NUMBER 13-12-00411-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

DAMIAN RAMIREZ CAVAZOS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the County Court at Law No. 6

of Hidalgo County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez, Justices Garza, and Perkes

Memorandum Opinion by Justice Perkes

Appellant Damian Ramirez Cavazos appeals his conviction of driving while 

intoxicated, a class B misdemeanor. See TEX. PENAL CODE ANN. § 49.04 (a)–(b) (West 

2011). After a jury found appellant guilty, the trial court assessed punishment at one 

hundred eighty days’ confinement in the county jail, suspended for one year. By two
2

issues, appellant argues: (1) the evidence was insufficient to convict; and (2) the trial 

court should have granted appellant’s motion for mistrial. We affirm.

I. BACKGROUND1

Trooper Alfonso Lorezo Jarero Jr. stopped appellant for running a red light in his 

vehicle. Trooper Jarero testified that upon making contact with appellant, he smelled a 

strong odor of alcohol on appellant’s breath. Appellant informed Trooper Jarero that he 

had drunk about six or seven twelve-ounce beers. Trooper Jarero administered three 

standard field sobriety tests: the horizontal gaze nystagmus (HGN) test, the 

walk-and-turn test, and the one-leg stand test. According to Trooper Jarero, appellant 

showed all six clues of intoxication on the HGN test, four of the eight possible clues on the 

walk-and-turn test, and three of the four clues on the one-leg stand test. Trooper Jarero 

arrested appellant for driving while intoxicated. 

At the San Juan Police Department, Trooper Jarero interviewed appellant. In the 

interview, appellant told Trooper Jarero that he actually consumed about twelve beers. 

Trooper Jarero used an intoxilyzer to obtain breath samples from appellant. One sample 

was deficient, and Trooper Jarero speculated that appellant “didn’t blow hard enough.” 

The other two samples registered a blood alcohol concentration of .181 and .183. 

Marry Ann Perales, the technical supervisor responsible for maintaining and 

calibrating the intoxilyzer that Trooper Jarero used to collect appellant’s breath samples, 

testified that she tested the intoxilyzer about one month before and a few days after 

appellant’s arrest. She affirmed the intoxilyzer was operating correctly on those dates. 

 

1

 Because this is a memorandum opinion and the parties are familiar with the facts, we will not 

recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for 

it. See TEX. R. APP. P. 47.4. 
3

Perales stated that, in her opinion, appellant was intoxicated. The State asked Perales if 

she could approximate the level of appellant’s blood alcohol content at a time about one 

hour before he provided the breath samples. Perales responded that she could not give 

an exact number, but she asserted, “I can tell you he was above the legal limit.” 

II. SUFFICIENCY OF THE EVIDENCE

By his first issue, appellant contends the evidence was insufficient to support his 

conviction. We disagree.

A. Admissibility of Evidence

As a preliminary matter, although appellant frames his argument as a sufficiency 

challenge, much of his issue questions the admissibility of certain evidence. Specifically, 

appellant discounts Trooper Jarero’s testimony regarding the standard field sobriety tests 

because “he was not shown to be certified to conduct field sobriety tests and because he 

failed to adequately and correctly administer the field sobriety tests in accordance with 

the instructions and guidelines contained in the NHTSA [National Highway Traffic Safety 

Administration] Manual.” 2 Appellant similarly characterizes Perales’s testimony of 

appellant’s level of intoxication about an hour before providing the breath samples as 

“deficient, incompetent, and inadmissible” because it was “devoid of any concrete factual 

 

2

 Appellant acknowledges that he did not offer the National Highway Traffic Safety Administration 

Manual into evidence in the trial court, but he encourages us to take judicial notice of it pursuant to Emerson 

v. State, 880 S.W.2d 759, 764–66 (Tex. Crim. App. 1994) and Chapa v. State, 729 S.W.2d 723, 728 n.3 

(Tex. Crim. App. 1987). Those cases allow an appellate court to take judicial notice of evidence not 

previously admitted in assessing the universal admissibility of certain evidence, see Emerson, 880 S.W.2d 

at 764–66 (evaluating the legitimacy of horizontal gaze nystagmus test to measure intoxication levels), or 

the fundamental validity of a legal argument, see Chapa, 729 S.W.2d at 728 n.3 (holding judicial notice of 

legislative fact helps determine when society recognizes an expectation of privacy as a reasonable one). 

