source: Caselaw Access Project

author: JAMES T. WORTHEN, Chief Justice.

license: Public Domain

text:
    James Michael MATTHEWS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 12-03-00435-CR to 12-03-00441-CR.
    Court of Appeals of Texas, Tyler.
    Nov. 30, 2004.

      J. Douglas Froneberger, Sulphur Springs, for appellant.
    Martin E. Braddy, for appellee.
    Panel consisted of WORTHEN, C. J., GRIFFITH, J. and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

James Michael Matthews appeals his convictions for one count of aggravated sexual assault of a child and ten counts of indecency with a child. Appellant raises four issues on appeal. We affirm.

Background

Appellant was charged by multiple indictments with eleven counts of indecency with a child and one count of aggravated sexual assault of a child. The indecency charges stemmed from allegations from Appellant’s daughter, J.M., and his two nieces, E.W. and L.A. The charge of aggravated sexual assault related to an incident alleged by E.W. Each of the complainants testified at trial.

L.A.’s Testimony

L.A. testified concerning four incidents involving Appellant that began occurring sometime before her eighth birthday. L.A. testified that, on one occasion, she was at Appellant’s house late one afternoon, and that she, Appellant, and her cousin, S.W., who is Appellant’s son, were lying on her aunt’s bed. L.A. testified that she was lying between Appellant and S.W. According to L.A., while her cousin was asleep, Appellant touched and rubbed L.A.’s vagina underneath her clothes with his hand. L.A. testified that Appellant then made her touch and rub his penis with her hand.

On another occasion, when L.A. was visiting her grandparents’ house, she, Appellant, and S.W. were walking in a nearby pasture next to a wooded area. L.A. testified that S.W. went off to play, and while he was away, Appellant sat on a fallen tree with L.A. on his lap. L.A. stated that as she sat on Appellant’s lap, Appellant touched her vagina on top of her clothing and made her touch his penis on top of his clothing.

L.A. testified that in another instance, she and S.W. were sitting in the living room at her grandparents’ house when Appellant entered the room. L.A. stated that she was lying on the sofa and that Appellant entered the room and sat next to her. L.A. testified that, as Appellant sat there, he touched her vagina with his hand on top of her clothes.

L.A. next testified that on yet another occasion, she was alone with Appellant in his house. According to L.A., Appellant laid on the floor and made her get on top of him and kiss him on the lips.

E.W.’s Testimony

E.W. testified concerning four incidents involving Appellant that occurred when she was approximately nine or ten years old. E.W. testified that, on one occasion, while she was visiting her grandparents’ house, she was in an uncle’s bedroom alone with Appellant. According to E.W., Appellant pulled her shorts and underwear down to her ankles. She then walked into a nearby room. E.W. testified that Appellant followed her, picked her up, and put his mouth on her vagina.

E.W. further testified concerning another incident when she and Appellant were in the bathroom at Appellant’s house. E.W. stated that Appellant pulled down his pants, took her hands, placed them on his erect penis, and made E.W. masturbate him.

E.W. testified that, on another occasion, when she was spending the night at Appellant’s house and was sleeping in the bed with Appellant and his wife, she awoke to discover Appellant’s fingers inside her vagina.

Finally, E.W. testified that on yet another occasion, she and Appellant were in the woods near her grandparents’ house picking blackberries. E.W. stated that Appellant either removed or unbuttoned his shirt and, with E.W. on top of him, touched her breast.

J.M.’s Testimony

J.M. testified concerning an incident involving Appellant that occurred when she was eleven years old. According to J.M., on August 14, 2001, she was at home and had fallen asleep on the bed that she and her mother ordinarily shared. J.M. awoke when Appellant entered the room and sat on the bed beside her. J.M. stated, “He started touching me, but he was being more aggressive than he usually was.” She then testified that Appellant laid down on the bed and touched her vagina and breast with his hand on top of her clothes. J.M. stated that Appellant touched her vagina for a few minutes and kissed her on her mouth and the top of her chest. J.M. further testified that Appellant touched her chest under her clothes, but on top of her undergarments.

J.M. recounted that prior to the aforementioned incident, she had attempted to commit suicide by swallowing a bottle of pills. At the time, her given reason for her suicide attempt was that she was depressed and her mother was not paying much attention to her. J.M. testified that she now realizes that she took the pills because she did not want to be alone with her father on an upcoming vacation because he would “touch” her sometimes. J.M. stated that she never said anything about it because it was easier to make up another excuse for her behavior. Following the incident on August 14, J.M. became depressed and anorexic. J.M. testified that she stopped eating because she thought Appellant molested her because there was something wrong with her body.

Testimony of Appellant’s Wife and Kathy Smedley

Appellant’s wife testified that while at work, she received a phone call from her daughter, J.M., in August 2001. Appellant’s wife testified that J.M. was crying and told her that “she had come to lay down to take a nap on [her] bed and had the TV on, and [Appellant] had come over ... [and] touched her private parts and her breasts.”

Kathy Smedley, the program director for the Northeast Texas Child Advocacy Center, interviewed J.M. after the matter was referred to the Advocacy Center by Child Protective Services. Smedley testified that J.M. told her that Appellant touched her vagina. A videotape of the interview between Smedley and J.M. was introduced into evidence over Appellant’s objection.

Verdict and Sentence

Following the close of evidence and argument of counsel, the jury found Appellant guilty as charged on ten counts of indecency with a child and one count of aggravated sexual assault of a child. The jury further recommended punishment at imprisonment for ten years and a $2,000 fine for each count of indecency with a child and imprisonment for forty years and a $5,000 fine for the count of aggravated sexual assault of a child. The trial court sentenced Appellant accordingly. This appeal followed.

Outcry Witnesses

In his first issue, Appellant argues that the trial court erred in admitting the outcry testimony of both Appellant’s wife and Kathy Smedley. A trial court has broad discretion in determining the admissibility of outcry witness testimony. See Garcia v. State, 792 S.W.2d 88, 92 (Tex.Crim.App.1990). The exercise of such discretion will not be disturbed unless a clear abuse of discretion is established by the record. Id, A trial court’s findings will be upheld when they are supported by the evidence. Id.

Multiple Outcry Witnesses

Outcry testimony is admissible in spite of the hearsay rule with respect to statements that describe the alleged offense where such statements (1) were made by the child against whom the offense was allegedly committed and (2) were made to the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense. See Tex.Code Crim. Proc. Ann. art. 38.072 § 2(a), (b) (Vernon Supp. 2004-05). To “describe the alleged offense,” the statute demands that the statement must be “more than words which give a general allusion that something in the area of child abuse was going on[,]” but rather, must describe the offense “in some discernible manner[.]” Garcia, 792 S.W.2d at 91.

Admissible outcry witness testimony is not person-specific, but event-specific. See Broderick v. State, 35 S.W.3d 67, 73 (Tex.App.-Texarkana 2000, pet. refd). However, before more than one outcry witness may testify, it must be determined that the outcry concerned different events, and not simply a repetition of the same event as related by the victim to different individuals. Id.

In the case at hand, the charges at issue relating to J.M. allege (1) that Appellant intentionally or knowingly engaged in sexual contact with J.M. by touching her genitals and (2) that Appellant intentionally or knowingly engaged in sexual contact with J.M. by touching her breast. Appellant’s wife testified that J.M. told her that Appellant had molested her by touching her “private parts” and her “breasts.” Smedley subsequently testified that J.M. told her that Appellant touched her vagina. While the record reflects that Appellant’s wife was the first person over eighteen to whom J.M. related the incident of Appellant touching her breasts, J.M.’s statement that Appellant touched her “private parts” does not describe any alleged offense in a discernable manner as required by the statute. The statement that Appellant touched J.M.’s “private parts” is no more than a general allusion that child abuse had occurred. Thus, Appellant’s wife did not offer outcry testimony with respect to the allegations that Appellant touched J.M.’s genitals. As Smedley testified that J.M. told her that Appellant touched her vagina, she is the proper outcry witness for that incident. We hold that the trial court did not err in admitting the testimony of two outcry witnesses as their testimony related to different incidents.

Videotaped Interview Containing Outcry Testimony

As part of his first issue, Appellant further argues that if Smedley’s testimony was properly admitted, then the trial court erred in admitting the videotaped interview between Smedley and J.M. because the tape contained cumulative evidence. As with all rulings on the admissibility of evidence, we must evaluate the trial court’s ruling under an abuse of discretion standard of review. See Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996). An abuse of discretion occurs where a trial judge acts arbitrarily and unreasonably, without reference to guiding rules or principles of law. See Briones v. State, 12 S.W.3d 126, 128 (Tex.App.-Fort Worth 1999, no pet.). Thus, the trial court is given wide discretion in determining the admissibility of evidence. Id.

Texas courts have long recognized cu-mulativeness as a factor allowing the exclusion of probative evidence. Id. “Cumulative” implies that other relevant evidence has already been received. Id. A careful examination of Rule 403’s wording suggests that where cumulative evidence is offered, exclusion is not mandatory, but only an alternative to be considered in promoting judicial efficiency. Id. (citing Alvarado v. State, 912 S.W.2d 199, 212 (Tex.Crim.App.1995)). Therefore, the significance of Appellant’s objection depends on whether the videotape’s probative value substantially outweighed its effect on the trial’s efficiency. Briones, 12 S.W.3d at 126.

