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### 3Ttf tl| Btstrtrt of Gkxas ai Sallas JUDGMENT THOMAS E. MAMMOSER, Appellant No. 05-95-01564-CR V. THE STATE OF TEXAS, Appellee Appeal from the County Criminal Court No. 2 ofDallas County, Texas. (Tr.Ct.No. MB94-24327-B). Opinion delivered by Justice James, Justices Lagarde and Whittington participating. Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered February 20, 1997.5*435*. .....' :

AFFIRMED, and Opinion Filed Febrnaiy 20, 1997

In The (£aurt of Appeals Txfti\ Btstrtr/i ofGkxas ai Ballas
No. 05-95-01564-CR
THOMAS E. MAMMOSER, Appellant

V. THE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court No. 2 Dallas County, Texas Trial Court Cause No. MB94-24327-B
OPINION Before Justices Lagarde, Whittington, and James Opinion By Justice James 

### The State charged Thomas E. Mammoser by information with driving while 

### intoxicated (DWI). Thejuryfound appellant guilty and the trial court assessedpunishment 

### at ninety days' confinement, probated for two years, with a$750 fine. Appellant presents 

### four points of error on appeal.1 First, appellant argues the evidence was factually W Courtgrantedthe State'ssecondextensionforfiling itsbriefandorderedthebrief^*J££Z£TM£ November26,1996 the Statefiled a thirdextension requesting this Courtto acceptthe State's bneftenderedon the same y This court denied the State's motion on January 21, 1997 and struck the State sbnef.insufficient to support his DWI conviction. Second, appellant argues the trial court erred in admitting the breath test results into evidence. Last, appellant argues the prosecutor's comments during closing argument constituted reversible error. For the reasons set forth below, we affirm the trial court's judgment. In his first point, appellant contends the evidence was factually insufficient to support his DWI conviction. On December 23, 1994, Officer Robert Olivas stopped appellant because he was speeding and weaving from lane to lane. Officer Mario Cmet, who took over appellant's stop for Olivas, arrested appellant after appellant failed at least three field 

### sobriety tests. Appellant agreed to a breath analysis which established an alcohol

concentration of 0.12. 

### Appellantdescribedtheroadway's poorconditionswhere thepolice stoppedhim and 

### explained how his partial deafness contributed to his failing the field sobriety tests. Appellantfocused onhis improvedbehavioronvideotape to showhis poorperformance on the field sobriety tests resulted from the external conditions combined with his deafness. 

### Appellantpresentedtwo restauranttabs to provehe consumedonlyfour drinkswhichwould
not cause a 0.12 alcohol concentration. In reviewing factual sufficiency, we do not view the evidence in the light most 

### favorable to the prosecution. Clewis v. State, 922 S.W.2d 126, 134-35 (Tex. Crim. App. 

### 1996). We set aside the verdict, however, only if it is so contrary to the overwhelming weight ofthe evidence as to be clearly wrong and unjust. Id.

-2-We remain deferential to avoid substituting ourjudgment for the factfinder's. Id. at 133-36. We will not reweigh the evidence and set aside the verdict merely because we believe adifferent result is more reasonable. Id. at 135. Thus, we review the factfinder's 

### weighing ofthe evidence and can disagree with the factfinder's conclusion, butwe exercise
ourjurisdiction only to prevent amanifestly unjust result. Id. at 132-33. To convict appellant, the State had to prove he was "intoxicated while operating a 

### motorvehicle in apublic place." Act ofMay 29,1993, 73d Leg., R.S., ch. 900, §1.01, 1993 

### Tex. Gen. Laws 3586, 3697, amended by Act ofApril 21, 1995, 74th Leg., R.S., ch. 76, § 

### 14.55, 1995 Tex. Gen. Laws 458, 841 (currentversion atTex. Penal Code Ann. §49.04(a) 

### (VernonSupp. 1997)). Intoxicatedmeans "nothavingthenormaluse ofmental orphysical faculties by reason ofthe introduction ofalcohol" or "having an alcohol concentration of 0.10 or more." Tex. Penal Code Ann. §49.01 (Vernon 1994). 

