, as court costs, the amount that it finds the defendant is able to pay. Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2010); see also Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). An accused found to be indigent is presumed to remain so absent proof of a "material change" in his financial circumstances. Tex. Code Crim. Proc. Ann. art. 26.04(p). A defendant's "financial resources and ability to pay are explicit critical elements in the trial court's determination of the propriety of ordering reimbursement of costs and fees." Mayer, 309 S.W.3d at 556. Here, Garner's indigency was determined prior to trial and counsel was appointed. No evidence was presented that indicated a change in his financial status. After conviction, Garner filed a request for court-appointed appellate counsel, which was granted after Garner again was found to be indigent. The presumption of indigence was never rebutted. The evidence therefore was insufficient to support the trial court's judgment and order assessing attorney's fees as part of Garner's court costs. We sustain Garner's fourth point of error. The State responds that the proper remedy for a finding of insufficient evidence to support the trial court's assessment is to strike the amount for attorney's fees from the judgment. We agree. In the judgment, the trial court ordered that the amount paid to Garner's appointed counsel be taxed against him as costs in an amount determined by the court. The order placing Garner on community supervision specifies court costs as $2970.88, but attorney's fees are not segregated. Both the State and Garner agree, however, that the amount assessed as attorney's fees is $2500. See Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim. App. 1996) (accepting as true counsel's factual assertions not disputed by opposing counsel). We therefore modify the judgment to delete the provision ordering the amount paid to Garner's counsel be taxed against Garner as court costs. We also modify the order placing Garner on community supervision to delete $2500 for assessment of court-appointed attorney's fees and reduce the amount of court costs from $2970.88 to $470.88.Conclusion
Because the trial court erred by assessing court-appointed attorney's fees as part of the court costs for which Garner was responsible, we modify the judgment to delete the provision assessing Garner's attorney's fees as court costs. We also modify the order placing Garner on community supervision to delete $2500 in court costs. The judgment and order of the trial court are affirmed as modified.Garner was, in fact, permitted to cross-examine the chemist extensively regarding the chemist's experience, understanding of retrograde extrapolation and its limitations, and the Mata opinion. To the extent he argues he was not permitted to voir dire the chemist, his extensive cross-examination achieved the same ends; he does not argue he was unable to conduct his voir dire outside the presence of the jury.