FRANK JAMES MURPHY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued April 29, 2010
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00772-CR
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FRANK JAMES MURPHY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law No. 2
Grayson County, Texas
Trial Court Cause No. 2008-2-793
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MEMORANDUM OPINION
Before Justices Morris, FitzGerald, and Francis
Opinion By Justice FitzGerald
        The jury convicted Frank James Murphy of boating while intoxicated and assessed his punishment at seventy-two hours in jail and a $2,000 fine, both of which were probated. Murphy brings a single issue on appeal, contending the trial court erred in admitting scientific expert testimony prior to performing its gatekeeper role pursuant to rule 702 of the Texas Rules of Evidence. The decision to admit scientific evidence is within the discretion of the trial court. Mata v. State, 46 S.W.3d 902, 908 (Tex. Crim. App. 2001). Finding no abuse of discretion in this case, we affirm the trial court's judgment.
        Before his trial date, Murphy filed a document titled Motion in Limine to Preclude the State From Offering HGN Evidence Before the Jury Absent Expert Testimony Meeting the Kelly and Harman [sic]Threshold (the “Motion”).   See Footnote 1  The Motion is a general request for the exclusion of all HGN evidence unless the State established by clear and convincing evidence that the HGN testimony was relevant and reliable, as required by the Kelly and Hartman line of cases. Importantly, the Motion does not identify any specific problem with the evidence Murphy anticipated being offered by the State. Instead, the Motion is a general challenge to the reliability of HGN evidence, both to the underlying principles and methodology of the test and to the proper administration of the test in this case.
        In Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), the court stated that novel scientific evidence must be proven reliable by satisfying three criteria: (a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question. Id. at 573. “[A]ll three criteria must be proven to the trial court, outside the presence of the jury, before the evidence may be admitted.” Id. The court of criminal appeals has already concluded both the scientific theory and technique underlying HGN testing are reliable pursuant to rule 702. See Emerson v. State, 880 S.W.2d 759, 768 (Tex. Crim. App. 1994). Because that court had previously held HGN evidence is scientifically reliable, the State was not required to present evidence on the first two factors of the Kelly test in this case. “It is only at the dawn of judicial consideration of a particular type of forensic scientific evidence that trial courts must conduct full-blown 'gatekeeping' hearings under Kelly.” See Hernandez v. State, 116 S.W.3d 26, 28-29 (Tex. Crim. App. 2003) (“Trial courts are not required to re-invent the scientific wheel in every trial.”). And as to the third factor of the Kelly test, nothing in the Motion provided a basis for a hearing or a trial court ruling: Murphy did not identify any specific problem with the manner in which the HGN test was administered. We require a specific objection to inform the trial judge of the issue and basis of that objection, and to allow the judge a chance to rule on the issue at hand. Layton v. State, 280 S.W.3d 235, 238-39 (Tex. Crim. App. 2009). Because the Motion did not identify any specific issue requiring the trial court to rule, the court did not abuse its discretion in denying the Motion, without a hearing, before trial.
        In this Court, Murphy does identify specific instances in which he contends the official performing the HGN test on Murphy failed to administer the test correctly. However, Murphy did not object at trial when this evidence was offered. Because he did not point out his specific complaints to the trial court, Murphy has failed to preserve error concerning any HGN testimony actually offered at trial. See Brown v. State, 163 S.W.3d 818, 826 (Tex. App.-Dallas 2005, pet. ref'd).
        We conclude the trial court did not abuse its discretion in admitting expert testimony concerning the HGN testing performed on Murphy. We overrule Murphy's issue and affirm the trial court's judgment.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
090772F.U05
 
Footnote 1 The Motion states in its entirety:
 
 
        COMES NOW the Defendant, by and through his undersigned counsel, in the above-styled and numbered cause and moves this Court to preclude the State from offering evidence of HGN before the jury absent expert testimony which meets the threshold established by Texas law. In support hereof the Defendant would show:
 
I.
 
 
        The State has put the defense on notice that it intends to offer the [sic] HGN evidence against the defendant at trial.
 
II.
 
 
        To introduce any HGN evidence the State must prove, by clear and convincing evidence, that the evidence met the threshold requirements under Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) and Hartman v. State, 946 S.W.2d 60 (Tex. Crim. App. 1997). Specifically, the Court is required to make an inquiry into the reliability of the scientific evidence by focusing solely on the underlying principles and methodology of the tests and not the mere conclusions it generates.
 
III.
 
 
        Moreover, even if the State were to produce an expert, under Rule 702, as the proponent of scientific evidence, it must be proved to the trial court, b[y] clear and convincing evidence outside the presence of the jury, that the proffered evidence is relevant. More importantly in the instant case, the proponent of the evidence must establish that the test was administrated properly. Accordingly, Defendant requests that the Court perform a gatekeeper role and determine if the test was administrated properly before the State proffers such evidence.
 
PRAYER
 
 
        WHEREFORE, PREMISES CONSIDERED, the Defendant respectfully prays that the Court preclude the State from introducing any HGN evidence absent clear and convincing evidence that meets the Kelly and Hartman requirements.