Sorensen v. State , 1993 Tex. App. LEXIS 1968 ( 1993 )

OPINION

BURGESS, Justice.

This appeal is from a conviction for the felony offense of driving while intoxicated. A jury found appellant guilty and assessed punishment at two and one-half years’ imprisonment and a fine of $1650. We affirm.

Department of Public Safety Trooper Gary Hinton was the State’s first witness. He testified that on June 16, 1990, appellant was driving an automobile on a public highway when he noticed the automobile was emitting an excessive amount of smoke. He also noticed that neither the driver nor the front seat passenger were wearing seat belts. As a result he had appellant pull his vehicle over into a parking lot. This was around 6:20 p.m. Appellant exited the vehicle and met Trooper Hinton halfway between the patrol unit and appellant’s vehicle. Trooper Hinton testified appellant had a slight sway or slight wobble and was just a little bit unsteady when appellant approached, his eyes were red, glassy and bloodshot, his speech was somewhat slurred, his breath had a very strong odor of alcoholic beverages and there were open containers of beer in the vehicle. Based on these facts, Trooper Hinton suspected appellant was intoxicated. Consequently he asked appellant to perform a HGN (Horizontal Gaze Nystag-mus) test which is supposed to measure the involuntary jerkiness of the eye movement. Trooper Hinton concluded, based upon his observations and the results of the HGN test, that appellant was intoxicated and his blood alcohol content would be at least .10 or higher on the intoxilyzer test. Trooper Hinton then arrested appellant and his passengers.

Hinton transported all three to the Orange County Jail where sobriety tests were to be conducted and videotaped. The appellant was asked to perform various tests; however, he was unable to perform all but one. Appellant explained he had a serious leg injury which hampered his performance. Appellant was able to perform the one test which did not involve leg movement. The jury was allowed to view the video tape and the sobriety test.

At about 7:44 p.m., Trooper Hinton administered an intoxilyzer test to appellant. Hinton admitted the intoxilyzer machine recorded an “invalid” result prior to appellant’s test. When the test was administered to appellant, he registered a .121 on the first try and a .117 on the second.

The next witness for the State was Dowd Hauver. Mr. Hauver is a technical supervisor with the Texas Department of Public Safety. His duty was to maintain and check the intoxilyzer instrument of every law enforcement agency throughout Southeast Texas. Hauver testified he cheeked the Orange County intoxilyzer machine at least once a month sometimes twice. Hau-ver stated that for a good reading to be determined two tests must be done and there must be only a .02 difference between the two tests. Hauver expressed the opinion that, based on the results of the two test readings, appellant was intoxicated.

Appellant testified he had only drunk three beers between 4:00 p.m. and 6:00 p.m. He testified the officer gave an HGN test to the two passengers but not to him. He further testified he did not have anything to drink in the car and did not notice either passenger with anything to drink inside the car. He said he told Trooper Hinton half of his left heel had been cut off, he had arthritis in both knees and a portion of his calf was missing. He told Hinton that as he walked his legs jerked a lot and people had commented that he walked like a duck. When appellant offered to exhibit the scarring as to the foot and the calf to the jury, the State objected and the objection was sustained by the court.¹ The State never questioned or denied the existence of the appellant’s scar on his leg.

Appellant’s first point of error urges the trial court wrongfully excluded evidence beneficial to his contentions. In determining reversibility, the Court of Criminal Appeals set up a two-prong test in Bird v. State, 692 S.W.2d 65 (Tex.Crim.App.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1238, 89 L.Ed.2d 346 (1986). The court held that in order to reverse a trial court judgment, an appellate court must first, determine whether or not the offered evidence was relevant and second, whether the exclusion of such evidence was harmful to the accused.

Relevancy is determined when the evidence has a tendency to make the existence of any fact that is of consequence to the determination of the case more probable or less probable than it would without such evidence. See Tex.R.Crim.Evid. 401. Consequently, any item of evidence that alters the probability of a consequential fact is relevant because to alter the probabilities of a fact there must necessarily be a subjective relationship between the proffered evidence and the ultimate fact. In other words, for an item of evidence to alter the probabilities of the existence of the consequential fact and thus be relevant it must logically increase one’s knowledge and enhance the likelihood of ascertaining the truth about the fact. See Brown v. State, 757 S.W.2d 739 (Tex.Crim.App.1988). The issue before this Court is whether the trial court wrongfully excluded evidence beneficial to the appellant’s contention.

The State relied heavily upon the testimony of Trooper Hinton. Since the State had placed the appellant’s lack of control of his movements in issue, evidence of his scars and injury to his left foot and leg should have been allowed before the jury. Visual, real, demonstrative evidence is admissible at trial of a criminal case if it tends to resolve some issue in the case and is relevant. It has evidentiary, probative value. See Simmons v. State, 622 S.W.2d 111 (Tex.Crim.App.1981). Furthermore, the inflammatory nature or sympathetic nature of a particular exhibit or fact will not bar its admissibility if it is relevant to the issue at trial. The issue need not be contested; it only needs to be material. Tex.R.Crim.Evid. 401, 402, 403. Therefore, it was error to exclude the evidence. We now turn to the question of whether or not the error was harmless or cured.

The test for harm, in an exclusion of evidence scenario, is whether there is a reasonable probability the absence of the evidence contributed to conviction or affected the punishment. Bird, 692 S.W.2d at 70. Trooper Hinton testified appellant told him about some physical scars that limited his ability to walk and stand. As previously noted, appellant testified about his left leg and foot. Any error caused by the exclusion of evidence is cured because similar evidence was produced before the jury. See Canto-Deport v. State, 751 S.W.2d 698, 700 (Tex.App.—Houston [1st Dist.] 1988, pet. ref’d) and Brandley v. State, 691 S.W.2d 699 (Tex.Crim.App.1985). Here, the error is harmless at best and, beyond a reasonable doubt, made no contribution to the conviction or the punishment. Tex.R.App.P. 81(b)(2).

There is a secondary analysis available. Intoxication can be proved in either of two ways; first, intoxication can be shown in that the person cannot control the normal use of his mental and physical faculty by reason of the introduction of alcohol to his body; secondly, intoxication can be shown by the fact that the person has a blood alcohol concentration of .10 or more in his body. See Tex.Rev.Civ.Stat.Ann. art. 6701Z-l(a)(2)(B) (Vernon Supp.1993). The jury was allowed to consider both methods in determining appellant’s guilt. Although the reliability of the intoxilyzer was placed before the jury, the jury was authorized to find appellant guilty on the blood alcohol concentration. As to that issue, the leg scarring was not relevant. We overrule point of error number one.

In his second point of error appellant raises the insufficiency issue. Evidence of the alcoholic content of a defendant’s blood is sufficient to support a conviction. Bennett v. State, 522 S.W.2d 507 (Tex.Crim.App.1975). Applying the accepted standard, we overrule point of error number two. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Jackson v. State, 672 S.W.2d 801 (Tex.Crim.App.1984).

AFFIRMED.

1 . Why the State even objected is a mystery. The State’s objection was enunciated at a bench conference outside the hearing of the court reporter, thus it is not in the record before us.