Arturo Armijo v. The State of TexasAppeal from Criminal District Court No. 2 of Tarrant County (concurring memorandum opinion )
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-11-00430-CR NO. 02-11-00431-CR ARTURO ARMIJO APPELLANT V. THE STATE OF TEXAS STATE ---------FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY ---------- CONCURRING MEMORANDUM OPINION 1 ---------In Appellant s sole point, he attacks the admission of the State s evidence of retrograde extrapolation because the State s expert, Dr. Robert Johnson, lacked many of the facts necessary to offer such opinion. No one disputes the timeline pertinent to Appellant s objection to the State s evidence of retrograde extrapolation: (1) Johnson explained retrograde extrapolation and hypothesized 1 See Tex. R. App. P. 47.4. that a 5'7", 180-pound male would have had a BAC of .24 at the time of arrest if his BAC registered .20 four hours after his arrest; (2) Appellant questioned Johnson on voir dire outside the presence of the jury, and Johnson admitted he had insufficient facts upon which to base his scientific opinion; and (3) Appellant objected to Johnson s testimony, which the trial court overruled. Before objecting to Johnson s retrograde-extrapolation testimony, Appellant waited until after Johnson stated that he could estimate what somebody s blood alcohol concentration would have been at an earlier point in time and after Johnson opined that the State s hypothetical, which matched Appellant s situation, would result in a BAC of .24. Appellant fails to justify his delay in objecting to Johnson s testimony. Accordingly, Appellant s objection was untimely, which forfeits any complaint as to Johnson s retrograde-extrapolation testimony. See Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. App.), cert. denied, 558 U.S. 833 (2008); Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App.), cert. denied, 516 U.S. 832 (1995); see also Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a). I would overrule Appellant s sole point under rule 33.1(a) and, thus, respectfully concur in the judgments affirming the trial court. 2 LEE GABRIEL JUSTICE LIVINGSTON, C.J., joins. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: August 1, 2013 3
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