Gerald Christopher Kronenthal v. State ( 2020 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00138-CR
__________________
GERALD CHRISTOPHER KRONENTHAL, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the County Court at Law No. 1
Montgomery County, Texas
Trial Cause No. 18-331550
__________________________________________________________________
MEMORANDUM OPINION
Appellant Gerald C. Kronenthal was charged by information for the offense
of boating while intoxicated. See Tex. Penal Code Ann. § 49.06. A jury found
Kronenthal guilty of the offense charged, and the court assessed punishment at three
days in county jail and a fine of $1000. In two issues, Kronenthal challenges his
conviction. For the reasons outlined below, we affirm.
1
Evidence at Trial
The State called Game Warden Robert Apple (“the Game Warden”), as a
witness at trial. The Game Warden testified that his training at the game warden
academy included water safety violations, boating while intoxicated, water safety
inspections, and standardized field sobriety tests. The Game Warden agreed that he
was certified in standardized field sobriety testing, including the HGN test, and he
received training in Advanced Roadside Impairment Detection Enforcement and the
“seated battery of standardized field sobriety tests[.]” According to the Game
Warden, a water safety inspection includes checking registration and life jackets, but
he looks “for everything” including intoxication during a water safety stop. The
Game Warden testified that he does about twenty-five water safety inspections a
day, of which “maybe ten[]” include some investigation of alcohol use.
The defense made an objection stating that the Game Warden was about to
testify about certain field sobriety tests that were not standardized, validated, or
certified but were going to be offered as probable cause to detain Kronenthal
onshore. The defense argued that the non-standardized tests were “junk science[]”
that did not meet the Kelly 1 standard and evidence of the tests should not be
admissible.
1 See Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992) (“As a
matter of common sense, evidence derived from a scientific theory, to be considered
reliable, must satisfy three criteria in any particular case: (a) the underlying scientific
2
The trial judge dismissed the jury and allowed a suppression hearing outside
the presence of the jury. On voir dire, the Game Warden testified that on the day of
the incident, he approached a boat operated by Kronenthal and announced he was
going to do a water safety inspection. The Game Warden testified that he observed
two aluminum beer bottles on the boat and that Kronenthal did not seem to be
concentrating on what he was doing when he was pulling out life jackets for the
inspection. The Game Warden testified that he asked Kronenthal if he had been
drinking, and Kronenthal replied that he had consumed “like one beer that day.” The
Game Warden thought it was “a little odd” that Kronenthal did not give a definite
number. At that point, the Game Warden requested that Kronenthal say the alphabet
without singing, but Kronenthal sang it, and the Game Warden instructed him to
restart. The Game Warden testified that he believed that Kronenthal also said “X”
instead of “S.” According to the Game Warden, he then instructed Kronenthal to
count backwards from 37 to 17, and when counting Kronenthal said “29” instead of
“19.” The Game Warden further testified that Kronenthal did not speed up as
instructed during a finger-count test. At that point, the Game Warden believed that
Kronenthal could have been intoxicated based on Kronenthal’s admission that he
had been drinking beer and how Kronenthal had performed on the tests. The Game
theory must be valid; (b) the technique applying the theory must be valid; and (c) the
technique must have been properly applied on the occasion in question.”).
3
Warden then tried to get Kronenthal to perform the HGN test, and Kronenthal
requested that they go to shore because he had a knee problem. According to the
Game Warden, at this point Kronenthal was detained on the suspicion of boating
while intoxicated based on Kronenthal’s admission and performance on three tests.
According to the Game Warden, when they were on land, he administered the
horizontal gaze nystagmus (HGN), finger-to-nose, palm-pat, and hand-coordination
tests, and the Game Warden agreed that these are contained in the seated battery of
standardized field sobriety tests that he was certified by the National Association of
State Boating Law Administrators (NASBLA) to conduct. The Game Warden
testified that the alphabet and counting tests were not part of the NASBLA battery
of tests. According to the Game Warden, the HGN test in the NASBLA battery is
the same as in the NHTSA testing and the other tests are comparable to the NHTSA
tests. The Game Warden testified that he did not give the NHTSA walk-and-turn or
one-leg-stand tests when they were on land because Kronenthal had a knee injury
and because the boat ramp did not have a good, smooth surface.
