Memorandum Opinion Delivered and Filed August 22, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the County Court of Jackson County, Texas.
Before Chief Justice VALDEZ and Justices HINOJOSA and RODRIGUEZ.
Appellant, Lawrence Werdlow, III, was convicted of driving while intoxicated. On appeal, he argues there were errors related to the admissibility of evidence and the prosecutor's closing arguments. We affirm the judgment of the trial court.
I. Facts and Procedural HistoryAt approximately 10:00 P.M. on August 18, 2000, Officer Nielsen stopped appellant for speeding. When he approached the vehicle, Officer Nielsen noted appellant had glassy, bloodshot eyes and the smell of alcohol on his breath. A police videotape captured the events that followed. An inebriated passenger in the vehicle told Officer Nielsen that he had warned appellant about his driving, that there was a bottle of whiskey under the seat, and appellant had consumed some, and that he knew appellant had drunk more than he had. Officer Nielsen performed three standardized field sobriety tests on appellant. First, he asked appellant to track a pen as he moved it from side to side, looking for nystagmus — a slight jerking motion in the eye that can indicate intoxication. Appellant failed this test. Second, he asked appellant to walk heel-to-toe. Appellant stumbled or staggered on two steps. Finally, he asked appellant to stand on one foot for sixty seconds. Appellant could not do so successfully. The officer informed appellant he was under arrest and handcuffed him. Appellant took several steps backward and required help regaining his balance. Officer Nielsen took appellant to the station to perform a breath test. On the way to the station, appellant asked whether he could refuse the breath test. When they arrived, appellant did not stumble or stagger. Officer Nielsen explained to appellant that to get an accurate alcohol reading he had to blow into the machine with sufficient force until he heard a tone, and then continue blowing until told to stop. Officer Nielsen testified that in his opinion appellant was uncooperative and merely puffed out his cheeks without actually blowing into the machine. Officer Nielsen urged him to try again. On his second and third attempts he blew into the machine slightly, but as soon as the tone sounded he stopped. Appellant refused to try again. Appellant is blind in his left eye and has had back and knee surgery. Officer Nielsen did not ask appellant if he had any medical condition that might affect the outcome of the tests. During trial, Officer Nielsen conceded that any type of medical impairment could affect the tests, but he did not believe appellant's medical history affected his performance on these tests. Officer Nielsen said he had spoken with his ophthalmologist, who told him that appellant's partial blindness should not have affected the field test for nystagmus. The jury found appellant guilty, and the court sentenced him to six months' imprisonment. Appellant now brings four issues on appeal claiming the court erred in admitting evidence.
II. Hearsay ObjectionsAppellant's first issue complains of the admission of hearsay evidence. Appellant enumerates three instances where the court allegedly erred by admitting hearsay evidence with the cumulative effect of creating the likelihood of an improper judgment. Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." TEX. R. EVID. 801(d). Hearsay is not admissible except as provided by statute or rules of evidence. TEX. R. EVID. 802. The State first claims that this argument is multifarious and presents nothing for our review. See Sterling v. State, 800 S.W.2d 513, 521 (Tex.Crim.App. 1990). However, issues relating to the same theory of recovery or defense may be combined in an appellate brief if the appellant makes separate references to the record for each contention. See Armstrong v. State, 845 S.W.2d 909, 910 (Tex.Crim.App. 1993). Appellant's brief does address each claim of hearsay independently with statements to the record and appropriate citations to legal authority; we therefore reject the State's claim that the argument presents nothing for our review. Second, the State argues (1) appellant's brief fails to cite authority or make a legal argument that the cumulative error is a basis for reversal; therefore, the issue is inadequately briefed and waived on appeal, and (2) appellant did not object to the cumulative effect of the evidence so no error was preserved. The appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex.R.App.P. 38.1(h). When appellant's brief fails to make a clear and concise argument with appropriate citations, the courts will hold that appellant has waived the issue. See, e.g., In re A.J.G., 131 S.W.3d 687, 692 (Tex.App.-Corpus Christi 2004, pet. denied). Furthermore, to preserve an error for appeal, appellant's trial counsel must make an appropriate and timely objection or the issue is waived. See TEX. R. APP. P. 33.1(a). Appellant's brief cites objections in the record for each instance and argues that each violation independently weighs in favor of reversal. In the interest of justice, we will address each of appellant's claims. Sterling, 800 S.W.2d at 521.
1. Indirect HearsayAppellant's first subissue raises the complaint of indirect hearsay. During the trial, the prosecutor asked Officer Nielsen if he had a conversation with the passenger about appellant's consumption of alcohol; he answered in the affirmative. Defense counsel objected: "I'm going to object based upon the earlier ruling of the Court." This objection does not specify which ruling. In his brief, appellant claims the ruling referred to was that audio portions of the police videotape would be admitted solely for impeachment purposes. The record does not support a claim that appellant's counsel made a hearsay objection. We therefore hold this subissue is waived. See TEX. R. APP. P. 33.1(a).
2. Expert Opinion StatementAppellant's second subissue complains Officer Nielsen should not have been allowed to give hearsay testimony regarding appellant's ability to successfully perform the nystagmus test despite being blind in one eye:
Q Do you have any knowledge of the tracking in the blind eye, if it follows what the other eye is doing?
A I have asked my ophthalmologist. She stated you can have nystagmus in a blind eye.
MS. DAVIS: Objection, not any evidence —
MR. BELL: He answered the question.
MS. DAVIS: He didn't answer about his knowledge, he answered about someone else's knowledge.
MR. BELL: You wouldn't know your name if someone didn't tell you. That is how you gain your knowledge.
THE COURT: Your objection is overruled.The State argues the objection does not preserve the error because defense counsel did not specify she objected to improper hearsay. An objection must include the specific grounds for the objection if it was not apparent from the context. Tex. R. Evid. 103(a)(1). Objections that do not specify the legal principle are not waived on appeal if the objection was sufficiently specific to make its meaning clear to the court. See, e.g., Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App. 1977) (op. on reh'g.). We hold that defense counsel's objection that Officer Nielsen was speaking of someone else's knowledge was sufficiently specific to preserve his hearsay objection. See id. However, we note that during the trial, defense counsel cited a field manual entitled "Standardized Field and Sobriety Testing," and had Officer Nielsen read aloud a portion of it that said a person whose eyes did not track together could be indicative of an injury, serious medical condition, or neurological disorder. We hold that in light of the countervailing evidence introduced, the effect of Officer Nielsen's statement on the jury was negligible. Therefore, error, if any, in the admission of the complained-of hearsay testimony was harmless. See TEX. R. APP. P. 44.2(a).