Opinion
No. 05-08-00486-CR
Opinion issued March 25, 2009. DO NOT PUBLISH.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. 003-88853-07.
Before Justices FRANCIS, LANG-MIERS, and MAZZANT. Opinion By Justice MAZZANT.
OPINION
Cathy Overstreet Meier was convicted of misdemeanor driving while intoxicated and sentenced to sixty days in jail and a $1,000 fine, both of which were suspended. She was then placed on community supervision for a period of nine months. In five issues, she challenges the admission of blood test results, a deputy's trial testimony about the field sobriety tests, and the trial court's voir dire of prospective jurors. We affirm the trial court's judgment.
discussion
Admission of Blood Test Results: The Phlebotomist In her first issue, appellant claims the trial court erred by overruling her objection to the admission into evidence of the blood alcohol test results. Specifically, appellant claims that the State failed to establish a proper predicate for this evidence because the phlebotomist who drew her blood was not a "qualified technician" under section 724.017 of the Texas Transportation Code. A trial court's ruling on the admission of evidence is reviewed for an abuse of discretion and will not be disturbed so long as it falls within the "zone of reasonable disagreement." See Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003); Salazar v. State, 38 S.W.3d 141, 153-54 (Tex.Crim.App. 2001). Section 724.017(a) provides that "[o]nly a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or order of a peace officer under this chapter." Tex. Transp. Code Ann. § 724.017(a) (Vernon 1999). Because "phlebotomist" is not listed among those occupations that automatically qualify under the statute, a blood sample taken by a phlebotomist satisfies the statute only if the individual is proven to be a "qualified technician." See Torres v. State, 109 S.W.3d 602, 605 (Tex.App.-Fort Worth 2003, no pet.); Cavazos v. State, 969 S.W.2d 454, 456 (Tex.App.-Corpus Christi 1998, pet. ref'd) (state failed to prove that person drawing blood was qualified under section 724.017 because no one testified regarding person's qualifications and record contained no evidence blood was drawn by someone hospital had determined to be qualified); State v. Bingham, 921 S.W.2d 494, 495-96 (Tex.App.-Waco 1996, pet. ref'd) (phlebotomist was "qualified technician" because phlebotomist and her supervisor testified regarding her qualifications). According to the record, appellant's blood was drawn at the Medical Center of McKinney, Texas, by Tesa Black, a staff phlebotomist. Black testified regarding her education, training, and experience as a phlebotomist and the procedures she followed in drawing appellant's blood. Black also testified that she studied phlebotomy at Midland Community College, where she completed a continuing education course designed specifically to teach her how to draw blood. In addition to classroom studies, Black gained approximately 200 hours of clinical experience at five different hospitals in Big Spring, Midland, and Odessa. She passed the exam given at the end of the course and received a certificate of completion. At the time of trial, she was not yet certified because she was advised by the college to gain work experience before sitting for the certification exam. Black also noted that, unlike most of the phlebotomists in her lab, she had obtained specific training to learn how to draw blood. When Black drew appellant's blood on September 15, 2007, Black had been employed as a phlebotomist by the Medical Center of McKinney for two-and-a-half years, working ten-hour shifts for three nights a week. Black's duties as a phlebotomist were to draw blood, and those duties included drawing blood from people who are in the custody of law enforcement. When she draws blood for people who are under investigation for driving while intoxicated, she draws it the same way every time. Regarding the procedures she followed to draw blood, Black testified that she (1) accepts the kit brought in by the police officer; (2) breaks the seal on the kit and removes the tube; (3) pulls the tube out and makes sure it has not "expired"; (4) ties a tourniquet around the arm and looks for a vein; (5) disinfects the skin; and (6) draws the blood. Black testified that she had "lots of experience" drawing blood and that she had drawn blood "at least thousands" of times. On cross-examination, defense counsel asked, "Are you able to testify under oath that on September 15th, 2007, you were, by ruling of the State of Texas, a qualified technician?" After the State's objection was overruled, Black answered "No." Black also answered "No" when defense counsel asked her whether, under the laws of the State of Texas, she could testify "that on September 15th, 2007, according to the Rules set out by the State of Texas you were a qualified phlebotomist?" Although Black admitted during cross-examination that she was not, on September 15, 2007, a "qualified technician," this is hardly dispositive. First, the determination of whether someone is a "qualified technician" under section 724.017 depends on that individual's education, training, and experience, not on whether she understands the statutory language. See Bingham, 921 S.W.2d at 495-96 (phlebotomist was qualified because she had gone to school to become a phlebotomist, worked as a phlebotomist for a