Wayne Scott Walker v. The State of Texas--Appeal from County Court at Law No. 6 of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-304-CR
WAYNE SCOTT WALKER,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY,
NO. 331,728, HONORABLE JAMES GREGG, JUDGE PRESIDING

Appellant appeals his driving while intoxicated conviction. After the jury found appellant guilty, the court assessed his punishment at ninety days' confinement in the county jail and a one thousand dollar fine. The imposition of the sentence was suspended, and appellant was placed on probation for two years subject to certain conditions. Six hundred dollars of the fine was probated.

Appellant advances four points of error. First, appellant claims that the trial court erred in overruling his challenge for cause to a prospective juror. Second, appellant urges that the trial court erred in allowing the results of an intoxilyzer test to be introduced, over objection, when the State did not establish "that a reference sample was used as required by 37 Tex. Admins. [sic] Code section 19.3." Third, appellant contends that the trial court erred in allowing a witness to testify that the intoxilyzer was in proper working order. Fourth, appellant argues that the trial court erred by refusing to admit relevant evidence concerning "Intoxilyzer 5000," which was not used in the instant case. The sufficiency of the evidence is not challenged.

Initially, appellant contends that the trial court erred in denying his challenge for cause to a prospective juror, Father Heathcote, a Catholic priest. Appellant urges that he has met all the requirements of Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989), and has thus preserved error. In Harris, the Court of Criminal Appeals wrote:

 

Thus, in order to warrant a reversal by this Court for the trial court's erroneous denial of an appellant's valid challenge for cause it must be demonstrated that:

 

1. The voir dire of the individual venire person was recorded and transcribed.

 

2. The appellant at trial asserted a clear and specific challenge for cause clearly articulating the grounds therefor.

 

3. After the challenge for cause is denied by the trial court, appellant uses a peremptory challenge on that juror.

 

4. All peremptory challenges are exhausted.

 

5. When all peremptory challenges have been exhausted, appellant makes a request for additional peremptory challenges.

 

6. Finally, the defendant must assert that an objectionable juror sat on the case. The appellant should point out to the trial court that he is being forced to try the case with a juror seated whom he would have exercised a peremptory challenge had he had one.

 

Harris, 790 S.W.2d at 581.

Failure to exhaust all peremptory challenges does not meet the fourth requirement of Harris necessary to preserve error. Harris, 790 S.W.2d at 582. The instant record does not contain a jury list or a showing of which prospective jurors were peremptorily challenged by the appellant or the State. A review of the voir dire examination does not establish that appellant's peremptory challenges were exhausted. In asserting compliance with the fourth requirement of Harris, appellant in his brief does not direct our attention to any portion of the record supporting his claim that he exhausted all of his peremptory challenges. Assertions in briefs will not suffice. The burden is on the appellant to see that a sufficient record is presented to show error requiring reversal. Tex. R. App. P. Ann. 50(d) (Pamph. 1992).

Moreover, we find that the appellant in urging his challenge for cause to the prospective juror simply stated: "Okay. Move to strike for cause." This was only a general challenge or objection which normally does not preserve error for review. It certainly was not a specific challenge for cause articulating the ground for the challenge so as to meet the second requirement of Harris. In order to complain on appeal, a defendant must first have challenged a prospective juror for a specific cause and have the challenge overruled by the trial court. Arnold v. State, 778 S.W.2d 172, 181 (Tex. App. 1989, no pet.).

Appellant failed to lodge a specific objection that the prospective juror was biased or prejudiced against him, Tex. Code Crim. Proc. Ann. art. 35.16 (a)(9)(1989), or biased or prejudiced against any applicable law upon which the defense is entitled to rely, Tex. Code Crim. Proc. Ann. 35.16(c) (Supp. 1992), either as a matter of law, or to such an extent that the prospective juror was disqualified. Appellant further did not specifically challenge the prospective juror on any other basis. (1) Appellant has not preserved error for review. Knox v. State, 744 S.W.2d 53, 61-62 (Tex. Crim. App. 1987), cert. denied, 486 U.S. 106 (1988). Further, error is not preserved for review when the claim on appeal does not comport with the challenge for cause at trial. Id. at 62.

