Summary
In Barfield, it was unnecessary to address this issue because counsel was permitted to engage in extensive cross-examination of the expert.
Summary of this case from Woodall v. StateOpinion
No. 06-06-00090-CR
Date Submitted: January 24, 2007.
Date Decided: January 26, 2007. DO NOT PUBLISH.
On Appeal from the County Court at Law Harrison County, Texas, Trial Court No. 2005-0852.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
MEMORANDUM OPINION
When Harrison County Sheriff Tom McCool and Sergeant Bryan Hill of his office encountered motorcyclist Dennis Barfield late one night in 2005, Sergeant Hill asked Barfield how much he had had to drink. Barfield replied, "Too damn many." The officers testified at trial that Barfield was impaired because of his consumption of alcohol, based on the presence of a strong odor of alcohol, intoxication indicators from the horizontal gaze nystagmus test, Barfield's unsteadiness, and his admission that he had drunk about six beers. The State also introduced the results of a breath sample analyzed by an Intoxilyzer 5000 — which indicated in two tests that Barfield had a 0.112 and a 0.108 blood-alcohol content. The trial court instructed the jury that it could find Barfield guilty of driving while either not having the normal use of his faculties because of alcohol, or having a measured blood-alcohol content of 0.08 or more. The jury convicted Barfield for driving while intoxicated. Barfield structures his appellate brief into two stated points of error, but we conclude he substantively makes out but one. Barfield's first point complains that the Intoxilyzer 5000 should have been subject to cross-examination; his second contending that denying him the right to cross-examine the State's Intoxilyzer expert was error. After reviewing the substance of his arguments and the record on which they are based, we will address Barfield's real contention — the one actually developed and briefed — that the trial court improperly limited his cross-examination of the State's breath-testing expert, Rex Swords. The record provides context for our review. After the State introduced evidence about the results of the Intoxilyzer test, Barfield's counsel then cross-examined the technical supervisor who maintained the device. After eighty pages of cross-examination by Barfield's counsel, the trial court stated that it would allow no more questions. In so doing, the court did not state that the machine was per se unassailable, but instead opined that the science behind the machine had been found to be reliable, and that the remaining issues were whether the State had proved the machine was operating properly and whether the operator followed the requisite procedures. Barfield's counsel argued that this ruling violated his due-process right to confront and cross-examine the witness. He later made a fifty-page bill of exceptions during which he questioned the expert further about the operation of the device. Barfield specifically complains the trial court improperly excluded him from pursuing five areas of examination that were necessary in order to enable the jury to properly weigh the validity of the results produced by the breath-testing machine: (1) that the machine stores internally, and can print out a report showing, the number of times that machine has malfunctioned, (2) that the machine allows a tolerance of plus or minus .02 of alcohol in 210 liters of breath, (3) elements other than ethyl alcohol in a subject's breath could affect the machine's results, (4) the machine's warranty does not warrant that it will properly analyze for blood-alcohol content, and (5) the machine's inability to test the temperature of a subject's breath, plus the presence of heating elements in the machine, can lead to a falsely high reading for blood-alcohol content or can lead to an invalid result. (1) Reporting on Machine Malfunctions Barfield's counsel asked Swords about the types of malfunctions that could occur and the error messages the machine would print out when different variables were not within proper parameters. He asked Swords if he knew how many tests were run using the machine during a twenty-five-day period during which the test at bar was performed — Swords did not know individually, and did not have records with him which would have shown this number. Swords acknowledged that there were a number of factors which would invalidate a test, and set out in some detail both the factors and the way that the machine would indicate that such errors had occurred. Counsel did not specifically ask Swords whether the machine kept records that could be printed out to show how many times the machine had malfunctioned. Even when counsel did ask that question, the response was that Swords was unsure about whether a printout showing the number of invalid tests could be generated. (2) Machine Tolerance Allowed The fact that the machine had a .02 tolerance for its control tests — tests run on known, "control" samples at the time the subject's breath was to be tested, to determine whether the machine was operating properly — was clearly raised and placed before the jury during cross-examination. (3) Elements Other than Ethyl Alcohol in a Subject's Breath Swords acknowledged that other elements could affect the results, and he was questioned before the jury at length about some of those elements: radio interference, alcohol vapors in the mouth instead of the lungs, and alcohol in the air in the room. Swords also testified there was a presumption that, if other substances were present, the machine would register interference with the test. (4) The Machine's Warranty There was no attempt made to place before the jury the fact that the Intoxilyzer's warranty did not warrant its accuracy for breath testing. (5) Temperature Problems The facts that the Intoxilyzer could not measure the subject's breath temperature and that it had heating elements to heat the breath, were examined and placed before the jury at length during the course of Barfield's cross-examination of Swords. Although different words were used when the subject was covered during the bill of exceptions, Barfield cannot contend successfully that he had no, or insufficient, opportunity to cross-examine the State's expert on this matter. In fact, he did, at length and effectively. As the State points out, Barfield was allowed, during his some eighty pages of initial cross-examination of Swords and his some seven pages of recross-examination of Swords — all before the jury — to get into evidence all but the warranty information. Although a defendant's right to confrontation and cross-examination is constitutionally safeguarded, the right is not absolute. Chambers v. Mississippi, 410 U.S. 284, 295 (1973); Huff v. State, 897 S.W.2d 829, 839 (Tex.App.