medical center, was hired only to draw blood, and showed a knowledge of the procedure used to draw blood). The record suggests Black was confused by defense counsel's questions concerning whether she was a "qualified technician" under the statute and that she may have thought she was being asked if she had been certified by the State. Second, Black never said that she was not qualified to draw blood, nor does the record support such a conclusion. According to the record, at the time she drew the blood sample in question, Black was employed by the Medical Center of McKinney, Texas, as a phlebotomist. Her only job at the hospital was to draw blood, and she had done so "at least thousands" of times, according to her testimony. Black had successfully completed a course of college instruction in the drawing of blood while performing approximately 200 hours of clinical training at five different hospitals. She described in detail the steps she took to draw the blood of a DWI suspect, suggesting a proficiency in that procedure. Given Black's extensive education, training, and experience, we therefore conclude the State established that she was a qualified technician under section 724.017. Accordingly, the trial court did not abuse its discretion when it overruled appellant's objection. Appellant's first issue is overruled. Admission of Blood Test Results: Chain of Custody In her second issue, appellant argues the trial court erred by admitting her "blood alcohol concentration" into evidence because the State failed to show a proper chain of custody. Deputy Russell Driver of the Collin County Sheriff's Department accompanied appellant into the emergency room of the hospital where her blood was to be drawn. Driver carried a sealed box containing a blood tube, a form for the driver to consent to the procedure, and another form that must be filled out for DPS to take custody of and test the blood. Driver saw appellant's blood being drawn at the hospital. After appellant's blood was drawn, Driver watched the phlebotomist seal the tube containing appellant's blood, wrap it in cotton, put it inside another tube, place a seal over it, initial it, and put it in the box. The phlebotomist then handed the sealed box to Driver. Driver claimed there was no way appellant's blood sample could have been switched with someone else's. He also noted there were identifying marks on the sealed blood tube, including "labels and seals and everything that are initialed," so there was never an issue as to whose blood was in the tube. Driver took the box with him when he and appellant left the hospital, and it remained in his possession until he booked appellant into the jail. He delivered the box to the evidence locker at the police station and assigned it evidence number 7492. Driver believed the blood was not tampered with the entire time it was in his possession. Driver said the "evidence sergeants" were the only people with access to the evidence lockers. In this case, A.J. Jumper was the evidence sergeant for the blood evidence. According to the property sheet, the blood box was logged into the property room but not logged out. Driver testified it was standard procedure in the Collin County Sheriff's Office for Jumper or one of the other sergeants to deliver blood samples to the Department of Public Safety (DPS). Jumper did that in this case. Kenneth Evans, the drug section supervisor with the DPS's crime laboratory in Garland, Texas, testified that Jumper hand-delivered appellant's blood sample to the lab on September 21, 2007. The delivery of the blood sample was documented in the lab's service evidence record sheet, which is a chain of custody sheet maintained by the lab. The lab assigned its own identification number to the evidence and that number would have been indicated on the blood box returned to the Collin County Sheriff's Office. The blood box was sealed when Evans received it, and the vial of blood inside the box was also sealed. Evans did not see any evidence that the blood had been tampered with. Furthermore, when he opened the vial of blood, he did not notice any problems with it. Appellant objected to the admission of the lab's service evidence record sheet, the blood test results, and any testimony regarding the blood test on the grounds that Black was not a qualified technician under section 724.017. The trial court overruled the objection. A trial court's ruling on the admission of evidence is reviewed for an abuse of discretion and will not be disturbed so long as it falls within the "zone of reasonable disagreement." See Moses, 105 S.W.3d at 627; Salazar, 38 S.W.3d at 153-54. To preserve a complaint for appellate review, a defendant must make a timely objection stating the grounds with sufficient specificity to make the trial court aware of the complaint. See Tex. R. App. P. 33.1(1); Martinez v. State, 22 S.W.3d 504, 507 (Tex Crim. App. 2000). The legal basis for objection on appeal must comport with the objection raised at trial. See Heidelberg v. State, 144 S.W.3d 535, 536 (Tex.Crim.App. 2004). In this case, appellant's trial objection was that her blood was drawn by a person who was not a qualified technician under section 724.017 of the Texas Transportation Code. She did not, however, object to the chain of custody of the blood evidence. Since her trial and appellate objections do not comport, her argument has not been preserved for appellate review. But even if appellant's argument was preserved for appellate review, it would not alter the outcome of this appeal. Texas Rule of Evidence 901(a) provides: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Tex. R. Evid. 901(a). In order for the results of a blood test to be admitted into evidence, a proper chain of custody of the blood sample that was drawn from the accused and later tested must be established. See Durrett v. State, 36 S.W.3d 205, 208 (Tex.App.