In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-22-00266-CR ________________
FRANK CARR JR., Appellant
V.
THE STATE OF TEXAS, Appellee ________________________________________________________________________
On Appeal from the County Court at Law No. 5 Montgomery County, Texas Trial Cause No. 21-356952 ________________________________________________________________________
MEMORANDUM OPINION
A jury convicted Frank Carr Jr. (“Carr”) of the Class B misdemeanor offense
of driving while intoxicated. Based on the parties’ agreement, the trial court
suspended Carr’s driver’s license for ninety-days, sentenced him to serve three days
in county jail, and ordered him to pay a $1,200 fine. In two issues, Carr appeals and
complains (1) the prosecutor gave the jury an improper definition of “beyond a
reasonable doubt” when selecting the jury; and (2) the trial court admitted field
sobriety tests into evidence that were inconsistent with the required Kelly standard.
1 See Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). In support of both
complaints, Carr contends the errors violated his constituted constitutional right to a
fair trial and for that reason are both subject to harmless error review. We affirm the
trial court’s judgment for the reasons discussed below.
I. Background
A. Voir Dire, Opening Statement and Closing Argument
During voir dire, the prosecutor said that the State had the burden to “prove
every element of the offense beyond a reasonable doubt.” At one point, the
prosecutor showed a puzzle with missing pieces to the venire panel that depicted
giraffes, and the following exchange occurred:
[PROSECUTOR]: I want to talk about burdens. So when we talk about the law in criminal case, there is a certain burden that we have. So our burden in a criminal case is to prove to you some things beyond a reasonable doubt. I’ll show you later what those things are, but what I’m trying to prove to you, a driving while intoxicated case, I have to prove each and every element of this offense beyond a reasonable doubt. So to illustrate that, I want to take a look at this picture. Juror Number 1, what do you think that’s a picture of? PROSPECTIVE JUROR: Looks like some trees and iced tea by it. [PROSECUTOR]: Some trees. That’s not it. Anybody else have a different answer? Trees? We’re sticking with trees? Juror Number 8? PROSPECTIVE JUROR: It’s a puzzle with a lot of missing pieces. [PROSECUTOR]: It’s a puzzle with a log of missing pieces. Juror Number 8, what if I put more pieces in there? What is that a picture of? PROSPECTIVE JUROR: That would be a couple of giraffes with trees in the background. [PROSECUTOR]: A couple of giraffes. Does anyone think that this is not a picture of a couple of giraffes? Okay. That’s good. It’s not a trick question. That is a picture of two giraffes. I ask you that to illustrate what beyond a reasonable doubt means. It’s simply common sense. I’m 2 only asking you whether or not you believe that I proved the element of each thing in our case for driving while intoxicated.
Carr objected to these remarks, arguing the State misstated the law and was trying
to define reasonable doubt.
The trial court overruled the objection and told the jury that there was “no
specific legal definition of beyond a reasonable doubt” and that it was up to each
juror to determine. The prosecutor then told the panel that “there is no legal
definition, but I’m asking that you use your common sense to decide whether or not
the elements have been proven.” It should be noted that at this point, Carr’s attorney
did not object to the prosecutor again asking the panel to use their common sense.
Elsewhere during voir dire, the prosecutor explained the State had the burden to
“prove each and every element of this offense beyond a reasonable doubt[]” and that
it had “the entire burden of proof.” The trial court also instructed the panel, “The
State has the burden [] to prove those elements[.]”
During the State’s opening statement, the prosecutor again mentioned the
jurors should use their “common sense” in deciding whether or not Carr was guilty
beyond a reasonable doubt; and once again, Carr did not object. During the State’s
closing argument, the prosecutor said “[a]nd we talked about what beyond a
reasonable doubt was. It's just that common sense conclusion.” Carr also did not
object to the prosecutor’s suggestion that the jury use common sense to decide if the
State met its burden of proof. Furthermore, we note that during closing argument, 3 Carr’s attorney urged the jurors to use their “common sense” when making their
decision about Carr’s guilt.
B. Trial Evidence
One evening in April 2021, while traveling eastbound on Highway 99, witness
Shawn Linton (“Linton”) passed a silver Mercedes-Benz parked on the shoulder.
