NO. 12-07-00233-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LARRY RAY GOWIN, § APPEAL FROM THE EIGHTH

APPELLANT

V. § JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE § RAINS COUNTY, TEXAS

 

MEMORANDUM OPINION

Larry Ray Gowin appeals his conviction for driving while intoxicated, for which he was

sentenced to imprisonment for fifteen years. In two issues, Appellant challenges the admissibility

of testimony proffered by one of the State’s expert witnesses. We affirm.

BACKGROUND

On the evening of October 11, 2005, Appellant was notified that his house was on fire. As

Appellant drove slowly toward his home, he was followed closely by a fire truck. The fire truck had

activated its lights and siren in an apparent attempt to signal to Appellant to allow it to pass. As

Appellant approached his house, he stopped his vehicle in the middle of the roadway. But in

response to the prompting of police officers on the scene, Appellant moved his vehicle into a nearby

driveway, nearly striking a parked car as he did so. Ultimately, the fire truck was able to pass

Appellant and reach his burning house.

Emory Police Chief Bruce Feagin observed that Appellant struggled to walk as he exited his

car. Feagin further noted that Appellant’s speech was so slurred that it was difficult to understand
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him. Officer Tracy Rosson smelled the odor of alcohol on Appellant and in the car. Rosson further

observed that Appellant seemed dazed and confused and that his eyes were bloodshot. Concluding

that Appellant was, as a result of his intoxication, a danger to himself, the firefighters, and everyone

else present, Feagin instructed officers to arrest Appellant.

Rosson transported Appellant to jail. At the jail, Rains County Sheriff’s Deputy John

Wallace performed a full sobriety test on Appellant, which included a horizontal gaze nystagmus

(“HGN”) test.

Appellant was charged by indictment with felony driving while intoxicated and pleaded “not

guilty.” The matter proceeded to a jury trial. Ultimately, the jury found Appellant “guilty” as

charged. Following a trial on punishment, the jury assessed Appellant’s punishment at imprisonment

for fifteen years. The trial court sentenced Appellant accordingly, and this appeal followed.

HGN TEST SCREENING

In his first issue, Appellant argues that the trial court erred in admitting into evidence the

results of the HGN test because Wallace failed to sufficiently screen him for factors other than

alcohol that could potentially contribute to or cause nystagmus. The State contends that Appellant

has failed to preserve error.

As a prerequisite to presenting a complaint for appellate review, the record must reflect that

the complaint was made to the trial court by a timely request, objection, or motion that stated the

grounds for the ruling the complaining party sought from the trial court with sufficient specificity

to make the trial court aware of the complaint. See TEX. R. APP. P. 33.1(a); see also TEX. R. EVID.

103 (error may not be predicated upon a ruling that admits evidence unless a timely objection or

motion to strike appears of record, stating the specific ground of the objection, if the specific ground

was not apparent from the context). Rules 33.1 and 103 are“judge protecting” rules of error

preservation. See Martinez v. State, 91 S.W.3d 331, 335 (Tex. Crim. App. 2002). The basic

principle of both rules is that of “party responsibility.” Id. Thus, the party complaining on appeal

about a trial court’s admission of evidence must, at the earliest opportunity, have done everything

necessary to bring to the judge’s attention the rule in question and its precise and proper application

to the evidence in question. Id. at 335–36. Moreover, the objection at trial must comport with the
See Vela v. State, 209 S.W.3d 128, 133–34 (Tex. Crim. App. 2006) (discussing reliability of expert 1

testimony); see also TEX. R. EVID. 705(c).

See TEX. R. EVID. 402, 403, 702. 2

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issue on appeal. See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); see also

Martinez, 91 S.W.3d at 336.

Two general policies underlie the requirement that a complaining party make a specific

objection. Martinez, 91 S.W.3d at 336. First, a specific objection is required to inform the trial

judge of the basis of the objection and afford him the opportunity to rule on it. Id. Second, a

specific objection is required to afford opposing counsel an opportunity to remove the objection or

supply other testimony. Id. Stated more broadly, objections promote the prevention and correction

of errors. Id. When valid objections are timely made and sustained, the parties may have a lawful

trial. Id. They, and the judicial system, are not burdened by appeal and retrial. Id. When a party

is excused from the requirement of objection, the results are the opposite. Id. 

