Robert Noel Ray v. the State of Texas ( 2022 )

IN THE
TENTH COURT OF APPEALS
No. 10-20-00092-CR
ROBERT NOEL RAY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 18-00356-CRF-85
MEMORANDUM OPINION
Robert Ray was convicted of the felony offense of Driving While Intoxicated, with
two prior convictions. See TEX. PENAL CODE §§ 49.04; 49.09(b)(2). His punishment was
enhanced with a prior felony conviction, and he was sentenced to 15 years in prison. See
id. § 12.42(a). Because the trial court did not abuse its discretion in admitting and
excluding evidence, the trial court’s judgment is affirmed.
BACKGROUND
Ray was involved in an automobile accident in which he pulled out in front of
another vehicle, causing the other vehicle to strike Ray’s vehicle. Although not initially
noticeable, as the investigation of the accident continued, the investigating officer noticed
Ray smelled like alcohol, had “thick” speech, and was unsteady. Ray told the officer he
had come from a bar where he had three drinks in the hour before the accident. When
asked what kind of drinks, Ray said, “Enough.” Ray also told the officer to arrest him.
When conducting the HGN sobriety test, the officer noted six out of six “clues.” During
the test, Ray had to steady himself on the officer’s patrol car. After the officer’s
investigation, he concluded Ray was intoxicated and arrested Ray.
EXPERT TESTIMONY
In his first issue, Ray contends the trial court abused its discretion in allowing the
officer to testify. Specifically, Ray argues the officer’s testimony regarding the HGN test
evidence was not sufficiently reliable because the State did not show the officer properly
applied the scientific technique of the HGN test as administered to Ray.
We review a trial court's decision to admit or exclude expert testimony for an
abuse of discretion, and we may not reverse those rulings unless they fall outside the
zone of reasonable disagreement. Blasdell v. State, 384 S.W.3d 824, 829 (Tex. Crim. App.
2012). Pursuant to Texas Rules of Evidence 702 and 705, three requirements must be met
before expert testimony can be admitted: "(1) The witness qualifies as an expert by reason
of his knowledge, skill, experience, training, or education; (2) the subject matter of the
testimony is an appropriate one for expert testimony; and (3) admitting the expert
testimony will actually assist the fact-finder in deciding the case." Vela v. State, 209 S.W.3d
128, 131 (Tex. Crim. App. 2006); see TEX. R. EVID. 702; 705; Wolfe v. State, 509 S.W.3d 325,
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335 (Tex. Crim. App. 2017). These requirements are commonly referred to as (1)
qualification, (2) reliability, and (3) relevance. Rhomer v. State, 569 S.W.3d 664, 669 (Tex.
Crim. App. 2019). The Kelly test for reliability of evidence requires: (1) the underlying
scientific theory must be valid, (2) the technique applying the theory must be valid, and
(3) the technique must have been properly applied on the occasion in question. Id. at 671;
Kelly, 824 S.W.2d at 573. See Emerson v. State, 880 S.W.2d 759, 768 (Tex. Crim. App. 1994).
It is only the third element of the Kelly test that Ray addresses on appeal.
Prior to trial, the State notified Ray that it might call the officer, among others, to
testify as an expert witness. In response, Ray filed a Motion for Voir Dire Examination of
Expert, in which he requested a hearing so that he could conduct a voir dire examination
of each of the State’s proposed experts. He also requested that the trial court rule on the
admissibility of the expert’s testimony at the conclusion of the voir dire examination. At
that time, Ray did not specify on what topics he intended to examine the proposed
experts. After the jury was selected and before the start of the guilt/innocence phase of
the trial, a hearing was held pursuant to Ray’s motion. The only potential expert witness
available for this pre-trial hearing was the officer. After testimony was presented to the
trial court, Ray stated,
Judge, my argument is essentially going to be under Kelly right here, 702;
that evidence that you have right here is the underlying scientific theory
valid, is the technique valid, is the technique properly applied to the
incident in question? We don't have enough evidence for him to be –
***
We don't have enough evidence for him to be certified as an expert to testify
here.