Moments later, the same vehicle passed Linton at a high rate of speed. Once the
vehicle was in front of Linton, he observed the vehicle swerving and slow its speed
to as low as twenty-five miles per hour, well below highway speed. Linton called 9-
1-1 and described the vehicle to the dispatcher as a silver Mercedes. Linton told the
dispatcher what he observed the Mercedes doing, provided the dispatcher with the
plate number for the Mercedes, and said he suspected the driver of the Mercedes
might be intoxicated. Linton also advised the dispatcher that the Mercedes took the
exit ramp to Highway 59 north. During trial, Linton testified about what he observed
that evening, and the recording of the 9-1-1 call that he made was played for the jury.
Texas Department of Public Safety Trooper Andrew Evans (“Evans”) also
testified at trial. He testified that he received a dispatch regarding Linton’s 9-1-1 call
describing the vehicle with an “attempt to locate” alert. He staged his vehicle on
Highway 59 in an area he thought the vehicle might pass. When the Mercedes
passed, he identified it based on the information he received from the police
dispatcher based on the 9-1-1 call. Evans pulled in behind the Mercedes and
4 observed it swerving in and out of lanes, traveling slower than highway speeds, and
driving with its blinker on. Evans activated his lights and sirens, but the Mercedes
did not pull over for the next 2.6 miles. Evans eventually called for assistance, and
two other police vehicles stopped with their lights on along the feeder road where
the Mercedes exited from Highway 59. The Mercedes stopped in the feeder road’s
center lane before passing the police vehicles that were parked on the feeder road.
The driver of the Mercedes, whom Evans identified as Carr, immediately exited the
Mercedes vehicle without waiting for Evans to approach. At trial, Evans described
that as “not normal.”
When Carr left his vehicle, Evans testified that he saw him “staggering a little
bit” and having “to brace himself on the car.” According to Evans, he noted these as
possible signs of intoxication. He also saw that Carr’s eyes were “red, bloodshot,
[and] glossy[,]” his breath smelled like alcohol, his speech was slurred, and he
looked “disheveled.” Carr told Evans that he had taken shots of Patron tequila earlier
that evening. Evans suspected that Carr might be intoxicated, so he started
conducting the various tests established by the National Highway Traffic and Safety
Administration (NHTSA) for testing a person’s ability to drive and used in Texas as
standardized field sobriety tests (SFSTs).
Evans described what SFSTs look for, and he explained that each test has a
different number of “clues” that are suggestive of a person’s intoxication, which he
5 looks for when administering these tests. In Carr’s case, Evans testified that he
administered the horizontal gaze nystagmus (HGN) test and the walk-and-turn test.
He explained that Carr showed six of six clues on the HGN test and six of eight clues
on the walk-and-turn test.
Evans explained that because Carr was having difficulty maintaining his
balance, Evans administered an alternate field sobriety test, the finger count test,
rather than a third NHTSA SFST, a test called the one-legged stand. Evans explained
that he felt that since Carr was struggling to maintain his balance, the finger count
test would be safer for Carr. Regarding Evans’s testimony about the finger count
test, Carr objected “to any further testimony about tests that haven’t been validated
properly under the Kelly standard. . .. The tests he’s talking about counting
backwards and the other non-standard test that he performed after that.” Carr further
complained, “it’s just not part of the Field Sobriety Tests. It doesn’t meet standard.”
The State responded that the opinion Evans drew from the tests he administered were
based on the trooper’s observations and his training and experience, and Evans had
used the finger count test in the past. Carr argued the State was trying to substitute a
test in place of one of the SFSTs, and there was no substitute. The trial court allowed
Evans to testify about the finger count test. After the trial court ruled, Evans
explained to the jury that there were three SFSTs, but police officers could do other
field sobriety tests. Evans told the jury that even though he explained to Carr how to
6 do the test and demonstrated to him how the test was done, Carr could not accurately
perform the test.
When asked whether he had formed an opinion about Carr’s ability to drive,
Evans testified, “Based on the totality of the circumstances, the whole stop, and the
interaction with him, I believe he was intoxicated while driving.” Evans explained
that intoxicated means “[t]hat either .08 [blood alcohol content] or that you’ve lost
the mental or physical faculties.” Evans testified that Carr “had lost the normal use
of his mental and physical faculties.” After administering the tests described above,
Evans arrested Carr for driving while intoxicated.
