NO. 07-10-00102-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL A 

AUGUST 24, 2010 

JASON DEAN BOLEN, APPELLANT 

v. 

THE STATE OF TEXAS, APPELLEE 

 FROM THE 119TH DISTRICT COURT OF TOM GREEN COUNTY; 

NO. B-08-0413-SA; HONORABLE BEN WOODWARD, JUDGE 

Before CAMPBELL and HANCOCK and PIRTLE, JJ. 

OPINION 

Appellant, Jason Dean Bolen, appeals his conviction for driving while 

intoxicated,1 a third-degree felony, for which the trial court imposed a sentence of six 

years’ incarceration. We will affirm. 

Factual and Procedural History 

 Appellant was driving his pickup truck when Tom Green County Deputy Gary 

Cole stopped him for disregarding a stop sign and failing to signal a turn. After stopping 

 1 See TEX. PENAL CODE ANN. § 49.04 (Vernon 2003), § 49.09(b) (Vernon Supp. 

2009). 
2 

 

the truck and after a fellow deputy, Keith Jones, arrived to assist, the deputies asked 

appellant’s three passengers to exit the truck, and Cole spoke with the cooperative 

appellant. Cole noted appellant’s slurred speech, bloodshot eyes, and the smell of 

alcohol on his breath. When Cole asked him if he had anything to drink, appellant 

responded, “a 12-pack.”2 Cole asked appellant to perform the fingertip touch test, and 

appellant performed poorly on it. Based on his observations, Cole told Jones that 

appellant may be intoxicated, and Jones called for Sergeant Ron Sanders, who works in 

the DWI Selective Traffic Enforcement Program (STEP) and is specifically trained in 

and charged with investigating suspected DWI offenses. 

 Appellant also admitted to Sanders that he had consumed “a 12-pack.” Sanders 

smelled alcohol on appellant’s breath and observed that his eyes were bloodshot and 

his speech was slurred. Sanders, having known appellant for several years, testified to 

the distinction between appellant’s usual speech and his slurred speech at the scene. 

Also, it appeared to Sanders that appellant had urinated on himself. Appellant accepted 

Sanders’s invitation to perform field sobriety tests (FSTs). When asked about any 

physical handicaps, appellant only noted a sore calf muscle. Appellant’s performance 

on each of the FSTs indicated to Sanders that appellant was impaired. 

 Appellant agreed to provide a breath sample and was arrested and taken to the 

Intoxilyzer room at the county jail. As he is required to do, Sanders, who is certified by 

the Texas Department of Public Safety (DPS) to operate the Intoxilyzer, observed 

2 Cole’s later search of the vehicle yielded an open 30-pack of beer in the 

passenger’s floorboard, an open bottle of whiskey, and a plastic cup the contents of 

which had been spilled into the driver’s side floorboard and smelled of alcohol.
3 

appellant for fifteen minutes prior to the sampling to make certain that no residual 

alcohol was present in appellant’s mouth due to belching or other related bodily 

functions. Sanders saw no sign that appellant introduced residual alcohol from his 

stomach contents into his mouth but admitted that he did not check appellant’s mouth 

during that fifteen-minute period. The results of the Intoxilyzer test of two breath 

samples indicated that appellant’s breath alcohol concentration was 0.136 and 0.135, 

both readings being above the legal limit of 0.08. See TEX. PENAL CODE ANN. § 

49.01(2)(B) (Vernon 2003). 

 Appellant was charged and convicted of the third-degree felony of driving while 

intoxicated, third or greater offense. See id. § 49.09(b). Appellant timely appealed the 

trial court’s judgment of conviction and raises five issues on appeal. In his first issue, he 

challenges the legal and factual sufficiency of the evidence to support the conviction. In 

his second issue, he contends that the trial court abused its discretion by admitting the 

Intoxilyzer results in violation of appellant’s Sixth Amendment right of confrontation. In 

his third issue, appellant contends the trial court erred by admitting expert testimony 

when the expert was not properly designated by the State and when the State failed to 

satisfy the reliability test for admission of scientific evidence. In his fourth issue, 

appellant complains of the trial court’s exclusion of evidence concerning appellant’s 

eyes during cross-examination of Sanders. Finally, appellant maintains that the “trial 

court erred by including a definition of reasonable doubt by omission.” 
4 

Legal and Factual Sufficiency of the Evidence 

Standards of Review

 In assessing the legal sufficiency of the evidence, we review all the evidence in 

the light most favorable to the verdict to determine whether any rational trier of fact 

could have found the essential elements of the offense beyond a reasonable doubt. 

