COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00194-CR

JAY STEVEN MILLER APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY

TRIAL COURT NO. 1222709

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MEMORANDUM OPINION1

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A jury convicted Appellant Jay Steven Miller of driving while intoxicated

(DWI), and the trial court sentenced him to ninety days’ confinement, probated for

two years, and a fine of $1,000. Appellant brings a single point on appeal,

arguing that the trial court reversibly erred by overruling his objection to the

 1

See Tex. R. App. P. 47.4.
2

prosecutor’s improper jury argument. Because Appellant failed to preserve this

complaint, we affirm the trial court’s judgment.

Brief Facts

Appellant was arrested after he left a bar in Fort Worth. The bar’s doorman

called the police after witnessing Appellant twice back his car into another car in

the bar’s parking lot. The doorman stood behind Appellant’s car to prevent his

leaving until the police could arrive. The police arrested Appellant for DWI.

At trial, the State called as a witness John Neese, a breath test operator for

the City of Fort Worth. Neese testified that he conducted a breath test on

Appellant after waiting for a required observation period and that the observation

period had to be at least fifteen minutes. The State then called Mark Fondren, a

forensic chemist with the Tarrant County Medical Examiner’s office. During

Fondren’s testimony about the use of an intoxilyzer, the prosecutor asked him

what the purpose was for the fifteen-minute waiting period. He responded,

The purpose is actually twofold. First, it is a specific

requirement within the rules and regulations of breath testing, that

the operator have that individual in their presence for at least 15

minutes.

Secondly, and the reason it is a requirement, we want the

operator to take steps during that time period to ensure that the

subject doesn’t consume any other beverages, whether that be

alcoholic or nonalcoholic; to be watchful that they don’t place other

foreign materials into their mouth, that would be like gum, mints,

things of that nature; and to be on guard that the subject doesn’t

burp, belch or regurgitate stomach contents that may or may not

contain alcohol back up to the mouth.
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Fondren further stated that

[t]he 15 minutes was originated within the rules of breath

testing, not only Texas but breath testing as a science, back when

we used chemicals. We used different reagents and actually could

not tell the difference between a contaminated breath profile versus

a noncontaminated. That’s one of the advantages of a infraredbased instrument as compared to a chemical reagent-type test.

Later in Fondren’s testimony, the prosecutor asked him if the test record

indicated that the proper techniques were followed. Fondren answered that the

record did not mention the fifteen-minute waiting period but that by looking at the

record, he could “see that all the steps were completed.”

During closing argument, the prosecutor made the following argument

based on Fondren’s testimony:

Let’s talk about this 15-minute waiting period. You heard from

Mark Fondren that that 15-minute waiting period is from an old

guard. It’s from an old instrument, an old technology that they don’t

use anymore. For all intents and purposes, it’s pointless. The only

reason it must be observed is because the law says it has to. Well,

guess who gets to decide whether evidence goes before you or not,

whether evidence is admissible in court? He does, Judge Mills.

If the proper procedure—

Appellant objected that the prosecutor’s argument was “a misinterpretation

to the jury. That is a guideline that’s held through the operator’s manual, not a

law in the State of Texas.” The trial court overruled the objection. The

prosecutor then continued, “If the proper process, the 15-minute waiting period,

was not observed in this case, it is an illegally obtained sample, it is not
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admissible in court, you would not hear about it. That’s the bottom line.”

Appellant did not object to this repetition of the argument.

Preservation of Appellate Complaint

In his sole point on appeal, Appellant argues that the trial court reversibly

erred by overruling his objection to the State’s jury argument because the

prosecutor mischaracterized the judge’s role. To preserve a complaint for 

appellate review, a party must object each time the objectionable argument is 

made or else secure a running objection to the argument.2

 Appellant did not 

object when the prosecutor repeated essentially the same argument to which he 

had objected. Appellant has, therefore, failed to preserve his complaint for 

appellate review. Even if we were to hold that he preserved error regarding the 

 2

Johnson v. State, No. 02-06-00348-CR, 2007 WL 1952367, at *1 (Tex. 

App.—Fort Worth July 5, 2007, no pet.) (mem. op., not designated for 

publication) (“Because [Johnson] failed to obtain an adverse ruling on all 

objections to the prosecutor calling him mad and all objections to the prosecutor 

contending that [Johnson] wanted to get even with the complainant, [Johnson]

has failed to preserve these points for appeal.”); Helleson v. State, 5 S.W.3d 393, 

398 (Tex. App.—Fort Worth 1999, pet. ref’d); see, e.g., Fuentes v. State, 991 

S.W.2d 267, 273 (Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999); 

Stevenson v. State, 304 S.W.3d 603, 618 (Tex. App.—Fort Worth 2010, no pet.);

Montgomery v. State, 198 S.W.3d 67, 81 (Tex. App.—Fort Worth 2006, pet. 

ref’d); Moore v. State, 154 S.W.3d 703, 710 (Tex. App.—Fort Worth 2004, pet. 

ref’d); Glassey v. State, 117 S.W.3d 424, 432 (Tex. App.—Fort Worth 2003, no 

pet.) (all standing for same proposition regarding admission of evidence).
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individual argument to which he timely objected, we would also hold such error, if 

any, harmless because of the similar, unobjected-to argument.3

We overrule Appellant’s sole point on appeal and affirm the trial court’s 

judgment.

/s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: April 16, 2015

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See Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); Leday v. 

State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).