-Houston [14th Dist.] 2001, no pet.). Proof of the beginning and the end of the chain will support admission of the evidence barring any showing of tampering or alteration. See Stoker v. State, 788 S.W.2d 1, 10 (Tex.Crim.App. 1989). Without any evidence of tampering, questions concerning care and custody of the object go to the weight to be attached to the evidence and not to its admissibility. See Lagrone v. State, 942 S.W.2d 602, 617 (Tex.Crim.App. 1997). In the present case, proof of the beginning and end of the chain of custody of appellant's blood sample, and the absence of any evidence of tampering or alteration, supports the admission of the blood test results. Appellant nonetheless claims the test results were inadmissible because there was no testimony from Sergeant Jumper, that is, the person who transported the blood sample from the evidence room to the DPS lab, and the Sheriff's Department evidence records do not show the blood sample was removed from the evidence room. However, Jumper's signature appears on the DPS lab's service evidence record sheet, i.e., a chain of custody sheet, which indicates he delivered the sample to the lab. Moreover, Evans's testimony show Jumper hand-delivered appellant's blood sample to the lab. The record also shows that the blood sample was marked with identifying information and the box containing the blood sample likewise included a form with identifying information. The fact the evidence room records did not indicate that appellant's blood box was logged out of the evidence room went to the weight of the disputed evidence, not its admissibility. See Lagrone, 942 S.W.2d at 617. We also note that appellant's reliance on Jones v. State, 538 S.W.2d 113 (Tex.Crim.App. 1976), is misplaced. In Jones, a police officer saw the defendant toss a balloon (later found to be containing heroin) from the window of a car. Id. at 114. The officer seized the balloon, initialed it, and delivered it to a police chemist. Id. At trial, the chemist identified a balloon as being the one that was delivered to him by the police officer. Id. But the officer did not identify the balloon tested by the chemist as being the same balloon that he saw the defendant toss from the window of his car. Id. The court concluded that the evidence was insufficient because there was no showing that the balloon identified by the chemist was the same balloon recovered by the officer. Id. In the present case, by contrast, both the blood vial and the blood box delivered to the DPS lab contained information identifying the blood as appellant's. This identifying information, which was lacking in Jones, indicates that the blood sample that Evans thought was appellant's was the sample marked by Driver as belonging to appellant. Therefore, the trial court did not abuse its discretion when it admitted the test results. Appellant's second issue is overruled. Deputy's Testimony About Field Sobriety Tests Appellant's fourth issue argues that the trial court abused its discretion by allowing Driver to testify that appellant failed the field sobriety tests because Driver's testimony constituted "expert testimony" and Driver was not qualified as an expert witness. After describing his training and experience as a law enforcement officer, Driver testified that he administered three field sobriety tests to appellant prior to arresting her. He first explained the "finger-count" test, demonstrated it for the jury, and described how appellant failed to perform this test correctly. Driver said that he first asks the suspect, using either their left or right hand, "to actually touch each tip of their finger starting with the pinkie and count four times forward and then count backwards four times touching the actual fingertip and counting out loud." After demonstrating the test for the suspect, Driver asks them to perform it. Driver described appellant's performance of the finger-count test as follows:She only did two sets and then I had to repeat the instructions again to her. And also during the test she miscounted and she — and then when required to touch her fingertips, she actually was touching at some point where the digit begins, the tip of the finger where the crease is, instead of touching the actual fingertip.Next, Driver discussed the "divided-attention" test and explained that the "one-leg stand" is a divided-attention test. When the prosecutor asked Driver how the one-leg stand test had been administered in this case, appellant objected to any testimony "about standardized field sobriety tests beyond the finger count" on the grounds that Driver was not certified by the State of Texas to give such tests. Appellant asked for a hearing outside the presence of the jury. The trial court overruled the objection and did not conduct a hearing. After the trial court overruled appellant's objection, Driver testified that, when administering the one-leg stand