The cases do not exempt a party from moving to admit available evidence. See Emerson, 880 S.W.2d at 

764–66; Chapa, 729 S.W.2d at 728 & n.3. 
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or scientific basis, [and] it was largely an exercise of conjecture and speculation.”

Because appellant did not object to the admissibility of either witness’s testimony

in the trial court, we will not rule on its admissibility. See TEX. R. APP. P. 33.1 (as a 

prerequisite to presenting an issue on appeal, the appellant must have timely objected to 

the trial court, stating the specific objectionable grounds and obtaining a ruling on the 

objection); Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007).

3

 Regardless, 

even if the testimony was improperly admitted, we nevertheless consider all evidence, 

admissible and inadmissible, in our sufficiency review. See Johnson v. State, 967 

S.W.2d 410, 412 (Tex. Crim. App. 1998) (citing Gardner v. State, 699 S.W.2d 831, 835 

(Tex. Crim. App. 1985) (en banc)); Jaynes v. State, 216 S.W.3d 839, 845 (Tex. 

App.—Corpus Christi 2006, no pet.) (citing Moff v. State, 131 S.W.3d 485, 488 (Tex. 

Crim. App. 2004)). 

B. Standard of Review

“The standard for determining whether the evidence is legally sufficient to support 

a conviction is ‘whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original); 

see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). 

“The jury is the exclusive judge of the credibility of the witnesses and of the weight to be 

 

3

 Appellant’s cross-examination of Trooper Jarero extensively covered the administration of the 

standard field sobriety tests, and the trial court admitted and published to the jury, without objection, a DVD 

recording of Trooper Jarero’s administration of the standard field sobriety tests. See Lane v. State, 151 

S.W.3d 188, 193 (Tex. Crim. App. 2004) (holding that error in the admission of evidence is cured when it 

comes in elsewhere without objection); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (same).
5

given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the 

evidence.” Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc) 

(citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)).

We measure the sufficiency of the evidence by the elements of the offense as 

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 

1997)). Such a charge is one that accurately sets out the law, is authorized by the 

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily 

restrict the State’s theories of liability, and adequately describes the particular offense for 

which the defendant was tried. Id. A person commits the offense of driving while 

intoxicated if the person is intoxicated while operating a motor vehicle in a public place. 

TEX. PENAL CODE ANN. § 49.04. “Intoxicated” means “not having the normal use of 

mental or physical faculties by reason of introduction of alcohol, a controlled substance, a 

drug, a dangerous drug, a combination of two or more of those substances, or any other 

substance in the body.” Id. § 49.01(2)(A). “Intoxicated” can also mean, “having an 

alcohol concentration of .08 or more.” Id. § 49.01(2)(B). 

C. Analysis

It is undisputed that appellant was operating a motor vehicle in a public place. 

The strongest evidence that appellant was intoxicated while operating the vehicle was 

that his breath sample registered a .181 and .183 blood alcohol concentration—clearly in 

excess of the .08 legal limit—about an hour after Trooper Jarero stopped him. See TEX.

PENAL CODE ANN. § 49.01(2)(B). Perales gave unobjected-to testimony that appellant’s 
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blood alcohol concentration would have been above the legal limit about an hour before 

he submitted the breath samples. This evidence alone was sufficient to convict 

appellant. See Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012) (citing 

Kitchens v. State, 823 S.W.2d 256, 258–59 (Tex. Crim. App. 1991) (en banc) (“When a 

jury returns a general guilty verdict on an indictment charging alternate methods of 

committing the same offense, the verdict stands if the evidence is sufficient to support a 

finding under any of the theories submitted.”). 

Alternatively, Trooper Jarero testified that he arrested appellant for driving while 

intoxicated because appellant performed poorly on the standard field sobriety tests. The 

court admitted and published a DVD recording of appellant performing the tests. 

Trooper Jarero expressly affirmed that, based on his observations, appellant had lost the 

normal use of his mental and physical faculties. See TEX. PENAL CODE ANN. § 

49.01(2)(A). 

We defer to the jury as the sole judge of the credibility of the witnesses and of the 

weight to be given their testimony. See Wesbrook, 29 S.W.3d at 111. Viewing the 

evidence in the light most favorable to the prosecution, we conclude a rational jury could 

have found the essential elements of driving while intoxicated beyond a reasonable 

doubt. See Johnson, 364 S.W.3d at 293–94. Thus, as an alternative to proving the 

offense with evidence of appellant’s blood alcohol concentration, Trooper Jarero’s 

testimony and evidence of appellant’s poor performance of the standard field sobriety 

tests constituted sufficient evidence to convict. See Sanchez, 376 S.W.3d at 775. We 

overrule appellant’s first issue.
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III. MOTION FOR MISTRIAL

By his second issue, appellant argues the trial court erred in failing to grant his 

motion for mistrial because Trooper Jarero improperly commented on appellant’s right to 

remain silent. See U.S. CONST. amend. V; TEX. CONST. art. I, § 10; TEX. CODE CRIM.

