Roderick Delano Baley v. State of Texas--Appeal from 173rd District Court of Henderson County

Opinion filed December 6, 2007

Opinion filed December 6, 2007

In The

Eleventh Court of Appeals

__________

 No. 11-06-00098-CR

__________

 RODERICK DELANO BALEY, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 173rd District Court

Henderson County, Texas

Trial Court Cause No. A-13,069

O P I N I O N

The trial court convicted Roderick Delano Baley of felony driving while intoxicated (DWI) and sentenced him to five years confinement. Baley challenges his conviction with one issue, contending that the trial court erred by allowing into evidence the results of a portable breath test. Because we find that the trial court did not err, we affirm.

 

Baley was indicted for third-degree felony DWI. Baley pleaded not guilty and waived a jury. The evidence established that Baley was involved in a one-car accident. A Department of Public Safety trooper, Scott Smith, investigated the accident. He smelled alcohol on Baley=s breath and saw beer cans at the scene near Baley=s vehicle. Trooper Smith questioned Baley, and he admitted to drinking. Trooper Smith administered three field sobriety tests, including a portable breath test. Baley was arrested and taken to the police station where he refused to provide a breath sample.

Trooper Smith=s car was equipped with a video recorder. The State introduced a videotape Trooper Smith made of this incident. The videotape was played for the court, and the attorneys questioned Trooper Smith as the videotape played. During that process, the following transpired:

[PROSECUTOR] Q: And what are you doing right now?

[TROOPER SMITH] A: I=m having him blow in a portable breath, a preliminary breath tester.

[DEFENSE COUNSEL] Q: As it turns out, he doesn=t wind up blowing in the thing; is that right?

[TROOPER SMITH] A: He does blow into this preliminary breath tester.

[DEFENSE COUNSEL] Q: He does?

[TROOPER SMITH] A: Yes, sir.

[DEFENSE COUNSEL] Q: Is there any way that you could save the results of that or is that just something that B B

[TROOPER SMITH] A: No. No, sir. It=s just a digital read-out that goes away when you turn it off.

[DEFENSE COUNSEL] Can you rewind that a little bit again and just play it all the way through and let=s listen to this.

[DEFENSE COUNSEL] Q: This is the section where you say that he gave the breath test; is that right, where he gave the sample?

[TROOPER SMITH] A: Of the little portable hand tester.

. . . .

[PROSECUTOR] Q: Well, I want to follow-up there, Trooper. So did he give a sample, a breath sample? I guess, did he give enough of a breath sample for the machine to give a result?

 

[TROOPER SMITH] A: For the preliminary, yes. For the preliminary breath tester, he did.

The State argued that Baley=s questions opened the door to allow the portable breath tester results into evidence. The trial court agreed. Baley then objected because no predicate on the scientific validity of the portable breath test had been laid. The trial court overruled Baley=s objection, and Trooper Smith testified that the test revealed a blood alcohol content of 0.111.

Baley challenges the trial court=s judgment with a single issue, contending that the trial court erred by allowing the test results into evidence because the State failed to prove the reliability of portable breath testing machines as required by Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). The State responds that it was unnecessary to do so because Baley opened the door and that, alternatively, any error was harmless.

We review a trial court=s decision to admit or exclude evidence under an abuse-of-discretion standard and will not reverse a trial court=s ruling unless it falls outside the zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). We review the decision in light of what was before the trial court at the time its ruling was made. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). If the ruling was correct on any theory of law applicable to the case, we must uphold that decision. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).

Tex. R. Evid. 107, sometimes referred to as the Rule of Optional Completeness, provides that, A[w]hen part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other.@ The purpose of the rule is to reduce the possibility that the fact-finder receives a false impression from having heard only part of some act, conversation, or writing. Credille v. State, 925 S.W.2d 112, 116 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d). The rule=s application is limited by the requirement that the omitted portion must (1) be on the same subject and (2) be necessary to make it fully understood. Sauceda v. State, 129 S.W.3d 116, 123 (Tex. Crim. App. 2004).