Appellant cites Williams v. State, No. 06-02-00090-CR, 2003 WL 22100789 (Tex.App.-Texarkana 2003, pet. ref'd) (not designated for publication) in support of his argument. However, Appellant’s reliance on Williams is curious. In Williams, although the trial court concluded that the admission of a videotaped interview of an outcry witness was improper, it held that the admission of such testimony did not harm the appellant because such evidence was “cumulative of properly admitted testimony on the same issue.” Id. at ⅝3. Thus, even if we were to assume that the videotaped interview between Smedley and J.M. was admitted in error, such error did not harm Appellant because, as is the brunt of Appellant’s argument, it was cumulative of other testimony on the same issue. Id.

Furthermore, even if, as Appellant contends, the videotaped interview was unnecessarily cumulative, the record does not reflect that Appellant was harmed as a result thereof. Error is harmless when evidence of the same acts is admitted later at trial without objection. See Woolls v. State, 665 S.W.2d 455, 470 (Tex.Crim.App.1983). In the instant case, following Smedley’s testimony and the introduction of the videotaped interview between Smed-ley and J.M., J.M. testified without objection that Appellant touched her vagina and her breast with his hand on top of her clothes. Such testimony corresponds closely with the testimony of Smedley and the videotaped interview between Smedley and J.M. Thus, we hold that even if the trial court abused its discretion in admitting the videotaped interview between Smedley and J.M., such error was harmless. Appellant’s first issue is overruled.

Refusal to Sever

In his second issue, Appellant argues that he was unfairly prejudiced by the trial court’s refusal to sever the prosecution of the various charges against him. Specifically, Appellant argues that had the severance been granted, the jury in such separate trials would not have heard the testimony of multiple victims.

A defendant’s right to sever two or more offenses that have been consolidated or joined for trial does not apply to a prosecution for indecéncy with a child or aggravated sexual assault of a victim under seventeen years of age unless the court determines that the defendant or the state would be unfairly prejudiced by a joinder of offenses. See Tex. Pen.Code Ann. § 3.04(c) (Vernon 2003). The standard of review for whether a trial court properly ruled on a motion to sever, when that determination is left to the trial court by statute, is abuse of discretion. See Salazar v. State, 127 S.W.3d 355, 365 (Tex.App.-Houston [14th Dist.] pet. ref'd). There is no presumption that the joinder of cases involving aggravated sexual assault against different children is unfairly prejudicial. Id.

Evidence of other crimes is not admissible to prove the character of a person to show he acted in conformity therewith, but such evidence may be admissible for other purposes. See Tex.R. Evid. 404(b). To be admissible, evidence must be relevant to some material issue in the case and not simply proof of character conformity. Salazar, 127 S.W.3d at 365 (citing Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App.2003)). The ultimate test is whether the probative value of the evidence substantially outweighs its prejudicial effect. Id.

Here, the underlying defensive theory in Appellant’s case was that the allegations against him were concocted to extort the proceeds of an insurance check from him, or otherwise, as a result of lack of parental attention, anger, resentment, or general exposure to familial dysfunction. Evidence of other crimes may be admitted if it rebuts a defensive theory. See Salazar, 127 S.W.3d at 365 (citing Moses, 105 S.W.3d at 627). Thus, even had Appellant’s cases been tried separately, it is probable that the testimony of the other victims would have been admissible to refute the defensive theory that the complainants, for whatever reason, concocted the story. See Salazar, 127 S.W.3d at 365; Castoreno v. State, 932 S.W.2d 597, 600 (Tex.App.-San Antonio 1996, pet. ref d) (stating evidence of extraneous acts was admissible to rebut defensive theory that the defendant was being framed). We conclude that the trial court could have reasonably found that joinder of the cases was not unfairly prejudicial against Appellant. Therefore, we hold that the trial court did not abuse its discretion in trying the cases together. See Salazar, 127 S.W.3d at 366. Appellant’s second issue is overruled.

Ineffective Assistance of Counsel

In his third issue, Appellant contends that he received ineffective assistance of counsel. Specifically, Appellant argues that his trial counsel was ineffective in that he failed to submit the motion to sever to the trial court in a timely fashion. Appellant’s third issue is conditioned on the assumption that our resolution of his second issue turned on the timeliness of his motion to sever. However, as set forth above, we have concluded that the trial court could have reasonably found that joinder of the cases was not unfairly prejudicial against Appellant and, therefore, did not abuse its discretion in trying the cases together. Yet, even if Appellant’s third issue was not conditioned on an alternate underlying rationale for the resolution of his second issue, the outcome would not differ.

Claims of ineffective assistance of counsel are evaluated under the two-step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first step requires the appellant to demonstrate that trial counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. See id., 466 U.S. at 688, 104 S.Ct. at 2065. To satisfy this step, the appellant must identify the acts or omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996). The reviewing court will not find ineffectiveness by isolating any portion of trial counsel’s representation, but will judge the claim based on the totality of the representation. See Strickland, 466 U.S. at 695,104 S.Ct. at 2069.

To satisfy the Strickland standard, the appellant is also required to show prejudice from the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App.1999). To establish prejudice, an appellant must prove that but for counsel’s deficient performance, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

In any case considering the issue of ineffective assistance of counsel, we begin with the strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). We must presume counsel’s actions and decisions were reasonably professional and were motivated by sound trial strategy. See id. Appellant has the burden of rebutting' this presumption by presenting evidence illustrating why his trial counsel did what he did. See id. Appellant cannot meet this burden if the record does not affirmatively support the claim. See Jackson v. State, 973 S.W.2d 954, 955 (Tex.Crim.App.1998) (inadequate record on direct appeal to evaluate whether trial counsel provided ineffective assistance); Phetvongkham v. State, 841 S.W.2d 928, 932 (Tex.App.-Corpus Christi 1992, pet. ref'd, untimely filed) (inadequate record to evaluate ineffective assistance claim); see also Beck v. State, 976 S.W.2d 265, 266 (Tex.App.-Amarillo 1998, pet. ref'd) (inadequate record for ineffective assistance claim, citing numerous other cases with inadequate records to support ineffective assistance claim). A record that specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd).

In the case at hand, the record is silent as to the reasons underlying Appellant’s counsel’s timing with regard to his motion to sever. As a result, Appellant cannot overcome the strong presumption that his counsel performed effectively. Therefore, we hold that Appellant has not met the first prong of Strickland because the record does not contain evidence concerning Appellant’s trial counsel’s reasons for choosing the course he did. Thus, we cannot conclude that Appellant’s trial counsel was ineffective. Appellant’s third issue is overruled.

Factual Sufficiency

In his fourth issue, Appellant argues that the evidence admitted during trial is insufficient to support a conviction for indecency with a child and aggravated sexual assault of a child. More specifically, Appellant argues that while the victims testified that he committed the crimes with which he was charged, other evidence points to possible ulterior motives, which cast doubt on the veracity of the victims’ testimony. We interpret Appellant’s fourth issue as urging that the evidence is factually insufficient to support the jury’s verdict.

In conducting a factual sufficiency review, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996). We then consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997). Although we are authorized to disagree with the jury’s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex.App.El Paso 1996, pet. ref'd). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1,11 (Tex.Crim.App.2000).

A verdict will be set aside “only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust.” Ortiz v. State, 93 S.W.3d 79, 87 (Tex.Crim.App.2002); see Sims v. State, 99 S.W.3d 600, 601 (Tex.Crim.App.2003). A clearly wrong and manifestly unjust verdict occurs where the jury’s finding “shocks the conscience,” or “clearly demonstrates bias.” Zuniga, 144 S.W.3d at 481.

As the coui't of criminal appeals explained in Zuniga, “There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in its finding of guilt beyond a reasonable doubt?” See id. at 484.

In the case at hand, the testimony of the three victims was compelling. Yet, Appellant urges in his brief that evidence that the victims each had issues such as anger, resentment, lack of parental attention, and general familial dysfunction casts reasonable doubt on the veracity of the respective victims’ testimony.

We iterate that our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony, see Santellan, 939 S.W.2d at 164, and that where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex.App.El Paso 1996, pet. ref'd). Our review of the record as a whole, considered in a neutral light, does not cause us to conclude that the evidence supporting a finding of Appellant’s guilt beyond a reasonable doubt is so greatly outweighed as to render the conviction clearly wrong and manifestly unjust. As such, we conclude that the jury was rationally justified in finding Appellant guilty beyond a reasonable doubt. Therefore, we hold that the evidence is factually sufficient to sustain the jury’s verdict. Appellant’s fourth issue is overruled.

Conclusion

Having overruled Appellant’s issues one, two, three, and four, we affirm the trial court’s judgment.

      . See Tex. Pen.Code Ann. § 22.021(a)(l)(B)(iv) (Vernon Supp.2004-05).

      . See Tex. Pen.Code Ann. § 21.11(a) (Vernon 2003).

      . The State abandoned one count of indecency with a child prior to the case's submission to the jury.

