Romo v. State
| Decision Date | 21 February 1979 |
| Docket Number | No. 57556,No. 3,57556,3 |
| Citation | 577 S.W.2d 251 |
| Parties | Domingo ROMO, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Larry E. Glazner, Lubbock, for appellant.
Alton R. Griffin, Dist. Atty., and John C. Kilpatrick, Asst. Dist. Atty., Lubbock, for the State.
Before DALLY, W. C. DAVIS and CLINTON, JJ.
Appellant was convicted of the offense of driving while intoxicated, and punishment was assessed at ten days and $150.00 fine. Four grounds of error are raised on appeal.
In three grounds of error appellant contends that the trial court erred by refusing to grant a motion for mistrial based on the admission of evidence about a breathalyzer test. Appellant's counsel filed a pre-trial motion in limine requesting that the trial court restrict the State from making "(a)ny reference to breathlizer (sic) tests, broad (sic) alcohol (sic) levels, or other such evidence unless same is presented by a duly qualified and certified chemist and breath test administrator." The motion was denied by the trial court. During jury voir dire the prosecutor made several references to a breathalyzer test, but no objections were made by appellant. Officer Danny Smith of the Department of Public Safety testified that he administered a breathalyzer test to appellant, and he gave the results of the examination. He did not testify that he was certified by the Department of Public Safety to administer breathalyzer tests. He did not testify that he understood the theory of the machine, that he was qualified to or did check the compounded chemicals in the breathalyzer used in the examination, or that he was qualified to calculate and translate a reading of the machine. However, appellant made no objection to Officer Smith's testimony. After both sides rested, appellant's counsel made a motion for mistrial based on the introduction of the breathalyzer testimony.
It is clear that the State failed to prove the necessary predicate for introduction of the breathalyzer test. Cody v. State, 548 S.W.2d 401 (Tex.Cr.App.1977); Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93 (1953). However, reliance on a motion in limine will not preserve error. A defendant must object on the proper grounds when the evidence is offered at trial. Harrington v. State, 547 S.W.2d 616 (Tex.Cr.App.1977); Lopez v. State, 535 S.W.2d 643 (Tex.Cr.App.1976). The reason for this rule is that a judge is often not in a position to decide on the admissibility of evidence prior to the beginning of trial. This is particularly true when the objection is based on grounds such as the failure to prove a proper predicate. Counsel could ask in the motion in limine that before a suspect area is entered into at trial, the opposing counsel be required to approach the bench and inform the court so that the jury may be excluded. By that procedure the evidence may be challenged at the proper time without risk of prejudicing the jury. Whatever the procedure chosen, defense counsel must object before the evidence is admitted during trial in order to properly call the court's attention to the matter and preserve the error for appeal.
Grounds of error number one, two, and three are overruled. 1
In his fourth ground appellant contends that the trial court erred in receiving evidence resulting from an illegal arrest. The record reflects that Joe Weatherford, who originally detained appellant on the "Slayton Highway" two miles outside the city limits of Lubbock, was an employee of the Lubbock County Water Control. Weatherford was a member of the Buffalo Springs Lake Patrol, and he admitted on cross-examination that his jurisdiction did not extend beyond the lake patrol area of Buffalo Lake.
On direct examination Weatherford testified that he was driving to work on Avenue A in Lubbock when he encountered appellant, who was driving "erratically" and at a high rate of speed. Appellant approached Weatherford from the rear, and then passed in a way that forced Weatherford's car into the curb in order to avoid an accident. Weatherford radioed the Sheriff's Office and asked...
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