test, he asks suspects to "stand with their feet together and their hands down to their side in basically an attention stand; and then I explain [it] to them, and I'm actually demonstrating it to them." He also asks them, using either foot, to "lift it up 12 inches off the ground and look at it and they count to 30, counting 1001, 1002, 1003, and continue on to 30." In this case, Driver stated that, in his opinion, appellant "failed" the one-leg stand test, noting that she "placed her foot down several times and lost count." Driver also recalled that she told him that she could not perform the test because "she had an injury or back injuries or something from a previous accident." Over appellant's renewed objection, Driver then explained how he demonstrated and administered the "walk-and-turn" test, which is also a divided-attention test. Driver testified that he asks the suspect to take "nine steps forward, heel to toe, and on that ninth step, you know, with that last foot planted, to pivot around, keeping that position, and then to walk straight back nine steps heel to toe, counting out loud." Driver said that, when administering the walk-and-turn test, he is looking at whether the suspects use "their arms to balance while they're walking; seeing if they're following the instructions by touching heel to toe; seeing if they basically step off from the imaginary line so far as to look like they are losing their balance to actually step off." Reviewing his written report, Driver then recalled that appellant "did not touch heel to toe and she swayed from side to side." Based on his training and experience as well as his observations of appellant, Driver stated that appellant "failed the field sobriety tests as a whole," and that she was intoxicated. A trial court's ruling on the admission of evidence is reviewed for an abuse of discretion and will not be disturbed so long as it falls within the "zone of reasonable disagreement." See Moses, 105 S.W.3d at 627; Salazar, 38 S.W.3d at 153-54. We uphold the trial court's ruling if it was correct on any theory reasonably supported by the evidence and applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002). Texas Rules of Evidence 701 and 702 allow both lay and expert witnesses to offer opinion testimony concerning intoxication. See Tex. R. Evid. 701, 702; Emerson v. State, 880 S.W.2d 759, 763 (Tex.Crim.App. 1994) (explaining that peace officer need not qualify as expert to express opinion whether person he observed was intoxicated). But apart from prohibiting a statistical correlation between field sobriety tests and blood alcohol concentration, Texas courts have yet to draw a definite line between lay and expert testimony where field sobriety tests are concerned. See Plouff v. State, 192 S.W.3d 213, 223-24 (Tex.App.-Houston [14th Dist.] 2006, no pet.); McRae v. State, 152 S.W.3d 739, 747 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd); Smith v. State, 65 S.W.3d 332, 347-48 (Tex.App.-Waco 2001, no pet.). Because the one-leg-stand and walk-and-turn field sobriety tests are grounded in the common knowledge that excessive alcohol consumption can cause problems with coordination, balance, and mental agility, a law enforcement officer's testimony about a defendant's coordination, balance, and mental agility problems during these field sobriety tests is considered lay witness opinion testimony under rule 701. See Plouff, 192 S.W.3d at 223-24; McRae v. State, 152 S.W.3d at 745-46; Smith, 65 S.W.3d at 347. Depending on the circumstances, however, use of words such as "clues," "certified," "pass," and "fail" may give the officer's lay witness testimony an "aura of scientific validity," thereby implying reliability and changing that testimony into expert testimony. See McRae v. State, 152 S.W.3d at 746-47 (use of terms "clues," "test," or "divided attention" does not automatically change lay testimony into expert testimony); see also U.S. v. Horn, 185 F. Supp. 2d 530, 559-61 (D. Md. 2002) (during testimony concerning field sobriety tests, layperson's use of "technical terminology" such as "number of standardized clues" or use of terms such as "pass/fail" or "test" when such testimony cannot be shown to have resulted from reliable methodology unfairly cloaks it with unearned credibility); State v. Meador, 674 So.2d 826, 833 (Fla. Dist. Ct. App.) (layperson's references to field sobriety "exercises" using terms such as "test," "pass," "fail," or "points" creates potential for enhancing significance of layperson's observations by giving them "aura of scientific validity"), rev. denied, 686 So.2d 580 (Fla. 1996). Although lay witnesses may also testify as experts, to do so they must be qualified by knowledge, skill, experience, training, or education and their testimony must be based on facts and data that are of a type reasonably relied upon by experts in the field. See Tex. R. Evid. 702, 703; Osbourn v. State, 92 S.W.3d 531, 535 (Tex.Crim.App. 2002). If it is determined that a police officer does offer specialized knowledge as to a defendant's performance on a field sobriety test, it is not necessary that the officer be certified by the State of Texas if the officer is qualified by other training or experience to administer the test. See Smith, 65 S.W.3d at 344; Kerr v. State, 921 S.W.2d 498, 502 (Tex.App.