      . Five of the indecency counts related to incidents alleged to have occurred with L.A. Three of the indecency counts related to incidents alleged to have occurred with J.M. Three of the indecency counts related to incidents alleged to have occurred with E.W.

      . The record reflects that Appellant’s house comprised two separate structures. Appellant slept in one structure, while his wife slept in the bed in the other structure because Appellant suffered from back problems.

      . Appellant's wife and Kathy Smedley each testified prior to the testimony of the three victims.

      . Appellant objected to Smedley’s testimony contending that she was not a proper outcry witness pursuant to Texas Code of Criminal Procedure article 38.072.

      .At trial, in a hearing outside the jury's presence, Appellant objected to the State’s proposition that there were two outcry witnesses, contending that Appellant's wife was the proper outcry witness for J.M.

      . However, "contrary evidence does not have to outweigh evidence of guilt; it has to be only enough to provide reasonable doubt.” Zuniga v. State, 144 S.W.3d 477, 483 (Tex.Crim.App.2004).


author: CHARLES W. SEYMORE, Justice.

text:
    GENERAL STAR INDEMNITY COMPANY, Appellant, v. SPRING CREEK VILLAGE APARTMENTS PHASE V, INC. and Lasalle National Bank, Trustee, Appellees.
    No. 14-02-00998-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 30, 2004.

      Warren W. Harris, William M. Briscoe, Houston, for appellant.
    Brian Keller, Dax 0. Faubus, Grant Cook, Houston, Scott P. Stolley, Dallas, for appellees.
    Panel consists of Justices FOWLER, EDELMAN and SEYMORE.
   OPINION

CHARLES W. SEYMORE, Justice.

General Star Indemnity Company (“General Star”) appeals a judgment in favor of Spring Creek Village Apartments (“Spring Creek”) on the grounds that (1) the trial court erred in granting partial summary judgment ordering that the appraisal award was binding as to the amount of loss, (2) the evidence is insufficient to support the jury’s finding that General Star failed to comply with the insurance policy, (3) the trial court erred in directing a verdict on the issue of mitigation of damages, (4) the trial court erred in rendering judgment on the jury’s verdict that General Star violated provisions of the Texas Insurance Code and the Deceptive Trade Practices Act (“DTPA”), (5) the trial court erred in awarding damages based on replacement cost value, and (6) the trial court erred in severing claims against Reliance Insurance Company. In a cross-point of error, Spring Creek contends the trial court erred in rendering summary judgment against Spring Creek on its common-law bad faith claim. Because we find fact issues with regard to whether Spring Creek’s appraiser was impartial, we reverse the judgment and remand for proceedings consistent with this opinion. We affirm the summary judgment on Spring Creek’s bad faith claim.

BACKGROUND

On February 10, 1998, a windstorm caused damage to the Spring Creek Village Apartments. Spring Creek had primary insurance coverage with Reliance Insurance Company of Illinois (“Reliance”) for property damage and loss of business income up to $1 million. Spring Creek also had excess coverage exceeding the $1 million primary policy limit through General Star. By its terms, the General Star policy only applied after the coverage provided by Reliance was exhausted. Otherwise, the General Star policy followed the terms, conditions, and definitions of coverage and recovery stated in the Reliance policy.

Spring Creek filed a claim for property damage and loss of business income, as a result of the windstorm, with Reliance. Because Spring Creek and Reliance could not agree on the amount of loss, Spring Creek invoked the appraisal provision of the Reliance primary policy, which provides that if Reliance and Spring Creek disagreed as to the amount of loss, either party could demand an appraisal. Pursuant to the appraisal provision, both parties were required to “select a competent and impartial appraiser,” and the two appraisers would select an umpire. A decision agreed to by any two of the three would be binding as to the amount of loss. Because General Star owed no obligation to Spring Creek until the loss exceeded $1 million, General Star did not participate in the appraisal process.

Spring Creek hired Steve Edwards d/b/a City Wide Construction as its appraiser; Reliance hired John Lochridge, and Lynn Taylor was selected as the umpire. Edwards estimated the amount of loss to Spring Creek at $5,286,000. Lochridge estimated the amount of loss at $367,842. The umpire issued an award that found replacement cost value of the loss to be $2,105,790.98 and actual cash value to be $1,566,673.51.

Reliance subsequently filed a declaratory judgment action seeking to have the appraisal award declared invalid. Reliance contended the appraisal award contained items not covered under the policy and that the umpire exceeded his authority in making causation and coverage determinations. Spring Creek filed a counterclaim seeking enforcement of the award. Several months later, Spring Creek filed a third-party action against General Star. LaSalle National Bank (“LaSalle”), Spring Creek’s lender, intervened and sued Reliance.

In November 2000, the trial court granted a partial summary judgment in favor of Spring Creek that the appraisal award was binding. The trial court’s ruling left undecided the question of whether Spring Creek had failed to mitigate its damages. The trial court subsequently bifurcated the trial of Spring Creek’s remaining causes of action. Spring Creek’s claim that Reliance and General Star had breached their contracts was tried separately from Spring Creek’s claim that the insurance companies had violated provisions of the Insurance Code and the DTPA. In December 2000, the trial court granted a summary judgment in favor of General Star that Spring Creek had no cause of action against General Star for breach of the duty of good faith and fair dealing.

In the first trial, the jury found in favor of Spring Creek on its breach of contract claims and awarded damages for loss of business income and attorneys’ fees. The judgment further awarded Spring Creek replacement cost value based on the appraisal award. Following the first trial, a Pennsylvania court declared Reliance insolvent and placed it in liquidation. Pursuant to the Pennsylvania court’s order, the Texas Commissioner of Insurance designated Reliance as an impaired insurer. See Tex. Ins.Code Ann. art. 21.28-C, § 17 (Vernon Supp. 2004-05). On Spring Creek’s motion, the trial court severed Re-banee from the case and permitted the extra-contractual claims to proceed against General Star. In the second trial, the jury found that General Star violated provisions of the Texas Insurance Code and the DTPA. The trial court entered a final judgment in which it awarded Spring Creek damages pursuant to the appraisal award, penalties under the Insurance Code and the DTPA, and attorneys’ fees.

Spring Creek’s Partial Summary Judgment

In its first issue, General Star contends the trial court erred in granting partial summary judgment that the appraisal award was binding. Spring Creek filed a motion for partial summary judgment seeking to enforce the provision of its insurance contract that expressed the appraisal award is binding as to the amount of loss. General Star responded to the motion asserting fact issues with respect to whether (1) Spring Creek breached its contract by failing to select an impartial appraiser, (2) the appraisal award included damage that was excluded from coverage or not caused by the storm, and (3) the umpire exceeded his authority under the policy. The trial court granted the partial summary judgment, but left open the issue of whether Spring Creek had acted to mitigate its damages.

Standard of Review

We review a traditional summary judgment to determine whether the record establishes there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether the summary judgment record established the absence of a genuine issue of material fact, we view as true all evidence favorable to the non-movant and indulge every reasonable inference, and resolve all doubts, in its favor. Nixon, 690 S.W.2d at 548-49. The non-movant can defeat summary judgment by producing evidence sufficient to raise a fact issue. Walker v. Hams, 924 S.W.2d 875, 877 (Tex.1996).

An appraisal award made under the terms of an insurance policy is generally binding as to the amount of loss. Gardner v. State Farm Lloyds, 76 S.W.3d 140, 142 (Tex.App.— Houston [1st Dist.] 2002, no pet.). An appraisal award may be disregarded when it was (1) not made in substantial compliance with the policy, (2) the result of fraud, accident, or mistake, or (3) made without authority. Id.; Wells v. Am. States Preferred Ins. Co., 919 S.W.2d 679, 683 (Tex.App.— Dallas 1996, writ denied). Although every reasonable presumption will typically be made in favor of an appraisal award, in reviewing a summary judgment this rule “must yield to the degree its application conflicts with the presumptions required to be made in favor of a non-movant.” Hennessey v. Vanguard Ins. Co., 895 S.W.2d 794, 798 (Tex.App.— Amarillo 1995, writ denied).

Financial Interest of Spring Creek’s Appraiser

The insurance contract between Reliance and Spring Creek contains an appraisal provision, which provides that if the parties disagree on the amount of loss, “each party will select a competent and impartial appraiser.” Attached to General Star’s response to Spring Creek’s motion for summary judgment is the appraisal agreement entered into between Spring Creek and Steve Edwards .d/b/a City Wide Construction. In that agreement, Spring Creek agrees to “compensate City Wide for its time and costs incurred in this process, for an amount not to exceed [five] (5%) percent of the gross settlement amount.” Spring Creek further agreed to compensate City Wide for additional time and costs as follows: “In the event that the minimum gross settlement amount of the Spring Creek Village Apartments, Phase V., Inc’s loss is at least TWO MILLION ($2,000,000.00) DOLLARS, Spring Creek hereby agrees to reimburse City Wide for its additional time and costs and hereby assigns those costs to City Wide, per its final invoice, up to but not in excess of, Six (6%) percent of the gross settlement amount. Additionally, for every million dollars awarded above Two Million Dollars, City Wide will be entitled to reimbursement for its time and costs for appraising that additional amount but not in excess of another one (1%) percent of the gross settlement amountf.]”