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. 

State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency 

review, an appellate court may not sit as a thirteenth juror, but rather must uphold the 

jury’s verdict unless it is irrational or unsupported by more than a mere modicum of 

evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). 

 In assessing the factual sufficiency of the evidence, we must determine whether, 

considering all the evidence in a neutral light, the jury was rationally justified in finding 

the appellant guilty beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 

415 (Tex.Crim.App. 2006). In performing a factual sufficiency review, we must give 

deference to the trier of fact’s determinations if supported by evidence and may not 

order a new trial simply because we may disagree with the verdict. See id. at 417. As 

an appellate court, we are not justified in ordering a new trial unless there is some 

objective basis in the record demonstrating that the great weight and preponderance of 

the evidence contradicts the jury’s verdict. See id. Additionally, an appellate opinion 

addressing factual sufficiency must include a discussion of the most important evidence 

that appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 

(Tex.Crim.App. 2003). However, when a defendant's version of the facts conflicts with 
5 

other evidence, we must recognize that it is the jury’s prerogative to judge the credibility 

of the evidence and to ascribe the weight to be given to the evidence. See Jones v. 

State, 944 S.W.2d 642, 647–48 (Tex.Crim.App. 1996). 

Analysis

 Appellant’s challenge to the sufficiency of the evidence focuses on the 

intoxication element of the offense. The record shows that open and available 

containers of alcohol were present in the cab of appellant’s truck. Appellant admitted to 

both Cole and Sanders that he had drunk “a 12-pack.” Though he did not specify when 

he drank the twelve-pack or what type of beverage it was, the jury could have 

reasonably concluded that it was beer or another alcoholic beverage that came in such 

a package. Both Cole and Sanders noticed that appellant had bloodshot eyes and 

slurred speech and that he smelled of alcohol. We add that Sanders, having known 

appellant for years, was in a position to distinguish appellant’s slurred speech at the 

time of the offense from his usual speech pattern. Sanders also noted that it appeared 

that appellant urinated on himself. Further, his performance on the FSTs indicated that 

he was impaired. And the Intoxilyzer results showed that he had a breath alcohol 

concentration above the legal limit of 0.08. Based on such evidence, the jury could 

have rationally concluded that appellant was intoxicated. 
6 

 Appellant points to several factors that may have impacted Sanders’s 

observations during the FSTs.3

 For instance, the uneven, caliche road on which 

appellant performed the walk-and-turn and one-leg-stand tests could have affected his 

performance as could his unlaced work boots and sore calf muscle. Appellant also 

points to Sanders’s failure to videotape the breath test as evidence undermining the 

verdict. Appellant adds that Sanders did not check appellant’s mouth before 

administering the Intoxilyzer test which could have affected the readings. While some 

of the cited evidence could be said to conflict with evidence of intoxication, it is within 

the jury’s purview to resolve any conflict in the evidence and to ascribe the weight to be 

given to the evidence. See Jones, 944 S.W.2d at 647–48. We find no objective basis 

in the record demonstrating that the great weight and preponderance of the evidence 

contradicts the jury's verdict. See Watson, 204 S.W.3d at 417. A verdict is not 

manifestly unjust simply because the trier of fact resolved conflicting evidence in favor 

of the State. Roise v. State, 7 S.W.3d 225, 233 (Tex.App.—Austin 1999, pet. ref’d). 

 Having concluded that legally and factually sufficient evidence supports the jury’s 

finding that appellant was intoxicated, we overrule appellant’s first issue. 

Admission of Intoxilyzer Test Results; Confrontation Clause 

 Generally, in order to preserve error, there must be a timely and specific 

objection to the complained-of evidence. TEX. R. APP. P. 33.1(a)(1)(A). “Confrontation 

Clause claims are subject to this preservation requirement.” Davis v. State, No. AP-

 3 One of the factors he asserts is his unequally sized pupils. Because appellant 

raises a second issue concerning this evidence, we will not separately address it here. 

For reasons we will explain more thoroughly, such evidence was irrelevant.
7 

75,796, 2010 Tex.Crim.App. LEXIS 723, at *66 (Tex.Crim.App. June 16, 2010) (citing 

Anderson v. State, 301 S.W.3d 276, 280 (Tex.Crim.App. 2009)). 

 Because appellant did not raise a Confrontation Clause objection in the trial 

court, he has not preserved the issue for our review. We overrule his second issue. 