PROC. ANN. art. 38.08 (West 2005). The complained-of comment came during defense 

counsel’s cross-examination of Trooper Jarero. Trooper Jarero testified that appellant, 

in running the red light, almost hit Trooper Jarero’s vehicle. Defense counsel, trying to 

discredit Trooper Jarero, asked why Trooper Jarero did not include that information in his 

arrest report. Trooper Jarero responded, “Why don’t you put him on the stand in [sic] ask 

him?” Defense counsel objected to the comment, and the trial court sustained the 

objection and struck the statement from the record.4 The trial court then denied a 

requested motion for mistrial. 

A. Standard of Review

We review a trial court's ruling on a motion for mistrial under the 

abuse-of-discretion standard. See Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. 

App. 2007). We view the evidence in the light most favorable to the trial court's ruling 

and uphold the ruling if it is within the zone of reasonable disagreement. See id. (citing 

Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)).

A mistrial is a severe remedy, and “[o]nly in extreme circumstances, where the 

prejudice is incurable, will mistrial be required.” Hawkins v. State, 135 S.W.3d 72, 77 

(Tex. Crim. App. 2004) (en banc). “A mistrial is the trial court's remedy for improper 

 

4

Appellant did not ask the trial court to instruct the jury to disregard Trooper Jarero’s statement. 

No instruction to disregard was given. 
8

conduct that is ‘so prejudicial that expenditure of further time and expense would be 

wasteful or futile.’” Id. (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.

1999)). “Therefore, a mistrial should be granted only in the cases where the ‘reference 

was clearly calculated to inflame the minds of the jury or was of such damning character 

as to suggest it would be impossible to remove the harmful impression from the juror's 

minds.’” Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009) (quoting Rojas v. 

State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998)). Otherwise, sound discretion 

normally requires the trial judge to consider less drastic alternatives. Torres v. State,

614 S.W.2d 436, 442 (Tex. Crim. App. [Panel Op.] 1981). 

In determining whether a mistrial should have been granted, three factors must be 

balanced: (1) the severity of the misconduct (prejudicial effect); (2) curative measures; 

and (3) the certainty of conviction absent the misconduct. Archie v. State, 221 S.W.3d 

695, 700 (Tex. Crim. App. 2007) (citing Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim.

App. 2004)).

B. Discussion

We agree with appellant and the trial court that Trooper Jarero’s comment was 

improper. Viewed in context, however, Trooper Jarero’s retort was unrelated to 

appellant’s level of intoxication; Trooper Jarero was defending his credibility, which 

defense counsel attempted to undermine by asking why certain details discussed in the 

trooper’s testimony did not appear in his arrest report. Once the court sustained the 

objection and struck the remark, Trooper Jarero did not repeat the statement. 

First, we hold the statement was not so severe that it was impossible to remove 
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any harmful impression from the juror's minds. See Young, 283 S.W.3d at 878. 

Second, the trial court’s curative measures of sustaining the objection and striking it from 

the record were sufficient to remove the impression from the jurors’ minds.5 Third, as 

discussed in the previous section, the evidence that appellant was driving while 

intoxicated was very strong. Appellant’s conviction resulted from the strength of the 

evidence rather than Trooper Jarero’s comment, especially given that the comment was 

unrelated to appellant’s level of intoxication. Thus, on balance, the three factors weigh 

against the extreme remedy of a mistrial. See Archie, 221 S.W.3d at 700. 

Viewing the evidence in the light most favorable to the trial court’s ruling, we 

conclude the ruling fell within the zone of reasonable disagreement. See Webb, 232 

S.W.3d at 112. We overrule appellant’s second issue. 

IV. CONCLUSION

We affirm the trial court’s judgment. 

 

GREGORY T. PERKES

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

6th day of February, 2014.

 

5

 The jury charge properly informed the jury that appellant’s silence was not to be held against 

him. We presume the jury followed the jury charge absent a contrary showing. See, e.g., Casanova v. 

State, 383 S.W.3d 530, 543 & n.56 (Tex. Crim. App. 2012).