Because Edwards had a financial interest in insuring the appraisal award exceeded $2 million, General Star raised a fact issue with regard to whether Edwards was impartial. An appraiser with a financial interest in the outcome of the appraisal is not impartial. Delaware Underwriters v. Brock, 109 Tex. 425, 211 S.W. 779, 780-81 (1919); cf. Gardner, 76 S.W.3d at 143 (in finding appraiser impartial, court noted he did not have a financial interest in the claim); see also Central Life Ins. Co. v. Aetna Cas. & Surety Co., 466 N.W.2d 257, 261-62 (Iowa 1991) (“The appointment of an appraiser with a concealed pecuniary interest in the outcome is a sufficient ground for voiding the award as a matter of law without a showing of prejudice.”). The question of Edwards’s lack of impartiality raised a fact question, which should have been submitted to a jury. If the jury finds the appraiser is impartial, it follows that the appraisal award was not in compliance with the insurance policy and is not binding.

Spring Creek contends all appraisers are “partisans, within bounds,” and Edwards’s financial interest in the outcome of the appraisal does not show Edwards was impartial in contravention of the insurance contract. Spring Creek contends the contingent fee was merely a method to control the costs of the appraiser by placing a cap on the amount Edwards could earn. While an appraiser may represent the party appointing him, the addition of a pecuniary interest in the appraisal award raises a fact issue with regard to Edwards’s impartiality.

Spring Creek further argues that if General Star has raised a fact issue, it has not raised a genuine issue of material fact because it failed to meet its burden of showing it was prejudiced by Edwards’s impartiality. The summary judgment proof shows Reliance’s appraiser determined the amount of loss to be $367,842; Edwards found the amount of loss to be $5,286,000. Edwards’s fee increased if he estimated the loss at over $2 million and increased further for each $1 million above $2 million. Taylor, the umpire, submitted an affidavit in which he stated he relied, in part, on the appraisers’ determinations of loss in issuing his award. General Star, as an excess insurer, would not be liable for any amount under $1 million. The disparity between the two appraisals is sufficient to show that General Star was prejudiced if Edwards lacked impartiality. We find General Star raised a genuine issue of material fact with regard to whether Spring Creek’s appraiser was impartial in compliance with the insurance policy. Therefore, the trial court erred in granting partial summary judgment.

GENERAL STAR’S SUMMARY JUDGMENT

In a conditional cross-point, Spring Creek contends the trial court erred in granting summary judgment dismissing Spring Creek’s claim that General Star breached the duty of good faith and fair dealing. General Star moved for summary judgment on Spring Creek’s common-law bad faith claim on the ground that the duty of good faith and fair dealing does not apply to an excess carrier. No Texas court has applied the duty of good faith and fair dealing to an excess insurer. Emscor Mfg., Inc. v. Alliance Ins. Group, 879 S.W.2d 894, 909 (Tex.App. — Houston [14th Dist.] 1994, writ denied). Spring Creek admits Texas law does not impose a duty of good faith on an excess carrier, but contends, without citation to authority, that we should impose this duty on General Star. As an intermediate court, we decline Spring Creek’s invitation to forge a new cause of action. Because Texas law does not impose a duty of good faith and fair dealing on an excess carrier, we conclude the trial court properly granted summary judgment. That portion of the trial court’s judgment is affirmed.

Conclusion

Because we find error in the partial summary judgment, we reverse the remainder of the trial court’s judgment. General Star is an excess insurer and only liable to Spring Creek if the amount of loss exceeds $1 million. The first jury trial on breach of contract was premised on the summary judgment that the appraisal award was binding and Spring Creek was entitled to recover more than $1 million. The second jury’s findings in the trial of Insurance Code and DTPA violations were premised on the first jury’s finding that General Star breached the contract. Therefore, until the question of the binding nature of the appraisal award is determined, General Star is not liable under its excess insurer policy. The judgment of the trial court is reversed and remanded for proceedings consistent with this opinion. The summary judgment in favor of General Star is affirmed.

EDELMAN, J., concurs in result only.

      . After the first trial, Spring Creek's owner, Creekwood Landing Corporation, sold the Spring Creek complex. Because LaSalle had no further interest in the suit after the sale, it assigned its attorneys’ fees award to Spring Creek.


author: ELSA ALCALA, Justice.

text:
    Kevin Drew McRAE, Appellant, v. The STATE of Texas, Appellee.
    No. 01-02-01225-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 2, 2004.
    Rehearing Overruled Jan. 10, 2005.

      W. Troy McKinney, Schneider & McKinney, P.C., Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney — Harris County, Alan Curry, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
   OPINION ON MOTION FOR REHEARING

ELSA ALCALA, Justice.

Appellant, Kevin Drew McRae, has challenged our opinion of July 1, 2004, by filing a motion for rehearing, to which the State has filed its response. We grant rehearing, withdraw our opinion of July 1, 2004, and issue this opinion in its stead.

Appellant pleaded not guilty to the misdemeanor offense of driving while intoxicated (DWI) and pleaded true to a punishment-enhancement paragraph. After a jury convicted appellant, the trial court found the enhancement paragraph true and assessed punishment at 30 days’ confinement in jail. In three points of error, appellant contends that the trial court erred by (1) admitting appellant’s “custodial” oral statements, (2) refusing to give a “probable cause” jury instruction, and (3) admitting evidence of improperly administered field-sobriety test results. We affirm.

Background

A Houston Police Department (HPD) motorcycle-patrol officer saw appellant’s vehicle run a red light and nearly cause a collision with four other vehicles. Appellant’s vehicle made a left turn without a turn signal at the intersection of Richmond and Shepherd in southwest Houston and then continued on, taking up two lanes of traffic. When the officer stopped the vehicle, he noticed that appellant, who was driving, had bloodshot eyes, slurred speech, and a strong odor of an alcoholic beverage on his breath. The officer administered the following three field-sobriety tests to appellant: the Horizontal Gaze Nystagmus (HGN), the Rhomberg, and the one-leg-stand. The HGN and one-leg-stand tests indicated that appellant was impaired, but appellant performed normally on the Rhomberg test. After administering the field-sobriety tests, the officer asked appellant where he had been. Appellant replied that he had been at a restaurant, where he shared a pitcher of beer with some friends. The officer formed the opinion that appellant was intoxicated, arrested him for DWI, and contacted dispatch for a patrol car to transport appellant to the police station.

At the police station, an HPD officer who was assigned to the accident division as an accident investigator and intoxilyzer operator offered appellant the opportunity to take an intoxilyzer test and to perform the field-sobriety tests on videotape. Appellant took the intoxilyzer test twice. The first result revealed that he had an alcohol concentration above the legal limit at .106 grams of alcohol per 210 liters of breath, and the second result indicated a .108 concentration. The videotape of appellant shows that he declined to perform the one-leg-stand test because of a prior leg injury, but performed three other field-sobriety tests. Although he performed “okay” on the finger-to-nose test, he took longer than normal to estimate 30 seconds on the Rhomberg test. On the walk-and-turn test, appellant missed stepping on the line heel-to-toe twice and made an incorrect turn. From appellant’s performance on these tests, the accident investigator concluded that appellant was impaired and had lost the normal use of his physical faculties.

Expert Testimony Concerning Field-Sobriety Tests

In his third point of error, appellant contends that the trial court committed harmful, reversible error by permitting expert testimony that violated rule 702 of the Rules of Evidence because the officer improperly administered the HGN test and the one-leg-stand test.

We review a trial court’s decision to admit or exclude evidence under an abuse-of-discretion standard and will not reverse a trial court’s ruling unless it falls outside the zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App.2002). Rule 702 of the Rules of Evidence states that “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex.R. Evid. 702. Expert testimony regarding novel scientific evidence must be reliable to be admissible under rule 702. Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App.1992). To be considered reliable, evidence based on a scientific theory must satisfy the following three criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been applied properly on the occasion in question. Id.

HGN Test

Appellant contends that the trial court erred by allowing the arresting officer to testify that appellant had six clues, the maximum number possible, on the HGN test because, by the officer’s own admission, he administered the test to appellant incorrectly. HGN evidence is reliable, admissible scientific evidence under rule 702 when performed by a police officer who is certified by the National Highway Transportation Safety Administration (NHTSA) and who applies the technique properly. Emerson v. State, 880 S.W.2d 759, 768 (Tex.Crim.App.1994) (concluding that HGN evidence met the criteria in Kelly, 824 S.W.2d at 572). The HGN technique is applied properly when the officer follows the standardized procedures outlined in the DWI Detection Manual published by NHTSA. See id. In determining whether a person’s performance of the HGN test suggests intoxication, an officer must look for the following clues in each eye: (1) the lack of smooth pursuit, (2) distinct nystagmus at maximum deviation, and (3) the onset of nystagmus prior to 45 degrees. Compton n State, 120 S.W.3d 375, 377 (Tex.App.-Texarkana 2003, pet. ref d) (citing Nat’l Highway Traffic Safety Admin., U.S. Dep’t of Transp., DWI Detection and Standardized Field Sobriety Testing Student Manual at VIII-6). Slight variations in the administration of the HGN test do not render the evidence inadmissible or unreliable, but may affect the weight to give the testimony. Compton, 120 S.W.3d at 378.

