Romine, Lonnie Aquila v. State

• Court: Court of Appeals of Texas
• Decided: July 18, 2002
• Docket: 01-01-00052-CR
• Status: Published

Opinion

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-01-00052-CR

LONNIE AQUILA ROMINE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 38,703

O P I N I O N

Appellant, Lonnie Aquila Romine, was indicted for felony driving while intoxicated with three enhancements. A jury found appellant guilty as charged, and the trial court assessed punishment, as agreed to by appellant and the State, at 25 years in prison. We affirm.

BACKGROUND

At approximately 7:20 p.m., Officer Arnold stopped appellant for speeding and driving with a malfunctioning right rear brake light. Officer Arnold noticed the odor of alcohol and asked appellant to step out of his truck. Officer Arnold asked if appellant had been drinking, and appellant said he had consumed approximately five beers. Officer Arnold noticed that appellant's eyes were glazed over, his speech was slurred, and he was unsteady on his feet. Officer Arnold conducted four field sobriety tests, which appellant failed. The field sobriety tests were videotaped. Officer Arnold called Officer Jernigan, who was certified to perform the Horizontal Gaze Nystagmus (HGN) test, to the scene. Officer Jernigan performed the HGN test and determined that appellant was intoxicated over the legal limit. Officer Arnold arrested appellant and searched his truck. Officer Arnold found an open, partially empty beer can, which was still cool to the touch, in the floor of appellant's truck. Officer Arnold took appellant to the Pearland City Jail, where another sobriety test was given and videotaped. Appellant failed that test, also.

At the jail, appellant refused to take a breath test because he "didn't trust it" and stated that he wanted a blood test. He was taken to Southeast Memorial Hospital, and his blood was drawn between 10:00 and 10:40p.m. The blood sample was sent to the Texas Department of Public safety crime lab in Houston, and testing showed appellant's blood alcohol concentration to be 0.17 grams per deciliter.

DISCUSSION

In one point of error, appellant contends the trial court erred in allowing the State's witness, Seberra Lopez, to testify to appellant's blood alcohol concentration because the witness did not provide retrograde extrapolation data to prove the blood alcohol concentration of appellant at the time of the operation of the motor vehicle. At trial, appellant made the following objection to Seberra Lopez's testimony:

[Defense counsel]: You Honor, my motion is that the witness be not allowed to testify as to the blood concentration, due to the fact that the prior witness stated that the blood was drawn anywhere between . . . 10:00 and 10:40. So, between the hours of 10:20 and 10:40 are longer than two hours after the arrest of the defendant.

. . . .

THE COURT: What do you base your motion on? Statute? Case law?

[Defense counsel]: I believe it's a statute. ⁽¹⁾

[Defense Counsel]: My argument is that they've required that the blood test be within two hours, to give you an approximate value of what the blood alcohol level was at the time of the offense. . . . The State did not get the two-hour limit on the test; and therefore, it's an inaccurate test.

THE COURT: Your motion is denied.

For an issue to be preserved on appeal, there must be a timely objection which specifically states a legal basis for objection; an objection stating one legal basis may not be used to support a different legal theory on appeal. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990); see also Tex. R. App. P. 33.1(a). Appellant's objection at trial does not comport with his point of error on appeal. Therefore, nothing is preserved for our review. Accordingly, we overrule appellant's sole point of error.

We affirm the judgment of the trial court.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Radack, and Price. ⁽²⁾

Do not Publish. Tex. R. App. P. 47.4.

1. Although appellant did not cite a statute at trial and does not cite one on appeal, counsel evidently was referring to section 724.019 of the Transportation Code, which provides that a person, after submitting a breath, blood, or urine sample at the request of a peace officer, may, within two hours after arrest, have a health professional of the person's choice take an additional blood sample for analysis. Tex. Transp. Code Ann. § 724.019 (Vernon 1999). Because appellant did not submit to a breath, blood, or urine sample at the officer's request, this statute does not apply. See Finley v. State, 809 S.W.2d 909, 912-13 (Tex. App.--Houston [14th Dist.] 1991, pet. ref'd).

2.

The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.