Opinion
No. 05-04-00007-CR
Opinion on Rehearing Filed May 11, 2005. Opinion Filed March 17, 2005, Is Withdrawn. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court, No. 2, Dallas County, Texas, Trial Court Cause No. MA02-16163-B. Affirm.
Before Justices WRIGHT, MOSELEY, and LANG.
OPINION ON REHEARING
We withdraw the opinion and vacate the judgment of March 17, 2005. The following is now the opinion of the Court. Joseph Paul Mallonee, Jr., appeals his conviction for driving while intoxicated. After the jury found appellant guilty, the trial court assessed punishment at confinement for one year, probated for two years, and a $1500 fine. In two issues, appellant contends (1) the trial court erred by admitting certain testimony concerning the reliability of field sobriety tests, and (2) the evidence is factually insufficient to support his conviction. We overrule appellant's issues and affirm the trial court's judgment. In his first issue, appellant contends the trial court erred by allowing Officer Doug Mitchell to improperly bolster his testimony concerning the reliability of the field sobriety tests by (1) testifying a failure of all three tests shows intoxication over 90% of the time, (2) testifying vertical nystagmus is a "good indicator" of a "high dose of alcohol," and (3) linking appellant's failure of the field sobriety tests to a blood alcohol concentration of greater than .08. After reviewing the record, we cannot conclude appellant has preserved error for our review. Appellant failed to object when Mitchell testified vertical nystagmus is a good indicator of a high dose of alcohol or when Mitchell testified that he "could not remember ever arresting somebody after giving them these tests and they have a test that was below a .10 or.08, depending on what the statute was at the time." Consequently, appellant failed to preserve error for our review. See Evans v. State, 5 S.W.3d 821, 823 (Tex.App.-San Antonio 1999, no pet.). With respect to his first complaint, when Mitchell testified that a trained person can "take the horizontal gaze nystagmus and one of the other tests and look at a matrix and use those scores, and if you do that the percentages are up over 90 percent that you're going to make a valid determination" appellant objected that Mitchell was "misclarifying (sic) current studies of the standards of these tests." The trial court responded, "you can cross examine him." The following day, appellant cross-examined Mitchell about the conditions under which he field-tested appellant and how the conditions might impact the validity of the testing. He did not, however, cross-examine appellant about the use of a matrix to obtain a 90% accuracy rate. Under these circumstances, we cannot conclude appellant preserved error for our review. See Dixon v. State, 2 S.W.3d 263, 273 (Tex.Crim.App. 1998) (trial court effectively sustained objection when it permitted cross-examination, but thereafter, appellant pursued no other objection or complaint to an adverse ruling, and thus, received all the relief he requested). Moreover, even assuming appellant preserved his complaints for our review, we would not conclude that the error, if any was harmful. Mitchell testified that appellant was driving well in excess of the posted speed limit and nearly hit a concrete barrier. When Mitchell stopped appellant, Mitchell noticed that appellant had bloodshot and watery eyes and smelled strongly of alcohol. Mitchell also properly testified that appellant performed poorly on the field sobriety tests and that he arrested him based on the totality of the circumstances, not merely because of his performance on the field sobriety tests. Finally, appellant refused to submit to the intoxilyzer test, further evidence of intoxication. Griffith v. State, 55 S.W.3d 598, 601 (Tex.Crim.App. 2001). In light of the evidence of appellant's guilt, and Mitchell's repeated testimony that he arrested appellant based on a totality of the circumstances, not solely because of his performance on the field sobriety tests, we cannot conclude the complained-of testimony concerning the reliability of the field sobriety tests was harmful. We overrule appellant's first issue. In his second issue, appellant contends the evidence is factually insufficient to support his conviction. Again, we disagree. We review challenges to the factual sufficiency of the evidence using a well-known standard of review. See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). We analyze all of the evidence in a neutral light in determining the ultimate issue: whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. As outlined above, the record contains ample evidence that appellant lost the normal use of his mental and physical faculties by reason of introduction of alcohol. Although appellant contends Mitchell's testimony is not credible, the jury considered Mitchell's testimony and found it to be more credible than appellant's version of the evidence. The jury was entitled to believe Mitchell and disbelieve appellant's testimony that he smelled like alcohol because he spilled it on himself while working as a bartender and refused the intoxilyzer test because he did not think Mitchell had fairly administered the field sobriety tests and he did not expect a fair result from the intoxilyzer. And, while the videotape showing appellant in the patrol car and later in the police station may show that appellant did not stumble, wobble, or weave and spoke clearly, this evidence simply makes the case a closer call but does not greatly outweigh the proof of guilt in this case. See Perkins v. State, 19 S.W.3d 854, 858 (Tex.App.-Waco 2000, pet. ref'd) (op. on remand). Moreover, the videotape shows appellant telling the officer "[I] f____ deserve what I get," and later shows him refusing to perform sobriety tests or an intoxilyzer test. Thus, contrary to appellant's assertion, the videotape does contain some evidence of appellant's intoxication which was considered by the jury. See Griffith, 55 S.W.3d at 601. We give deference to the jury's assessment of credibility and reconciliation of potential conflicts. See Turner v. State, 4 S.W.3d 74, 83 (Tex.App.-Waco 1999, no pet.) (conflict regarding whether sobriety tests were given during traffic stop). After reviewing the record using the appropriate standard, we conclude the jury was rationally justified in finding appellant guilty beyond a reasonable doubt. We overrule appellant's second issue. Accordingly, we affirm the trial court's judgment.
Appellant's issue is that "the trial court erred in allowing expert testimony presenting unreliable scientific evidence of the standardized field sobriety tests." After the State filed its brief, appellant filed a reply brief to "clarify" the issue. Appellant explained that his complaint was not the reliability of the individual tests, but rather, that the trial court abused its discretion by allowing Mitchell's testimony "on the scientifically unproven three-test battery theroy, vertical nystagmus, and a correlation between failure of the SFSTs and a precise blood alcohol concentration."