Affirmed and Opinion Filed June 3, 2013
S In The Court of Appeals Fifth District of Texas at Dallas
No. 05-12-00320-CR
PAOLO ALEXANDRA HELLMAN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court No. 6 Dallas County, Texas Trial Court Cause No. MB10-53817-G
OPINION Before Justices Bridges, FitzGerald, and Myers Opinion by Justice FitzGerald A jury convicted appellant of driving while intoxicated, and the trial judge sentenced her
to ninety days in jail, probated for twelve months, and an $800 fine. In two issues on appeal,
appellant argues the trial court erred in admitting evidence that she refused a breath test and in
instructing the jury on the presumption of innocence. Finding no reversible error, we affirm the
trial court’s judgment.
BACKGROUND
At 11:00 p.m. on March 4, 2010, Officer Matthew Finley of the Dallas Police Department
initiated a traffic stop of appellant’s vehicle after he observed the vehicle weave in the lanes and
fail to come to a complete stop at a stop sign. When Officer Finley activated his lights, the
vehicle failed to slow down or signal that it was stopping. After Officer Finley also activated his
siren, appellant brought the vehicle to a stop in a parking lot. Officer Finley observed that appellant had bloodshot eyes and a “strong odor of an
alcoholic beverage coming from her.” Officer Finley asked appellant where she had been and if
she had consumed any alcoholic beverages. Appellant initially replied that she was coming from
a bar and had consumed two beers. But after the officer decided to conduct field sobriety tests,
appellant told him she had actually consumed four beers.
Officer Finley performed three field sobriety tests — the horizontal nystagmus (“HGN”)
test, the walk and turn test, and the one-leg stand test. On the HGN test, appellant exhibited six
of six possible clues indicating intoxication. She exhibited five of eight clues of intoxication on
the walk and turn test, and three of four clues of intoxication on the one-leg stand test. Officer
Finley attributed appellant’s inability to successfully complete these tests to her intoxication.
Appellant refused to take a portable breath test (“PBT”). Based on his conversations with
appellant and her performance on the field sobriety tests, Officer Finley determined that
appellant did not have normal use of her mental or physical faculties due to the introduction of
alcohol in the body, and could not safely operate a motor vehicle. Appellant was placed under
arrest.
At trial, the State offered the videotape showing the stop. Counsel for appellant objected
to the portion of the video where appellant refused the PBT, stating “the test that he’s trying to
give her has absolutely no scientific validity,” and “it’s irrelevant because the probative value of
it is far outweighed by the prejudicial value of it.” The trial court overruled the objection and
admitted the entire videotape into evidence. Before Officer Finley testified that he did not place
appellant under arrest until she refused to take the PBT, counsel for appellant asked for and
received a running objection on the PBT based upon the prior objection.
Upon conclusion of the trial, the jury found appellant guilty of driving while intoxicated.
–2– The trial judge sentenced appellant to ninety days in jail, probated for twelve months, and an
$800 fine, and this appeal followed.
ANALYSIS
Refusal to take PBT
In her first issue on appeal, appellant argues the trial court erred in allowing evidence of
her refusal to take a PBT because PBT’s lack scientific validity. Appellant also argues that the
admissibility of evidence concerning the failure to submit to a breath test “is limited to a test that
was properly requested in accordance with the Texas Transportation Code,” and the “device is
not certified . . . as required for breath testing devices allowed by the statute.” Appellant’s trial
objections, however, were limited to relevance, scientific validity, and a Rule 403 objection.
Therefore, our inquiry on appeal is limited by the scope of appellant’s objections at trial.1 See
Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990) (holding complaint on appeal that
differs from trial court objection not preserved for appeal).
We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.
Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial court abuses its
discretion when its decision is arbitrary, unreasonable, or without reference to guiding rules or
principles. Makeig v. State, 802 S.W.2d 59, 62 (Tex. Crim. App. 1990).
It is well established that a refusal to submit to a breath test is relevant and admissible as
evidence of consciousness of guilt. Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App.