Carr consented to a blood draw, and Evans took him to the hospital. However,
after they got to the hospital they had to wait too long, and as a result a blood draw
was never completed. Carr then consented to a breath test. Yet that test could not be
completed because Carr did not blow “hard enough or long enough to make it an
adequate sample.” Evans testified the absence of a blood or breath test did not change
his opinion that Carr was intoxicated. He explained he based this on his observations
and “all of the signs of intoxication were still there.”
During Evans testimony, his dashcam and body cam videos were introduced
into evidence, and after they were admitted, they were played for the jury. The
dashcam shows Carr’s vehicle swerving and driving slowly on the highway. The
video also shows that Carr does not stop after Evans activates his lights and sirens,
7 and the jury could have reasonably concluded that Carr wasn’t aware that a police
officer wanted him to pull over and stop. The videos show Evans administering the
SFSTs and finger touch test. They also show Carr having difficulty performing the
tests. Carr can also be heard admitting to drinking shots and getting “tipsy.”
II. Analysis
A. Issue One: The prosecutor’s comments did not rise to the level of fundamental error that would excuse his failure to object, and Carr failed to preserve error by failing to object each time the prosecutor made similar comments.
In his first issue, Carr contends that during voir dire, the State improperly
defined “beyond a reasonable doubt.” He also contends that the prosecutor’s
comments rose to the level of a constitutional error by violating his Due Process
rights, which requires harmless error review. The State responds that Carr waived
this complaint because (1) the prosecutor’s comments did not rise to the level of
fundamental error, (2) he failed to object each time the trial court and prosecutor
explained reasonable doubt, and (3) the objection he raised in the trial court does not
match the argument that he raises in his appeal.
To preserve a complaint for appeal, a party generally must make a timely,
specific objection to the alleged error and obtain a ruling. Tex. R. App. P.
33.1(a); Pena v. State, 285 S.W.3d 459, 463–64 (Tex. Crim. App. 2009). A party
must renew his objection each time the alleged improper statement is made.
See Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999) (holding 8 appellant waived complaint about trial court’s explanation of reasonable doubt
standard during voir dire when he failed to renew his objection after the trial court
repeated its explanation of reasonable doubt). An exception to this preservation of
error requirement is when a complaint involves a fundamental constitutional
systemic requirement, known under Marin v. State as a category-one or category-
two complaint. See Marin v. State, 851 S.W.2d 275, 278–80 (Tex. Crim. App. 1993),
overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App.
1997); see also Proenza v. State, 541 S.W.3d 786, 795–96 (Tex. Crim. App. 2017)
(discussing Marin in the context of a trial court’s statements and explaining
“fundamental error” involves category-one and -two Marin errors).
Recently, our sister court in Fort Worth held that an appellant must object to
preserve his complaint on appeal if the prosecutor misstates the law on the burden
of proof during voir dire, and it held that the appellant’s failure to do so forfeited the
complaint. See Robinson v. State, 685 S.W.3d 217, 223–24 (Tex. App.—Fort Worth
2024, no pet.) (rejecting argument that prosecutor’s misstatements regarding the
burden of proof during voir dire constituted fundamental error that would excuse
need to object). The Fort Worth court analogized a prosecutor’s statements during
voir dire to improper jury argument, which is forfeited if not preserved by objection.
See id. (quoting Davis v. State, No. 05-19-00508-CR, 2020 WL 3396440, at *4–5
(Tex. App.—Dallas June 19, 2020, no pet.) (mem. op., not designated for
9 publication)). We agree with this approach. Where a prosecutor misstates the law
about the burden of proof, the appellant must object to preserve his complaint. See
id.; see also Fuentes, 991 S.W.2d at 273.
In this case, the prosecutor used the “common sense” analogy for a second
time during voir dire, during the State’s opening statement, and in the State’s closing
argument; however, Carr failed to object each time the “common sense” analogy
occurred. We conclude that by failing to object each time the prosecutor offered the
complained of analogy, Carr failed to preserve his complaint for an appeal. See
Fuentes, 991 S.W.2d at 273; Robinson, 685 S.W.3d at 223–24. We overrule issue
one.
B. Issue Two: Carr did not preserve his constitutional complaint related to the finger count field sobriety test evidence, and the trial court did not abuse its discretion by admitting the officer’s testimony under Rule 701.
