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 CO URT OF TOM GREEN COUNTY; NO. B-08-0413-SA; HONORABL E BEN WOODWARD, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

OPINION Appellant, Jason Dean Bo len, appeals his conviction for driving while intoxicated, 1 a third-degree felony, for which the tr ial 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 T EX

. P ENAL C ODE A NN . § 49.04 (Vernon 2003), § 49.09(b) (Vernon Supp. 2009).2 the truck and after a fellow deputy, Keith J ones, arrived to assist, the deputies asked appellant’s three passengers to exit the tr uck, and Cole spoke with the cooperative appellant. Cole noted appellant’s slurred speech, bloodshot eyes, and the smell of alcohol on his breath. W hen Cole asked him if he had any thing to drink, appellant responded, “a 12-pack.” 2 Cole asked appellant to perform the fingertip touch test, and appellant performed poorly on i t. 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 Progr am (STEP) and is specifically trained in and charged with investigati ng suspected DWI offenses. Appellant also admitted to Sanders t hat he had consumed “a 12-pack.” Sanders smelled alcohol on appellant’s breath and observed that hi s eyes were bloodshot and his speech was slurred. Sanders, having known appellant for several years, testified to the distinction between appell ant’s usual speech and his sl urred speech at the scene. Also, it appeared to Sanders t hat appellant had urinated on hi mself. Appellant accepted Sanders’s invitation to perform field sobr iety tests (FSTs). When asked about any physical handicaps, appellant on ly 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 (D PS) 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 bo ttle of whiskey, and a plas tic cup the contents of which had been spilled into the driver’s side floorboar d and smelled of alcohol.3 appellant for fifteen minutes prior to the sa mpling to make certain that no residual alcohol was present in appe llant’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 admitt ed that he did not check appellant’s mouth during that fifteen-minute period. The results of the Into xilyzer 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 T EX

. P ENAL C ODE A NN . § 49.01(2)(B) (Vernon 2003). Appellant was charg ed and convicted of the third-de gree 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 violati on of appellant’s Sixth Amendment right of c onfrontation. In his third issue, appellant cont ends 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 fo r admission of scientific evidenc e. In his fourth issue, appellant complains of the trial court’s ex clusion of evidence co ncerning 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 ra tional trier of fact could have found the essentia l elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.C t. 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 th irteenth juror, but ra ther 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 (T ex.Crim.App. 1988). In assessing the factual sufficiency of the evidence, we mu st determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding the appellant guilty bey ond a reasonable doubt. See Watson v. State , 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In performing a fa ctual sufficiency revi ew, we must give deference to the trier of fact ’s determinations if supporte d 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 with5 other evidence, we must recognize that it is the jury’s prerogative to judge the credibility of the evidence and to ascribe the wei ght to be given to the evidence. See Jones v. State , 944 S.W.2d 642, 647–48 (T ex.Crim.App. 1996). Analysis Appellant’s challenge to the suffici ency of the evidence focuses on the intoxication element of the offense. Th e record shows that open and available containers of alcohol we re 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 wa s, the jury could have reasonably concluded that it wa s beer or another alcoholic bev erage that came in such a package. Both Cole and Sanders noticed that appellant had bloodshot eyes and slurred speech and that he smelled of al cohol. We add that Sanders, having known appellant for years, was in a position to di stinguish appellant’s slurred speech at the time of the offense from hi s usual speech pattern. Sanders also noted that it appeared that appellant urinated on himself. Further, hi s performance on the FSTs indicated that he was impaired. And the Intoxilyzer results showed that he had a breath alcohol concentration above the legal li mit of 0.08. Based on such evidence, the jury could have rationally concluded that appellant was intoxicated.6 Appellant points to several factor s 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 boot s 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 di d not check appellant’s mouth before administering the Intoxilyzer test which coul d have affected the readings. While some of the cited evidence could be said to confli ct with evidence of into xication, 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 erro r, there must be a timely and specific objection to the compla ined-of evidence. T EX

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. P. 33.1(a)(1)(A). “Confrontation Clause claims are subject to th is preservation requirement.” Davis v. State , No. AP-

3 One of the factors he asserts is his une qually sized pupils. Because appellant raises a second issue concerning this evidenc e, we will not separately address it here. For reasons we will explain more thor oughly, such evidence was irrelevant.7 75,796, 2010 Tex.Crim.A pp. LEXIS 723, at *66 (Tex.Cri m.App. June 16, 2010) (citing Anderson v. State , 301 S.W.3d 276, 280 (Tex.Crim.App. 2009)). Because appellant did not raise a Conf rontation Clause objection in the trial court, he has not preserved the issue for our review. We overrule his second issue.