2008). And several courts have held that like other field sobriety tests, the results of a portable
breath test are admissible to show the presence of alcohol. See Adams v. State, 156 S.W.3d 152,
156 (Tex. App.—Beaumont 2005, no pet.); Hill v. State, No. 06-12-00016-CR, 2012 WL
1 In addition, appellant does not identify the statute upon which she bases her argument or provide any authority to support her contentions. Therefore, appellant’s statutory arguments are also waived as inadequately briefed. See TEX. R. APP. P. 38.1.
–3– 2226610, at *1, n. 3 (Tex. App.—Texarkana, June 18, 2012, no pet.) (mem. op.). For example, in
a case involving a similar portable breath test known as a “PAS,” the San Antonio court noted
that while the PAS is not certified under the transportation code, the test is used as a qualitative
indicator of intoxication, not as evidence of alcohol concentration. Fernandez v. State, 915
S.W.2d 572, 576 (Tex. App.—San Antonio 1996, no pet.). Thus, the court concluded “because
the PAS test was only introduced qualitatively as another indicator of intoxication, much like the
other field sobriety tests,” it was not error to admit evidence of the PAS. Id; see also Fowler v.
State, No. 04-06-00777-CR, 2007 WL 2315971 (Tex. App.—San Antonio Aug. 15, 2007, pet.
ref’d) (mem. op.) (concluding no error to refuse suppression of use of PBT device as evidence
that alcohol was detected).
Significantly, appellant offers no authority for the proposition that a PBT test lacks
scientific validity when used like a field sobriety test to detect the presence of alcohol. Moreover,
in this instance the PBT was not even utilized to demonstrate the presence of alcohol because
appellant refused to take the test. Although appellant concedes that the refusal to submit to the
taking of a blood or alcohol specimen may be introduced as evidence at trial and referred to by
the state in argument, she insists these principles apply only “to a test that was properly
requested in accordance with the Texas Transportation Code.”2 But appellant provides no
authority or explanation as to how the refusal to take a PBT differs from the refusal to take any
other type of breath test as relevant evidence of consciousness of guilt.
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Affirmed and Opinion Filed June 3, 2013
S In The Court of Appeals Fifth District of Texas at Dallas
No. 05-12-00320-CR
PAOLO ALEXANDRA HELLMAN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court No. 6 Dallas County, Texas Trial Court Cause No. MB10-53817-G
OPINION Before Justices Bridges, FitzGerald, and Myers Opinion by Justice FitzGerald A jury convicted appellant of driving while intoxicated, and the trial judge sentenced her
to ninety days in jail, probated for twelve months, and an $800 fine. In two issues on appeal,
appellant argues the trial court erred in admitting evidence that she refused a breath test and in
instructing the jury on the presumption of innocence. Finding no reversible error, we affirm the
trial court’s judgment.
BACKGROUND
At 11:00 p.m. on March 4, 2010, Officer Matthew Finley of the Dallas Police Department
initiated a traffic stop of appellant’s vehicle after he observed the vehicle weave in the lanes and
fail to come to a complete stop at a stop sign. When Officer Finley activated his lights, the
vehicle failed to slow down or signal that it was stopping. After Officer Finley also activated his
siren, appellant brought the vehicle to a stop in a parking lot. Officer Finley observed that appellant had bloodshot eyes and a “strong odor of an
alcoholic beverage coming from her.” Officer Finley asked appellant where she had been and if
she had consumed any alcoholic beverages. Appellant initially replied that she was coming from
a bar and had consumed two beers. But after the officer decided to conduct field sobriety tests,
appellant told him she had actually consumed four beers.
Officer Finley performed three field sobriety tests — the horizontal nystagmus (“HGN”)
test, the walk and turn test, and the one-leg stand test. On the HGN test, appellant exhibited six
of six possible clues indicating intoxication. She exhibited five of eight clues of intoxication on
the walk and turn test, and three of four clues of intoxication on the one-leg stand test. Officer
Finley attributed appellant’s inability to successfully complete these tests to her intoxication.
