Pamela Kay Bergman v. The State of Texas--Appeal from Co Crim Ct at Law No 1 of Harris County

Opinion issued April 21, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-01269-CR

PAMELA KAY BERGMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 1

Harris County, Texas

Trial Court Cause No. 1146115

MEMORANDUM OPINION

Pamela Kay Bergman, appellant, pleaded not guilty to driving while intoxicated ( DWI ). The jury found her guilty. The trial court assessed punishment at three-days confinement and a $2,000 fine. In six issues, appellant contends (1) the evidence is factually insufficient to support her conviction; (2) the trial court erred by sustaining the State s objections, thereby denying appellant her fundamental right to confrontation under the Sixth and Fourteenth Amendments of the United States Constitution and under Article I of the Texas Constitution; (3) the trial court erred by permitting the State to lead a witness while viewing a videotape of the arrest that he had not previously seen; (4) the trial court erred by admitting evidence that was of little or no probative value and unfairly prejudicial; (5) the trial court erred by permitting the State to conduct a demonstration in the presence of the jury; and (6) the trial court erred by permitting a lay witness to offer expert testimony regarding intoxication. We affirm.

Background

On November 23, 2002, Houston Police Officer G.E. Miller was patrolling Post Oak Road as part of his assignment to the DWI Task Force. As he proceeded northbound on Post Oak, he noticed a Ford Expedition stopped on the southbound side of Post Oak with the driver s door open. Appellant was driving the vehicle and John Nichols was in the passenger seat. Miller made a U-turn and as he drove behind appellant s vehicle, he saw her door close and the vehicle drive away. Miller began recording on his patrol car-mounted video camera and noticed appellant commit a number of traffic violations, including seeing her vehicle accelerating and decelerating in an unusual manner, making a wide turn, crossing a lane divider, nearly striking another vehicle, and driving over a solid white line onto the shoulder and curb. After Miller activated his emergency lights, appellant pulled over and entered a parking lot at Miller s request.

When Miller asked to see appellant s driver s license, appellant gave him her State Bar of Texas identification card and explained that she did not have her driver s license with her. Appellant apologized to Miller and told him that she had a cast on her leg and one of her contact lenses had fallen out. Miller smelled a very distinct and strong odor of alcohol on appellant s breath and saw that her eyes were glazed, glassy, and watery. In response to his question about her consumption of alcohol that evening, appellant told Miller that she had consumed one glass of wine about four hours earlier.

Miller then administered two field sobriety tests on appellant. First, he administered the Horizontal Gaze Nystagmus ( HGN ) test. Before appellant began, Miller noticed her poor balance as she exited the vehicle. Appellant demonstrated all six clues for intoxication on the HGN test.

Miller next administered the modified alphabet test in which he asked appellant to recite the alphabet beginning with the letter G and ending with the letter X. Appellant did not perform well on this test because she started with H and ended with Z.

Miller concluded that appellant was intoxicated and decided to arrest her for DWI. Rather than informing appellant that he was arresting her, Miller told her that he did not believe she had only one glass of wine and indicated that he would offer her a breath test. Miller tried to bring appellant s hands together behind her back to place handcuffs on her and place her in custody, but appellant resisted. Appellant repeatedly screamed no and help me, and began struggling, which made it difficult for Miller to place her in handcuffs. At this point, Nichols got out of the vehicle, ignored Miller s repeated instructions to stay in the vehicle, and approached Miller yelling and pointing his finger at him. Nichols claims he was telling Miller not to manhandle appellant. Nichols grabbed both of Miller s arms, but Miller was able to call for back up while trying to hold on to appellant and keep her between himself and Nichols.

Nichols and Miller continued to struggle as appellant broke free and ran back to her vehicle. After Nichols lost his balance, Miller let him fall to the ground. Inside her vehicle, appellant called 911 on a cellular telephone. Miller instructed her to stay there. As Miller waited for back up, a car driven by William Whigham, a retired Harris County deputy sheriff, pulled into the parking lot. Whigham and his sister Jennie Tompkins, a passenger in Whigham s vehicle, saw from the freeway service road what appeared to be Nichols fighting with Miller and believed that Miller might need help. Miller arrested appellant for suspicion of DWI and transported her to the police station. Nichols was arrested for interfering with the duties of a public servant.