Nevertheless, we have examined the trial court's denial of the challenge for cause in light of the entire voir dire examination of the prospective juror. We do not find that the prospective juror was biased or prejudiced either as a matter of law or to such an extent that he was disqualified. Prospective jurors are not subject to challenges for cause, even though they initially equivocate their responses, if they ultimately state they would follow the court's instructions and render a verdict according to the evidence. Holland v. State, 761 S.W.2d 307, 318 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 109 (1989); Barber v. State, 737 S.W.2d 824, 829-30 (Tex. Crim. App. 1987), cert. denied, 489 U.S. 1091 (1989). That is what occurred in the instant case. A trial court has the discretion to find or refuse to find facts such as would justify a challenge for cause, where the evidence is conflicting. Hammond v. State, 799 S.W.2d 741, 744 (Tex. Crim. App. 1990), cert. denied, ___ U.S. ___, 111 S. Ct. 2912 (1991). Great deference is accorded the trial court when it exercises its discretion in such matters. Pyles v. State, 755 S.W.2d 98, 106 (Tex. Crim. App), cert. denied, 488 U.S. 986 (1988); Briddle v. State, 742 S.W.2d 379, 384 n.1 (Tex. Crim. App. 1987). The first point of error is overruled.

In his second point of error, appellant argues that the "trial court erred by allowing the results of an intoxilyzer test to be introduced and interpreted over objections, because the State did not establish that a reference sample was used as required by 37 Tex. Adminis. [sic] Code Section 19.03."

It appears that appellant is urging that the State failed to satisfy the first prong of the predicate necessary to introduce the results of the intoxilyzer test. Hill v. State, 256 S.W.2d 93 (Tex. Crim. App. 1953), established the necessary predicate for the test results from a breathalyzer machine:

 

(1) the use of properly compounded chemicals;

 

(2) the existence of periodic supervision over the machine and operation by one who understands the scientific theory of the machine; and

 

(3) proof of the result of the test by a witness or witnesses qualified to translate and interpret such results so as to eliminate hearsay.

 

Id. at 96.

This predicate was reaffirmed in Harrell v. State, 725 S.W.2d 208, 209 (Tex. Crim. App. 1986), although Harrell amended the first prong of the predicate for a breath test performed by the intoxilyzer as opposed to a breathalyzer machine. "The Intoxilyzer does not use chemicals so the first prong of the predicate is not really applicable and must be modified due to the nature of the machine." Id. at 209-10. Thus, when an intoxilyzer is utilized, the State no longer need show that the reference sample's composition was proper; a showing that the reference sample was properly used satisfies the first prong of the predicate. Id. at 210. The breathalyzer measures breath alcohol concentration through a chemical compound mixed by the operator, whereas the intoxilyzer measures breath alcohol concentration through infrared spectrometry. Martin v. State, 724 S.W.2d 135, 137 (Tex. App. 1987, no pet.).

Two basic requirements must be met to establish the proper use of a reference sample. First, the results of the intoxilyzer must agree with the reference sample's predicted value within 0.01 g/210L. Second, the test of the reference sample must immediately precede or follow the subject's breath test. Tex. Sec'y of State, 11 Tex. Reg. 3800 (1986) (37 Tex. Admin. Code 19.03(c)(4) since amended) adopted 11 Tex. Reg. 3243 (proposed rule) (in effect at time of appellant's arrest and trial), (2) enacted pursuant to Tex. Rev. Civ. Stat. Ann. art. 6701l-5, 3(b) (Supp. 1992); Harrell, 725 S.W.2d at 210. The purpose of this showing is to demonstrate that the intoxilyzer machine is functioning properly at the time of the breath test. Harrell, 725 S.W.2d at 210.