Admission of Officer’s Testimony Regarding Intoxilyzer 

 Appellant also contends the trial court abused its discretion by admitting 

Sanders’s testimony relating to the administration of the Intoxilyzer and horizontal gaze 

nystagmus (HGN) tests because the State had failed to properly designate Sanders as 

an expert witness and because the State failed to satisfy the third prong of the reliability 

test for scientific evidence as enunciated in Kelly v. State, 824 S.W.2d 568, 573 

(Tex.Crim.App. 1992). As a result, appellant maintains, Sanders was improperly 

permitted to testify as to the procedure followed when administering the Intoxilyzer test 

and as to the results of the HGN test. 

 As a preliminary matter, we note that the trial court later instructed the jury to 

disregard any and all evidence related to the HGN test. We must presume the jury 

followed the trial court’s instruction in the absence of any indication in the record to the 

contrary. Karnes v. State, 127 S.W.3d 184, 196 (Tex.App.—Fort Worth 2003, pet. 

ref’d). We presume that the jury disregarded the testimony concerning the HGN test 

and limit our discussion of this issue to the Intoxilyzer results. 
8 

Standard of Review

 We review the trial court’s admission of evidence for an abuse of discretion and 

will not disturb the trial court's decision if the ruling was within the zone of reasonable 

disagreement. Bigon v. State, 252 S.W.3d 360, 367 (Tex.Crim.App. 2008). 

Analysis

 Appellant maintains that Sanders was not properly designated as an expert and, 

therefore, could not testify whether he followed the proper procedure in administering 

the breath test. Further, appellant contends, Michael Gassiot, a DPS technical 

supervisor, was not present during this administration of the Intoxilyzer test and, 

consequently, could not testify as to whether Sanders had followed proper procedure. 

Appellant maintains that these two limitations mean that the State could not prove that 

the Intoxilyzer test was properly performed and, therefore, the trial court abused its 

discretion by admitting the test results. Appellant’s issue involves two concepts: the 

State’s failure to disclose Sanders as an expert witness and the State’s satisfaction of 

the reliability test for admission of scientific evidence. We address each concept in turn. 

Disclosure 

 Appellant moved for discovery of expert witnesses under the following provision: 

On motion of a party and on notice to the other parties, the court in which 

an action is pending may order one or more of the other parties to disclose 

to the party making the motion the name and address of each person the 

other party may use at trial to present evidence under Rules 702, 703, and 

705, Texas Rules of Evidence. The court shall specify in the order the 

time and manner in which the other party must make the disclosure to the 

moving party, but in specifying the time in which the other party shall make 
9 

disclosure the court shall require the other party to make the disclosure 

not later than the 20th day before the date the trial begins. 

TEX. CODE CRIM. PROC. ANN. art. 39.14(b) (Vernon Supp. 2009). The trial court denied 

the motion,4 concluding that the State had already provided a list of its witnesses to 

defense counsel. 

 Appellant seems to rely on the general rule that evidence willfully withheld from 

disclosure under a discovery order should be excluded from evidence. See Oprean v. 

State, 201 S.W.3d 724, 726 (Tex.Crim.App. 2006). However, the State’s failure to 

designate Sanders as an expert witness did not violate a discovery order; the trial court 

denied appellant’s motion for discovery of expert witnesses. Further, the State did 

disclose Sanders as a witness pursuant to the trial court’s earlier discovery order. 

 The State provided notice of its intent to call Sanders as a witness, and was not 

ordered to disclose its expert witnesses. Even if we accept appellant’s premise that 

Sanders has to be designated as an expert to testify to the matters at issue, appellant 

directs us to no authority that the State was required to disclose Sanders as an expert 

witness in the absence of the trial court’s order to do so. We add that, because 

Sanders was the arresting officer and the operator of the Intoxilyzer, appellant, whose 

defense challenged the evidence of intoxication, should have anticipated that Sanders 

would testify to the results of the breath test. So, even assuming that Sanders had to 

 4 Although both parties discuss the analysis to be undertaken when the State fails 

to disclose a witness pursuant to the trial court’s discovery order under article 39.14, we 

see this case as presenting a different issue. The trial court had not ordered the State 

to disclose its expert witnesses. Appellant does not challenge the trial court’s denial of 

its motion made pursuant to article 39.14.
10 

be designated as an expert and that the State had a duty to disclose him as such in the 

absence of an order to do so, any error associated with this issue would be harmless. 

