Arturo Armijo v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-11-00430-CR NO. 02-11-00431-CR

ARTURO ARMIJO APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

CONCURRING MEMORANDUM OPINION 1

In Appellant’s sole point, he attacks the admission of the State’s evidence

of retrograde extrapolation because the State’s expert, Dr. Robert Johnson,

“lacked many of the facts necessary to offer such opinion.” No one disputes the

timeline pertinent to Appellant’s objection to the State’s evidence of retrograde

extrapolation: (1) Johnson explained retrograde extrapolation and hypothesized

1 See Tex. R. App. P. 47.4. that a 5'7", 180-pound male would have had a BAC of .24 at the time of arrest if

his BAC registered .20 four hours after his arrest; (2) Appellant questioned

Johnson on voir dire outside the presence of the jury, and Johnson admitted he

had insufficient facts upon which to base his scientific opinion; and (3) Appellant

objected to Johnson’s testimony, which the trial court overruled. Before objecting

to Johnson’s retrograde-extrapolation testimony, Appellant waited until after

Johnson stated that he could estimate what “somebody’s blood alcohol

concentration would have been at an earlier point in time” and after Johnson

opined that the State’s hypothetical, which matched Appellant’s situation, would

result in a BAC of .24. Appellant fails to justify his delay in objecting to Johnson’s

testimony. Accordingly, Appellant’s objection was untimely, which forfeits any

complaint as to Johnson’s retrograde-extrapolation testimony. See Luna v.

State, 268 S.W.3d 594, 604 (Tex. Crim. App.), cert. denied, 558 U.S. 833 (2008);

Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App.), cert. denied, 516 U.S.

832 (1995); see also Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a). I would

overrule Appellant’s sole point under rule 33.1(a) and, thus, respectfully concur in

the judgments affirming the trial court.

2 LEE GABRIEL JUSTICE

LIVINGSTON, C.J., joins.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: August 1, 2013