In the case at hand, Appellant objected to Wallace’s proposed testimony concerning his

administration of the HGN test because (1) the test was not administered properly and (2)

“[Appellant’s] got a bad eye, and there’s no explanation for it.” On appeal, Appellant argues that

Wallace’s “screening” of Appellant to determine factors other than alcohol that potentially contribute

to or cause nystagmus was limited to Wallace’s actually performing the test by looking for equal

pupil size and equal tracking. Thus, according to Appellant, Wallace’s employment of the HGN test

is not reliable. Appellant further argues that the testimony was not only unhelpful to the jury, but 1

was also misleading and unfairly prejudicial.2

Based on our review of the record, we are unable to conclude that Appellant’s objections

were sufficient to bring the rule in question as well as its precise and proper application to the

evidence in question. See Martinez, 91 S.W.3d at 335. Appellant’s first objection refers broadly

to Wallace’s administration of the HGN test. Appellant’s objection that there was “no explanation”

for his “bad eye” relates only loosely at best to his argument on appeal that there is no evidence that

Wallace properly screened Appellant prior to conducting the HGN test. As such, we hold that

Appellant’s objection to the trial court was not specific enough to inform the trial court of the basis

of the argument he now raises on appeal so as to afford the trial court the opportunity to rule on it.
 The record reflects that Appellant did not complete the specific description of his objection before

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requesting to conduct his voir dire examination of Wallace. From the face of the record, the most that can be

understood of Appellant’s objection is that it pertained to the HGN test.

 Given the lack of requisite specificity present in Appellant’s objection, the trial court’s ability to rule on

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such an objection presupposes that the substance of Appellant’s objection could be understood in light of the context

of his voir dire examination of Wallace.

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SeeTEX.R. APP. P. 33.1(a); Martinez, 91 S.W.3d at 336. Thus, we hold that Appellant has waived

the error, if any, of which he now complains. Appellant’s first issue is overruled.

QUANTIFYING HGN RESULTS IN TERMS OF BLOOD-ALCOHOL LEVEL

In his second issue, Appellant argues that the trial court erred in refusing to exclude

Wallace’s testimony that a failed performance on the HGN test would indicate a blood-alcohol level

of 0.08 or higher. The State again contends that Appellant has failed to preserve error.

In addition to the requirement that the complaining partymake a specific objection to the trial

court that comports with his argument on appeal, the record must reflect that the trial court ruled

on the complaining party’s request, objection, or motion, either expressly or implicitly, or refused

to rule and the complaining party objected to such refusal. See TEX. R. APP. P. 33.1(a). 

Here, during his description of how he typically conducts an HGN test, Wallace testified,

“When I take the stimulus with my finger over as far as your eye will go, the eye will start ticking,

and it shows the subject is over .08, because at that – at that time, I’m. . . .” Appellant interjected

a general objection and asked permission from the trial court to conduct a voir dire examination of 3

Wallace. The trial court granted Appellant’s request. Upon the conclusion of Appellant’s voir dire

examination, Appellant stated to the court that he had no further questions on voir dire, and the State

resumed its direct examination. 

Appellant’s objection was incomplete and lacked specificity. Furthermore, Appellant’s

request for voir dire was granted. Appellant neither made a subsequent, more specific objection to

Wallace’s statement regarding the correlation between HGN test results and blood alcohol level nor

did he request a ruling from the trial court with regard to the incomplete objection he initially

lodged. Therefore, we hold that Appellant has failed to preserve the error, if any, of which he now 4

complains. Appellant’s second issue is overruled.
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DISPOSITION

Having overruled Appellant’s first and second issues, we affirm the trial court’s judgment.

 SAM GRIFFITH 

 Justice

Opinion delivered September 17, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)