The undisputed testimony establishes that the arresting officer did not administer the HGN technique properly to appellant. Although the officer testified that he administered all three parts of the HGN test to appellant, he admitted at appellant’s Administrative License Revocation (ALR) hearing that he testified that he had administered only two out of the three required parts of the HGN because he did not conduct the onset-of-nystagmus portion of the test. The officer also admitted making several other misstatements concerning the HGN test. When confronted with the procedural errors made in administering the HGN test that did not comply with the NHTSA guidelines, the officer was asked whether there was a “valid HGN test” on appellant. The officer replied that there was none.

Under these circumstances, which show that the officer acknowledged that the HGN test administered to appellant was invalid, we cannot conclude that the HGN technique was applied properly, as required by Emerson. See 880 S.W.2d at 768. Likewise we cannot conclude that the error was merely a slight variation in the administration of the HGN test. See Compton, 120 S.W.3d at 378. We therefore conclude that the trial court abused its discretion by allowing the officer to testify that appellant had six clues on the HGN test because the technique applying the HGN was improperly administered and resulted in an invalid test. See id.

Harm Analysis

We must disregard nonconstitu-tional error if, after examining the record as a whole, we have fair assurance that the error did not influence the jury or had but a slight effect. Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App.2001); see Tex.R.App. P. 44.2(b). In making this determination, the question is not simply whether there was sufficient evidence to support the verdict. Bagheri v. State, 119 S.W.3d 755, 763 (Tex.Crim.App.2003). Instead, the reviewing court should consider the entire record, including testimony, physical evidence, jury instructions, the State’s theories and any defensive theories, closing arguments, and voir dire, if applicable. Id. (citing Motilla v. State, 78 S.W.3d 352, 355-56 (Tex.Crim.App.2002)). Important factors include the nature of evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence in the case. Bagheri, 119 S.W.3d at 763 (citing Motilla, 78 S.W.3d at 355). We should also consider whether the State emphasized the error, whether the erroneously admitted evidence was cumulative, and whether it was elicited from an expert. Id.; Motilla, 78 S.W.3d at 356.

The disputed issue in the trial concerned whether appellant was intoxicated: the wrongfully admitted HGN testimony was a piece of the State’s evidence establishing appellant’s intoxication, albeit a minor part of the evidence. At trial, appellant challenged the State’s assertion that he was intoxicated by pointing to evidence that would suggest that he was not intoxicated, such as (1) his proper performance of the finger-to-nose test at the police station, (2) his admission to drinking only a part of a pitcher of beer, (3) his prior leg injury as an explanation for his difficulties with the physical portions of the field-sobriety tests, (4) a witness who testified that appellant did not look intoxicated on the videotape taken of appellant at the police station, and (5) his proper performance of the Rhom-berg field-sobriety test taken before his arrest, although he later performed that test again at the police station without similar success by estimating 30 seconds outside the normal range.

The State’s evidence on the issue of appellant’s intoxication shows that appellant (1) drove recklessly by running a red light and nearly causing a collision of several other vehicles, as well as committing other traffic violations; (2) smelled of a strong odor of alcoholic beverage; (3) had bloodshot eyes; (4) slurred his speech; (5) was slow in responding to the officer’s instructions; (6) performed poorly on the walk-and-turn field-sobriety test administered at the police station; (7) admitted he had been drinking alcohol; and (8) had an alcohol concentration of .106 grams of alcohol per 210 liters of breath in his intoxilyzer sample. Additionally, the officer at the police station who administered the field-sobriety tests on videotape testified that, in his opinion, appellant had lost the normal use of his physical faculties. The HGN evidence was cumulative of other evidence establishing intoxication and constituted a very minor portion of the State’s evidence that appellant was intoxicated. Although the State maintained, in closing argument, that the first two prongs of the HGN test were administered correctly, the prosecutor also stated, in closing argument, “[TJhey (the defense) say that it (the third prong of the HGN test) wasn’t done properly. Maybe so,” and thus acknowledged appellant’s contention that the third portion of the test was incorrectly administered. Additionally, although the HGN evidence was conveyed by an alleged HGN expert, more persuasive scientific evidence quantified and established appellant’s intoxication through the intoxilizer. See Mo-tilla, 78 S.W.3d at 355.

Although the HGN evidence was conveyed by an alleged HGN expert, we have fair assurance, after examining the record as a whole, that the evidence did not influence the jury or had but a slight effect. See Schutz, 63 S.W.3d at 444. Given the evidence in the record as a whole, we conclude that the HGN evidence had little effect, if any, on the jury’s decision to convict appellant, see id,., and that conviction would have been certain without that erroneously admitted evidence. See Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998). Because appellant’s substantial rights were thus not affected, we conclude that error in admitting the HGN evidence was harmless and must, therefore, be disregarded. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997); Tex.R.App. P. 44.2(b).

One-Leg Stand

Appellant contends that the trial court erred by admitting evidence of the one-leg-stand test under rule 702 because the arresting officer improperly performed it and therefore violated rule 702. Appellant contends that, under United States v. Horn, 185 F.Supp.2d 530 (D.Md.2002), testimony concerning the one-leg-stand test is admissible only if it meets the Kelly v. State criteria for expert testimony. See Kelly, 824 S.W.2d at 573.

The Horn court held that the one-leg-stand test could constitute either lay witness testimony or expert testimony, depending on how it was used at trial. See Horn, 185 F.Supp.2d at 556. Acknowledging that the probative value of the one-leg-stand derives from the basic nature of observing human behavior, the Horn court concluded that the one-leg-stand test was lay witness testimony if the officer testified only about her observations of a defendant’s “appearance, coordination, mood, ability to follow instructions, balance, the presence of the smell of an alcoholic beverage ... and the observations of the defendant’s performance of the standardized field[-] sobriety tests_” Id. at 555-56. The court further concluded, however, that an officer’s otherwise lay witness testimony can become expert testimony when, among other circumstances, the officer uses terms like “standardized clues,” “test,” “pass,” or “fail.” Id.

Texas, like Maryland, allows peace officers to testify as lay witnesses about their observations of a suspect’s performance on the one-leg-stand test. Texas courts have held that, because an officer’s testimony about a suspect’s coordination, balance, and mental agility problems exhibited during the one-leg-stand test are observations grounded in common knowledge, the officer’s testimony based on these observations is governed by rule 701 (lay witness opinion testimony) and not rule 702 (testimony by experts). Compare Tex.R. Evid. 701 with Tex.R. Evid. 702; see also Emerson, 880 S.W.2d at 763 (explaining that peace officer need not qualify as expert to express opinion whether person he observed was intoxicated). The one-leg-stand test is grounded in the common knowledge that excessive alcohol consumption can cause problems with coordination, balance, and mental agility, and its sole purpose is to reveal clues or symptoms of impairment. See Smith v. State, 65 S.W.3d 332, 347 (Tex.App.-Waco 2001, no pet.). Yet, it is also common knowledge that a variety of physical and environmental conditions, having nothing to do with intoxication, can also cause these symptoms. Id.

At least one Texas court has determined that one-leg-stand testimony can cross from lay witness testimony into expert testimony. See id. (holding that officer testifying that Smith had three out of four clues on one-leg-stand test and, therefore, that there was 83 percent probability that Smith was intoxicated above the legal limit, impermissibly gave one-leg-stand test “imprimatur” of scientific accuracy without proof that officer’s “expert” testimony was rehable, as required by Emerson). Other than prohibiting a statistical correlation between the one-leg-stand test and BAC, however, Texas courts have not yet determined where the line should be drawn in determining what constitutes lay versus expert testimony concerning the one-leg-stand test.

We conclude that the testimony by the arresting officer concerning the one-leg stand, which follows, is lay witness testimony governed by rule 701. The officer told the jurors that, during the one leg-stand, a defendant places one foot six inches above the ground, whichever foot the defendant chooses, while the defendant stands with hands down by his side, and counts from 1001 to 1030. The officer testified that the test is a “divided attention” test that requires the defendant to do more than one thing at the same time, specifically: standing up, holding his foot off the ground, and counting, all while maintaining his balance. Four clues that an officer seeks during the one-leg stand are swaying, using arms for balance, dropping a foot, and hopping.

During appellant’s performance of the one-leg stand, the officer saw him drop his foot, use his arms for balance, sway, and fail to follow instructions by counting one through eight using single digits instead of thousands. The officer concluded that appellant was intoxicated because he could not follow directions. The officer acknowledged that a person with a leg injury, like appellant, would have difficulty performing the one-leg-stand test, but because the person can choose the leg on which to stand and the leg to hold up, a person with an injured leg could nevertheless perform the test successfully.

Appellant has not referred us to any Texas authority, and we are aware of none, holding that, when an officer uses terms like “standardized clues,” “test,” or “divided attention,” the officer is no longer testifying as a lay witness and begins to testify as an expert, who must, therefore, be qualified. See Horn, 185 F.Supp.2d at 555-56. We disagree with Horn to the extent that it holds that using these words automatically changes lay testimony into expert testimony. We conclude that, under the circumstances demonstrated here, the words “clues,” “test,” and “divided attention” merely refer to observations by the peace officer, based on common knowledge observations of the one-leg stand, and do not convert the lay witness testimony into expert testimony. We hold that the officer’s testimony, as described above, concerning his observations of appellant’s performance on the one-leg-stand test were admissible under Rule 701.