Reliability of Intoxilyzer results 

 The proponent of scientific evidence must show the trial court, by clear and 

convincing evidence, that the evidence is reliable. To show reliability, three criteria 

must be met: (1) the underlying theory is valid; (2) the technique applying said theory is 

valid; and (3) the technique was properly applied on the occasion in question. Bigon, 

252 S.W.3d at 367; Kelly, 824 S.W.2d at 573. Kelly applies to all scientific evidence 

offered under Rule 702 of the Texas Rules of Evidence, including Intoxilyzer test 

results. See Hartman v. State, 946 S.W.2d 60, 63 (Tex.Crim.App. 1997); Henderson v. 

State, 14 S.W.3d 409, 411 (Tex.App.—Austin 2000, no pet.). 

 In the context of breath test results, the Legislature has already determined that 

the underlying science is valid and that the technique applying it is valid so long as it is 

administered by individuals certified by and using testing techniques approved by the 

DPS. Reynolds v. State, 204 S.W.3d 386, 390 (Tex.Crim.App. 2006). Evidence of DPS 

certification is sufficient to meet the Kelly criteria with respect to the competence of the 

breath test operator. Reynolds, 204 S.W.3d at 390; see Guardiola v. State, No. 03-08-

00399-CR, 2010 Tex.App. LEXIS 2071, at *10 (Tex.App.—Austin Mar. 23, 2010, no 

pet.) (mem. op., not designated for publication). 

 In a Kelly hearing, then, at which the results of a breath test are challenged, all 

the trial court need do to satisfy its “gate-keeping” function is to determine whether the 

technique was properly applied in accordance with the DPS rules on the particular 
11 

occasion in question. Reynolds, 204 S.W.3d at 391; Henderson, 14 S.W.3d at 411. A 

peace officer who is certified by the DPS to operate the Intoxilyzer “need not also be 

able to articulate the scientific principle behind the apparatus or the technology 

implementing it in order to satisfy the Kelly criteria.” Reynolds, 204 S.W.3d at 391. “As 

long as the operator knows the protocol involved in administering the test and can 

testify that he followed it on the occasion in question, he need not also demonstrate any 

personal familiarity with the underlying science and technology.” Id.

 Here, appellant’s issue centers on evidence concerning whether Sanders 

followed the proper procedure in administering the Intoxilyzer test. More specifically, he 

challenges Sanders’s qualification to testify as to the mandatory fifteen-minute 

observation period. DPS regulations require that “[a]ll breath alcohol testing 

techniques” include, inter alia, the following: 

a period during which an operator is required to remain in the presence of 

the subject. An operator shall remain in the presence of the subject at 

least 15 minutes before the test and should exercise reasonable care to 

ensure that the subject does not place any substances in the mouth. 

Direct observation is not necessary to ensure the validity or accuracy of 

the test result. 

37 TEX. ADMIN. CODE § 19.4(c)(1) (2006) (Tex. Dep’t of Pub. Safety, Approval of 

Techniques, Methods and Programs). 

 The record shows that Sanders was certified by the DPS to operate the 

Intoxilyzer, and he testified that he complied with the required fifteen-minute observation 

period when administering the test. So, Sanders knew the protocol involved in 

administering the Intoxilyzer test and testified that he followed the protocol on the 

occasion in question; he need not have also demonstrated any personal familiarity with 
12 

the underlying science and technology. See Reynolds, 204 S.W.3d at 391. The State 

satisfied the Kelly reliability test per Reynolds, and the trial court did not abuse its 

discretion by admitting the Intoxilyzer test results. We overrule appellant’s third issue. 

Exclusion/Delayed Admission of Pupil Evidence 

 Appellant sought to show the jurors his eyes so that they could see that his pupils 

were not of equal sizes. This disparity, appellant maintained, would discredit Sanders’s 

observations during the HGN test. Sanders testified that, in order for the HGN test to 

yield reliable indicators, the test subject must have equally-sized pupils and that 

appellant had equally-sized pupils at the time of the test. Appellant sought to introduce 

the eye exemplar during cross-examination of Sanders. The trial court excluded the 

exemplar at that time, concluding that the proper predicate for its admission had not 

been established. Later, the trial court admitted the exemplar after appellant’s 

grandmother testified that appellant had suffered an eye injury in 1992 or 1993 and that, 

as a result of the injury, appellant’s pupils were not of equal size. On appeal, appellant 

complains of the trial court’s exclusion of the eye exemplar during cross-examination of 

Sanders. Appellant’s contention fails to assert reversible error for two reasons. 

 First, the trial court admitted the eye exemplar after appellant’s grandmother’s 

testimony when, it found, the proper predicate for the exemplar’s admission was 

established. Appellant points to nothing in the record that would suggest that the 

exemplar would have been more persuasive had the trial court admitted it sooner. 