### Appellant dined at Ruggeri's restaurant. He testified that he consumed only three and a halfdrinks between7:30p.m. and 11:30p.m. Appellant saidhe felt the effects ofthe alcohol "a little, but not to the point where [he] lost his faculties." Appellant denied 

### weaving between lanes. Appellant saidthe police stoppedhim at a noisy location and the 

### lights from the officer's cartemporarilyblindedhim. He had difficulty hearing the officers becausehewas notwearinghis hearing aid (appellanthas a forty-two percenthearingloss). Olivas had his car lights and spotlight on for safety when he stopped appellant. 

### Olivas did not know of appellant's hearing loss and did not think appellant had difficulty

-3-hearinghis questions. According to Olivas, appellanthadtrouble finding his driver's license, smelled of alcohol, appeared disoriented, had poor balance, and made little eye contact. Moreover, appellant admitted he'd been drinking. On cross-examination, Olivas testified that appellant did notmake any erratic gestures, drive on the shoulder ofthe road, or drive
less than ten miles under the speed limit. Olivas had been en route to pick up a prisoner. Because he did not have time to 

### finish questioning appellant or conduct the field sobriety tests, Olivas called Cmet to take
over for him. Cmet testified that the areawas not well lit, but Cmetleft his overhead lights 

### and headlights on. Cmet said he usually stood between his car and the subject to keep the 

### lights from blinding the subject. Like Olivas, Cmet noticed appellant's breath smelled of alcohol. Appellant slurred his speech and swayed when walking. Although appellant informed Cmet ofhis hearing problem, Cmet did not thinkthis problem caused appellant's 

### slurred speech. Furthermore, Cmet did not notice appellant having problems hearing his instructions. Both officers concluded appellant did not have the normal use ofhis physical

and mental faculties. 

### Cmet arrested appellant, took him to the intoxilyzer room, and conducted further tests. Cmet noticed appellant's behavior improved during these tests. After thirty or forty 

### minutes, Cmet used an intoxilyzer 5000 to test appellant's alcohol concentration which 

### registered0.12. In response to a hypothetical questionfrom the defense, the State's expert stated that aman weighing 200 pounds would have to consume between thirteen and nine-

-4-teen drinks within a six hour period to achieve a 0.12 concentration. Appellant's expert witness disputed the reading and explained the intoxilyzer 5000's unreliability. The restaurant waiter and valet testified that appellant had problems communicating with them in the past. The waiter did not know, however, whether appellant's difficulty stemmedfrom hearing problems orthe restaurant's noisy atmosphere. The valet added that appellant usually walked unsteadily. Neither the waiter nor valet knew appellant wore a hearing aid. Both said appellant had never been intoxicatedbefore and they did not think
he was intoxicated that night. 

### Appellantintroducedtwo restauranttabs from Ruggeri's. Thebartab totaled $15.50 and the dinnertab totaled $33.17 withouttip. According to appellant, he consumed two and ahalfdrinks at the bar and aglass ofwine with his meal. He argues the two tabs combined 

### prove he consumed only four drinks before leaving the restaurant. To prove he could not havehad a previous tab, witnesses notedtherestaurant's usualpracticeofclearingbothtabs simultaneously. The restaurant printed appellant's tabs, however, approximately thirty minutes apart and the waiter could not verify their accuracy. 

### Although, the parties presented competing theories as to why appellant failed the 

### field sobriety tests and had a 0.12 alcohol concentration, we do not find the jury's determination so contrary to the overwhelming weight ofthe evidence as to make it clearly wrong and unjust. We overrule appellant's first point of error. 