A number of field sobriety tests were performed by Officer P. Lassalle on appellant at the station. However, appellant refused to submit her breath for an intoxilyzer analysis. Officers then took appellant to a video room where drivers suspected of intoxication are videotaped performing field sobriety tests. After appellant stated that she believed she can do anything you ask [her] to do, she performed the one-leg-stand test, but failed by exhibiting the maximum number of clues of intoxication After ensuring that appellant felt comfortable standing on both feet, Lassalle asked her to perform the Rhomberg divided attention (mental/physical) test. Although she was within the normal range for lapse of time by estimating 30 seconds after 33 seconds, she displayed 1 to 2 inches of circular sway, which was consistent with intoxication. Appellant performed a nose touch test, in which she made multiple mistakes. Appellant also insisted on taking a walk-and-turn test, in which she exhibited six out of eight possible intoxication clues. Lassalle opined that appellant had definitely lost the normal use of her mental and physical faculties on account of alcohol intoxication.

Appellant, who pleaded not guilty to DWI, and Nichols, who pleaded not guilty to inference with the duties of a public servant, were tried together before a single jury. At trial, both appellant and Nichols testified that Miller did not tell appellant he was placing her under arrest, but instead manhandled her, even placing his hands on her breast. Nichols claims he went to appellant s aid because she was screaming for help. Both appellant and Nichols denied that appellant was intoxicated and explained appellant s failure to adequately perform the sobriety tests on appellant s recent foot surgery and cast on her foot.

Factual Sufficiency of Evidence

In her first issue, appellant contends that the evidence was factually insufficient to support her conviction for the offense of DWI. We review the factual sufficiency of the evidence by reviewing all of the evidence neutrally, not in the light most favorable to the prosecution. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In a factual-sufficiency review, we may not substitute our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). The Court of Criminal Appeals has recently discussed the factual-sufficiency standard:

There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can outweigh the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.

Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004). We must consider the most important evidence that appellant claims undermines the jury s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Appellant asserts the evidence is factually insufficient for the following reasons: (1) she was not wearing her required contact lenses and wore a cast on her leg resulting in an inability to drive or perform the sobriety tests accurately, and (2) the officer s testimony acknowledged that she did not slur her speech and that she timed the Rhomberg test within the normal range for accuracy. Appellant also asserts that the State s evidence of intoxication is too weak to support a finding of guilt because the State s only evidence of guilt was the following: (1) the odor of alcohol on her breath; (2) glassy eyes; (3) refusal to take the intoxilizer; and (4) performance on the modified alphabet test.

Appellant s testimony presented evidence contrary to the verdict. Appellant testified that she had a cast on her left foot on the evening in question, which could have caused the erratic driving that Miller observed and recorded with his patrol car-mounted video camera. Appellant also testified that she had only consumed one glass of wine approximately four hours prior to her encounter with Miller. She further testified that she was having trouble seeing because one of her contact lenses had fallen out. Nichols s testimony was consistent with appellant s testimony.

Nevertheless, the testimony of Miller, Lassalle, Whigham, and Tompkins provided evidence in support of the verdict. Miller testified that he observed appellant commit several traffic violations before he pulled her over. He also testified that he smelled a very strong odor of alcohol on appellant s breath and that her eyes were glazed, glassy, and watery, which are all signs consistent with intoxication by alcohol. Miller administered two field sobriety tests, both of which indicated a number of clues of intoxication. After observing appellant that evening, Whigham and Tompkins also testified that she appeared intoxicated. Upon her arrest, Officer Lassalle administered more field sobriety tests, all of which appellant failed except the Rhomberg test. Both officers testified that it was their opinion that appellant had lost the normal use of her mental and physical faculties due to consumption of alcohol.

A jury has the sole province of deciding what weight to give contradictory testimony because its decision turns on the evaluation of demeanor and credibility. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). A jury s verdict is not manifestly unjust when it resolves conflicting views in favor of the State. Id. at 410. It is clear by the verdict that the jury chose to give more weight to the testimony of officers Miller and Lassalle and bystanders Whigham and Tompkins.

After examining all of the evidence neutrally, we hold that the proof of guilt was not so obviously weak as to undermine confidence in the jury s determination; nor was the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. The evidence was factually sufficient to show that appellant committed the offense of driving while intoxicated.

Accordingly, we overrule appellant s first issue.

Confrontation Clause

In her second issue, appellant contends that the trial court violated her fundamental right to confrontation under the Sixth and Fourteenth Amendments of the United States Constitution as well as under Article I, Section 10 of the Texas Constitution.