-Dallas 1995, pet. ref'd). The trial court retains great latitude in imposing reasonable limitations on cross-examination. Virts v. State, 739 S.W.2d 25, 28 (Tex.Crim.App. 1987). The court may properly limit the scope of cross-examination to prevent harassment, prejudice, confusion of the issues, harm to the witness, and repetitive or marginally relevant interrogation. Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App. 1996). When considering whether a trial court's decision to exclude testimony is error, we must determine whether the trial court abused its discretion. Love v. State, 861 S.W.2d 899, 903 (Tex.Crim.App. 1993). This inquiry depends on the facts of each case. Id. at 904; Roberts v. State, 963 S.W.2d 894, 901 (Tex.App.-Texarkana 1998, no pet.). The trial court permitted considerable cross-examination, but ultimately, after allowing a considerable amount of highly repetitive testimony, terminated the examination. The critical issues were before the jury by cross-examination, and based on the length and nature of the questioning, we do not believe that the trial court abused its discretion by ending the examination when it did. Counsel has provided no cogent argument based on the record or on the law to show this Court the contrary. Given the sequence of events set out above, we conclude Barfield had, and exercised, his adequate opportunity to cross-examine the State's expert witness about the matters asserted in his brief. Further, even if we found that Barfield's rights were violated, counsel has made no effort to perform any type of harm analysis that might show how any error contributed to his conviction or punishment. See Tex. R. App. P. 44.2(a). In that regard, we note that the jury charge permitted conviction for driving while intoxicated either because of proof of intoxication by testimony or by test. Even if the evidence failed as to the measurement of the breath sample, on this record, the jury could have convicted based on Barfield's own statements and the officers' testimony. We affirm the judgment.
He was sentenced to 180 days' confinement and a $2,000.00 fine.
In his appellate brief, as he begins to argue his point of error number one, Barfield asks whether Intoxilyzer results are admissible without meeting a three-pronged test of reliability. However, he does not develop any complaint about the admission of the Intoxilyzer test results, nor does he point out any place at which he objected to the admission of those results. His principal discussion under point one addresses alleged deficiencies of the breath-testing machine, including tolerances and lack of temperature control. The real focus under that point is his argument that he should have been permitted to more extensively attack the manner in which the machine applies the scientific principles behind breath testing to determine blood-alcohol content.
As he begins his argument of what he calls point of error number two, Barfield argues that an Intoxilyzer result is not automatic proof of guilt. He also accuses the trial court of erroneously overruling Barfield's objections — without specifying what objections were overruled — and wrongfully misleading the jury on how it was to evaluate the evidence. He additionally seems to complain that the trial court instructed the jury to find guilt based on the Intoxilyzer results. However, he specifies no jury instruction that was allegedly erroneous, and it appears that his argument in that regard is also suggesting that the trial court misled the jury to believe that it was required to accept the results as correct.
We will read his argument to assert one error, the limitation of his cross-examination of the State's breath-testing expert. Because of lack of specificity and multifariousness in his briefing, Barfield waives any other alleged error.
This Court has repeatedly warned litigants not to combine multiple issues into a single point of error, thereby risking our overruling the composite point of error as multifarious. See, e.g., Dickey v. State, 189 S.W.3d 339, 341 (Tex.App.-Texarkana 2006, no pet.); Newby v. State, 169 S.W.3d 413, 414 (Tex.App.-Texarkana 2005, no pet.); Harris v. State, 133 S.W.3d 760, 764 n. 3 (Tex.App.-Texarkana 2004, pet. ref'd); Parra v. State, 935 S.W.2d 862, 875 (Tex.App. — Texarkana 1996, pet. ref'd).
Barfield does not directly attack that pronouncement of the trial court. That may be because the trial court's statement is correct. The Legislature has determined that the science underlying breath testing is valid, and its application is valid if administered by individuals certified by, and using methods approved by the rules of, the Texas Department of Public Safety. Reynolds v. State, 204 S.W.3d 386, 390 (Tex.Crim.App. Oct. 18, 2006); see Tex. Transp. Code Ann. § 724.064 (Vernon 1999); see also Mireles v. Tex. Dep't of Public Safety, 9 S.W.3d 128, 131-32 (Tex. 1999); Stevenson v. State, 895 S.W.2d 694, 696 (Tex.Crim.App. 1995).
Fully stated, the tolerance is .02 grams of alcohol per 210 liters of breath.
See Long v. State, No. PD-1888-04, 2006 WL 2861076, at *1 (Tex.Crim.App. Oct. 4, 2006); Jones v. State, 119 S.W.3d 766, 777 (Tex.Crim.App. 2003) ("The reviewing court should `calculate, as nearly as possible, the probable impact of the error on the jury in light of the other evidence.'").