In response, the State summarized the officer’s training and experience and argued
Ray v. State Page 3
the officer was qualified as an expert:
He's more than qualified to talk about how these tests are administered,
what signs he's looking for, what nystagmus means on top of other
common [signs] of intoxication that he notices throughout his
investigations.
He's qualified, he is an expert, he should be allowed to testify in front of the
jury to help the jury understand this case.
The trial court found the officer to be “qualified[.]”
Despite what Ray stated in his one-sentence argument, it is clear from the record
that everyone at the hearing was concerned with the officer’s qualification as an expert,
that is, his knowledge, skill, experience, training, or education. 1 And when the trial court
ruled that the officer was qualified, Ray did not inform the court that Ray was
challenging, as he states on appeal, the officer’s application of the HGN techniques to
Ray’s situation, not the officer’s qualification as an expert.
Thus, Ray’s issue on appeal, that the evidence was not sufficiently reliable, does
not comport with the issue presented in the trial court and presents nothing for review.
See Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009); Pena v. State, 285 S.W.3d
459, 464 (Tex. Crim. App. 2009). See also Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim.
App. 2014) (to preserve a complaint for review, the issue on appeal must also comport
with the objection made at trial).
Nevertheless, even if Ray’s one sentence argument is enough to comport with his
issue on appeal, we find the evidence was sufficiently reliable. At the pretrial Rule 702
1
Even during trial, Ray focused on the officer’s training rather than whether he performed the test as
required by his training.
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hearing, the officer testified that he was trained pursuant to the National Highway
Transportation Safety Administration handbook during his police officer academy to
administer the HGN test and was certified at that time to administer the test. As far as
he knew, no refresher course was required to maintain his certification. The officer
relayed how he administers the test, as he has been trained, and what items he looks for
when conducting the test. He further stated that since his certification, he has practiced
the techniques on other officers and, as a field-training officer, has trained rookie officers
by performing the techniques on intoxicated subjects. The officer then confirmed that he
administered the test to Ray as he was trained to do.
Accordingly, the trial court did not abuse its discretion in allowing the officer to
testify. Ray’s first issue is overruled.
OPTIONAL COMPLETENESS/FULL DEFENSE
In his second issue, Ray asserts that he suffered a due process violation when the
trial court deprived him of the right to present a full defense by ignoring the Rule of
Optional Completeness. Specifically, Ray contends the trial court erred when it excluded
evidence that a portable breath test (PBT) given to Ray 30 minutes after a blood draw
registered a 0.04 blood alcohol concentration. A portion of an officer’s body cam footage
had been introduced into evidence without objection. The portion Ray contends should
have also been admitted had been redacted. Ray contends the redacted portion was
necessary to allow him to make a “full defense.” He further contends that the redacted
portion of the video eliciting the PBT results was admissible under Texas Rule of
Evidence 107, the Rule of Optional Completeness.
Ray v. State Page 5
We review a trial court's decision to admit or exclude expert testimony for an
abuse of discretion, and we may not reverse those rulings unless they fall outside the
zone of reasonable disagreement. Blasdell v. State, 384 S.W.3d 824, 829 (Tex. Crim. App.
2012). Generally, errors in excluding the admission of a defendant's evidence are non-
constitutional errors reviewed under Rule 44.2(b) of the Texas Rules of Appellate
Procedure. TEX. R. APP. P. 44.2(b); Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App.
2007). Only in specific instances in which the precluded evidence forms a vital portion
of the defendant's case will such an error be considered constitutional error. Easley v.
State, 424 S.W.3d 535, 540 (Tex. Crim. App. 2014); Walters, 247 S.W.3d at 219; Potier v. State,
68 S.W.3d 657, 665 (Tex. Crim. App. 2002).
A constitutional violation may arise only if "(1) a state evidentiary rule categorically
and arbitrarily prohibits the defendant from offering otherwise relevant, reliable
evidence vital to his defense; or (2) a trial court's clearly erroneous ruling results in the
exclusion of admissible evidence that forms the vital core of a defendant's theory of
defense and effectively prevents him from presenting that defense." Easley, 424 S.W.3d
at 540 (quoting Walters, 247 S.W.3d at 219). If an error in this context rises to the level of
constitutional magnitude, the constitutional provision offended is the Due Process Clause
of the United States Constitution, specifically the ability to present a defense. Easley, 424
S.W.3d at 540. In such a case, Rule 44.2(a), the standard harm analysis for constitutional
errors, would apply. TEX. R. APP. P. 44.2(a); Walters v. State, 247 S.W.3d 204, 219 (Tex.