On appeal, appellant complains of cross-examination that Nichols attorney was not allowed to conduct. Appellant complains that the State s asked and answered objections were sustained when Nichol s attorney attempted to cross-examine Tompkins about (1) how appellant pulled at the officer, (2) Tomkins s discussions with her brother about what they saw out there that night, (3) whether Tomkins said, That man is fighting that policeman, and (4) whether Tomkins saw appellant s hands up. Appellant also complains that the State s asked and answered objections were sustained when Nichols attorney attempted to cross-examine Whigman about (1) whether it was standard procedure to advise a person when they were being taken into custody why they were being taken into custody, (2) when Whigman worked as a deputy and his training concerning physical contact with females, (3) whether Whigman saw the officer put his foot between appellant s legs, and (4) his testimony that he saw appellant staggering halfway down the passenger side of the car. Appellant has not explained, however, how the trial court s ruling disallowing these areas of cross-examination by Nichols attorney prevented her confrontation of the witnesses.

Appellant also contends on appeal that her trial attorney was equally restrained from exploring areas directly relating to [appellant s] case due to Mr. Nichols counsel s questioning in the same areas. However, appellant has not cited to any instance in the record where her trial attorney was restrained from cross-examining any witness because Nichols s attorney had already covered the subject matter. The record reflects only appellant s trial attorney s statement, So, then, you re not going to let me recross, and on the same thing?, but no showing that any cross-examination attempted by appellant s counsel was not allowed by the trial court because Nichol s counsel had discussed the topic. Appellant s brief on appeal essentially concedes that the record does not show any trial court ruling that disallowed appellant s cross-examination of the witnesses because, as stated by appellant, she chose not to push the matter. //

Under our rules of evidence, error may not be predicated on a court s ruling that excludes evidence unless (1) a substantial right of the party is affected, and (2) the substance of the evidence was made known to the court, or was apparent from the context within which questions were asked. Tex. R. Evid. 103(a)(2); see Railsback v. State, 95 S.W.3d 473, 477-78 (Tex. App. Houston [1st Dist.] 2002, pet. ref d). An offer of proof needs to show the facts that a defendant wishes to prove; if it does not do so, the issue is not preserved for appellate review. Jenkins v. State, 948 S.W.2d 769, 775 (Tex. App. San Antonio 1997, pet. ref d).

Even if we were to assume that the trial court s disallowance of Nichols attorney s cross-examination somehow affected the ability of appellant s attorney to cross-examine witnesses, appellant did not make any offer of proof to the trial court concerning the matters she complains were excluded by the trial court s ruling. Additionally, although appellant asserts that these areas were important to the strategy of her defense, appellant has not asserted in her appeal that the substance of the excluded evidence is apparent from the context within which questions were asked. Appellant contends on appeal that [t]he questions themselves were not at issue; it was the subject matter of those questions that was limited by the trial court. Appellant s attorney, however, did not make any offer of proof concerning the evidence that he sought to obtain from the subject matter of those questions.

We hold that, by failing to make an offer of proof and by failing to demonstrate how the substance of the excluded evidence is apparent from the context within which questions were asked, appellant has failed to preserve this issue for appeal. See Tex. R. Evid. 103(a)(2); Garza v. State, 846 S.W.2d 936, 939 (Tex. App. Houston [1st Dist.] 1993, pet. ref d). We further note that appellant never asserted to the trial court that any of the constitutional rights she complains of in this appeal were violated by the court s ruling that sustained the State s objections. See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (Wright waived his Confrontation Clause challenge on appeal because he only objected on hearsay and Rule of Optional Completeness grounds at trial). Therefore, appellant has not preserved her constitutional complaints for our review. Accordingly, we overrule appellant s second issue.

Leading the Witness

In her third issue, appellant asserts that appellant s Sixth and Fourteenth Amendment rights were violated as a result of the trial court allowing the State to lead witness Whigham. Specifically, appellant contends that the State led Whigham through his testimony when the patrol car videotape was played contemporaneously with his trial testimony.