The State played a recording from the Game Warden’s body camera. During
the playback, the Game Warden pointed out two beer cans on the boat. The playback
of the body camera recording included the HGN test. According to the Game
Warden, Kronenthal displayed four clues during the HGN test, but upon watching
the playback, the Game Warden believed that Kronenthal displayed additional clues.
4
The Game Warden testified that he was aware that NASBLA had done
research on the seated battery, but he did not know whether a control group was
used. The Game Warden also understood that the battery had been validated by the
Southern California Research Institute. According to the Game Warden, the palm-
pat and hand-coordination tests were “comparable[]” to the HGN, walk-and-turn,
and one-leg-stand tests and that overall, the seated battery of tests was comparable
to the standardized field sobriety tests. At this point, the court denied Kronenthal’s
motion to suppress. The jury was called back into the courtroom and the trial
continued.
The Game Warden testified that on May 12, 2018, he was patrolling Lake
Conroe for water safety violations. He signaled the boat for a random water safety
inspection, and he initially had no reason to suspect criminal activity. He testified
that Kronenthal, who had been driving the boat, pulled out lifejackets and throwables
until the Game Warden asked him to stop. Upon the Game Warden’s request,
Kronenthal asked a man sitting in the front of the boat to show the fire extinguisher
and a horn or whistle, and Kronenthal produced the boat’s certificate number and
registration, but Kronenthal did not sound the horn or show a whistle. According to
the Game Warden, he requested two things at once to observe concentration, focus,
and mental impairment. Based on how Kronenthal responded, the Game Warden
suspected that he might be intoxicated, and he also observed two beer cans and an
5
ice chest in the back of the boat. The Game Warden testified he asked Kronenthal if
he had consumed any alcohol that day, and Kronenthal replied “like one beer[,]” and
the Game Warden thought this indefinite response was odd. The Game Warden
asked Kronenthal if he felt intoxicated, and he said “[n]o.”
The Game Warden testified that “float tests” are simple tests for signs of
intoxication that include saying the alphabet without singing, counting backwards
from 37 to 17, and a finger-count test. According to the Game Warden, Kronenthal
sang the alphabet and stopped and restarted, and he thought he heard Kronenthal say
“X” instead of “S.” He then asked Kronenthal to count backwards from 37 to 17,
and Kronenthal said “29” instead of “19” and then corrected himself. The Game
Warden testified that Kronenthal did not perform the finger-count test as instructed.
The Game Warden next asked Kronenthal to step over to the Game Warden’s boat
and do the HGN test, but, pointing to a scar on his knee, Kronenthal said he was not
able to step over from his boat to the Game Warden’s boat, and the Game Warden
allowed Kronenthal to drive his boat to the dock, which was 50 to 100 yards away.
Upon arrival at the shore, the Game Warden tried to perform the HGN test,
but he had to start over several times because Kronenthal was unable to stay focused
on the stimulus for the whole test. After five attempts, the Game Warden was able
to complete the HGN test, he observed four clues for intoxication, and he was
starting to believe that Kronenthal was intoxicated.
6
The Game Warden administered the seated sobriety tests because Kronenthal
had a knee injury and was not wearing shoes, and because the surface was gravel
and not flat. The Game Warden testified that the seated tests included a finger-to-
nose test, a palm-pat test, and a hand coordination test that is similar to the walk-
and-turn test but done with fists, and he regarded the seated tests as “comparable” to
the standing tests and effective in determining whether someone is intoxicated. He
also thought Kronenthal’s time perception was “a little bit off.” The Game Warden
testified that he observed ten of forty-eight possible clues in the finger-to-nose test,
and nine or more clues on this test suggest intoxication. The Game Warden then
testified that on the palm-pat test, two or more clues suggest intoxication and he
observed three clues when Kronenthal performed the test. According to the Game
Warden, he was not able to administer the hand-coordination test because
Kronenthal was unable to complete the test without stopping for validation.