 

The evidence introduced under this rule need not be ordinarily admissible. Parr v. State, 557 S.W.2d 99, 102 (Tex. Crim. App. 1977). AWhen defense counsel pursues a subject that would ordinarily be outside the realm of proper comment by the prosecutor, the defendant opens the door and creates a right of reply for the State.@ Credille, 925 S.W.2d at 116; see also Johnson v. State, 747 S.W.2d 451, 453-54 (Tex. App.CHouston [14th Dist.] 1988, pet. ref=d) (Rule 107 permits the introduction of otherwise inadmissible evidence when that evidence is necessary to fully and fairly explain a matter opened up by the adverse party). Courts have, for example, found that extraneous offenses,[1] hearsay statements,[2] and incompetent testimony[3] were admissible because the door had been opened.

At trial, Baley argued that his questions did not open the door because he was simply trying to determine if the device indicated that it ran a valid test. He contended that the answer to his question was either yes it did or no it did not and that this question would not require the trooper to give the actual test result. The trial court disagreed, noting that, even if the question was Adid the device show that it had performed a valid test, it=s just a natural corollary to ask, you know, since he said it gave a valid test, it=s a natural corollary to say what, you know, what did the test show.@

We cannot say that the trial court abused its discretion. In the abstract, it is possible to draw a distinction between asking whether the machine worked properly on a particular occasion and asking what the test revealed on that occasion. But in the courtroom, drawing such distinctions also requires consideration of factors that the trial court is best positioned to evaluate. Furthermore, Baley=s questions went beyond merely asking if the machine worked correctly. He asked whether the machine gave a result and if that result was saved. We appreciate that a portable breath tester can be calibrated and thus tested, but in the context of whether it worked when used on Baley, the only way Trooper Smith would know this is by reading the digital readout. Thus, Baley=s questions necessarily implicated what Trooper Smith saw on the machine following Baley=s test. Consequently, we find that the trial court reasonably concluded that Baley opened the door and that the trial court correctly overruled Baley=s objection to the lack of reliability evidence.

 

Even if we are incorrect, any error was harmless. Tex. R. App. P. 44.2(b) provides that an appellate court must disregard a nonconstitutional error that does not affect a defendant=s substantial rights. We may not reverse for nonconstitutional error if, after examining the record as a whole, we have fair assurance that the error did not have a substantial and injurious effect or influence in determining the verdict. Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007). The question is not whether there was sufficient evidence to support the verdict. Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003). Instead, we review the entire record and consider the nature of evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence in the case. Id.

The indictment alleged that Baley was intoxicated by not having the normal use of his mental or physical faculties. The indictment did not include a charge that his blood alcohol concentration was .08 or above. There was considerable evidence that Baley was intoxicated. Alex Caddell was at home when he heard the accident. He went to the scene and saw Baley in his vehicle and saw beer cans scattered about. Baley=s axle was bent up under the pickup, but he was still trying to drive it. Baley appeared panicked and was upset because he could not leave. Caddell also saw Baley throw four or five beer cans out of his pickup.

Trooper Smith testified that Baley admitted he had been drinking and that he appeared intoxicated. Trooper Smith smelled alcohol on Baley=s breath, his eyes were red, there were beer cans near Baley=s vehicle, and he had difficulty speaking clearly. Trooper Smith administered a horizontal gaze nystagmus test and had Baley perform the walk-and-turn test. Both tests indicated that Baley was intoxicated. Finally, Baley testified. He admitted to drinking three beers in a four-hour time span before the accident.

On this record we can say with assurance that the results of the portable breath tester did not have a substantial and injurious effect or influence on the trial court=s verdict. The test result was cumulative of other evidence establishing intoxication, and it constituted a minor portion of the State=s evidence. Baley=s issue is overruled.

The judgment of the trial court is affirmed.

RICK STRANGE

JUSTICE

December 6, 2007

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

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

 

[1]Evans v. State, 643 S.W.2d 157, 161 (Tex. App.CAustin 1982, no pet.).

[2]Credille, 925 S.W.2d at 116.

[3]Jones v. State, 501 S.W.2d 308, 311 (Tex. Crim. App. 1973).