-Fort Worth 1996, no pet.). Police officers regularly employ field sobriety tests to examine an individual's impairment when the individual is suspected of driving while intoxicated. See Volk v. United States, 57 F. Supp.2d 888, 895 (N.D. Cal. 1999). In this case, appellant argues that Driver's use of the word "failed" converted his testimony into expert testimony and also rendered it inadmissible because Driver was not trained or certified to administer the standardized field sobriety tests. Applying the above principles, however, we believe the trial court did not abuse its discretion in allowing Driver to testify that appellant failed the field sobriety tests since the rules of evidence allow lay witness opinion testimony concerning intoxication and the one-leg stand and walk-and-turn field sobriety tests. See Plouff, 192 S.W.3d at 223-24; McRae v. State, 152 S.W.3d at 745-46; Smith, 65 S.W.3d at 347. Driver's use of the word "failed" did not give his testimony an "aura of scientific reliability" or cloak it with unearned credibility. Indeed, the majority of Driver's testimony consisted of a straightforward narrative of each field sobriety test, followed by a particular description of how appellant performed each test. The officer's observations were based on common knowledge and observations and did not, under the circumstances shown here, convert his lay witness testimony into expert testimony. Accordingly, Driver's observations of appellant's performance of the field sobriety tests were admissible under rule 701. We overrule appellant's fourth issue. Voir Dire of Deputy Driver In her third issue, appellant claims the trial court abused its discretion by refusing to allow her trial counsel to take the State's witness, Deputy Driver, on voir dire "to determine his credentials as an expert witness." Driver's testimony regarding the field sobriety tests was lay opinion testimony falling within the purview of Texas Rule of Evidence 701. But even if he had testified as an expert witness, we note that, according to the record, appellant did not object until after Driver had testified in detail about his experience and training in field sobriety tests. Rule 705(b) requires the voir dire request to be made "[p]rior to the expert giving the expert's opinion," and, second, the rule only permits a voir dire examination "directed to the underlying facts or data upon which the opinion is based." See Tex. R. Evid. 705(b). Thus, even if we take appellant's assertion regarding Driver's status as an expert witness at face value, appellant's request to conduct a voir dire examination of Driver was untimely. See Goss v. State, 862 S.W.3d 162, 168 (Tex.Crim.App. 1992). Moreover, any error by the trial court in failing to hold a hearing could not have had "a substantial and injurious effect or influence in determining the jury's verdict" because Driver's qualifications were already in evidence. See Tex. R. App. P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997) (substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict). We overrule appellant's third issue. Voir Dire of Prospective Jurors In her fifth issue, appellant contends that the trial court erred during voir dire by attempting to intimidate prospective jurors in the presence of the jury panel and by cutting off meaningful responses from the panel. At the beginning of voir dire, the trial court instructed the jury panel on various topics, including the need for jurors to be free from prejudices or alignments that favor or disfavor one of the parties. During these instructions, the court asked the panel members to raise their hands if they had an alignment or preference that favored or disfavored a party. When three prospective jurors responded, the court told those who raised their hands that "it took real courage by doing so and disclosing that." The court then directed questions to the prospective jurors who raised their hands. Two of the people who raised their hands, both of them sitting in the first row, said they had lost best friends to a drunk driver. The third person told the trial court that he had two prior convictions for DWI. Addressing the two prospective jurors sitting in the first row, the court asked them whether, by raising their hands, they were saying that they could not "provide assurance[s]" that they were "preference-free in this case?" Prospective juror Fletcher told the court that he did not "feel confident as to making the choice" between guilt and innocence "after losing a friend like that" and that the loss "still angers me to this day." Prospective juror Newton explained that he was "in the fire service," had "seen a lot of stuff," and had "an issue with people that drive intoxicated." He added that he "just [didn't] think it should be done. Period." The court wondered whether he felt the same way "about all the criminal conduct that's described in the Texas Penal Code" or whether he was "saying that somehow the offense of driving while intoxicated is just different" as far as he was concerned? Newton replied, "As far as I'm concerned, yes." He then added that he thought attorneys could "wind their way through the law to manipulate the system for their client's favor" and that he had "an issue with that as well." The record then reads as follows:
THE COURT: Well, let's just imagine for a moment this was a case where the defendant was accused of the offense of theft. Do you feel the same way? No confidence in the system?