According to the Game Warden, Kronenthal had difficulty thinking and
“seemed to have trouble functioning or following simple instructions.” The Game
Warden also thought it was a clue when Kronenthal was unable to follow
instructions and lacked sufficient attention to perform the hand coordination test.
The Game Warden offered Kronenthal a portable breath test, but Kronenthal was
unable to give a good enough sample. Taking everything into consideration, the
7
Game Warden believed that Kronenthal was intoxicated, and he decided to arrest
Kronenthal. The Game Warden testified:
. . . I gave him every test I had available to me. If he was not intoxicated,
he wouldn’t have had as much issues with those tests. You know, the
[portable breath test], it’s pretty simple. I mean, you just blow for a few
seconds, but he wasn’t doing it the way I instructed him to on either
test. He struggled with instructions on all of them.
The Game Warden advised Kronenthal of his Miranda rights and transported him to
the lake office and requested a blood sample, Kronenthal refused to provide a
sample, and the Game Warden read Kronenthal the statutory warning for refusing to
provide a blood sample. The Game Warden then took Kronenthal to the county jail
and applied for a warrant for a blood sample. According to the Game Warden, on
the way to the jail,
The Defendant continued to ask me why I thought he was intoxicated,
questions like that. I could still smell the alcohol on him. Actually a
little bit better since we were in the closed cab of the truck. The whole
time he kept questioning the tests I had given him and kind of telling
me he was not intoxicated.
The Game Warden also noticed that Kronenthal’s eyes were bloodshot, watery, and
red. After obtaining a warrant, the Game Warden took Kronenthal to the jail
infirmary for a blood draw. Following the blood draw, the Game Warden booked
Kronenthal into the jail, took the vials of blood to a refrigerator in the evidence
locker, and later mailed the blood to the DPS crime lab in Houston.
8
The Game Warden agreed that he was wearing a body camera throughout the
incident. The Game Warden recognized State’s Exhibit 4 as a disk containing the
video from his body camera, and the exhibit was admitted into evidence and
published to the jury.
On cross-examination, the Game Warden testified that during the safety
inspection he “had to ask for the horn twice [and Kronenthal] didn’t seem to be
paying attention to what he was doing when he was pulling out the lifejackets.” The
Game Warden also agreed that he did not inventory Kronenthal’s boat or trailer, and
he did not look in the cooler or in a mug on the boat but that Kronenthal “admitted
he consumed alcohol[,]” he detected a faint smell of alcohol on Kronenthal, but he
could not recall when he smelled alcohol. The Game Warden agreed he did not think
Kronenthal had significantly slurred speech.
When asked by defense counsel whether the alphabet test had been validated,
the Game Warden responded “It’s a valid test. It was included in the 1990 Coast
Guard test as one of the tests they use.” And the Game Warden agreed that the
alphabet counting-backwards, and finger-count tests were not standardized, but that
he had learned these tests when he took refreshers for the standardized field sobriety
tests. He also testified that the finger-to-nose, palm-pat, and hand-coordination tests
were standardized and were designed for boating.
9
Other Evidence
Eric Ho, a forensic scientist at the Texas Department of Public Safety crime
lab in Houston, testified that he analyzes evidence related to controlled substances
and blood alcohol received by law enforcement agencies. Ho identified State’s
Exhibit 7 as the evidence that was submitted in this case and State’s Exhibit 9 as his
report on his analysis of the evidence. Ho testified that based on his analysis, he
concluded that the blood evidence contained “0.121 plus or minus .006 grams of
alcohol per 100 milliliters of blood at 99.7 percent confidence level.” On cross-
examination, Ho testified that he could not say beyond a reasonable doubt that
Kronenthal’s blood alcohol content was above 0.08 while he was boating because
such retrograde extrapolation required additional facts that Ho did not have.
Casey Christman testified that she was with Kronenthal and Paul Adey on the
day in question. Christman did not see Kronenthal drink anything more than one
beer but she recalled that he also had “a couple sips” from her drink and Adey’s.
Christman also testified that she did not remember everything about the day in
question. In addition, Christman testified that she had seen Kronenthal on other
occasions when he was intoxicated.
