Opinion
No. 05-07-00486-CR
Opinion Filed July 10, 2008. DO NOT PUBLISH Tex.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. 003-85521-06.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS. Opinion By Justice BRIDGES.
MEMORANDUM OPINION
Adam L. Maki appeals his driving while intoxicated (DWI) conviction. A jury convicted appellant, and the trial court sentenced him to 180 days' confinement, probated for fifteen months, and a $950 fine. In four issues, appellant argues his right to confrontation was violated by the trial court's refusal to admit portions of the video of his traffic stop, and the trial court erred in admitting evidence of appellant's speed prior to the traffic stop, in denying appellant's motion to suppress, and in refusing to instruct the jury to disregard certain hearsay statements. We affirm the trial court's judgment. On August 8, 2006, at approximately 12:27 a.m., Melissa police officer Edward Dixon clocked appellant's speed at ninety-six miles per hour using a radar gun. Dixon saw appellant pass two other vehicles "very quickly" and "visually it was just kind of like flying by." According to the radar, the other two vehicles were going sixty-five and sixty-eight miles per hour, respectively. Dixon turned on his overhead lights and siren and pursued appellant. Appellant did not pull over immediately, and Dixon saw appellant drifting over the dividing center lane and over to the shoulder of the road during the pursuit. Appellant pulled over just a few feet from the end of a guardrail, and Dixon used the public address system in his patrol car to ask appellant to pull forward past the guardrail. Appellant disregarded Dixon's request to pull his vehicle forward. Upon making initial contact with appellant, Dixon noticed a very strong smell of alcohol, appellant's eyes were extremely bloodshot, and his speech was slurred. At Dixon's request, appellant got out of his car. Once outside his car, appellant "had a very unsteady walk" and spontaneously put his hands in the air. Dixon asked if appellant had been drinking, and appellant said he had six beers "about 7:30." Dixon asked appellant what time he thought it was, and appellant said it was 9:30 even though it was really 12:30 a.m. Dixon administered three field sobriety tests, including the horizontal gaze nystagmus, walk-and-turn, and one-leg stand tests. Appellant performed poorly on each test. Based upon the totality of the circumstances, Dixon formed the opinion that appellant had lost the normal use of his mental and physical faculties. Dixon arrested appellant and took him to jail. At the jail, appellant refused to provide a blood or breath sample. Appellant was subsequently charged with DWI, a jury convicted him, and this appeal followed. In his first point of error, appellant argues the trial court erred in denying his request to show the video of his traffic stop and arrest during his cross-examination of Dixon. Appellant argues this violated his right to confront the witnesses against him. However, appellant did not raise this objection at trial. To preserve error for appellate review, an appellant must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1 (a)(1). Accordingly, appellant has not preserved this issue for our review. We overrule appellant's first point of error. In his second point of error, appellant argues the trial court erred in admitting evidence concerning radar equipment used to measure speed. Specifically, appellant complains Dixon's testimony that he was able to use the radar unit in his patrol car to measure appellant's speed did not comply with the standard in Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App. 1992). Under Kelly, three factors must be considered in determining the admissibility of scientific evidence: (1) the underlying scientific theory must be valid, (2) the technique applying the theory must be valid, and (3) the technique must have been properly applied on the occasion in question. Id. at 573. We review a trial court's decision to admit expert evidence for abuse of discretion. Id. at 574. Appellant complains the State did not introduce evidence that Dixon's training, experience, and duties enforcing traffic laws qualified him to make a judgment as to whether appellant was speeding. Appellant argues the State needed to introduce expert testimony to establish that the radar equipment's scientific accuracy was correct. An officer's testimony that he has been trained to (1) operate a radar set, and (2) test it for accuracy is a sufficient predicate to support admission of radar evidence. Masquelette v. State, 579 S.W.2d 478, 481 (Tex.Crim.App. 1979). It is not necessary to call an expert witness to establish the accuracy of the radar. Id. In light of society's widespread use of radar devices, and considering other courts' acceptance of radar, the underlying scientific principles of radar are viewed as indisputable and valid as a matter of law. Maysonet v. State, 91 S.W.3d 365, 371 (Tex.App.-Texarkana 2002, pet. ref'd); see Perales v. State, 117 S.W.3d 434, 442 (Tex.App.-Corpus Christi 2003, pet. ref'd) (expressly agreeing with principles set out in Maysonet). Thus, the first prong of Kelly is established as a matter of law. Maysonet, 91 S.W.3d at 371; Perales, 117 S.W.3d at 442. Here, the record shows Dixon was trained to operate speed radar and had used speed radar on "very many occasions." Dixon testified the radar unit does "periodic internal checks when you first turn it on" and also does a "system check." Dixon was able to test the radar on two vehicles appellant passed. The two vehicles were traveling at sixty-five and sixty-eight miles per hour, respectively, and appellant was "flying by" them. Appellant points to no evidence that Dixon's testimony was deficient. Instead, appellant restates his objection that a "scientific director" was required who could "come tell us that the machine is working correctly." We conclude that Dixon's testimony was a sufficient predicate to support admission of the radar evidence in this case and to establish the radar unit validly applied the underlying scientific principles of radar and Dixon's technique was properly applied on the occasion in question. See Kelly, 824 S.W.2d at 574; Masquelette, 579 S.W.2d at 481. Under these circumstances, the trial court did not abuse its discretion in admitting Dixon's testimony. See Kelly, 824 S.W.2d at 574; Masquelette, 579 S.W.2d at 481. We overrule appellant's second point of error. In his third point of error, appellant argues the trial court erred in denying his motion to suppress evidence obtained from Dixon's stop of appellant. Specifically, appellant argues that Dixon lacked probable cause to stop him because the probable cause in this case was "established by hearsay science that cannot be proved admissible under Kelly." However, we have already rejected appellant's contention that Dixon's testimony that appellant was driving ninety-six miles per hour was based on "hearsay science." Similarly, we reject appellant's argument that Dixon lacked probable cause to stop appellant to the extent he relied on his radar. We overrule appellant's third point of error. In his fourth point of error, appellant argues the trial court erred in admitting Dixon's testimony concerning studies on the ability of the standardized field sobriety tests to detect intoxication. At trial, appellant objected to Dixon's testimony on the basis that Dixon lacked personal knowledge of the studies. However, on appeal, appellant complains the reliability of the studies had not been established under a Daubert/Kelly analysis. Again, because appellant's complaint on appeal does not comport with the objection raised trial, this issue has not been preserved for our review. SeeTex. R. App. P. 33.1(a)(1). We overrule appellant's fourth point of error. We affirm the trial court's judgment.