Paco M. Salazar v. State ( 2010 )


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  •                                  MEMORANDUM OPINION
    No. 04-09-00746-CR
    Paco M. SALAZAR,
    Appellant
    v.
    The STATE of Texas,
    Appellee
    From the County Court at Law No. 4, Bexar County, Texas
    Trial Court No. 225120
    Honorable Sarah Garrahan-Moulder, Judge Presiding
    Opinion by:       Karen Angelini, Justice
    Sitting:          Karen Angelini, Justice
    Phylis J. Speedlin, Justice
    Rebecca Simmons, Justice
    Delivered and Filed: November 24, 2010
    AFFIRMED
    Paco M. Salazar appeals his conviction for misdemeanor driving while intoxicated. The
    case was tried before a jury, and the trial court sentenced Salazar to six months incarceration,
    suspended for six months. Salazar presents three issues on appeal: (1) the trial court abused its
    discretion in denying Salazar’s motion for new trial based on juror misconduct; (2) the trial court
    erred in allowing a police officer to testify as an expert witness; and (3) the State made improper
    closing jury arguments. We find no error and affirm the trial court’s judgment.
    04-09-00746-CR
    FACTUAL AND PROCEDURAL BACKGROUND
    Before the trial on the merits, the trial court conducted a hearing on Salazar’s motion to
    suppress. At the hearing, the only witness was the arresting officer, Officer Joe Rios. Officer
    Rios, who had been a police officer for eight years, testified about his training at the police
    academy, which included a DWI course. He also testified he is certified to perform standardized
    field sobriety tests.
    On the evening in question, Officer Rios observed Salazar make a turn through a red
    light. Officer Rios stopped Salazar and, as they conversed, smelled a strong odor of intoxicants.
    Additionally, Officer Rios noticed Salazar had bloodshot eyes, slurred speech, and was unsteady
    on his feet. Thus, Officer Rios conducted field sobriety tests on Salazar, beginning with the
    horizontal gaze nystagmus (“HGN”). Officer Rios observed six clues; four clues denote
    intoxication. Salazar exhibited three clues for intoxication on the one-leg stand test; two clues
    indicate intoxication. And, on the walk-and-turn test, Officer Rios observed six clues; two clues
    denote intoxication. Based on the traffic infraction, the smell of intoxicants on Salazar’s breath,
    the bloodshot eyes, slurred speech, and his physical capabilities while performing the tests,
    Officer Rios determined Salazar was driving while intoxicated. Officer Rios placed Salazar
    under arrest and took him downtown where Salazar refused the breathalyzer. Officer Rios
    videotaped Salazar after they arrived at the station.
    On cross-examination, Officer Rios was asked about administering the HGN test. He
    testified that in determining whether someone is suitable for the HGN, he checks the person’s
    eyes for equal tracking and equal pupil size. When asked if there are other things that can affect
    the HGN, Officer Rios said, “I am not an eye doctor so I don’t know exactly everything that—.”
    When asked whether he was an expert in HGN, Officer Rios stated, “No, sir. I would not claim
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    to be an expert. I have just practiced it for the last six and a half years. I use my best judgment.”
    During cross-examination on the subject of whether Salazar was swaying, Officer Rios was
    asked whether being bowlegged might affect somebody’s balance, to which Officer Rios
    responded, “I am not a doctor, sir.” Defense counsel then asked whether Officer Rios claimed to
    be an expert in any of the field sobriety tests, to which Officer Rios responded, “I wouldn’t claim
    to be an expert in anything, sir.” At the conclusion of the hearing, the trial court denied Salazar’s
    motion to suppress, and the case went to trial before a jury.
    During the jury trial, Officer Rios again testified regarding his stop and arrest of Salazar.
    Officer Rios’s testimony was similar to his testimony at the pre-trial hearing. However, he
    explained in greater detail the DWI training he received at the police academy. He also testified
    that in his eight years as a police officer, he had arrested 250 to 350 people for DWI. Officer
    Rios testified, as he had at the pre-trial hearing, regarding the field sobriety tests he administered
    to Salazar. And, he concluded that Salazar had lost the use of his mental and/or physical faculties
    due to the introduction of alcohol.
    On cross-examination, Officer Rios again stated, in response to questioning about the
    HGN test, that he is not an eye doctor. He also again stated he is not an expert. After the State
    rested, the defense presented testimony from two fact witnesses—Salazar’s passenger and the
    owner of the vehicle driven by Salazar. Following deliberations, the jury found Salazar guilty.
    Salazar then filed a motion for new trial which was heard and denied by the trial court.
    DISCUSSION
    1. Jury Misconduct
    In his first issue on appeal, Salazar argues that the trial court erred in denying his motion
    for new trial based on jury misconduct. Specifically, Salazar points to his attorney’s
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    conversations with some of the jurors who reported to him that (1) they believed Salazar, who
    had no prior DWI convictions, had previously been convicted of DWI because he stated on the
    videotape that was shown to the jury that he “took responsibility before;” 1 and (2) they
    considered, as evidence, the prosecutor’s demonstration in closing argument of what a drunken
    “swagger” looks like.