As for the remainder of the officer’s testimony, in which he referred to the one-leg-stand test as a “recognized field sobriety test” “certified” by NHTSA, we assume without deciding that rule 702 applies because the testimony concerns scientific, technical, or specialized testimony beyond the observations of a lay witness. See Tex.R. Evid. 702. Under the circumstances presented here, however, we conclude that admitting the “expert” testimony was harmless. First, the officer admitted that he did not follow the NHTSA guidelines accurately when he administered the one-leg-stand test because he stopped the test after appellant dropped his foot after six seconds and did not administer the test for at least thirty seconds. Second, the officer acknowledged that his errors in administering the one-leg-stand test meant that the test was not valid according to the NHTSA guidelines. To the extent that the officer informed the jurors that the one-leg-stand has technical or scientific accuracy because it is certified by NHTSA, his testimony further established that he did not administer the test correctly under their guidelines. Because the officer could not, therefore, testify that appellant was intoxicated under the NHTSA guidelines, any error in admitting evidence concerning the NHTSA certification of the one-leg-stand test is harmless.

We hold that any error in admitting testimony about NHTSA’s certification and guidelines for the one-leg-stand test is harmless under the circumstances presented here. These circumstances include the officer’s acknowledging that appellant’s test was not administered according to the NHTSA guidelines and was, therefore, invalid. After excluding the testimony about

NHTSA’s certification and guidelines for the one-leg-stand test, we further hold that the jury was properly allowed to consider the remainder of the one-leg-stand evidence as lay witness testimony of intoxication based on appellant’s dropping his foot, using his arms for balance, swaying, and failing to follow instructions.

We overrule appellant’s third point of error.

Article 38.28 Instruction

In his second point of error, appellant contends that the trial court committed reversible error by refusing to include an instruction on probable cause in the jury charge, in accordance with article 38.23 of the Code of Criminal Procedure. Tex.Code CRiM. PROC. Ann. art. 38.23 (Vernon Supp.2004-2005). Appellant contends that the arresting office’s inconsistent testimony concerning how he administered the field-sobriety tests and his improper administration of those tests required a jury charge on whether probable cause existed for appellant’s arrest. The State contends that there is no actual dispute about what occurred when the motorcycle-patrol officer stopped appellant, and that the appropriateness of the arresting officer’s administration of certain field-sobriety tests is a legal question for the court, not the jury.

Article 38.23 provides as follows:

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Tex.Code Crim. Proc. Ann. art. 38.23. A fact issue about whether evidence was legally obtained may be raised “from any source, and the evidence may be strong, weak, contradicted, unimpeached, or unbelievable.” Garza v. State, 126 S.W.3d 79, 85 (Tex.Crim.App.2004). The trial court must include an article 38.23 instruction in the jury charge only if there is a factual dispute about how the evidence was obtained. Id. The legality of the search or arrest is a question of law, not fact, when, as here, essential facts concerning the search or arrest are not in dispute. Id. at 86.

Only the arresting officer testified concerning the following: the reasons for stopping appellant’s vehicle; appellant’s performance on the field-sobriety tests; and the reasons why the officer concluded that appellant was intoxicated. In contending that there is a fact issue requiring an article 38.23 instruction in the jury charge because the arresting officer had made prior inconsistent statements and admittedly performed some of the tests incorrectly, appellant mistakes an irrelevant factual dispute for a material legal dispute. There was no dispute about the facts. The officer admitted his inconsistent statements and that some of his field-sobriety tests were administered incorrectly. The trial court was then required to apply the law to the undisputed facts to make a legal conclusion about probable cause. No jury instruction was required because there were no facts in dispute. We conclude that the trial court did not err by refusing to include in the jury charge an article 38.23 instruction concerning the legality of appellant’s arrest.

We overrule appellant’s second point of error.

“Custodial” Oral Statements

In his first point of error, appellant contends that the trial court erred by allowing the arresting officer to testify about appellant’s oral statements because the officer did not read appellant his Miranda rights or comply with article 38.22 of the Code of Criminal Procedure. See Tex.Code Crim. Proc. Ann. art. 38.22 (Vernon Supp.2004-2005); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Article 38.22 governs the requirements that police must follow for oral custodial statements that are to be admitted against an accused in criminal proceedings.

A traffic stop does not constitute “custody” for Miranda purposes. State v. Stevenson, 958 S.W.2d 824, 828 (Tex.Crim.App.1997) (citing Berkemer v. McCarty, 468 U.S. 420, 440,104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984)). Subsequent events, however, may cause a noncustodial encounter to escalate into custodial interrogation. Stevenson, 958 S.W.2d at 828; Dowthitt v. State, 931 S.W.2d 244, 254-55 (Tex.Crim.App.1996). The following four factors are relevant in determining whether a noncustodial encounter has escalated into custody: (1) the existence of probable cause to arrest, (2) the subjective intent of the police, (3) the focus of the investigation, and (4) the subjective belief of the defendant. Stevenson, 958 S.W.2d at 828; Dowthitt, 931 S.W.2d at 254. Factors two and four have become irrelevant except to the extent that they may be manifested in the words or actions of law enforcement officials; the custody determination is based entirely on objective circumstances. Dowthitt, 931 S.W.2d at 254 (citing Stansbury v. California, 511 U.S. 318, 324-26, 114 S.Ct. 1526, 1530, 128 L.Ed.2d 293 (1994)).

A DWI investigation that includes questioning and field-sobriety tests does not, without more, rise to the level of a custodial interrogation. Stevenson, 958 S.W.2d at 828-29 (citing Berkemer, 468 U.S. at 423, 104 S.Ct. at 3141-42). In Berkemer, the suspect was stopped and asked to perform a field-sobriety test. 468 U.S. at 423, 104 S.Ct. at 3141-42 After the suspect failed the test, the law enforcement officer asked the suspect whether he had been using intoxicants. Id The officer did not tell the suspect that he was in custody until after he was arrested. Id. The Supreme Court held that the suspect was not in custody for Miranda purposes until the formal arrest. Id.

The arresting officer’s conduct here was no more intrusive than in Berkemer. As in Berkemer, the stop began as a DWI investigation, and questioning occurred after appellant failed the field-sobriety test. See id. Also as in Berkemer, the officer had probable cause to arrest after appellant failed the field-sobriety test. See 468 U.S. at 423, 104 S.Ct. at 3141-42; Stevenson, 958 S.W.2d at 829 n. 7. The existence of probable cause did not convert the investigation into a custodial situation. See Berkemer, 468 U.S. at 423, 104 S.Ct. at 3141-42; Stevenson, 958 S.W.2d at 829 n. 7. That appellant was the focus of a criminal investigation did not convert the roadside stop into an arrest. See Berkemer, 468 U.S. at 423, 104 S.Ct. at 3141-42; Stevenson, 958 S.W.2d at 829.

Nothing in the record suggests that the arresting officer manifested any intent to arrest appellant until after appellant admitted consuming the alcohol. See Stevenson, 958 S.W.2d at 829. Although the arresting officer testified that he had probable cause to arrest appellant and that appellant was under arrest after he performed the one-leg-stand test, the officer did not convey those conclusions to appellant. Only after appellant made his statements to the officer did the officer advise appellant that he was under arrest and notify the dispatcher that he needed a police unit to transport appellant. Under these circumstances, the subjective beliefs of appellant and the arresting officer concerning whether appellant was in custody are irrelevant. See id.

Because appellant was not in custody when the arresting officer questioned him, we conclude that appellant’s statements were admissible even though the officer had not read appellant his Miranda rights. Furthermore, because article 38.22 pertains only to custodial statements and because appellant was not in custody when he made the statements to the arresting officer, article 38.22 does not apply. See TexCode CRiM. Peoc. Ann. art. 38.22.

We overrule appellant’s first point of error.

Conclusion

We affirm the judgment of the trial court.

      . The arresting officer was trained by NHTSA, is certified to perform the HGN test, and relied on that training and materials in performing the HGN test on appellant. Appellant has not challenged the officer’s qualifications.

      . The officer’s ALR testimony and trial testimony differ concerning the number of seconds it took to conduct the smooth pursuit and maximum deviation portions of the HGN test. We recognize that slight deviations in the timing of the HGN test have been determined not to affect the HGN technique or the admissibility of the HGN evidence. Compton v. State, 120 S.W.3d 375, 378 (Tex.App.-Texarkana 2003, pet. ref'd). The officer also admitted that he made only one pass of each eye rather than two passes of each eye during the HGN test and further testified that this failure to make two passes of each eye was a violation of the guidelines in the NHTSA manual. Cf. Quinney v. State, 99 S.W.3d 853, 858 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (holding that NHTSA's manual only requires one pass of each eye).


author: SAM NUCHIA, Justice.

text:
    Steven James TAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-01090-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 2, 2004.

      Bob Wicoff, Houston, TX, for Appellant.
    Dan McCrory, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney — Harris County, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, HANKS, and HIGLEY.
   OPINION

SAM NUCHIA, Justice.