Paul Adey testified that he did not remember seeing Kronenthal drink more
than one beer on the day in question. Adey agreed that he had seen Kronenthal
intoxicated on a few occasions but that Kronenthal “doesn’t drink too much[,]” and
10
he did not believe that Kronenthal was intoxicated on May 12, 2018. Adey agreed
that he was doing the “majority of the drinking” that day on the boat, and he was
surprised to learn that Kronenthal’s blood alcohol level had tested at .12.
At the conclusion of the State’s case in chief, the defense moved for a directed
verdict, arguing that the Game Warden had not testified that he was water safety
certified and requested that the court rule on its motion to suppress “that this was a
bad stop[.]” The court denied the motion. The defense also reurged its motion to
suppress, arguing that the blood evidence did not show that Kronenthal’s blood
alcohol level was .08 at the time of driving, which the court denied.
Issues
Appellant’s first issue argues that the trial court abused its discretion in
denying his motion to suppress because his detention and arrest were not supported
by reasonable suspicion or probable cause. Appellant’s second issue argues that the
various intoxication tests the Game Warden used did not meet the standards required
of scientific tests for admissibility under Rules of Evidence 403 and 702 and Kelly
v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992).
Certain volumes of the reporter’s record in this case are titled “Excerpted
Testimony[.]” Where an appellant requests a partial reporter’s record for appeal, the
appellant must include a statement of the points or issues to be presented on appeal
and is limited to those points or issues. See Tex. R. App. P. 34.6 (c). In this case, the
11
record does not reflect that the Appellant filed a statement of points or issues to be
presented on appeal. Therefore, we presume the omitted portions of the reporter’s
record are relevant and support the trial court’s judgment. See Zavala v. State, 498
S.W.3d 641, 642 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (citing Gray v.
State, 853 S.W.2d 782, 783-84 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d)
(applying former version of Rule 34.6); Burks v. State, 904 S.W.2d 208, 210 (Tex.
App.—Fort Worth 1995, no pet.) (same)).
Objections Raised at Trial
Appellant argues in his appellate brief that the basis for his verbal motion to
suppress at trial was that “Kronenthal was detained and subsequently arrested
without reasonable suspicion or probable cause, violating his Fourth Amendment
rights.” The State argues that Appellant did not preserve error on this issue because
at trial, Appellant did not seek to suppress the fruits of the float tests on the basis
that the Game Warden lacked reasonable suspicion but rather because the tests are
not standardized or validated. The appellate record does not indicate Kronenthal
filed a written motion to suppress before trial. Therefore, we are limited to the
arguments he made at trial.
Before the Game Warden testified about the float tests, the defense objected
as follows:
These aren’t standardized tests. They haven’t been validated, certified.
Nothing. And that’s going to be his probable cause to pull him from the
12
boat to the shore. And we would object, unless he can somehow prove
these up, that they’ve been validated like the certified standardized field
sobriety tests.
Elsewhere, defense counsel stated to the trial court that “this is not really a
suppression motion because you don’t need a reason to stop the boat. . . . It’s [a]
safety inspection, but you do need a reason to detain somebody and bring them to
the shore.” The objection made by the defendant to the trial court was that the “float
tests” are unscientific under the Kelly standards. We conclude that the objection
made on appeal does not comport with the objection made at trial. See Clark v. State,
365 S.W.3d 333, 339 (Tex. Crim. App. 2012); see also Tex. R. App. P. 33.1. That
said, even assuming the Appellant’s argument preserved error for appeal, we find no
error by the trial court, as explained below.
We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010);
see also Scott v. State, 572 S.W.3d 755, 759-760 (Tex. App.—Houston [14th Dist.]
2019, no pet.) (applying the same bifurcated-review standard in reviewing an oral
motion to suppress). We review the trial court’s factual findings for an abuse of
discretion but review the trial court’s application of the law to the facts de novo.
Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).
At a suppression hearing, the trial court is the sole trier of fact and judge of
the credibility of the witnesses and the weight to be given their testimony, and a trial
13
court may choose to believe or disbelieve all or any part of a witness’s testimony.