In issue two Carr complains about the admission of what he argues is a
“nonstandard” finger count field sobriety test, which he contends is inconsistent with
the Kelly standard and based on Trooper Evans’ testimony untested under Texas
Rule of Evidence 702 as Kelly requires. See Kelly, 824 S.W.2d at 573. Carr further
argues that because admitting Evans’ testimony about the finger count test rose to
the level of constitutional error, it is subject to harmless error review. The State
responds that by failing to object to Evans’ testimony about the test, Carr waived his
right to complain about its effect on his trial.
10 In the trial court, Carr objected to Evans’s testimony about the finger count
test because it “doesn’t meet standard[,]” and “to any further testimony about tests
that haven’t been validated properly under the Kelly standard.” At trial, Carr also
argued the State was trying to substitute the finger count test for a SFST, and there
was no substitute. Nothing in his objection or argument to the trial court raised a
constitutional complaint. Rather, his arguments related to the reliability of the
evidence of a “nonstandard” field sobriety test and its failure to comply with the
Kelly case.
“To preserve error regarding the admission of evidence, a defendant must
lodge a timely and specific objection. The purpose of requiring the objection is to
give to the trial court or the opposing party the opportunity to correct the error or
remove the basis for the objection.” Martinez v. State, 22 S.W.3d 504, 507 (Tex.
Crim. App. 2000) (citation omitted); see also Tex. R. App. P. 33.1(a). A point of
error on appeal must also match the objection made at trial. Clark v. State, 365
S.W.3d 333, 339–40 (Tex. Crim. App. 2012) (noting that record did not show the
trial court understood appellant’s evidentiary objections to be a constitutional due
process complaint and due process complaint was forfeited). Consequently, “‘[a]n
objection stating one legal theory [at trial] may not be used to support a different
legal theory on appeal.’” Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App.
1995) (quoting Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990))
11 (other citations omitted). To the extent Carr tries to raise a constitutional complaint
on appeal regarding the admission of Evans’s testimony about the finger count test,
we conclude he has failed to preserve that complaint for our review. See Tex. R.
App. P. 33.1(a); Martinez, 22 S.W.3d at 507; see also Clark, 365 S.W.3d at 339–40;
Broxton, 909 S.W.2d at 918.
We now turn to Carr’s evidentiary objection that Evans’s finger count test
testimony was inadmissible under Kelly and Rule 702. We review a trial court’s
ruling regarding the admissibility of expert testimony for an abuse of discretion and
will not disturb it if it is within the zone of reasonable disagreement. See Wolfe v.
State, 509 S.W.3d 325, 335 (Tex. Crim. App. 2017). Texas Rule of Evidence 702
governs the admissibility of expert testimony and provides that “[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; see also Wolfe, 509 S.W.3d at 335.
Rule 701 governs the admissibility of lay opinion testimony. See Tex. R.
Evid. 701. “[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.” Osbourn v. State, 92 S.W.3d 531, 537 (Tex.
Crim. App. 2002); Kronenthal v. State, No. 09-19-00138-CR, 2020 WL 5805545, at
12 *7 (Tex. App. —Beaumont Sept. 30, 2020, no pet.) (mem. op., not designated for
publication) (citations omitted); 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)). 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).
The officer’s administration of the complained-of finger count test was
“grounded in the common knowledge that excessive alcohol consumption can cause
problems with coordination, balance, and mental agility[]” to reveal clues or
symptoms of impairment. See id. at 223–24 (citation omitted); see also Kronenthal,
2020 WL 5805545, at *7. Since the officer’s testimony about the finger count test
did not require scientific expertise to interpret, it was admissible under Rule 701 as
lay opinion testimony. Osbourn, 92 S.W.3d at 537; Kronenthal, 2020 WL 5805545,
at *7–8; see also Emerson, 880 S.W.2d at 763. The trial court did not abuse its
discretion by admitting this evidence. We overrule issue two.
13 III. Conclusion
Having overruled Carr’s issues, we affirm the trial court’s judgment.
AFFIRMED.
W. SCOTT GOLEMON Chief Justice
Submitted on April 25, 2024 Opinion Delivered May 15, 2024 Do Not Publish
Before Golemon, C.J., Horton and Johnson, JJ.