Defense counsel set the groundwork for the relevance of the evidence, questioning 

Sanders extensively on the impact of equally-sized pupils on the HGN test, and the 
13 

grandmother’s testimony provided the jury with a time and explanation of the trauma 

that caused appellant’s condition. The jury was then permitted to examine appellant’s 

eyes. The fact that the evidence, the exclusion of which appellant complains, came into 

evidence later, when the trial court found that the proper predicate for its admission had 

been established, renders any error associated with the trial court’s earlier exclusion 

harmless. See Preston v. State, 481 S.W.2d 408, 409 (Tex.Crim.App. 1972) 

(“perceiv[ing] no harm to appellant in the instant case by the exclusion of the time card 

when it was subsequently admitted into evidence”). 

 Secondly, as mentioned, the trial court later instructed the jury not to consider 

evidence relating to the HGN test, including “the results and the conclusions” drawn 

from it. The record reveals no indication that the jury disregarded the trial court’s 

instruction. Presuming, then, as we must, that the jury disregarded any evidence 

relating to the HGN test, we see no need to present evidence to rebut evidence that the 

trial court instructed the jury to disregard. See Karnes, 127 S.W.3d at 196. That the 

eye exemplar came in later than appellant would have preferred, then, is of no moment; 

the jury did not consider the HGN evidence that the eye exemplar was intended to 

address. The trial court’s instruction to the jury to disregard the HGN test evidence 

rendered any evidence meant to rebut the HGN evidence irrelevant. See TEX. R. EVID. 

401 (defining relevant evidence as “evidence having any tendency to make the 

existence of any fact that is of consequence to the determination of the action more 

probable or less probable than it would be without the evidence”). Evidence of 

appellant’s unequal pupil sizes does not make any fact of consequence more or less 
14 

likely in the absence of the HGN test evidence. Thus, the trial court’s exclusion of the 

eye exemplar, regardless of its later admission, was not erroneous. 

 Essentially, appellant complains of the timing of the trial court’s admission of the 

eye exemplar. Considering that the trial court later admitted the very same evidence 

and that, later still, the trial court instructed the jury to disregard any HGN test evidence 

which the eye exemplar was intended to rebut, appellant’s issue does not present 

reversible error. We overrule appellant’s fourth issue. 

Inclusion by Omission of Reasonable Doubt Definition 

 In his final point of error, appellant complains of the trial court’s inclusion of the 

following language in its charge to the jury: “It is not required that the prosecution prove 

guilt beyond all possible doubt. It is required that the prosecution’s proof excludes all 

‘reasonable doubt’ concerning the defendant’s guilt.” 

Standard of Review

 When presented with a jury charge complaint, we review the charge under 

Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh’g). Under 

Almanza, we must first determine whether error exists in the charge and, then, if we find 

error, whether such error caused sufficient harm to compel reversal. See Ngo v State, 

175 S.W.3d 738, 743–44 (Tex.Crim.App. 2005). 
15 

Analysis

 The Texas Court of Criminal Appeals has held that inclusion of this very 

language was not error. See Woods v. State, 152 S.W.3d 105, 114 (Tex.Crim.App. 

2004) (resolving the split in authority among intermediate courts of appeals noted in 

Ochoa v. State, 119 S.W.3d 825, 829 (Tex.App.—San Antonio 2003, no pet.), whether 

inclusion of such language was error); see also Mays v. State, No. AP-75,924, 2010 

Tex.Crim.App. LEXIS 480, *54–*55 (Tex.Crim.App. Apr. 28, 2010) (reaffirming the 

holding in Woods). Appellant has not directed us to contrary authority or any reason 

that the instant case presents an exception to the rule in Woods. 

 That said, we decline the invitation to depart from the holding in Woods. See

Sierra v. State, 157 S.W.3d 52, 60 (Tex.App.—Fort Worth 2004), aff’d, 218 S.W.3d 85 

(Tex.Crim.App. 2007) (noting that an intermediate appellate court “is bound by the 

precedent of the Texas Court of Criminal Appeals and has no authority to disregard or 

overrule” it); see also Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964) (announcing 

that, “[a]fter a principle, rule or proposition of law has been squarely decided by the 

Supreme Court, or the highest court of the State having jurisdiction of the particular 

case, the decision is accepted as a binding precedent by the same court or other courts 

of lower rank when the very point is again presented in a subsequent suit between 

different parties”). Inclusion of the challenged language was not error. Accordingly, we 

overrule appellant’s fifth and final issue. 
16 

Conclusion 

 Having overruled appellant’s issues, we affirm the judgment of the trial court. 

 Mackey K. Hancock 

 Justice 

Publish.