Valtierra, 310 S.W.3d at 447; Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim.
App. 2007) (quoting State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999));
State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When reviewing a trial
court’s ruling, the appellate court does not engage in its own factual review. St.
George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We give almost total
deference to the trial court’s determination of historical facts, “especially if those are
based on an assessment of credibility and demeanor.” Crain v. State, 315 S.W.3d
43, 48 (Tex. Crim. App. 2010). We give the same deference to the trial court’s
conclusions with respect to mixed questions of law and fact that turn on credibility
or demeanor. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). We
review purely legal questions de novo as well as mixed questions of law and fact
that do not turn on credibility and demeanor. State v. Woodard, 341 S.W.3d 404,
410 (Tex. Crim. App. 2011); Crain, 315 S.W.3d at 48.
A game warden needs no individualized suspicion to stop and board a boat to
conduct a water safety inspection. See Schenekl v. State, 30 S.W.3d 412, 415-16
(Tex. Crim. App. 2000). Appellant concedes that the initial stop for a safety check
was authorized under section 31.124 of the Texas Parks and Wildlife Code. See Tex.
Parks & Wildlife Code Ann. § 31.124 (“Inspection of Vessels” under which “an
enforcement officer may stop and board any vessel subject to this chapter and may
14
inspect the boat to determine compliance with applicable provisions[]”). A law
enforcement officer “has reasonable suspicion to detain if he has specific, articulable
facts that, combined with rational inferences from those facts, would lead him
reasonably to conclude that the person detained is, has been, or soon will be engaged
in criminal activity.” Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App.
2011). If reasonable suspicion develops during a safety check performed pursuant to
section 31.124, a game warden “may briefly detain the suspect further for
investigative purposes.” See Weeks v. State, 396 S.W.3d 737, 741 (Tex. App.—
Beaumont 2013, pet. ref’d). Investigative detentions are generally governed by the
reasonable suspicion standard. See York v. State, 342 S.W.3d 528, 536 (Tex. Crim.
App. 2011) (citing United States v. Sokolow, 490 U.S. 1, 7 (1989); Terry v. Ohio,
392 U.S. 1, 30 (1968); Crain, 315 S.W.3d at 52). And an officer needs only a
“minimal level of objective justification” to briefly continue a detention. See Foster
v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010).
In Weeks, we concluded that the game warden had reasonable suspicion to
justify further investigative detention for “boating while intoxicated” where the
warden observed the defendant operating a boat, the defendant had difficulty
complying with requests during a water safety inspection, and the game warden
smelled alcohol on the defendant. See 396 S.W.3d at 741-42. Similarly, in this case,
during a water safety inspection of the boat Kronenthal was operating, the Game
15
Warden observed that Kronenthal pulled out more flotation devices than there were
people on board the vessel and he failed to sound the horn or show a whistle. The
Game Warden also observed beer cans and an ice chest on the vessel. Upon being
asked if he had been drinking, Kronenthal admitted he had had “like one beer[]” and
the Game Warden regarded the response as odd. The Game Warden then
administered the float tests, including the alphabet, counting-backwards, and finger-
count tests. The Game Warden observed that Kronenthal had problems performing
the tests as instructed: he sang the alphabet contrary to instructions; he said “X”
instead of “S” when giving the alphabet; in counting backwards, he stated “29”
instead of “19”; and he could not complete the finger-count test. At that point, the
Game Warden had observed several signs of possible intoxication.
The Game Warden then asked Kronenthal to come to shore with him, where
the Game Warden administered a seated battery of field sobriety tests, including the
HGN, finger-to-nose, palm-pat, and hand-coordination tests. The Game Warden
agreed that these tests comprise the seated battery of standardized field sobriety tests
that he was certified by the NASBLA to conduct and that the alphabet and counting
tests were not part of the NASBLA battery of tests. The Game Warden also testified
that the HGN test in the NASBLA battery is the same as in the NHTSA testing and
the other tests are comparable to NHTSA tests. In addition, the Game Warden
16
testified that NASBLA had done research on the seated battery and that the battery
had been validated by the Southern California Research Institute.