The evidence established that the reference test came within the statutory 0.01g/210L alcohol concentration of the reference sample. The intoxilyzer operator testified that the reference test was conducted after the appellant's breath test, and the rules of the Department of Public Safety were observed. The technical supervisor also testified as to the procedure used to verify the calibration of the machine and that the procedure used to create the reference sample had been verified through other means. The State established that the reference sample was properly used. See Fleming v. State, 774 S.W.2d 751, 754 (Tex. App. 1989, pet. ref'd).

Moreover, when the results of the intoxilyzer test (State's exhibit number six--Intoxilyzer Test Report) were offered into evidence, appellant objected on the basis that there had been no showing that a proper reference sample had been used so as to make the results admissible "under the Rules of Criminal Procedure." His complaint on appeal is that the results were inadmissible under the Texas Administrative Code. The complaint on appeal must comport with the objection at trial. Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990), cert. denied, ___ U.S. ___, 111 S. Ct. 2816 (1991); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). Appellant's second point of error is overruled.

Appellant's third point of error contends that the "trial court erred in permitting Technical Supervisor Owen to testify that the intoxilyzer machine was in proper working order."

Ralph Owen, a chemist-toxicologist at the Austin Police Department for over fifteen years, testified that he was certified by the Texas Department of Public Safety as a technical supervisor in the Texas Breath Test Program; that he maintained and calibrated the breath test instruments in Area 19; that he was the technical supervisor of the 4011 ASA intoxilyzer at the Austin Police Department, serial number 001488, which was used to administer a breath test to the appellant; and that the particular instrument was certified by the Department of Public Safety. Owen also testified that he was custodian of the records on the particular intoxilyzer.

Owen testified that he had personally inspected the intoxilyzer on December 18, 1989, the morning after the test had been administered to the appellant on December 17, 1989. He stated that he had personally inspected the intoxilyzer before and after December 17, 1989, but not on December 11, 1989. The record reflects:

 

Q. And based on your examination, do you have any opinion as to the condition of the instrument at the time the test was run?

 

A. Yes, sir, I do.

 

Q. What is that opinion?

 

A. It is my opinion that this instrument is [sic] functioning properly on that day.

 

Q. Do you know of any reason why the instrument would have produced an inaccurate test on the day in question?

 

A. I know of none.

 

(Emphasis supplied).

There was no objection to this testimony. For an issue to be preserved on appeal there must be a timely objection which specifically states a legal basis. Tex. R. App. P. Ann. 52(a) (Pamph. 1992); Rezac, 782 S.W.2d at 870. Where counsel fails to object to evidence when it is offered, he must show good reason for his failure, or the matter is waived. Terrell v. State, 801 S.W.2d 544, 546 (Tex. App. 1990, pet. ref'd). If there be any claim that there was an earlier objection, it must be remembered that no reversible error occurs where the same facts to which there was an objection are proven by other testimony to which there was no objection. East v. State, 702 S.W.2d 606, 611 (Tex. Crim. App.), cert. denied, 474 U.S. 1000 (1985); Bratcher v. State, 771 S.W.2d 175, 180 (Tex. App. 1989, no pet.). An examination of the record shows that the above quoted testimony is the only time Owen expressed his opinion as to the condition of the intoxilyzer at the time when the test in question was performed. There is no merit to appellant's third point of error as expressed and quoted above.

Despite the wording of the point of error, appellant's chief concern seems to be the admission of Owen's hearsay testimony that the intoxilyzer was inspected on December 11, 1989, the last time before the test on December 17th, and no malfunction of the intoxilyzer was found on December 11th. Owen had earlier testified, without objection, to the mere fact of an inspection on December 11th. Later, it was elicited that Sam Bivoni, "the other" technical supervisor, had performed the inspection on December 11th. Bivoni did not testify. Appellant now urges that Owen's testimony was in violation of Tex. R. Crim. Evid. Ann. 702 (Pamph. 1992) because an expert is entitled to testify as to his own opinion but not to another person's opinion. No objection was made at trial on this basis and no error is preserved. Even if there had been a timely and specific objection, appellant's contention based on rule 702 is not briefed in accordance with Tex. R. App. P. Ann. 74(f) (Pamph. 1992).