    A motion for new trial is the proper vehicle for preserving alleged jury misconduct for
    appeal. Trout v. State, 
    702 S.W.2d 618
    , 620 (Tex. Crim. App. 1985). A motion for new trial
    alleging jury misconduct must be supported by the affidavit of a juror or other person who is in a
    position to know the facts. Id.; Vera v. State, 
    868 S.W.2d 433
    , 435 (Tex. App.—San Antonio
    1994, no pet.). At the motion for new trial hearing, the trial judge is the trier of fact, and the trial
    judge’s findings will not be disturbed absent a showing of abuse of discretion. Tollett v. State,
    
    799 S.W.2d 256
    , 259 (Tex. Crim. App. 1990). A new trial must be granted if, after retiring to
    deliberate, the jury has received other evidence. TEX. R. APP. P. 21.3(f). A juror may not,
    however, testify about matters occurring during juror deliberations, or to the effect of anything
    on any juror’s mind, emotions, or mental processes. TEX. R. EVID. 606(b). A juror may only
    testify regarding outside influence improperly brought to bear upon a juror, or to rebut a claim
    the juror was not qualified to serve. 
    Id. Outside influence
    must emanate from outside the jury and
    its deliberations, such as a non-juror introducing information to the jury. In the Matter of S.P., 
    9 S.W.3d 304
    , 309 (Tex. App.—San Antonio 1999, no pet.).
    The trial court did not err in overruling Salazar’s motion for new trial based on juror
    misconduct. First, Salazar did not attach the required affidavits from the jurors he claims had
    information regarding the alleged misconduct. See 
    Trout, 702 S.W.2d at 620
    .
    1
    Salazar does not complain on appeal about the admissibility of the statement because he did not preserve error by
    objecting at the trial court.
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    Second, Salazar makes no allegation of outside influence that was improperly brought to
    bear upon the jurors. Instead, Salazar appears to complain that the jurors reached erroneous
    conclusions from the evidence. In a similar case, S.P., this court, in finding counsel was not
    ineffective for failing to raise a juror misconduct issue, stated there was no jury misconduct when
    the jury discussed the thickness of the probation file and speculated that the accused juvenile had
    been in trouble 
    before. 9 S.W.3d at 309
    . Likewise, this court refused to find jury misconduct
    when one juror incorrectly informed the other jurors that the court papers that were in evidence
    reflected that the accused had served jail time for his first two DWI offenses when, in fact, they
    did not. Marshall v. State, No. 04-01-00376-CR, 
    2002 WL 31015260
    , at *1 (Tex. App.—San
    Antonio Sept. 11, 2002, pet. ref’d) (mem. op., not designated for publication). Rather than
    outside influence, we described this situation as one in which “a juror misinterpreted documents
    in evidence.” 
    Id. In another
    similar case, the Corpus Christi Court of Appeals found no jury
    misconduct when, during deliberations, the jurors discussed the fact that the accused used his left
    hand to pick up a cup, which was consistent with the testimony of some other witnesses. Garza
    v. State, 
    82 S.W.3d 791
    , 794 (Tex. App.—Corpus Christi 2002, no pet.).
    Thus, because of the lack of juror affidavits and Salazar’s failure to allege juror
    misconduct based on outside influence, we hold the trial court did not err in overruling Salazar’s
    motion for new trial based on juror misconduct. We overrule Salazar’s first issue on appeal.
    2. Admissibility of Officer’s Testimony Regarding Field Sobriety Tests
    In his second issue, Salazar contends the trial court erred in allowing Officer Rios to
    testify as an expert witness because Officer Rios repeatedly stated he was not an expert. Salazar
    specifically points to Officer Rios’s responses to cross-examination questions wherein he stated
    he was not a doctor, he was not an eye doctor, he did not claim to be an expert in HGN, and he
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    would not claim to be an expert in anything. Salazar further focuses on the fact that Officer
    Rios’s experience was based on his limited DWI training at the police academy eight years
    previously and his on-the-job duties.
    Whether a witness giving expert testimony possesses the required qualifications rests
    largely in the trial court’s discretion. Wyatt v. State, 
    23 S.W.3d 18
    , 27 (Tex. Crim. App. 2000).
    The trial court’s decision to admit or exclude testimony will not be disturbed absent a clear abuse
    of discretion. 
    Id. Rule 702
    of the Texas Rules of Evidence provides:
    If scientific, technical, or other specialized knowledge will assist the trier of fact
    to understand the evidence or to determine a fact in issue, a witness qualified as
    an expert by knowledge, skill, experience, training, or education may testify
    thereto in the form of an opinion or otherwise.
    TEX. R. EVID. 702.