Even without the sobriety tests, the Game Warden had reasonable suspicion
based on articulated facts that an offense was in progress or had occurred based on
Kronenthal’s difficulty following instructions, his admission to drinking “like one
beer[,]” and the presence of more than one empty beer container on the boat. See
Martinez v. State, 500 S.W.3d 456, 465 (Tex. App.—Beaumont 2016, pet. ref’d);
Weeks, 396 S.W.3d at 741-42. On this record, we conclude that based on the totality
of the circumstances, an objectively reasonable officer would have developed
reasonable suspicion that an offense was in progress or had occurred and the trial
court did not err in overruling Kronenthal’s motion to suppress. See Derichsweiler,
348 S.W.3d at 914; Martinez, 500 S.W.3d at 465; Weeks, 396 S.W.3d 737, 741-42.
We overrule Appellant’s first issue.
Admission of Evidence of Field Sobriety Tests
In Appellant’s second issue, he contends that the trial court erred in admitting
evidence of “alternate, not-validated[] tests of intoxication over Mr. Kronenthal’s
objection under Rule 702.” Appellant’s brief states that the tests the Game Warden
used and testified about “did not meet the standards required of scientific tests for
admissibility under Rules 702, 403, and Kelly.” In particular, Appellant challenges
17
admission of evidence relating to the alphabet test, the finger-count test, the seated
HGN, the finger-to-nose test, the palm-pat test, and the hand-coordination test.
Appellant appears to concede that the HGN test “is recognized as
scientifically valid or promulgated by NHTSA for use in the investigation and arrest
of suspected intoxicated drivers.” At trial, the defense objected to testimony
concerning “an ABC, a counting test, and a finger count test[]” because these field
sobriety tests were not standardized, validated, or certified and for which there are
no standardized clues, as contrasted with the field sobriety tests standardized by the
National Highway Traffic Safety Administration (NHTSA), a government
organization. Defense counsel also objected to the “seated floating tests” under
Kelly. Accordingly, we restrict our analysis herein to the float tests (alphabet,
counting test, and finger-count tests) because Appellant’s objection at trial was
limited to these tests. See Tex. R. App. P. 33.1. The court stated that the defense
arguments go to the weight of the evidence and not admissibility and that some
simple tasks could show signs of impairment and because they are not “scientific
tests[,]” they would not be subject to the Kelly or Daubert standards.
“A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if the
expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue.” Tex. R. Evid. 702.
18
“[O]bservations which do not require significant expertise to interpret and which are
not based on a scientific theory can be admitted as lay opinions if the requirements
of Rule 701 are met.” 2 Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App.
2002). When an officer’s administration of field sobriety tests is based on
observations grounded in common knowledge “that excessive alcohol consumption
can cause problems with coordination, balance, and mental agility,” the officer’s
testimony based on these observations is considered lay witness opinion testimony
under Rule 701 and not expert testimony under Rule 702. See Plouff v. State, 192
S.W.3d 213, 223-24 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (addressing
the one-leg-stand and walk-and-turn tests); see also Emerson v. State, 880 S.W.2d
759, 763 (Tex. Crim. App. 1994) (explaining that a police officer may generally
offer lay opinion testimony to prove a defendant’s intoxication) (citing Vaughn v.
State, 493 S.W.2d 524, 525 (Tex. Crim. App. 1972)).
Appellant cites to Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992)
for factors a court should consider in determining reliability. However, Kelly
addressed the reliability of “evidence derived from a scientific theory[.]” Id.
Appellant’s brief argues that the “alternative tests” about which the Game Warden
2 “If a witness is not testifying as an expert, testimony in the form of an opinion
is limited to one that is: (a) rationally based on the witness’s perception; and (b)
helpful to clearly understanding the witness’s testimony or to determining a fact in
issue.” Tex. R. Evid. 701.
19
testified “are generally not considered to be scientific.” The record does not indicate
that the State offered evidence of the float tests as “scientific” evidence. The
prosecutor told the court:
[T]hese tests that [the defense] has objected to [] Kelly does not apply
to this because it doesn’t require an expert witness to talk about them.