### In his second point, appellant contends the trial court erred in admitting the breath

-5-test results because the State did not lay the proper predicate. Appellant asserts Cmet was 

### not qualified to administer the test and did not follow proper procedures. For example, 

### appellant argues Cmet failed to continuously watch appellant for fifteen minutes before conducting the test and lacked the qualifications to conduct areference sample. For the results to be admissible, the operator must perform the breath test according to the rules promulgated by the Texas Department ofPublic Safety. See Gijford v. State, 793 S.W.2d 48, 49 (Tex. App.-Dallas 1990), cert, dismissed, 810 S.W.2d 225 (Tex. Crim. 

### App. 1991). The State must show (1) the existence of periodic supervision over the machine and operation by one who understands the machine's scientific theory and (2) 

### proofofthe resultby a witness orwitnesses qualified to translate and interpret such result. Harrell v. State, 725 S.W.2d 208, 209-10 (Tex. Crim. App. 1986). The State meets this 

### requirementifthe operator testifies he held a Department ofPublic Safety certificate and followed the Texas DepartmentofPublic Safetyrules. SeeMartin v. State, 724 S.W.2d 135, 137-38 (Tex. App.-Fort Worth 1987, no pet.). Cmet testified he was an intoxilyzer operator. He attended aweek-long intoxilyzer 

### operator school and learned about the intoxilyzer 5000. When questioned further, Cmet reiterated that the Texas Department of Public Safety certified him as an intoxilyzer 

### operatorandrecertifiedhimeveryyear. Moreover, the Dallas CountyMedicalExaminer's technical supervisor had personal knowledge Cmet was certified on December 23, 1994. The remainder ofappellant's argument is unfounded in law or fact. Cmet testified

-6-he observed appellant fifteen minutes before the test. The regulations specifically state that "[djirect observation is no longer necessary to ensure the validity or accuracy of the test result." 15 Tex. Reg. 6602 (1990) (codified as an amendment to 37 Tex. Admin. Code § 19.3(c)(1) (to be effective Nov. 30, 1990). The technical supervisor checked the machine on December 22,1994 andit operated correctly. He testified that the test record (1) indicated Cmet followed the proper 

### operational methods of testing techniques and (2) reflected the results ofthe reference analysis was within the tolerance ofthe predictedreference sample. On cross-examination, the technical supervisor explained that in order for atest result to be valid, the results achieved would have to be within plus or minus .01. The lowest acceptable value would be a.090 and the highest acceptable value would be .110. In appellant's case, the range was 

### acceptable because itwas .094. The technical supervisor's testimony established that Cmet followed the propertechniques when conducting the breath analysis and explained how the 

### intoxilyzer 5000 contained a builtin reference checkto verify the test result's validity. We overrule appellant's second point of error. In his third and fourth points, appellant contends the prosecutor's comments during 

### closing arguments inflamed thejury and struck at appellant over trial counsel's shoulders thus constitutingreversibleerror. Thetrialcourtsustainedappellant's objections. Appellant never asked for an instruction to disregard or amistrial. On appeal, appellant argues the 

### prosecutor's comments were so egregious they could not be cured by an instruction to

-7-disregard and therefore constituted reversible error. See e.g., Montoya v. State, 744 S.W.2d 15, 37 (Tex. Crim. App. 1987), cert, denied, 487 U.S. 1227 (1988); Romo v. State, 631 S.W.2d 504, 505 (Tex. Crim. App. 1982). Recently, the Court ofCriminal Appeals reexamined adefendant's right to complain aboutjury argument on appeal. The court held "a defendant's failure to object to ajury argument or adefendant's failure to pursue to an adverse ruling his objection to ajury 

### argument forfeits his right to complain about the argument on appeal." Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Although appellant objected and the trial court sustained his objections, appellant failed to pursue to an adverse ruling his objection to the 

### State'sjury argument. Because appellantfailed to pursue his objections to adverse rulings, he forfeited his right to complain on appeal. Id. We overrule appellant's third and fourth points of error. For the reasons set forth above, we affirm the trial court's judgment.

Do Not Publish Tex. R. App. P. 90 951654F.U05

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