Paula Looney v. State ( 1992 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-92-018-CR





PAULA LOONEY,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE COUNTY COURT AT LAW NO. 7 OF TRAVIS COUNTY

NO. 345,316, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING

Appeal is taken from a conviction for the misdemeanor offense of driving while intoxicated. See Tex. Rev. Stat. Ann. art. 6701l (West 1992). Trial was before the court upon a plea of not guilty. Punishment was assessed at twenty days confinement and a fine of two hundred dollars.

Appellant asserts two points of error. In her first point of error, appellant contends the court erred in refusing to allow her expert witness to testify regarding the effects of allergic reactions. In her remaining point of error, appellant urges the court erred in viewing a videotape in private in violation of the constitutional requirement that all trials be public. We overrule appellant's points of error and affirm the judgment of the trial court.

Mark Romick and Doris Sohns identified appellant as the person behind the wheel of an automobile that crashed through their garage door on the night of August 29, 1990. Both Romick, a bartender for seventeen years, and Sohns expressed the opinion that appellant was intoxicated.

Troopers Larry Martin and Micki Harkins of the Texas Department of Public Safety investigated the collision. Following sobriety tests and interviews, the officers placed appellant under arrest. Both Martin and Harkins expressed opinions that appellant was too intoxicated to be driving an automobile. After appellant was arrested, she became ill and was taken to a hospital by emergency medical personnel.

Appellant's defensive theory was that the symptoms viewed as evidence of intoxication were caused by an allergic reaction to ant bites. Under cross-examination by defense counsel, Trooper Martin stated he was "told it was some sort of allergic reaction" that required medical attention for the appellant. Appellant further directs our attention to the testimony of Trooper Harkins that she (Harkins) was aware that "she [appellant] had been bitten by ants."

Appellant's first point of error is directed to the court's action in sustaining the State's objection to the testimony of osteopathic physician Walter Tyron. Dr. Tyron testified that he had four years experience as an emergency room physician during which time he had treated individuals with allergic reactions. Following the State's objection that the doctor's testimony was not relevant, defense counsel advised the court, "[W]e are attempting to show that there would be an explanation that would rule out intoxication." After determining that Dr. Tyron had not examined the appellant on the occasion in question, the court sustained the State's objection. The following colloquy ensued between the court and defense counsel:

MS. DELONG [defense counsel]: So, Your Honor, you will not allow testimony regarding the effects of the allergic reaction to the ant bites?

THE COURT: No, because so far there is no evidence in the record that this was an allergic reaction that happened. We don't have EMS testimony or any physician's testimony that examined her that night.

Appellant correctly points out that the fact that an expert medical witness did not have personal knowledge gained from examining a patient does not render his testimony inadmissible. See Tex. R. Crim. Evid. 703 (West 1992); Duckett v. State, 797 S.W.2d 906, 920 (Tex. Crim. App. 1990). However, the assumptions in the hypothetical question asked the expert must be based on facts within the personal knowledge of the witness, or facts assumed from common or judicial knowledge or facts supported by the evidence. Pyles v. State, 755 S.W.2d 98, 118 (Tex. Crim. App. 1988).

When evidence is excluded by a court, it is incumbent upon the party offering the evidence to make an offer of proof either in the form of a concise statement or, at the request of the court or either party, in question and answer form. See Tex. R. App. P. 52(b); Tatum v. State, 798 S.W.2d 569, 571 (Tex. Crim. App. 1990). In Spence v. State, 758 S.W.2d 597, 599 (Tex. Crim. App. 1988), the court stated:

[A] defendant has the right to make an offer of proof or perfect a bill in order to preserve excluded testimony for appeal. In fact, the cases are legion in which appellants have lost appeals for lack of preservation of error due to counsel's failure to request the opportunity to make an offer of proof. [citations omitted].

The court's action in sustaining the objection in the instant cause had the effect of excluding the testimony from consideration by the trial court. Defense counsel did not request an opportunity to make an offer of proof or a bill of exception for the purpose of appeal. While it may be urged that defense counsel's statements to the court may permit inferences as to the nature of the excluded testimony, we believe that Rule 52(b) requires more than speculation as to the content of the proffered testimony. For us to conclude that the doctor's testimony would reflect that an ant bite victim would suffer allergic reactions such as those related by the witnesses who saw the appellant on the occasion in question would require us to engage in nothing less than conjecture. We believe that Rule 52(b) requires a more positive rendition of what would have been shown by the excluded testimony. Appellant's first point of error is overruled.

The private viewing of a videotape by the court forms the basis of appellant's second point of error. Appellant's motion to suppress was directed in part to verbal statements made by her in a videotape taken by the officers at the time of her arrest. More specifically, appellant asked that statements made by her in response to the officers' interrogation be excluded along with any statements she may have made after she was read her rights and declined to give an interview. The videotape was not available for viewing at the pretrial hearing. The court advised counsel that it would view the tape prior to trial if counsel wished or counsel could meet with the court and view it. The court advised counsel that they should get together and discuss what they wanted to do. Following announcements of ready for trial, the court stated that it had viewed the tape and granted the defense motion to exclude the matters complained of in the motion to suppress.

No objection was voiced by the appellant in the trial court to the court's action in viewing the tape. Constitutional rights may be waived by failure to object at trial. See Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). Appellant received all the relief she requested in her motion to suppress. Absent an adverse ruling, no error is preserved for review. See Lusher v. State, 573 S.W.2d 539, 543 (Tex. Crim. App. 1978).

The matter of the admissibility of the statement made by the appellant in the videotape was considered at the pretrial hearing. Defense counsel presented appellant's position in support of the motion to suppress. There is no suggestion that the videotape was not available for viewing at trial. Nor was there any denial of appellant's right to make any additional objections to the contents of the tape. We perceive no violation of the appellant's right to a public trial under the First, Sixth and Fourteenth Amendments. Appellant's second point of error is overruled.

The judgment is affirmed.

Tom G. Davis, Justice

[Before Justices Jones, Kidd and Davis^*]

Affirmed

Filed: September 23, 1992

[Do Not Publish]

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).