The observations that you would make, the clues that you would get
from them, don’t come from any sort of standardized or scientific
analysis. It just comes from the common knowledge that he as a law
enforcement officer has. It’s really a lay opinion, if anything.
The Game Warden testified:
. . . it’s kind of like [] the “mom” test. When you came home as a
teenager, you know, mom is going to look at you, smell you, [] listen
to you, [] just to see what you might have been doing that night. So
these are simple tests. There’s really no set clues, [] per se, like so many
clues you’re an intoxicated person; but you’re looking for [] clues that
[] this person might be intoxicated.
The court concluded that the alternate float tests were “simple tasks that could show
some sort of impairment[,]” were “anybody-can-do-it tests[,]” and were not
scientific tests that required application of Kelly or Daubert standards.
We cannot say the trial court erred in concluding that the Game Warden’s
testimony about the float tests was admissible. The Game Warden’s testimony was
based in part on his observations of Kronenthal’s response to tasks that could show
impairment. The Game Warden’s testimony of his observations and his testimony
about the basis for his belief that Kronenthal was intoxicated after he administered
the tests would have been admissible as lay witness opinion testimony under Rule
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701. See Emerson, 880 S.W.2d at 763; Plouff, 192 S.W.3d at 223-24. Alternatively,
to the extent that the Game Warden testified as an expert, the record reflects that he
did so based on his knowledge, skill, experience, and training as a Game Warden
and law enforcement officer, and his testimony would have been admissible under
Rule 702. See Tex. R. Evid. 702. Rule 702 does not require that a witness’s
specialized knowledge be scientific. See id. We conclude that the trial court did not
abuse its discretion by admitting this testimony. See Casey v. State, 215 S.W.3d 870,
879 (Tex. Crim. App. 2007) (explaining that a trial court’s ruling on the admission
of evidence is reviewed for abuse of discretion).
But even assuming without deciding that the complained-of evidence was
erroneously admitted, we apply the standard for nonconstitutional error contained in
Rule 44.2(b) of the Texas Rules of Appellate Procedure. See Solomon v. State, 49
S.W.3d 356, 365 (Tex. Crim. App. 2001); Melgar v. State, 236 S.W.3d 302, 308
(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Texas Rule of Appellate
Procedure 44.2(b) provides that an appellate court must disregard nonconstitutional
error that does not affect a criminal defendant’s substantial rights. See Tex. R. App.
P. 44.2(b). An appellate court may not reverse for nonconstitutional error if the
appellate court, after examining the record as a whole, has fair assurance that the
error did not have a substantial and injurious effect or influence in determining the
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jury’s verdict. See Casey, 215 S.W.3d at 885 (citing Garcia v. State, 126 S.W.3d
921, 927 & n.9 (Tex. Crim. App. 2004)).
The Game Warden testified that he observed two aluminum beer bottles and
an ice chest in the back of the boat, Kronenthal admitted to having drunk “like one
beer[,]” and the Game Warden thought Kronenthal’s indefinite response was odd.
The Game Warden also noticed that Kronenthal’s eyes were bloodshot, watery, and
red. In addition, the Game Warden believed that Kronenthal had difficulty thinking
and following instructions. The video exhibits were also published to the jury. A
blood alcohol sample was obtained pursuant to a warrant, and the results of the
analysis of the blood alcohol sample were admitted at trial and showed “0.121 (+/-
0.006) grams of alcohol per 100 milliliters of blood[.]” 3
Based on our review of the entire record, we have fair assurance that any error
in the admission of the Game Warden’s testimony about the field sobriety tests did
not affect Appellant’s substantial rights and did not have a substantial and injurious
effect or influence in determining the jury’s verdict. See id. We also presume the
omitted portions of the reporter’s record are relevant and support the trial court’s
judgment. See Zavala, 498 S.W.3d at 642; Burks, 904 S.W.2d at 210. We overrule
the second issue.
3Appellant does not challenge the blood draw warrant or analysis of the blood
sample on appeal.)
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Having overruled both of Appellant’s issues, we affirm the trial court’s
judgment.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on May 26, 2020
Opinion Delivered September 30, 2020
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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