After the trial court denied his motion to suppress evidence, appellant, Steven James Taylor, pleaded guilty to the offense of endangering a child. The trial court deferred adjudication, placed appellant on community supervision for four years, and assessed a fine of $500. We determine whether the trial court abused its discretion in denying the motion to suppress the evidence stemming from an out-of-jurisdietion stop by Deputy Gutierrez. We. affirm.

BACKGROUND

On December 31, 2002, Deputy Gutierrez of the Lee County Sheriffs Office, en-route to Houston, observed appellant driving south on State Highway 290 in Harris County. Gutierrez was traveling approximately 70 miles per hour (mph) in the inside lane. He was passed by appellant, who proceeded to swerve into the inside lane ahead of the vehicle in front of Gutierrez, forcing that vehicle to brake and swerve to avoid a collision. Appellant continued down the roadway, his speed varying randomly from 50 to 70 mph. He was weaving within his own lane as well as making unpredictable lane changes without signaling. Gutierrez called 9-1-1. Appellant then accelerated to 120 mph. Shortly thereafter, appellant exited the freeway abruptly. In doing so, he crossed all traffic lanes and entered the exit ramp unsafely. Harris County dispatch instructed Gutierrez to stop the vehicle, which he did. Harris County officers arrived shortly thereafter and took appellant into custody.

DISCUSSION

In his sole issue on appeal, appellant contends that the trial court erred in denying his motion to suppress any evidence gained as a result of an illegal arrest. He argues that, because Gutierrez was outside his jurisdiction, he lacked authority to stop him for a traffic violation or for reasonable suspicion of driving while intoxicated. Appellant also argues that his conduct did not constitute a breach of the peace.

Standard of Review

The standard for reviewing a trial court’s ruling on a motion to suppress evidence is abuse of discretion. Long v. State, 823 S.W.2d 259, 277 (Tex.Crim.App.1991). At a hearing on a motion to suppress, the trial court is the sole trier of fact and judge of the credibility of the witnesses as well as the weight to be given to their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Brooks v. State, 830 S.W.2d 817, 820 (Tex.App.-Houston [1st Dist.] 1992, no pet.). On appellate review, the evidence presented at the suppression hearing is viewed in the light most favorable to the trial court’s ruling to determine whether the trial court abused its discretion in denying the motion to suppress. Whitten v. State, 828 S.W.2d 817, 820 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd). The Court will afford almost total deference to a trial court’s determination of historical facts that the record supports, especially when the findings are based on the evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). The fact finder is the sole judge of the witnesses’ credibility and may accept or reject any or all of the witnesses’ testimony. Taylor, 945 S.W.2d at 297. In reviewing a ruling on a question of application of law to facts, we review the evidence in the light most favorable to the trial court’s ruling. Guzman, 955 S.W.2d at 89. We may reverse only if the lower court abused its discretion in denying the motion.

Breach of the Peace

A Texas peace officer has authority to arrest an individual anywhere in the state, regardless of jurisdictional boundaries, for a breach of the peace that occurs in his presence. See Tex.Code CRiM. PROC. Ann. art. 14.03(d) (Vernon 2003). If Gutierrez witnessed a breach of the peace by appellant, he had authority to arrest him.

Texas courts have consistently held that erratic driving can rise to the level of a breach of the peace.. In Kunkel v. State, a citizen’s-arrest case, the appellate court reasoned that erratic driving fell on a spectrum, and that at a certain threshold, unsafe driving constitutes a breach of the peace in and of itself when it places others in imminent danger of harm., 46 S.W.3d 328, 331 (Tex-App.-Houston [14 Dist.] 2001, pet. ref'd). In Kunkel, the defendant’s behavior, consisting of “a series of moving violations accompanied by prolonged erratic driving,” was held to be a breach of the peace. Id.

Similarly, in Romo v. State, the court held that an out-of-jurisdiction stop was proper in a case in which the defendant was driving erratically and at a high rate of speed. 577 S.W.2d 251, 252-53 (Tex.Crim.App.1979). The Romo court held that the officer was authorized to arrest Romo because Romo was committing a breach of the peace. Id. at 253.

We conclude that, like the defendants in Kunkel and Romo, appellant committed a breach of the peace by his erratic driving and speeding. Gutierrez, witnessing personally the behavior of appellant, was authorized by article 14.03(d) to arrest him for breach of the peace. See Tex.Code CRiM. PRoc. Ann. art. 14.03(d) (Vernon 2003).

We hold that the trial court did not abuse its discretion by denying the motion to suppress. Accordingly, we overrule appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.

      . In support of his argument, appellant cites to State v. Kurtz, recently affirmed by the Texas Court of Criminal Appeals. See State v. Kurtz, 152 S.W.3d 72 (Tex.Crim.App.2004). In Kurtz, the Court of Criminal Appeals held that a peace officer cannot make an arrest for traffic violations occurring outside his geographical jurisdiction. I'd. at 73.


text:
    Litter Allen FORD, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-01171-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 2, 2004.
    Rehearing Overruled Jan. 13, 2005.

      James M. Leitner, Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney — Harris County, Amanda J. Peters, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, HIGLEY, and HANKS.
   OPINION

SAM NUCHIA, Justice.

Appellant, Litter Allen Ford, pleaded not guilty to the offense of aggravated robbery. The jury found appellant guilty and assessed punishment at 20 years in prison. Appellant presents six points of error. In his first two points of error, appellant complains that the evidence was legally and factually insufficient to prove that he “used or exhibited” a firearm during the alleged offense. In his third and fourth points of error, appellant complains that the evidence was legally and factually insufficient to prove that he had the intent to commit theft or attempted theft during the alleged offense. In his fifth point of error, appellant complains of the trial court’s denial of his motion for the jury instruction to include “the lesser included offense of attempted aggravated robbery.” In his sixth point of error, appellant complains that the trial court erred in permitting “expert testimony regarding the identification of the appellant by DNA analysis.” We affirm.

BACKGROUND

On September 19, 2002, at approximately 8:05 a.m., Cynthia Pierre and Bennie Burson, armed guards working for Loomis Fargo, drove an armored truck to John’s Grocery (the “store”) to deliver $6,000 in cash. As they were driving up to the store, they noticed appellant sitting alone on the ground to the side of the store. They knew this area to be a place where day-laborers waited for potential employers, so they were not initially alarmed, but did notice that appellant was in the area alone. Burson parked the armored car next to the store and Pierre got out of the armored car with a money bag, containing the $6,000 in cash, wrapped around her left arm. Pierre testified that she is four feet, eleven inches tall and had a .357 magnum caliber handgun in a holster on her right hip. Pierre stated on cross-examination that her pistol was held in its holster by “a little belt, [a] snap belt.”

•When Pierre got out of the armored car with the cash and approached the store’s front door, Burson noticed that appellant stood up and moved toward the entrance to the store as well. As Pierre opened the door and began to step inside the store, appellant grabbed her from behind and pulled her back outside. Pierre testified that appellant, immediately after pulling her from the store’s entrance, “had his hands on my pistol.” Pierre grabbed the hand appellant had on the handgrip of her pistol and pushed down to prevent appellant from removing it from the holster. Burson testified that appellant had his hand on Pierre’s pistol and that he was “starting to pull the pistol out” of the holster, but indicated that Pierre’s pushing down kept him from removing it.

According to the testimony of both Pierre and Burson, while appellant kept one hand on the pistol, he had his other arm around Pierre’s waist from behind, and he lifted her off her feet and attempted to throw her to the ground. He attempted this at least twice, but Pierre managed to land on her feet. Throughout the struggle, appellant continued to pull up on the gun, while Pierre pushed down. Pierre acknowledged that appellant was much bigger and stronger than she was.

Burson had a clear view of the struggle taking place “[r]ight in front of me” out of the front windshield of the armored car. He had difficulty getting out of the armored car to come to Pierre’s aid. Once he managed to get out of the armored car, he drew his pistol and shouted to appellant to “let her loose.” Burson testified that he was approximately five feet from appellant, but did not fire his pistol at first because he was afraid of hitting Pierre. When she was able to bend at the waist enough for Burson to have a clear shot, he fired his pistol, striking appellant in the shoulder. Both appellant and Pierre fell to the ground together. After falling, appellant lost his grip on Pierre’s pistol and she was able to regain control of it and get away from him. Pierre still had the money bag wrapped around her left arm. Burson testified that appellant started to get up so he hit him with the butt of his pistol, but that appellant got up anyway and fled.

DISCUSSION

Use or Exhibition of a Firearm

In his first two issues, appellant asserts that the evidence was legally and factually insufficient to support his conviction for aggravated robbery because the State failed to prove that he “used or exhibited a firearm during the alleged offense, as alleged in the indictment.” Specifically, appellant urges that his fierce and concerted effort to take Pierre’s pistol cannot be considered “use or exhibition” of the pistol because “appellant never gained sufficient control over the complainant’s [Pierre’s] weapon.” Appellant admits that the facts are not in dispute. The uncon-tradicted evidence is that appellant attempted to take Pierre’s pistol, had his hand on the handgrip of the pistol, and was “starting to pull the pistol out,” but failed to fully extract it from its holster only because Pierre resisted by pushing down on her pistol and appellant’s hand. The struggle ended only after Burson shot and wounded appellant.