To preserve an issue for appeal, the appealing party must have made a timely, specific objection at the earliest possible opportunity and with enough specificity to inform the trial court of the complaint. Tex. R. App. P. 33.1(a)(1)(A); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). At trial, when the State attempted to play the videotape as Whigham testified, Nichols trial counsel objected that the State was leading the witness and that the State s use of the videotape in that manner was leading, and suggestive, and outside of the rules of protocol. See Tex. R. Evid 611(c) (stating Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the testimony of the witness. ). Appellant s attorney lodged no objections to the playing of the videotape. Even if we were to assume that Nichols attorney s leading objection also applied to appellant, Nichols s attorney never objected to the trial court on the grounds that the playing of the videotape violated either appellant s or Nichols Sixth or Fourteenth Amendment rights. Therefore, appellant has not preserved this issue for appellate review. See Wright, 28 S.W.3d at 536 (Confrontation Clause challenge waived on appeal because only objections at trial were hearsay and Rule of Optional Completeness). Accordingly, we overrule appellant s third issue.

Admission of Evidence

In her fourth issue, appellant contends that the trial court erred in permitting the State to introduce evidence of a modified alphabet field sobriety test in violation of rule 402 and rule 403 of the rules of evidence. Tex. R. Evid. 402, 403. Specifically, appellant contends that Officer Miller s testimony concerning the administration of a modified alphabet test was of little or no probative value concerning any disputed issue and the prosecution offered it solely to prejudice the jury against appellant. The State argues that the testimony was properly admitted to show whether or not appellant had lost the normal use of the mental faculties, which is relevant to the intoxication element of a DWI offense.

We review the trial court s determination of admissibility under an abuse-of-discretion standard. Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1990); Roberts v. State, 29 S.W.3d 596, 600 (Tex. App. Houston [1st Dist.] 2000, pet. ref d). Rule 402 provides that evidence which is not relevant is inadmissible. Tex. R. Evid. 402. Rule 403 provides that, although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403. At trial, appellant objected, claiming the testimony was more prejudicial than probative. See Tex. R. Evid. 403. Appellant did not object to the relevancy of Miller s testimony regarding the modified alphabet test under rule 402. See Tex. R. Evid. 402. To preserve a complaint for appellate review, a defendant must object timely to the trial court. Tex. R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). Therefore, appellant has not preserved any complaint on appeal of the irrelevancy of the testimony under rule 402. See Tex. R. Evid. 402.

Under rule 403, evidence is inadmissible if the risk of unfair prejudice substantially outweighs the probative value. Tex. R. Evid. 403; Swarb v. State, 125 S.W.3d 672, 681 (Tex. App. Houston [1st Dist.] 2003, pet. dism d); Goldberg v. State, 95 S.W.3d 345, 366 (Tex. App. Houston [1st Dist.] 2002, pet. ref d). The reviewing court, using an abuse-of-discretion standard, should do more than decide whether the trial judge did in fact conduct the required balancing between probative and prejudicial values; the trial court s determination must be reasonable in view of all relevant facts. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) (citations omitted). A Rule 403 balancing test includes, but is not limited to, the following factors:

(1) how probative is the evidence;

(2) the potential of the evidence to impress the jury in some

irrational, but nevertheless indelible way;

(3) the time the proponent needs to develop the evidence;

and

(4) the proponent s need for the evidence.

Reese v. State, 33 S.W.3d 238, 240-41 (Tex. Crim. App. 2000).

The evidence of Miller s administration of the modified alphabet test was highly probative. The elements of the offense of driving while intoxicated are that a person was (1) operating a motor vehicle, (2) in a public place, (3) while intoxicated. Tex. Pen. Code Ann. 49.04(a) (Vernon 2003). Intoxicated means, among other things, not having the normal use of mental or physical faculties by reason of the introduction of alcohol . . . into the body. Tex. Pen. Code Ann. 49.01(2)(A) (Vernon 2003). Normal use means the manner in which a normal non-intoxicated person would be able to use his mental or physical faculties. See Ford v. State, 129 S.W.3d 541, 546 (Tex. App. Dallas 2003, pet. ref d). The evidence of this test was probative of whether appellant had the normal use of her mental faculties. The evidence does not have the potential to impress the jury in some irrational but indelible way because intoxication and, more specifically, appellant s loss of her normal mental or physical faculties is among the issues that a jury must consider in a DWI trial. Furthermore, the evidence was addressed for only a very brief period of time.