Appellant refused to take a portable breath test (“PBT”). Based on his conversations with
appellant and her performance on the field sobriety tests, Officer Finley determined that
appellant did not have normal use of her mental or physical faculties due to the introduction of
alcohol in the body, and could not safely operate a motor vehicle. Appellant was placed under
arrest.
At trial, the State offered the videotape showing the stop. Counsel for appellant objected
to the portion of the video where appellant refused the PBT, stating “the test that he’s trying to
give her has absolutely no scientific validity,” and “it’s irrelevant because the probative value of
it is far outweighed by the prejudicial value of it.” The trial court overruled the objection and
admitted the entire videotape into evidence. Before Officer Finley testified that he did not place
appellant under arrest until she refused to take the PBT, counsel for appellant asked for and
received a running objection on the PBT based upon the prior objection.
Upon conclusion of the trial, the jury found appellant guilty of driving while intoxicated.
–2– The trial judge sentenced appellant to ninety days in jail, probated for twelve months, and an
$800 fine, and this appeal followed.
ANALYSIS
Refusal to take PBT
In her first issue on appeal, appellant argues the trial court erred in allowing evidence of
her refusal to take a PBT because PBT’s lack scientific validity. Appellant also argues that the
admissibility of evidence concerning the failure to submit to a breath test “is limited to a test that
was properly requested in accordance with the Texas Transportation Code,” and the “device is
not certified . . . as required for breath testing devices allowed by the statute.” Appellant’s trial
objections, however, were limited to relevance, scientific validity, and a Rule 403 objection.
Therefore, our inquiry on appeal is limited by the scope of appellant’s objections at trial.1 See
Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990) (holding complaint on appeal that
differs from trial court objection not preserved for appeal).
We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.
Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial court abuses its
discretion when its decision is arbitrary, unreasonable, or without reference to guiding rules or
principles. Makeig v. State, 802 S.W.2d 59, 62 (Tex. Crim. App. 1990).
It is well established that a refusal to submit to a breath test is relevant and admissible as
evidence of consciousness of guilt. Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App.
2008). And several courts have held that like other field sobriety tests, the results of a portable
breath test are admissible to show the presence of alcohol. See Adams v. State, 156 S.W.3d 152,
156 (Tex. App.—Beaumont 2005, no pet.); Hill v. State, No. 06-12-00016-CR, 2012 WL
1 In addition, appellant does not identify the statute upon which she bases her argument or provide any authority to support her contentions. Therefore, appellant’s statutory arguments are also waived as inadequately briefed. See TEX. R. APP. P. 38.1.
–3– 2226610, at *1, n. 3 (Tex. App.—Texarkana, June 18, 2012, no pet.) (mem. op.). For example, in
a case involving a similar portable breath test known as a “PAS,” the San Antonio court noted
that while the PAS is not certified under the transportation code, the test is used as a qualitative
indicator of intoxication, not as evidence of alcohol concentration. Fernandez v. State, 915
S.W.2d 572, 576 (Tex. App.—San Antonio 1996, no pet.). Thus, the court concluded “because
the PAS test was only introduced qualitatively as another indicator of intoxication, much like the
other field sobriety tests,” it was not error to admit evidence of the PAS. Id; see also Fowler v.
State, No. 04-06-00777-CR, 2007 WL 2315971 (Tex. App.—San Antonio Aug. 15, 2007, pet.
ref’d) (mem. op.) (concluding no error to refuse suppression of use of PBT device as evidence
that alcohol was detected).
Significantly, appellant offers no authority for the proposition that a PBT test lacks
scientific validity when used like a field sobriety test to detect the presence of alcohol. Moreover,
in this instance the PBT was not even utilized to demonstrate the presence of alcohol because
appellant refused to take the test. Although appellant concedes that the refusal to submit to the
taking of a blood or alcohol specimen may be introduced as evidence at trial and referred to by
the state in argument, she insists these principles apply only “to a test that was properly
requested in accordance with the Texas Transportation Code.”2 But appellant provides no
authority or explanation as to how the refusal to take a PBT differs from the refusal to take any
other type of breath test as relevant evidence of consciousness of guilt. See Bartlett, 270 S.W.3d
at 153; see also Thomas v. State, 990 S.W.2d 858, 860 (Tex. App.—Dallas 1999, no pet.)
