### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00804- CR

Cornelio G arcia- Mata, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2012 -20 5, H ONO RAB LE CHARLES R. RAMSAY , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N A j ury found Cornelio Ga

rcia -Mata g uilty

of driving while intox icated, a nd further found that he had at least two prior DW I co n v ictions and that he used a deadly wea pon in committing t he offense. The jury assessed s en t en ce at life i n prison. Appellant contends that the trial court erre d by excluding two v ideotapes, one showing that, contra ry to the arresting office rs’ testimony , appellant h it his head g etting into the police car , and the other showing that appellant had difficulty with the Eng lish lang uag e. Appellant contends that t h e exclusion of this evidenc e preve nted him from impeac hing the office rs on their lack of memory that he hit his head. He also

asser ts that the exclusion of evidenc e preve nted him from supporting his contention that he did not

u nderstand the office rs, which would have rebutted or explained the office rs’ testimony that he faile d to comply with their instructions on the field sobriety tests. He contends t h at these limit ations impinged on his Six th Amendment rig ht to confr ont witnesses. See U.S. Const. amend. VI

. We will aff irm the judg ment of convic tion.The State contends that appellant d i d not prese nt these particula r arg uments to the trial court when offe ring the ev i d en ce an d there by waived them. The S tate also contends that the evidenc e is improper impeachme nt on a collater al matter. Finally , the State arg ues that any err or in the admission of the evide nce is ha rmless. Ex clusion of evidenc e prese nts reve rsible err or only when it is harmful—e ven when the exclusion may touch on constitutional rig hts. See Tex. R. App. P. 44.2; see also W alters v. State , 247 S.W .3d 204, 219 (Tex. Crim. App. 2007) (non-c onstitut ional err or); Ray v. State , 178 S.W .3d 833, 835 (Tex. Crim. App. 2005) (constitutional err or). We must reve rse for err ors of constitutional dimension unless we determine bey ond a reasonable doubt that the error d i d n o t co ntribute to the conviction or punishment. Tex. R. App. P. 44.2(a).

Even assuming solely for the sake of discussion that appellant prese rved the err or, that the trial court err ed by excluding the evidenc e, and that the exclusion aff ecte d his constitutional ri gh t s , we find no harmful err or under any applicable standard. Ey ewitnesses testified about appellant’s err atic and dang erous driving

. He drove inconsistent speeds, often much slower than the ambient speed, and drifted acr oss lanes of traff ic on I nterstate 35. Wit nesses testified that many dri v er s h ad t o swerve to avoid hitting or being sideswiped by his slower- moving vehicle. They fea red that a larg e pileup was imminent. A police office r testified about his persona l observa tion of appellant drifting acr oss and back on the acc ess road. The office r testified reg arding the strong odor of alcohol emitted from the vehicle, appellant’ s bloodshot and g lassy ey es, appellant’ s difficulty in turning off the vehicle and producing a driver’ s license, appellant’ s unsteadiness in standing outside the truck, appellant’ s appar ent urination on himself befor e and during the stop, and a fellow office r’s discovery o f two open, cool-to-the- touch, near ly empty 24-ounce cans of beer inside the truck.

2Throug h an interpr eter , appellant testified reg arding his difficulties understanding the offic ers, his unfamiliarity with the manual tra nsmissi on in the vehicle he was driving , and a me dical condition that might have ca u s ed u n controllable urination. He also admitted he was driving on the public roads and that h e t h o u gh t h e might have been intox icated beca use he was “quite drunk” the day befor e, might still have had some alcoho l i n h i s s y s t em when he g ot up, had not eate n, and had consumed two more beer s. His blood-alcohol conce ntration as tested at the hospital afte r his arr est reg istered .446 g rams of alcohol per 100 milli liters of blood—more than 5.5 times g rea ter than the leg al limit

. See Tex. Penal Code § 49.01. Even if the excluded video evidenc e showed that he had trouble with Eng lish and that, contra ry to police testimony , appellant hit his head on the roof of the police car, it would not have a dded evide nce of any counter weig ht on the elements of the offe nse. We conclude bey ond a rea sonable doubt that any err or in excluding the evidenc e did not contri b u te to appellant’ s conviction or punishment. Any err or in excluding evidenc e did not otherwise a ffe ct his substantial rights. We af firm the judg ment.

J eff Rose, J ustice Be fore J ustices Pury ear , Rose, and Goodwin Affir med Filed: Aug ust 6, 2014 Do Not Publish

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