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Court of Appeals

3Ttftl| 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 of Gkxas 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). The jury found appellant guilty and the trial court assessed punishment

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 Court granted the State's second extension for filing its brief and ordered the brief^*J££Z£TM£ November 26,1996 the State filed athird extension requesting this Court to accept the State's bnef tendered on 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.

Appellant described the roadway's poor conditions where the police stopped him and

explained how his partial deafness contributed to his failing the field sobriety tests.

Appellant focused on his improved behavior on videotape to show his poor performance on

the field sobriety tests resulted from the external conditions combined with his deafness.

Appellant presented two restaurant tabs to prove he consumed only four drinks which would

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 of the evidence as to be clearly wrong and unjust. Id.

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We remain deferential to avoid substituting our judgment 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 of the evidence and can disagree with the factfinder's conclusion, but we exercise

our jurisdiction only to prevent amanifestly unjust result. Id. at 132-33.

To convict appellant, the State had to prove he was "intoxicated while operating a

motor vehicle in apublic place." Act of May 29,1993, 73d Leg., R.S., ch. 900, §1.01, 1993

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

14.55, 1995 Tex. Gen. Laws 458, 841 (current version at Tex. Penal Code Ann. §49.04(a)

(Vernon Supp. 1997)). Intoxicated means "not having the normal use of mental or physical

faculties by reason of the introduction of alcohol" 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 ahalf drinks between 7:30 p.m. and 11:30 p.m. Appellant said he felt the effects of the

alcohol "a little, but not to the point where [he] lost his faculties." Appellant denied

weaving between lanes. Appellant said the police stopped him at anoisy location and the

lights from the officer's car temporarily blinded him. He had difficulty hearing the officers

because he was not wearing his hearing aid (appellant has aforty-two percent hearing loss).

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

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hearing his questions. According to Olivas, appellant had trouble 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 not make any erratic gestures, drive on the shoulder of the 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 area was not well lit, but Cmet left 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 of his hearing problem, Cmet did not think this 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 of his 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

registered 0.12. In response to ahypothetical question from the defense, the State's expert

stated that aman weighing 200 pounds would have to consume between thirteen and nine-

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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

stemmed from hearing problems or the 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 intoxicated before and they did not think

he was intoxicated that night.

Appellant introduced two restaurant tabs from Ruggeri's. The bar tab totaled $15.50

and the dinner tab totaled $33.17 without tip. According to appellant, he consumed two and

ahalf drinks at the bar and aglass of wine with his meal. He argues the two tabs combined

prove he consumed only four drinks before leaving the restaurant. To prove he could not

have had aprevious tab, witnesses noted the restaurant's usual practice of clearing both tabs

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 of the 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

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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 of Public 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)

proof of the result by awitness or witnesses 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

requirement if the operator testifies he held aDepartment of Public Safety certificate and

followed the Texas Department of Public Safety rules. See Martin 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

operator and recertified him every year. Moreover, the Dallas County Medical Examiner's

technical supervisor had personal knowledge Cmet was certified on December 23, 1994.

The remainder of appellant's argument is unfounded in law or fact. Cmet testified

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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 and it operated

correctly. He testified that the test record (1) indicated Cmet followed the proper

operational methods of testing techniques and (2) reflected the results of the reference

analysis was within the tolerance of the predicted reference sample. On cross-examination,

the technical supervisor explained that in order for a test 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 it was .094. The technical supervisor's testimony established that Cmet

followed the proper techniques when conducting the breath analysis and explained how the

intoxilyzer 5000 contained abuilt in reference check to verify the test result's validity. We

overrule appellant'ssecond point of error.

In his third and fourth points, appellant contends the prosecutor's comments during

closing arguments inflamed the jury and struck at appellant over trial counsel's shoulders

thus constituting reversible error. The trial courtsustained appellant'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

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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 of Criminal Appeals reexamined adefendant's right to complain

about jury argument on appeal. The court held "a defendant's failure to object to ajury

argument or a defendant'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's jury argument. Because appellant failed 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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