(refusal to take breath test implies person believes he will fail it because he is intoxicated).
2 Appellant does not specifically assert that the test was improper for failure to give statutory warnings or otherwise follow the directives iof the transportation code, nor did she raise either of these arguments in the court below.
–4– Therefore, under these circumstances, we cannot conclude the trial court acted outside the zone
of reasonable disagreement in admitting evidence that appellant refused to take the test.
In addition, even if the trial court erred in admitting evidence that appellant refused the
PBT, appellant has failed to demonstrate she suffered any harm. There was testimony from
Officer Finley about the field sobriety tests he performed and appellant’s admission that she had
consumed alcohol. The officer also testified about his personal observations of appellant,
including her bloodshot eyes and the odor of alcohol on her person. A DVD of appellant’s
performance on the field sobriety tests was admitted into evidence. The refusal to take the PBT
was referred to only briefly during Officer Finley’s testimony and in the State’s closing
argument. Therefore, on this record there is no indication that the admission of the complained-
of evidence affected appellant’s substantial rights. See TEX. R. APP. P. 44.2(b). Appellant’s first
issue is overruled.
Presumption of Innocence Instruction
In her second issue, appellant asserts the trial court erred in refusing her proposed jury
instruction on the presumption of innocence. The State responds that the trial court properly
instructed the jury and did not err in refusing appellant’s proposed additional verbiage. We agree
with the State.
In our review of alleged jury charge error, we first determine whether the charge contains
error. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If error exists and appellant
objected to the error at trial, we determine whether the error caused sufficient harm to require
reversal. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1984), superseded on other grounds by rule as stated in
Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988) (if error exists and was preserved,
reversal required if error caused “some harm” to appellant from the error).
–5– The Legislature has codified the presumption of innocence in the penal code and the code
of criminal procedure. Section 2.01 of the penal code and article 38.03 of the code of criminal
procedure provide:
All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.
TEX. PENAL CODE ANN. § 2.01 (West 2011); TEX. CODE CRIM. PROC. ANN. art. 38.03 (West
Supp. 2012).
Appellant’s counsel requested that the trial court also include a statement that “The
presumption of innocence alone is sufficient to acquit the defendant unless you as jurors are
satisfied of the defendant’s guilt beyond a reasonable doubt.” The trial court denied appellant’s
request.
On appeal, appellant provides no authority for the proposition that the trial court’s refusal
of the requested additional language was error. Instead, she asserts only that the language is
included in the Texas Pattern Jury Charges, and should therefore be included. We are not
persuaded by this argument.
Here, the jury was instructed:
In all criminal cases the burden of proof is on the State. All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.
When a court provides an instruction on the presumption of innocence, language that is
substantially similar to the language in the penal code and code of criminal procedure has been
deemed sufficient. See Sweaney v. State, 632 S.W.2d 932, 934–35 (Tex. App.—Fort Worth
1982, no writ). Here, the instruction tracked the language of the statutes verbatim. Therefore, we
–6– conclude the trial court did not err in refusing appellant’s proposed instruction. Appellant’s
second issue is overruled.
Having resolved all of appellant’s issues against her, we affirm the trial court’s judgment.
/Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE 120320F.U05
Do Not Publish TEX. R. APP. P. 47
–7– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
PAOLO ALEXANDRA HELLMAN, On Appeal from the County Criminal Court Appellant No. 6, Dallas County, Texas Trial Court Cause No. MB10-53817-G. No. 05-12-00320-CR V. Opinion delivered by Justice FitzGerald. Justices Bridges and Myers participating. THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this June 3, 2013
/Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE
–8–