Hernandez, Guadalupe Mora v. The State of Texas--Appeal from County Court at Law No 2 of Midland County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

GUADALUPE MORA HERNANDEZ, )

) No. 08-01-00100-CR

Appellant, )

) Appeal from the

v. )

) County Court at Law #2

THE STATE OF TEXAS, )

) of Midland County, Texas

Appellee. )

) (TC# CR-82,253)

)

O P I N I O N

Appellant Guadalupe Mora Hernandez appeals from her conviction of driving while intoxicated. On appeal, she brings three issues: (1) the trial court erred in denying Appellant=s challenge for cause of a venire person; (2) the trial court abused its discretion in allowing testimony of horizontal gaze nystagmus (AHGN@) test without a Kelly-Daubert inquiry; and (3) the trial court abused its discretion in allowing testimony concerning use of a passive alcohol sensor without a Kelly-Daubert inquiry. We affirm.

On November 15, 1999, a trial was held on the State=s charge that Appellant had been driving while intoxicated. At the end of voir dire, Appellant objected to Juror No. 5 based on her bias for the State, since she had responded, AI probably would,@ when asked if she had a predisposition to believe a police officer more than someone else in a DWI case. The trial court denied Appellant=s motion to strike Juror No. 5 for cause and Appellant used a peremptory challenge to strike her. Appellant sought one more peremptory challenge, which the trial court denied, and six jurors were empaneled eventually.

A single witness, Matthew Ruff, a trooper with Texas Department of Public Safety, testified at trial. He had made a traffic stop on Appellant for failure to wear a seatbelt when he noticed a fairly strong odor of alcohol on her. The trooper administered on Appellant several field sobriety tests to assess Appellant=s intoxication level, including the HGN test and also used a passive alcohol sensor. Appellant objected to the trooper testifying on the HGN test and the result of the passive alcohol sensor until the requirements of Hartman v. State, 946 S.W.2d 60 (Tex.Crim.App. 1997) were met. The trial court overruled the objections.

The jury found Appellant guilty of driving while intoxicated. Per agreement between Appellant and the State, punishment was assessed by the trial court at forty-five days confinement in state jail plus a fine of $500.

In her first issue, Appellant contends she was harmed when the trial court incorrectly overruled her challenge for cause against Juror No. 5.

In order to preserve error on a challenge for cause, the defendant must (1) issue a specific challenge for cause, (2) obtain a ruling on the challenge, (3) use the peremptory challenge on the complained-of juror, (4) exhaust the peremptory challenges, (5) request additional peremptory challenges, (6) identify a member of the jury as objectionable, and (7) claim that he would have struck the juror with a peremptory challenge. Rosales v. State, 4 S.W.3d 228, 232 (Tex.Crim.App. 1999); Broussard v. State, 910 S.W.2d 952, 956-57 (Tex.Crim.App. 1995).

Appellant has failed to preserve error, because she did not identify in the record which members of the jury panel she found objectionable. Before presenting a complaint for appellate review, the appellant must have notified the trial court of the error by a timely request, objection, or motion and obtain a ruling. Tex.R.App.P. 33.1(a). Since no error was preserved for review, Appellant has waived it. We overrule Issue One.

In Issues Two and Three, Appellant argues the trial court abused its discretion in admitting testimony on the HGN test and the passive alcohol sensor without conducting an inquiry on the reliability of those methods of assessing intoxication.

We review the trial court=s decision to admit or exclude evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101 02 (Tex.Crim.App. 1996), cert. denied, 520 U.S. 1200, 117 S. Ct. 1561, 137 L. Ed. 2d 707 (1997); Montgomery v. State, 810 S.W.2d 372, 379 80 (Tex.Crim.App. 1990). An abuse of discretion occurs when the trial court=s judgment is without any reference to guiding rules or principles, or is arbitrary or unreasonable. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996). We will not reverse a trial court=s ruling, which was within the Azone of reasonable disagreement.@ Green, 934 S.W.2d at 102; Montgomery, 810 S.W.2d at 391.

In her second issue, Appellant seeks reversal of the holding in Emerson v. State, 880 S.W.2d 759, 764-69 (Tex.Crim.App. 1994), in which the Texas Court of Criminal Appeals took judicial notice of the scientific theory and technique underlying the HGN test. Id. The court concluded that although the theory behind the test was reliable, the application of the test was a different matter. Id. Therefore, expert testimony is necessary only to establish the test was properly applied. Id. at 769.

Appellant does not attack the validity of the application of the HGN test but instead argues that expert testimony should establish the test is based on scientifically reliable and valid theory each time evidence of the HGN test is introduced. We decline Appellant=s invitation to go against an established precedent. Issue Two is overruled.

In Issue Three, Appellant points out the trial court erred by not requiring proof of the reliability of the passive alcohol sensor and admitting the evidence of the breath test in reliance upon Fernandez v. State, 915 S.W.2d 572, 576 (Tex.App.--San Antonio 1996, no pet.)(holding the admission of results from a non-certified passive alcohol sensor was not error).

To be considered reliable, evidence based on a scientific theory must satisfy three criteria: (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. Hartman, 946 S.W.2d at 62, citing Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App. 1992); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Under Texas Rules of Evidence 104(a) and (c) and Rule 702, the proponent must establish all three criteria outside the presence of the jury, before the trial court may admit the evidence. Kelly, 824 S.W.2d at 573.

Appellant objected to the evidence when it was offered at trial Abased on the Hartman case.@ However, to preserve error, an objection to the admission of evidence must state the specific grounds for the objection, if the specific grounds are not apparent from the context. Tex.R.Evid. 103(a); Tex.R.App.P. 33.1; Bird v. State, 692 S.W.2d 65, 70 (Tex.Crim.App. 1985). An objection to an improper predicate that fails to inform the trial court exactly how the predicate is deficient will not preserve error. Bird, 692 S.W.2d at 70; Mutz v. State, 862 S.W.2d 24, 30 (Tex.App. -Beaumont 1993, pet. ref=d). Rule 702, Daubert, Kelly, and Hartman cover numerous requirements and guidelines for the admission of expert testimony. Scherl v. State, 7 S.W.3d 650, 652 (Tex.App.--Texarkana 1999, pet. ref=d). An objection based on Rule 702 and these cases alone is effectively a general objection to an improper predicate. Scherl, 7 S.W.3d at 652. Appellant=s objection did not adequately inform the trial court of any complaint upon which it might rule. Therefore, we conclude that no specific complaint about the reliability of the evidence was preserved for appellate review. Issue Three is overruled.

The judgment of the trial court is affirmed.

July 31, 2002

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)