Crim. App. 2007).
In this issue, Ray does not complain that Rule 107 “categorically and arbitrarily”
Ray v. State Page 6
prohibits him from offering otherwise relevant, reliable evidence vital to his defense.
Rather, Ray contends the trial court's “clearly erroneous” ruling regarding the
inapplicability of Rule 107 results in the exclusion of admissible evidence that forms a
vital core of his theory of defense and effectively prevents him from presenting that
defense. Thus, we must first determine whether the trial court’s decision to exclude the
specific redacted portion of the officer’s body cam video was error.
Rule 107 is a rule of admissibility that permits the introduction of otherwise
inadmissible evidence when that evidence is necessary to fully and fairly explain a matter
"opened up" by the adverse party. Walters v. State, 247 S.W.3d 204, 217-18 (Tex. Crim.
App. 2007). It is designed to reduce the possibility of the jury receiving a false impression
from hearing only a part of some act, conversation, or writing. Id. at 218. Rule 107 does
not permit the introduction of other similar, but inadmissible, evidence unless it is
necessary to explain properly admitted evidence. Id.; see also Sauceda v. State, 129 S.W.3d
116, 123 (Tex. Crim. App. 2004) ("The plain language of Rule 107 indicates that in order
to be admitted under the rule, the omitted portion of the statement must be 'on the same
subject' and must be 'necessary to make it fully understood.'").
Like the HGN sobriety test, portable breath test results are generally admissible to
show the presence of alcohol, not a specific blood alcohol concentration. See Fernandez v.
State, 915 S.W.2d 572, 576 (Tex. App.—San Antonio 1996, no pet.) (portable breath test
evidence admissible to establish presence of alcohol but not alcohol concentration). See
also Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994) (same regarding HGN
test). Thus, in this case, the specific blood alcohol concentration measured by the PBT is
Ray v. State Page 7
not admissible pursuant to Rule 107 unless it is necessary to explain properly admitted
evidence. See Walters v. State, 247 S.W.3d at 218.
After Ray was arrested and while at the jail, someone in a uniform gave Ray a PBT.
When Ray asked about the results, the person stated, “I’m not sure if it’s right, but it says
0.04.” The administering of the PBT and the statement were recorded on the officer’s
body cam video.
After the officer testified, Ray first sought to introduce the remainder of the
officer’s body cam video. But before the trial court ruled on the request, the trial court
allowed the phlebotomist and the chemist to testify. The chemist testified as to Ray’s
blood alcohol concentration resulting from the blood test. Thus, after that testimony was
introduced, the trial court interrogated the State about whether the additional portion of
the video Ray requested to be introduced might be necessary to explain the blood test
results. However, after thoroughly questioning the State about why the video would not
be admissible under Rule 107, and after Ray narrowed his request to the portion of the
video starting from when a PBT had been administered through the verbalized result of
the test, the trial court ruled the requested portion of the video was not admissible
because it would leave a “false impression that that’s some type of scientific validity
associated with [the PBT] by letting them hear that.”
After reviewing the record, we find there was nothing that would make the
introduction of the specific PBT results necessary to explain or make the blood test results
or any other testimony understood. No evidence was presented about the scientific
theory or the reliability of the PBT device. No evidence was presented that the PBT device
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operated on a similar or related scientific principle as a blood test conducted in an
accredited laboratory. Further, the uniformed person in the video who administered the
PBT was not identified or called as a witness. Moreover, the portion of the body cam
video that was introduced did not relate to the PBT or a specific BAC.
Accordingly, the trial court did not err in excluding the evidence pursuant to Rule
107; and because the trial court did not err, no constitutional harm occurred. Ray’s second
issue is overruled.
CONCLUSION
Having overruled each issue raised on appeal, we affirm the trial court’s judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed August 10, 2022
Do not publish
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