Rule 403 favors the admission of relevant evidence and carries with it a presumption that relevant evidence will be more probative than prejudicial. Long v. State, 823 S.W.2d 259, 271 (Tex. Crim. App. 1991). Appellant s suggestion that the only evidentiary value of Miller s testimony regarding administration of the test was to establish probable cause is unconvincing. Contrary to appellant s suggestion, appellant s mental dexterity does have bearing on her intoxication. Appellant fails to explain how evidence demonstrating a lack of mental dexterity, which could help determine if a person is intoxicated, is unfairly prejudicial when the offense is DWI.

Having reviewed the record, we find the trial court acted reasonably when it admitted in evidence the testimony of the administration of the modified alphabet test. The trial court did not abuse its discretion in admitting this testimony.

Accordingly, we overrule appellant s fourth issue.

In-Court Demonstration

In her fifth issue, appellant contends that the trial court erred in permitting the State to conduct a demonstration in the presence of the jury, in which the prosecutor asked Miller to look into her eyes to see if he could detect whether she was wearing contact lenses. Specifically, appellant argues the trial court erred by allowing the demonstration, which (1) deprived appellant of confrontation because appellant s trial counsel cannot cross-examine the prosecutor and (2) was inadmissible because the demonstration was not performed under conditions similar to the event that the prosecutor sought to duplicate. However, appellant failed to object to the demonstration on either of these grounds. Rather, appellant s co-counsel objected on the ground that the demonstration makes the Prosecutor a witness. Conceivably.

To preserve a complaint for appellate review, a party must have presented to the trial court a timely objection, stating the specific grounds for the ruling desired, and either the trial court must have ruled on the issue, or the complaining party must have objected to the trial court s failure to rule. Tex. R. App. P. 33.1(a). An objection that states one legal theory will not support a different legal theory on appeal. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Flores v. State, 125 S.W.3d 744, 746-47 (Tex. App. Houston [1st Dist.] 2003, no pet.). Therefore, when a complaint on appeal does not comport with the objection made at trial, no error is preserved for appellate review. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Flores, 125 S.W.3d at 746-47. Because appellant failed to object and because appellant s co-counsel s objection was based on grounds not asserted on appeal, she has not preserved error on this issue.

Accordingly, we overrule appellant s fifth issue.

Lay Testimony

In her sixth issue, appellant contends that the trial court erred in allowing a lay witness to offer expert testimony regarding intoxication. Specifically, appellant argues that the trial court should not have permitted Tompkins to offer testimony as to her opinion of whether appellant was intoxicated without first stating the basis for that opinion.

When the prosecutor asked her what she saw at the scene on the evening in question, Tompkins testified that she saw appellant step out of the vehicle, staggering, as she came around the end of the vehicle, and towards the policeman. The prosecutor then asked, Without having had any contact with [appellant and Nichols], and seeing what you saw, what s your opinion as to what happened and that night? Appellant s co-counsel, Nichols counsel, objected to Tompkins opinion testimony for failure to lay the proper predicate. After the court sustained this objection, the prosecutor asked, What do you think happened? Co-counsel again objected, but on speculation grounds. The court overruled this objection and Tompkins answered

I thought the policeman had stopped them for something. For some violation. And, that they were both the man who had to subdue and put on the ground and the lady that got out of the vehicle, and had come around, was fighting him, too. I had no idea of what they had been stopped for. But, with her staggering, I made the opinion that she must have been drinking.

(emphasis added).

To preserve error for appeal, a defendant must (1) object, (2) state the grounds with sufficient specificity, and (3) obtain an adverse ruling. Tex. R. App. P. 33.1; see Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Appellant s co-counsel s objection to the failure to lay the proper predicate for Tompkins opinion testimony was sustained. Error, thus, is not preserved because no adverse ruling occurred on this lack of predicate objection. Error is not preserved if the objection is not pursued to an adverse ruling. Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991) (holding that appellant waived error because the trial court did not make a definite or adverse ruling on appellant s speculation objection). After Tompkins offered a non-responsive answer to the prosecutor s question in which she testified as to what, in her opinion, she saw that evening, neither appellant nor Nichols counsel objected to the testimony. To preserve error, a party must continuously object each time inadmissible evidence is offered. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Johnson v. State, 84 S.W.3d 726, 729 (Tex. App. Houston [1st Dist.] 2002, pet. ref d). Appellant has not preserved error on Tompkins s opinion testimony.

Accordingly, we overrule appellant s sixth issue.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Justices Alcala, Higley and Bland.

Do not publish. Tex. R. App. P. 47.2(b).