In this multifarious point of error, appellant urges that the trial court also erred in admitting into evidence, over objection, Owen's testimony about the inspection of the intoxilyzer on December 11, 1989. By combining more than one contention in a single point of error, an appellant risks rejection on the ground that nothing is presented for review. Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990), cert. denied, ___ U.S. ___, 115 L. Ed. 2d 988 (1991). This point of error is multifarious and presents nothing for review. Adkins v. State, 764 S.W.2d 782, 785 (Tex. Crim. App. 1988); Macias v. State, 733 S.W.2d 192, 193 n.1 (Tex. Crim. App. 1987), cert. denied, 484 U.S. 1077 (1988).

We do note that appellant attempts to rely on Cole v. State, No. 1179-87 (Tex. Crim. App., November 14, 1990) (not yet reported), which was decided after the instant trial. In Cole, the court held that when the DPS chemist who actually performed the chemical analysos of the substance submitted is absent, the testimony of a supervising chemist (or others) as to the tests conducted and the results of the tests are inadmissible at trial as an exception to the hearsay rule under Tex. R. Crim. Evid. Ann. 803(8)(B) (Pamph. 1982), and that the same evidence would be inadmissible even as a business record exception to the hearsay rule under Tex. R. Crim. Evid. Ann. 803(6) (Pamph. 1992).

Assuming that appellant's general objections of "hearsay" or "hearsay to this witness" are sufficient to preserve error, if any, we decline to rule on Cole's applicability to the instant trial. Rehearing was granted in Cole on July 3, 1991, and Cole is still not final and is not a part of the jurisprudence of this state. See Yeager v. State, 727 S.W.2d 280, 281 n.1 (Tex. Crim. App. 1977); see also Brown v. State, 807 S.W.2d 615, 616 (Tex. App. 1991, no pet.). The Cole holding relies heavily upon United States v. Oates, 560 F.2d 45 (2nd Cir. 1977), which has been severely criticized by other federal appellate courts and commentators. Several courts of appeals have declined to apply Cole because it is not final. See e.g., Brown, 807 S.W.2d at 616; Garcia v. State, No. 05-91-00066-CR (Tex. App.--Dallas, May 21, 1992, no pet. h.); Vasquez v. State, 814 S.W.2d 773, 776 (Tex. App. 1991. pet. ref'd). Most importantly in our case, the point of error is multifarious and presents nothing for review. Appellant's third point of error is overruled.

In his fourth point of error, appellant contends that the trial court erred "by not admitting relevant evidence concerning the Intoxilyzer 5000."

Before trial, the trial court granted the State's motion in limine requesting that appellant make no reference to the Intoxilyzer 5000, which was not involved in the instant case and which was not relevant. During trial, appellant elicited from Ralph Owen, a chemist-toxicologist with the Austin Police Department, that the Intoxilyzer 4011 ASA was no longer in use by the department, but had been replaced "by another instrument." Owen did not identify the "instrument." Subsequently, appellant made his offer of proof, after the court excluded evidence relating to the Intoxilyzer 5000.

The offer of proof consisted of questions that appellant would have asked Owen. First, appellant stated that his main question would be: "If this old machine worked, then why do you have a new one, that being the Model 5000?" Appellant offered nothing to show what the answer would have been to this "main question." Thus, appellant failed to preserve for review any answer to this question. Thompson v. State, 802 S.W.2d 840, 843 (Tex. App. 1989, pet. ref'd); Tovar v. State, 777 S.W.2d 481, 491 (Tex. App. 1989, pet. ref'd). Appellant did not show that the Intoxilyzer 5000 was in use or available to local law enforcement personnel at the time of the test involved, or that it became available later. Moreover, appellant failed to establish Owen's expertise with the Intoxilyzer 5000.

