In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-17-00172-CR

___________________________

On Appeal from County Criminal Court No. 8

Tarrant County, Texas

Trial Court No. 1372941

Before Walker, Meier, and Gabriel, JJ.

Memorandum Opinion by Justice Gabriel

JEREMY S. HAYES, Appellant

V.

THE STATE OF TEXAS
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MEMORANDUM OPINION

Appellant Jeremy S. Hayes appeals from his conviction of misdemeanor driving 

while intoxicated. In two points, Hayes argues that the trial court erred by limiting his 

cross-examination of the arresting officer. Because Hayes failed to preserve one of 

his arguments for our review and because the trial court did not abuse its discretion, 

we overrule his points and affirm the trial court’s judgment.

On May 25, 2014, Officer Cleburn Ray Eardley pulled Hayes over after seeing 

him commit a traffic violation. Eardley noticed that Hayes smelled of alcohol and 

had bloodshot eyes. After Hayes exhibited intoxication clues on three field-sobriety 

tests, Eardley arrested him for driving while intoxicated. Based on a breath test, 

Hayes’s blood-alcohol content was determined to be 0.128. 

At trial, Eardley testified to the field-sobriety tests that he gave to Hayes and 

explained the effects of alcohol, metabolized alcohol, and how the horizontal-gazenystagmus test relates to intoxication. Eardley also testified that he properly read 

Hayes the required warnings before requesting a breath specimen and that he placed a 

copy of the warnings on Hayes’s lap after handcuffing him and putting him in the 

back of his patrol car. See Tex. Transp. Code Ann. § 724.015 (West Supp. 2018). 

Hayes attempted to cross-examine Eardley with evidence of his prior disciplinary 

history as a police officer. The trial court denied Hayes’s proffer, ruling that the 

evidence was not admissible. 
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Hayes now asserts on appeal in his first point that the trial court abused its 

discretion by not allowing him to cross-examine Eardley about his disciplinary history 

to attack his credibility because Eardley was an expert witness. But at trial, Hayes 

argued that he sought admission of the evidence “not for impeachment purposes” but 

only to show Eardley’s “lack of mistake” under rule 404(b). See Tex. R. Evid. 

404(b)(2). At no point did he assert that the evidence went to Eardley’s credibility or

to Eardley’s qualifications as an expert as he now argues on appeal. See Tex. R. Evid.

702. Indeed, the trial court stated that it would “not allow the 404(b) inquiry as to 

lack of mistake.” Hayes’s trial argument urging admission of the evidence under rule 

404(b) does not comport with his appellate argument attacking Eardley’s expert 

qualifications under rule 702; thus, he has failed to preserve this point for our review. 

See Reyna v. State, 168 S.W.3d 173, 176–77 (Tex. Crim. App. 2005); Merrick v. State, 

Nos. 02-17-00035-CR, 02-17-00036-CR, 2018 WL 651375, at *7, *14 (Tex. App.—

Fort Worth Feb. 1, 2018, pet. ref’d). We overrule Hayes’s first point.

In his second point, Hayes asserts that the exclusion of Eardley’s disciplinary 

history was an abuse of discretion because evidence of Eardley’s past violations of

police policy would have tended to show that Eardley did not make a mistake on the 

date of the arrest when he failed to physically give Hayes a copy of the warnings form. 

Hayes is correct that we review the trial court’s evidentiary ruling for an abuse of 

discretion, which occurs only if the exclusion was so clearly wrong as to fall outside 

the zone of reasonable disagreement. See Merrick, 2018 WL 651375, at *14. Evidence 
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of lack of mistake is rebuttal evidence that becomes relevant only when the witness 

admits the misconduct but claims it was a mistake. See Johnston v. State, 145 S.W.3d 

215, 222 (Tex. Crim. App. 2004). Evidence of other conduct by the witness that 

“tends to show that his actions on those occasions, and hence on this occasion as 

well, were not mistaken” then becomes admissible under rule 404(b)(2) to tend to 

show a lack of the claimed mistake. Id. 

Here, Hayes asserted to the trial court that Eardley’s misconduct was his failure 

to physically give Hayes a copy of the warnings after he was placed under arrest. But 

Eardley’s undisputed testimony was that he placed a copy in Hayes’s lap, and the trial 

court found that he had done so. There was no evidence that Eardley failed to give 

Hayes a copy of the warnings form as a result of a mistake. Accordingly, any evidence 

of Eardley’s purported infractions of police policies was not admissible under rule 

404(b)(2) to show absence of mistake, and the trial court did not abuse its discretion 

by excluding the proffered evidence on that basis. See id. at 223–24. We overrule 

issue two.

Having overruled Hayes’s two appellate points, we affirm the trial court’s 

judgment.

/s/ Lee Gabriel

Lee Gabriel

Justice

Do Not Publish

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

Delivered: October 18, 2018