Gibson, Nathan Wayne v. State ( 2000 )

NUMBER 13-00-138-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

NATHAN WAYNE GIBSON

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 138th District Court of Cameron County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Hinojosa, Yañez, and Kennedy⁽¹⁾ Opinion by Retired Justice Kennedy

Appellant appeals his conviction for felony driving while intoxicated (DWI). A jury found him guilty and then assessed punishment at confinement for ten years.

Appellant's brief brings six points of error. The State has not filed a brief herein.

The first point of error complains that the State failed to prove all factual elements alleged in the indictment. Specifically, appellant alleges that the State has failed to prove that appellant is the same person who was "twice before" convicted for DWI as alleged in the indictment.

The indictment alleges, in its second paragraph, that appellant was three times convicted of DWI in county courts at law of Cameron County. Then, in its third paragraph, it alleges a prior felony DWI conviction in Dallas County. An exhibit, commonly known as a "pen pack," was admitted by the court in the punishment phase of the trial. The pen pack showed a person with appellant's name to have been convicted in Dallas County on the date alleged in the third paragraph of the indictment. It contains a photograph of someone. Another exhibit, known as a DPS driving record, was also admitted into evidence in the punishment phase of the trial. The driving record shows three prior convictions in Cameron County, the case number and date of each of which correspond to prior convictions alleged in the indictment. The exhibit also contains a photograph of a person. These exhibits, including the photographs, were shown to the jury which, correctly charged by the trial court, found appellant guilty and assessed his punishment within the range provided for a felony DWI.⁽²⁾

In construing Article 42.08⁽³⁾

of the Code of Criminal Procedure dealing with cumulative or concurrent sentencing, the Court of Criminal Appeals has said, "Article 42.08(b) clearly and plainly does not require 'record evidence of the prior conviction and that [appellant] was the person convicted.' And our decision in Resanovich⁽⁴⁾ did not decide Article 42.08(b) required this." Bell v. State, 994 S.W.2d 173, 174 (Tex. Crim. App. 1999). (Emphasis added) There was no need for further proof of appellant's identity. We overrule point of error number one.

Appellant's point of error two states: "Appellant's conviction should be overturned on the basis that the court erred in not allowing lesser-included offenses in the charge to the jury. Appellant made a timely objection to the failure of the judge to include such in the charge and the objection was overruled."

Appellant argues that the jury could have convicted appellant for first or second misdemeanor DWI if it had doubts about whether appellant was the same person as shown in the pen pack or the driving record.

Article 37.09 of the Code of Criminal Procedure provides: "An offense is a lesser-included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;..." Tex. Code Crim. Proc. Ann. art. 37.09(1) (Vernon 1981).

A defendant is entitled to an instruction on a lesser-included offense where the proof for the offense charged includes the proof necessary to establish the lesser-included offense and there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Forrest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999). The evidence must establish the lesser-included offense as a valid, rational alternative to the charged offense. Id. While there is evidence in the record (the pictures) to show that appellant is the same person convicted in the Cameron County and Dallas County cases alleged in the indictment, there is no evidence tending to show he is not this person. There is nothing to establish the lesser-included offense as a valid, rational alternative to the charged offense. We overrule the second point of error.

Point of error number three argues that the trial court erred in preventing appellant from cross-examining the arresting officer about a plea the officer made to making false police reports wherein the officer was granted deferred adjudication. Appellant concedes that Rule 609(a) of the Texas Rules of Evidence prohibits such impeachment, however, he argues that the rule would not apply if a showing can be made that the witness has testified as a result of bias, motive or ill-will emanating from his status of deferred adjudication, citing Collins v. State, 780 S.W.2d 176, 196 (Tex. Crim. App. 1986). Appellant makes no reference to the record to substantiate anything he has alleged in this point of error. We have nothing before us to show what the arresting officer would have said with respect to whether his being placed on deferred adjudication might have caused him to testify falsely in the case because of bias or ill-will. Without more knowledge of the status of the witness sought to be impeached herein, we are unable to determine whether there is error as alleged in point of error number three. We overrule this point.

Point of error four argues that it was error for the court to admit into evidence a picture of appellant without the court first determining that it was relevant. He also argues that the probative value of the photograph is outweighed by the danger of unfair prejudice and that it was offered to influence the jury. The exhibit is a photograph of appellant the night he was arrested. When it was tendered by the State, appellant's attorney objected as follows:

[Defense counsel]: I object, Your Honor, because it hasn't been properly authenticated. The witness has no personal knowledge as to that document. It's not been established as a business record or it has not been established as a proper exhibit, so I object on those grounds.

Because appellant's trial objection does not comport with the issue raised on appeal, we find that he has preserved nothing for our review. Floyd v. State, 959 S.W.2d 706, 712 (Tex. App. ­ Fort Worth 1998, no pet.). We overrule point of error four.

Point of error five levels the same objection to the admission of appellant's driving record⁽⁵⁾

into evidence as that in point number four. Appellant's brief refers us to pages 89-90 of volume three of the reporter's record for his trial objection. The referenced objection is:

[The Court]: And You're objecting to even those pictures coming in?

[Defense counsel]: Yes because of no proper authentication.

Again, we overrule this point of error because the objection made at trial does not comport with the issue raised on appeal. Floyd, 959 S.W.2d at 712.

Appellant's sixth and final point of error challenges the trial court's permitting the arresting officer to testify as an expert on the horizontal gaze nystagmus test (HGN test). First, we note that the Court of Criminal Appeals has concluded that the theory underlying the HGN test is sufficiently reliable pursuant to Texas Rule of Criminal Evidence 702. Emerson v. State, 880 S.W.2d 759, 768 (Tex. Crim. App. 1994). The court took judicial notice of the reliability of both the theory underlying the HGN test and its technique. Id. at 769.

The arresting officer in our case testified that he had been certified by the State of Texas in 1995 to conduct the HGN test and that he had since been re-certified. He testified that he was certified at the time of trial. He told the trial court of his training, including a total of sixty four course hours of training at Texas A & M, and his experience with the test and was asked questions on voir dire by defense counsel. The trial court heard all of this before ruling that the officer could testify to his conclusion that the appellant did have vertical nystagmus.

In order for a witness's expert testimony to be admissible under Rule 702, the witness must qualify as an expert by "knowledge, skill, experience, training, or education." Tex. R. Evid. 702; Kerr v. State, 921 S.W.2d 498, 502 (Tex. App. ­ Forth Worth 1996, no pet.). Whether a particular witness qualifies as an expert is a decision to be made by the trial judge, and the judge has broad discretion in this area. Id. at 502. We overrule appellant's final point of error and AFFIRM the judgment of the trial court.

NOAH KENNEDY

Retired Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this the 21st day of December, 2000.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).

2. Tex. Code Crim. Proc. Ann. art. 42.08(b) (Vernon 2000).

3. Tex. Code Crim. P. art. 42.08(b) (Vernon 2000).

4. Resanovich v. State, 906 S.W.2d 40 (Tex. Crim. App. 1995)

5. Appellant's page reference to the record is not very helpful. The best we can figure is that he is referring to certified copies of previous convictions as alleged in the indictment.