Appellant, in his offer of proof, did state that he had other questions he would have asked Owen if permitted. He would have asked if the "Model 5000" had an organic device, a safeguard, and a breath-saving device which the "old machine" did not have. Appellant would further have inquired if the breath-saving device would have enabled an independent test and opinion on the breath sample saved, and would have asked if the "new machine" had a " two testing and two results, a more scientific testing." Appellant also told the court he would ask:

 

And Mr. Owen, isn't it correct that the same thing you are testifying saying that those conditions that doesn't affect, the machine, the results of the machine, are those not the same safeguards that were implemented in the new model 5000, that being number one, organic detector?

 

To each of the questions stated (except the first question), appellant merely "assumed" or "expected" Owen's answer to each question to be "yes" or "correct." The trial court refused to permit the questions to be asked of Owen.

It is clear that appellant, by his offer of proof, attempted to show that, at least by the time of the trial, there was a more state-of-the-art intoxilyzer than the one used in his case, and to impeach a portion of Owen's testimony. In his brief, appellant now indicates that despite the questions propounded it was his objective to impeach Officer Averitt's testimony, not Owen's testimony, that certain conditions did not affect the reliability of the Model 4011 ASA intoxilyzer that was used. It is obvious, at least in part, that the complaint on appeal does not comport with the offer of proof or objection at trial. See Sterling, 800 S.W.2d at 521.

As to the balance of the offer of proof, we observe that evidence which is not relevant is inadmissible. Tex. R. Crim. Evid. Ann. 402 (Pamph. 1992). Rule 402 does make plain, however, that all relevant evidence is admissible except as otherwise provided by constitutions, by statutes, or by rules. See Medina v. State, 743 S.W.2d 950, 955 (Tex. App. 1988, pet. ref'd). "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Crim. Evid. Ann. 401 (Pamph. 1992); Mayes v. State, 816 S.W.2d 79, 84 (Tex. Crim. App. 1991). Thus, Rule 401 requires that the proffered evidence tend to render a contested material issue more or less probable. Garza v. State, 715 S.W.2d 642, 644 (Tex. Crim. App. 1986).

Exclusion of evidence does not result in reversible error unless to do so affects a substantial right of the accused. See Tex. R. Crim. Evid. Ann. 103(a) (Pamph. 1992); Breeding v. State, 809 S.W.2d 661, 663 (Tex. App. 1991, pet. ref'd). The trial court has wide discretion in determining the admissibility of evidence. Dorsett v. State, 761 S.W.2d 432, 433 (Tex. App. 1988, pet. ref'd).

Testimony that the Intoxilyzer 5000 has more devices or features than the "old machine," elicited from a witness without establishing his knowledge or expertise, under the circumstances given would not be relevant to any material issue in the case. The State further urges that the exclusion of the offer of proof was proper because the evidence, if relevant, would have the danger of confusing the issues or misleading the jury. See Tex. R. Crim. Evid. Ann. 403 (Pamph. 1992); Ybarra v. State, 768 S.W.2d 491, 495 (Tex. App. 1989, no pet.). We agree.

We conclude that the trial court did not abuse its discretion, and that no substantial right of the appellant was affected by the exclusion of the evidence in question. See Tex. R. Crim. Evid. Ann. 103(a) (Pamph. 1992); Tex. R. App. P. Ann. 81(b)(2) (Pamph. 1992). The fourth point of error is overruled.

The judgment is affirmed.

 

John F. Onion, Jr., Justice

[Before Justices Powers, Kidd and Onion*; Justice Powers Not Participating]

Affirmed

Filed: June 24, 1992

[Do Not Publish]

 

* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. 74.003(b) (1988).

1. Challenges for cause not based on any ground mentioned in the statutes are ordinarily addressed to the sound discretion of the trial court. Moore v. State, 542 S.W.2d 664, 669 (Tex. Crim. App. 1976).

2. Now see Tex. Sec'y of State, 37 Tex. Admin. Code 19.03(c)(4) (Supp. 1992).