PROSPECTIVE JUROR: It would — well, I have confidence in the system. It would be, you know — I raised my hand, Your Honor.
THE COURT: I appreciate that.
PROSPECTIVE JUROR: I mean, I'm being straight up with you.
THE COURT: I appreciate that. I just seek to understand better what you mean to be saying about it.
PROSPECTIVE JUROR: I think theft is theft. You know, either you get busted, caught, stealing or you don't, you know. It's pretty cut and dry to me.
THE COURT: Do you mean to be saying that because a person has been accused, then that must be some evidence of guilt, and that leads you to believe that you'll be unable to be fair and impartial?
PROSPECTIVE JUROR: The evidence, you know, I would be — I would listen to all the evidence. And the evidence would persuade me one way or the other. So. . .
THE COURT: Do you give more credit to one party over the other as you sit there now?
PROSPECTIVE JUROR: No.
THE COURT: As I sit here, I'm just seeking to understand what you've said. I'm just —At this point, appellant objected that the trial court was seeking to reform the prospective jurors in the presence of the entire jury panel. Appellant also argued that
it puts the defendant in a very awkward position of having the Court carry on an inquiry that may taint the integrity and fairness of the other jurors who haven't expressed the same desire, and almost make[s] them hesitant to raise their hand to answer questions that I might have in fear the Court might try to reform them as well.The trial court overruled the objection and continued with the voir dire:
Mr. Newton, while I said I can't quite understand it, I'm just going to take for granted there's still something there and that's why you raised your hand in response to my question. And I'm just going to take for granted that everything you mean to say stands for the proposition that you cannot provide assurance that you will be fair and impartial. I'm going to take that for granted unless you're going to correct the conclusion that I've drawn.Newton replied that his "decision would be based on what the prosecutor presents to the jury" and that he "did have a good friend's son killed by an intoxicated person and, yeah, it does linger with you." After thanking Newton, the court reminded the jury panel that "so far a total of three prospective jurors raised their hands in response to that question that I asked." The court asked, "Are there any others?" A woman in the first row raised her hand and stated that she had "lost a family member to drunk driving" but did not "feel like it will affect my judgment, [and] that's why I didn't raise my hand to begin with." The court thanked her for the response, then continued with the voir dire. Later, during the State's voir dire, the prosecutor asked Fletcher if he thought he could be fair and impartial in this case. Fletcher again said he could not be fair and impartial. Newton also repeated that he would not be able to listen to the evidence and deliberate solely on the evidence in this case. The trial court has wide discretion in controlling the voir dire examination; therefore, we review the trial court's actions with regard to voir dire under an abuse of discretion standard. See Allridge v. State, 850 S.W.2d 471, 479 (Tex.Crim.App. 1991). The trial court may intervene in voir dire for the purpose of clarification or in order to expedite the proceedings. Kennedy v. State, 255 S.W.3d 684, 687-88 (Tex.App.-Eastland 2008, no pet.); Post v. State, 936 S.W.2d 343, 347 (Tex.App.-Fort Worth 1996, pet. ref'd). The court may ask questions in order to clarify a juror's position or instruct a juror. Gardner v. State, 733 S.W.2d 195, 210 (Tex.Crim.App. 1987); Post, 936 S.W.2d at 347; see also Heiselbetz v. State, 906 S.W.2d 500, 509-11 (Tex.Crim.App. 1995) (trial court did not err in questioning venire member when voir dire had not clearly established juror was challengeable for cause). A court's comments only become erroneous when they are reasonably calculated to benefit the State or prejudice the defendant. Beets v. State, 767 S.W.2d 711, 744-45 (Tex.Crim.App. 1987); Gardner, 733 S.W.2d at 210; Kennedy, 255 S.W.3d at 688. In the present case, careful review of the record shows that the trial court did not erroneously interfere in the voir dire process. The court's comments merely served to clarify the venire members' particular views, and they did not benefit the State or prejudice appellant. Therefore, the trial court did not abuse its discretion. We overrule appellant's fifth issue. We affirm the trial court's judgment.