Admission of Officer’s Test imony Regarding Intoxilyzer Appellant also contends the trial court abused its discretion by admitting Sanders’s testimony relating to the administration of the Into xilyzer and horizontal gaze nystagmus (HGN) tests because the State had failed to properly de signate Sanders as an expert witness and because the State failed to satisfy the th ird prong of t he reliability test for scientific evidence as enunciated in Kelly v. State , 824 S.W.2d 568, 573 (Tex.Crim.App. 1992). As a result, appe llant maintains, Sanders was improperly permitted to testify as to the procedure foll owed when administering the Intoxilyzer test and as to the results of the HGN test. As a preliminary matter, we note that t he trial court later instructed the jury to disregard any and all evidence related to t he HGN test. We must presume the jury followed the trial court’s instruction in the abs ence 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 disregar ded the testimony concerning the HGN test and limit our discussion of this iss ue 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 cour t'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 testif y whether he followed the proper procedur e in administering the breath test. Further, appellant c ontends, Michael Gassiot, a DPS technical supervisor, was not present during this admi nistration of the Intoxilyzer test and, consequently, could not testify as to w hether Sanders had follow ed proper procedure. Appellant maintains that thes e two limitations mean that t he State could not prove that the Intoxilyzer test was properly performed and, therefore, the tr ial court abused its discretion by admitting the test results. Appellant’s issue involves two concepts: the State’s failure to disclose Sanders as an ex pert 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 exper t witnesses under the following provision: On motion of a party and on notice to t he 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 pres ent evidence under Rules 702, 703, and 705, Texas Rules of Evidenc e. The court shall s pecify 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 make9 disclosure the court shall require the other party to make the disclosure not later than the 20th day before the date the trial begins. T EX

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. A NN . art. 39.14(b) (Vernon Supp. 2009). The trial court denied the motion, 4 concluding that the St ate had already provided a li st of its witnesses to defense counsel. Appellant seems to rely on the general ru le that evidence wi llfully withheld from disclosure under a discovery order s hould 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. Fu rther, the State did disclose Sanders as a witness pursuant to th e trial court’s earlier discovery order. The State provided notice of its intent to call Sanders as a wi tness, and was not ordered to disclose its expert witnesses. Ev en if we accept appellant’s premise that Sanders has to be designated as an expert to te stify 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 oper ator 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 analysi s to be undertaken w hen the State fails to disclose a witness pursuant to the trial cour t’s discovery order under article 39.14, we see this case as presenting a different iss ue. 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 asso ciated 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 tec hnique applying said theory is valid; and (3) the technique was properly ap plied 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.A pp.—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 a pplying it is valid so long as it is administered by individuals certified by an d using testing techniques approved by the DPS. Reynolds v. State , 204 S.W.3d 386, 390 (Tex.Crim.A pp. 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 satisf y its “gate-keeping” function is to determine whether the technique was properly applied in accordanc e with the DPS rules on the particular11 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 princi ple 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 test ify as to the mandatory fifteen-minute observation period. DPS regulations r equire that “[a]ll br eath alcohol testing techniques” include, inter alia , the following: a period during which an operat or 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 exerci se reasonable care to ensure that the subject does not plac e any substances in the mouth. Direct observation is not necessary to ensure the validity or accuracy of the test result. 37 T EX

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. C ODE § 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 compli ed with the required fift een-minute observation period when administering the test. So, S anders knew the protocol involved in administering the Intoxilyzer test and testif ied that he followed th e protocol on the occasion in question; he need not have also demonstrated any personal familiarity with12 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 resu lts. 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, wo uld discredit Sanders’s observations during the HGN test. Sanders test ified that, in order for the HGN test to yield reliable indicators, the test subj ect 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 cro ss-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 e rror for two reasons. First, the trial court admitted the eye exemplar after appel lant’s grandmother’s testimony when, it found, the proper predicate for t he exemplar’s admission was established. Appellant points to nothing in the record that would suggest that the exemplar would have been more persuasive ha d the trial court admitted it sooner. Defense counsel set the groundwork for the relevance of the evidence, questioning Sanders extensively on the im pact of equally-sized pup ils on the HGN test, and the13 grandmother’s testimony provid ed 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 exclus ion 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 associat ed 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 admi tted into evidence”). Secondly, as mentioned, t he trial court later instructed the jury not to consider evidence relating to the HGN test, includ ing “the results and th e conclusions” drawn from it. The record reveals no indication that the jury disregarded the trial court’s instruction. Presuming, then, as we mu st, that the jury disregarded any evidence relating to the HGN test, we see no need to pr esent evidence to rebut evidence that the trial court instructed t he jury to disregard. See Karnes , 127 S.W.3d at 196. That the eye exemplar came in later than appellant woul d 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 T EX

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. 401 (defining relevant evidence as “evi dence 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 less14 likely in the absence of the HGN test evidence. Thus, the tr ial court’s exclusion of the eye exemplar, regardless of its la ter admission, was not erroneous. Essentially, appellant compla ins of the timing of the tr ial 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 iss ue 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 requir ed that the prosecutio n’s proof excludes all ‘reasonable doubt’ concerni ng 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.A pp. 1984) (op. on reh’g). Under Almanza , we must first determine whether error exis ts in the charge and, then, if we find error, whether such error caused su fficient 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 co urts 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.Cri m.App. Apr. 28, 2010) (reaffirming the holding in Woods ). Appellant has not di rected us to contrary authority or any reason that the instant case presents an exception to the rule in Woods

. That said, we decline the invita tion 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 inte rmediate 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 proposit ion of law has been sq uarely 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 pr ecedent by the same c ourt or other courts of lower rank when the very point is agai n presented in a subsequent suit between different parties”). Inclusion of the challenged lan guage 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.