Basilio Govea v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00297-CR

Basilio GOVEA,

Appellant

v.

The STATE of Texas,

Appellee

From the 290th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CR-5829

Honorable Sharon MacRae, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: September 28, 2005

AFFIRMED

Basilio Govea appeals the trial court s judgment finding him guilty of driving while intoxicated. According to Govea, the trial court erred in denying him the mandatory right to voir dire the state s expert under Rule 705(b) of the Texas Rules of Evidence. We disagree and affirm the judgment of the trial court.

Background

On March 14, 2003 at around midnight, Basilio Govea was driving to pick up his wife from work. Officer Gary Fuentes stopped Govea s car for speeding. Upon approaching the vehicle, he requested Govea s driver s license and insurance information. Govea produced his driver s license, but Officer Fuentes never received his insurance information because something else caught the officer s attention. Officer Fuentes smelled the odor of alcohol coming from the vehicle and asked Govea whether he had been drinking that night. Govea replied that he had a couple of beers on the way to pick up his wife from work. While listening to Govea s response, Officer Fuentes noticed that he had slurred speech and blood shot eyes. Officer Fuentes asked Govea to step out of his vehicle and proceeded to administer several field sobriety tests. Based on the results of these tests, Officer Fuentes determined that Govea was intoxicated. Once Officer Fuentes determined Govea was intoxicated, another officer, Officer Kasberg, arrived at the scene and administered the same tests that Officer Fuentes had previously conducted. Govea was then arrested. Govea was convicted and sentenced to fourteen years imprisonment.

Discussion

In his sole issue on appeal, Govea argues that the trial court erred by overruling his request to voir dire Officer Fuentes under Rule 705(b) of the Texas Rules of Evidence. According to Rule 705(b), [p]rior to the expert giving the expert s opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall...be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury. Tex. R. Evid. 705(b) (emphasis added). However, an appellant s request to take an expert on voir dire to prove up his qualifications does not amount to a request for a Rule 705(b) hearing to inquire into the underlying facts or data of the expert s opinion. Jenkins v. State, 912 S.W.2d 793, 814 (Tex. Crim. App. 1993).

Here, Govea asked that he be allowed to ask some questions just on voir dire on [Officer Fuentes s] expertise. A request to prove up an expert s qualifications, or as here, ask some questions...on his expertise, is a request to inquire into the expert s qualifications and not to the underlying facts or data of the expert s opinion. Jenkins, 912 S.W.2d at 814. Therefore, Govea was not entitled to a Rule 705(b) hearing.

Conclusion

We overrule Govea s sole issue and affirm the trial court s judgment.

Karen Angelini, Justice

DO NOT PUBLISH