Solsaa, James Bruce v. State

• Court: Court of Appeals of Texas
• Decided: June 30, 2005
• Docket: 14-04-00487-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 30, 2005

Affirmed and Memorandum Opinion filed June 30, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00487-CR

JAMES BRUCE SOLSAA, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Court at Law Number One

Fort Bend County, Texas

Trial Court Cause No. 107553

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M E M O R A N D U M   O P I N I O N

Appellant, James Bruce Solsaa, appeals his conviction for driving while intoxicated (ADWI@), asserting the trial court erred by:  (1) allowing testimony from the State=s expert on appellant=s breath alcohol content while driving, (2) allowing allegedly improper closing argument from the State, and (3) giving the jury an allegedly improper definition of the laws concerning DWI.  We affirm the trial court=s judgment.

I.  Factual and Procedural Background

While on patrol, Officer George Rivera of the Sugar Land Police Department observed a vehicle traveling on Interstate Highway 59 without a license plate light.  At 11:43 p.m. on September 28, 2003, Officer Rivera stopped the vehicle, making contact with appellant.  Detecting an odor of alcohol and noticing a glazed, glassy look to appellant=s eyes, Officer Rivera asked appellant to step out of his car.  Officer Rivera then performed standardized field sobriety tests on appellant.  At 12:03 a.m., September 29, Officer Rivera arrested appellant for DWI.  Officer Rivera took appellant to the Fort Bend Country Jail, and Deputy Jeremy Goodrich gave appellant a certified breath alcohol content test at 12:30 a.m. and 12:32 a.m., registering 0.142 and 0.129, respectively. 

Appellant was charged by information with misdemeanor DWI.  He pleaded not guilty.

During the trial, the State called Alva Barbosa, the technical supervisor for the Intoxilyzer 5000, to testify.  In redirect examination, the State began to ask Barbosa to assume that a person had not eaten from 11:45 p.m. until 12:30 a.m. and did not have any alcohol.  Before the State finished its question, appellant=s trial counsel objected, stating that this question was irrelevant because there had been no testimony regarding extrapolation facts as to appellant, for example, whether and when appellant had eaten and what alcohol he had consumed and when.  At a bench conference, the trial court sustained this objection.

At this same bench conference, the State asked the court if it could ask Barbosa whether, based on her training and experience as an expert, she could give an opinion as to whether an individual who blew a 0.142 alcohol concentration at 12:30 a.m. and was driving a motor vehicle on a highway 45 minutes earlier would have had a breath alcohol concentration of 0.08 or more 45 minutes earlier.  Appellant=s counsel stated that this question already had been asked and answered and that Barbosa needed more facts to give such an opinion.  The trial court stated at the bench conference that it would allow the State to ask such a question.  Immediately following this bench conference, the State asked Barbosa whether she could give such an opinion.  Barbosa said, Ayes.@  The State passed the witness.  On further cross-examination, appellant=s counsel then confirmed that Barbosa=s response meant only that she could give such an opinion, without indicating what her opinion was.  On further examination, the State asked Barbosa, not whether she could give an opinion, but what her opinion was in this regard and what the basis was for this opinion.  Appellant=s counsel did not object to these two questions.  Barbosa replied that a person whose breath alcohol level was 0.142 when tested would have had a breath alcohol level above 0.08 forty-five minutes earlier, and she stated various bases for her opinion.  Appellant=s counsel then further cross-examined Barbosa regarding this opinion.

The jury convicted appellant of the offense charged. 

II.  Issues and Analysis

In his first issue, appellant asserts that the trial court erred in allowing Barbosa to testify as to her opinion of appellant=s breath alcohol content at the time of driving.  However, at trial, appellant objected only to the question of whether Ms. Barbosa could render an opinion on this issue.  Appellant did not object at trial to the State=s question or to Barbosa=s answer as to what her opinion was in this regard.  Therefore, appellant has not preserved error.  See Tex. R. App. P. 33.1.; Trevino v. State, 991 S.W.2d 849, 855B56 (Tex. Crim. App. 1999).  Accordingly, we overrule appellant=s first issue.

In his second issue, appellant contends that the trial court erred in allowing allegedly improper closing argument from the State.  The State, in closing argument, told the jury that if they found appellant=s breath alcohol content was 0.142 forty-five minutes after he was driving, the jury could find him guilty on that basis alone.  The State=s interpretation of the law would not require that the jury find appellant=s breath alcohol content was 0.08 or greater while he was driving.  Appellant objected to the State=s argument, and the trial court sustained this objection.  To complain of an erroneous jury argument on appeal, appellant must show not only that he objected, but also that he carried his objection to an adverse ruling.  Mathis v. State, 67 S.W.3d 918, 927 (Tex. Crim. App. 2002).  Appellant did not ask for a curative instruction or a mistrial; he was granted all the relief he requested.  Therefore, he cannot request greater relief on appeal.  See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).  Accordingly, we overrule appellant=s second issue.

In his third issue, appellant contends that the jury was given an improper definition of the law concerning DWI.  Appellant provides neither authority nor argument to support his contention that the jury charge was flawed.  Therefore, we cannot address it.  See Tex. R. App. P. 38.1(h); Balentine v. State, 71 S.W.3d 763, 766 (Tex. Crim. App. 2002).  Even absent appellant=s failure to brief adequately, appellant=s contention would fail.  Appellant did not object to the jury charge at trial.  Without an objection to the charge in the trial court, appellant must show that he suffered such egregious harm that he did not receive a fair and impartial trial.  Jiminez v. State, 32 S.W.3d 233, 235 (Tex. Crim. App. 2000).  This is a burden appellant cannot overcome on this record. 

Having overruled all of appellant=s issues, we affirm the trial court=s judgment. 

/s/        Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed June 30, 2005.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).