    “For testimony concerning a defendant’s performance on the HGN test to be admissible,
    it must be shown that the witness testifying is qualified as an expert on the HGN test, specifically
    concerning its administration and technique.” Emerson v. State, 
    880 S.W.2d 759
    , 769 (Tex.
    Crim. App. 1994). A law enforcement officer may satisfy this requirement by proof that the
    officer has received practitioner certification by the State of Texas to administer the HGN. 
    Id. The certification,
    however, is not the exclusive means by which an officer may qualify as an
    expert. Kerr v. State, 
    921 S.W.2d 498
    , 502 (Tex. App.—Fort Worth 1996, no pet.). If the
    witness’s expert testimony is to be admissible under rule 702, the witness must qualify as an
    expert by “knowledge, skill, experience, training, or education.” TEX. R. EVID. 702. “If it is
    shown that the officer has extensive training in administering the HGN test, has been certified
    through a training course specifically including the administration of the HGN test, and has
    extensive experience in administering the HGN test, the trial court does not abuse its discretion
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    04-09-00746-CR
    in allowing the officer to testify as an expert on the administration and technique of the test.”
    Ellis v. State, 
    86 S.W.3d 759
    , 761 (Tex. App.—Waco 2002, pet. ref’d).
    Unlike the HGN field sobriety test, police officers may testify as lay witnesses about their
    observations of a defendant’s performance on the one-leg stand test and the walk-and-turn test.
    McRae v. State, 
    152 S.W.3d 739
    , 745 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). Because
    an officer’s testimony describing a defendant’s coordination, balance, and mental agility during
    these tests are observations based on common knowledge, the officer’s testimony constitutes lay
    witness opinion testimony, which is governed by Texas Rules of Evidence 701. McIntosh v.
    State, No. 03-07-00338-CR, 
    2010 WL 391853
    , at *2 (Tex. App.—Austin Feb. 4, 2010, no pet.)
    (mem. op., not designated for publication).
    The trial court did not err in admitting Officer Rios’s testimony regarding the field
    sobriety tests he performed on Salazar. With regard to the one-leg stand test and the walk-and-
    turn test, Officer Rios’s testimony was admissible as lay testimony pursuant to Rule of Evidence
    701. Thus, he was not required to be qualified as an expert witness. With regard to the HGN test,
    Officer Rios was qualified by his extensive education and certification at the police academy as
    well as by his years of administration of the HGN test, which included 250 to 350 DWI arrests.
    Officer Rios’s statements to the effect that he was not an eye doctor or a doctor are not
    significant because a witness need not be either in order to testify regarding the HGN test. And,
    regardless of whether Officer Rios was willing to label himself as an expert, which, in fact, is a
    legal determination to be made by the trial judge, his testimony nevertheless demonstrated
    sufficient experience and expert qualifications from which the trial court could conclude he was
    qualified to testify regarding the HGN test. Further, he never indicated he lacked the
    qualifications to testify regarding administering the HGN test. Under these circumstances, we
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    04-09-00746-CR
    cannot say the trial court abused its discretion in allowing Officer Rios to testify as an expert on
    the HGN test. We, therefore, overrule Salazar’s second issue on appeal.
    3. Improper Jury Argument
    In his third issue, Salazar urges reversal based on the State’s improper closing argument
    to the jury. Specifically, Salazar complains that the following argument improperly bolstered
    Officer Rios’s credibility:
    Officer Rios is a good officer. He is an honest officer. He has too much at stake in
    his career to go lie to convict one person of DWI. He was doing his job, and he
    did his job well that night.
    [] Well, if you think Officer Rios was lying up there, if you don’t think his
    testimony was credible, then you should acquit this defendant. But I will submit
    to you [] that he came off to me as very credible. And you are the judges of the
    credibility. So that is up to you. I will leave that to your judgment.
    In response, the State points out that Salazar failed to object to the argument and, therefore, this
    complaint is not preserved for appeal. The State also argues that even if this complaint was
    preserved, there was no error.
    We agree that Salazar did not preserve error for appeal because he failed to object at trial
    to the State’s argument. See TEX. R. APP. P. 33.1(a)(1)(A); Archie v. State, 
    221 S.W.3d 695
    , 699
    (Tex. Crim. App. 2007) (concluding complaint about improper jury argument was preserved
    when the defendant objected and pursued his objection to an adverse ruling). We also agree,
    however, that even if Salazar had objected, there was no error because the State’s argument was
    in response to Salazar’s closing argument which attacked Officer Rios’s credibility. Proper jury
    argument falls into four areas: (1) summation of the evidence presented at trial; (2) reasonable
    deduction drawn from that evidence; (3) answer to the opposing counsel’s argument; or (4) a
    plea for law enforcement. Jackson v. State, 
    17 S.W.3d 664
    , 673 (Tex. Crim. App. 2000). Here,
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    the State’s argument answered Salazar’s closing argument, and thus, was proper jury argument.
    We, therefore, overrule Salazar’s third issue.
    We affirm the trial court’s judgment.
    Karen Angelini, Justice
    DO NOT PUBLISH
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