In reviewing the evidence on legal sufficiency grounds, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000); Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). In a factual sufficiency review, we view all the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004) (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App.2004)). The appellate court should not substitute its own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App.1996).

A robbery becomes an aggravated robbery if the actor “uses or exhibits a deadly weapon.” Tex. Pen.Code Ann. § 29.03(a)(2) (Vernon 2003); McCain v. State, 22 S.W.3d 497, 501 (Tex.Crim.App.2000). In McCain, the Court of Criminal Appeals interpreted the phrase “uses or exhibits a deadly weapon” in the aggravate ed robbery statute to mean the “employing of a deadly weapon in any manner that facilitates the associated felony.” Id. at 502 (citing Patterson v. State, 769 S.W.2d 938 (Tex.Crim.App.1989)).

The facts in this case show that appellant had control of the pistol sufficient to begin removing it from its holster. He was prevented from fully removing and deploying the weapon against Pierre because she was able to hold onto his hand until Burson shot him. Certainly appellant had sufficient control of the pistol to put both Pierre and Burson in fear of their lives.

Viewing the evidence in the light most favorable to the prosecution, we hold that a rational jury could find that appellant used or exhibited a deadly weapon in the commission of robbery as alleged in the indictment. Reviewing all of the evidence in a neutral light, we also find that the evidence was not so. weak that the verdict is clearly wrong and manifestly unjust, nor do we find the contrary evidence so strong that the standard of proof beyond a reasonable doubt could not have been met.

We overrule appellant’s first two issues.

Intent to commit theft

In his third and fourth issues, appellant asserts that the evidence was legally and factually insufficient to support his conviction for aggravated robbery because “the State failed to prove that appellant had the intent to commit theft or attempted theft during the alleged offense, as required by statute.” Specifically, appellant argues that there is nothing in the record to- indicate appellant knew that Pierre was bringing cash into the store. Appellant speculates that it was equally likely she was going to take money out of the store instead. Because there is no evidence that appellant said anything during the robbery or that he grabbed at the money bag, he asserts that there is no evidence that he intended to commit theft of the money.

A person commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner of property. Tex. Penal Code Ann. § 31.03(a) (Vernon Supp.2004); Parks v. State, 960 S.W.2d 234, 237, (Tex.App.Houston [1st Disk] 1997, pet. ref d). Proof of a completed theft is not required to support a robbery conviction. See Demouchette v. State, 731 S.W.2d 75, 78 (Tex.Crim.App.1986). Juries may infer intent from the defendant’s conduct and surrounding circumstances. LaPoint v. State, 750 S.W.2d 180, 182 (Tex.Crim.App.1986); Washington v. State, 127 S.W.3d 111, 117, (Tex.App.-Houston [1st Dist.] 2003, no pet.).

Appellant’s argument is without merit. Pierre arrived in an armored car conspicuously marked with the Loomis Fargo logo. Pierre was in uniform, armed, and carrying a money bag into the store in the early morning hours. Appellant purposefully rose up from a sitting position and moved from the side of the store building to get behind Pierre. He then attacked her from behind and placed his hand on her pistol and began to pull it out of its holster. He ceased his efforts only after being shot and wounded. From these circumstances and appellant’s actions, a jury could reasonably infer that he intended to commit theft.

Viewing the evidence in the light most favorable to the prosecution, we hold that the evidence was legally sufficient for a rational jury to find that appellant intended to commit theft. After reviewing all of the evidence in a neutral light, we find the evidence is not so weak that the verdict is clearly wrong and manifestly unjust. We further find that the contrary evidence was not so strong that the standard of proof beyond a reasonable doubt could not have been met.

We overrule appellant’s third and fourth issues.

Lack of instruction on “attempted aggravated robbery”

In his fifth issue, appellant asserts that the trial court erred in refusing to grant his request that the jury be instructed on “the lesser included offense of attempted aggravated robbery.” Specifically, appellant contends that he was entitled to an “attempt” charge because it was possible for the jury to conclude that he “never achieved sufficient control over the firearm to constitute ‘use or exhibition’ of the firearm.”

A charge on a lesser included offense “is not required unless there is testimony raising such issue that appellant, if guilty, is guilty only of the lesser offense.” Dovalina v. State, 564 S.W.2d 878, 383 (Tex.Crim.App.1978) (quoting Daywood v. State, 157 Tex.Crim. 266, 248 S.W.2d 479, 481 (1952)). The State’s evidence showed all the elements of aggravated robbery. The defense rested without calling witnesses or introducing any evidence. The jury was instructed on the lesser included offense of robbery. If appellant’s specific complaint were correct—that the jury could have concluded that he didn’t “use or exhibit” a deadly weapon—then the aggravated element would not have been found and he would have been guilty of robbery. Compare Tex. Penal Code Ann. § 29.02(a) with § 29.03(a)(2) (Vernon 2003) (demonstrating that use or exhibition of a deadly weapon elevates offense of robbery to offense of aggravated robbery).

The trial court did not err in refusing to grant appellant’s request for a jury instruction on “attempted aggravated robbery.” We overrule appellant’s fifth issue.

Expert Testimony on DNA Matching

In his sixth and final issue, appellant asserts that the trial court erred in allowing the identification of appellant by an expert through DNA analysis “where the State’s expert was unable to link her opinion to the evidence gathered in the case, rendering her opinion irrelevant.”

Using cotton swabs that were attached to wooden sticks, much like a Q-tip, Houston Police Department (“HPD”) personnel had collected a sample of blood from the pavement at the crime scene (the “blood swab”) and also collected a comparison sample from appellant’s mouth (the “oral swab”). These samples, along with a control swab, were tagged as evidence and sent to Joseph Chu at the HPD Crime Lab. Chu performed a test on the blood swab, and determined that it contained human blood. Chu then cut off all three swabs’ wooden sticks, packaged the swabs’ cotton tips in vials, and placed them in a storage freezer. Vials containing the three cotton tips were subsequently sent to Identigene, a private laboratory, where the biologic matter on the cotton tips was analyzed by Jennifer McCue, the forensic DNA analyst whose testimony is the subject of appellant’s complaint.

HPD Officer Glen West, who collected the blood and oral swabs, testified at trial and identified State’s Exhibit 21-A as the package in which he put the control swab, State’s Exhibit 21-B as the package in which he put the blood swab from the crime scene, and State’s Exhibit 22-A as the package in which he put the oral swab from appellant. Then McCue testified on direct that she compared the samples extracted from the swabs she had received and that it was her “conclusion that the two DNA profiles matched.” Appellant’s counsel took McCue on cross-examination and asked her whether State’s Exhibits 21-A, 21-B, and 22-A contained the swabs she had received to test. She said they did not. A recess was called and both a bench conference and a voir dire examination of McCue were held outside the jury’s presence. It was determined that State’s Exhibits 21-A, 21-B, and 22-A were packages containing only the wooden swab sticks and not the cotton swab tips that McCue had tested.

At this point, appellant’s counsel objected to McCue’s testimony as irrelevant because there was no evidence to tie the samples McCue had tested to the appellant or the crime scene. The trial court withheld its ruling on appellant’s objection and stated that McCue would be allowed to continue testifying, over appellant’s objection, subject to the State bringing the cotton swab tips to court the next day and proving up the chain of custody.

McCue continued to testify and returned the next day, as part of the State’s proof of the chain of custody for the swabs. McCue identified State’s Exhibits 24, 25, and 26 as containing the cotton swab tips she had received from the HPD Crime Lab in this case and testified that they were the samples she tested. She then reiterated her previous DNA-match testimony. Chu testified that he had received the items contained in State’s Exhibits 24, 25, and 26 as evidence in this case. He testified that they were the cotton swab tips he had cut from their wooden sticks and that he had packaged the tips in Exhibits 24, 25, and 26. After Chu had completed his testimony, appellant’s counsel reiterated his objection to McCue’s DNA-match testimony, stating that Chu “never linked up the swabs that he broke off, that being 26, 25, or 24, to have ever come from 22-A, 21-A or 21-B.”

In his brief, appellant complains that “the State failed to prove any chain” of custody and that the samples McCue tested were not linked to the evidence gathered in this case. We disagree. Officer West’s testimony shows that he packaged cotton swabs attached to wooden sticks in what he identified as State’s Exhibits 21-A, 21-B, and 22-A, and that these were delivered to the HPD Crime Lab. Chu’s testimony shows that he received cotton swabs attached to wooden sticks as evidence in this case, cut the cotton swab tips off the sticks, and re-packaged the tips in what he identified as State’s Exhibits 24, 25, and 26. McCue identified State’s Exhibits 24, 25, and 26 as evidence she received from the HPD Crime Lab and testified that they contained the cotton swab tips she used to conduct DNA matching tests. Thus, the testimony of West, Chu, and McCue established a chain of custody. See Lagrone v. State, 942 S.W.2d 602, 617 (Tex.Crim.App.1997) (holding chain conclusively established if officer testifies he seized, tagged, stored, and retrieved item for trial); Medellin v. State, 617 S.W.2d 229, 232 (Tex.Crim.App. [Panel Op.] 1981) (holding chain conclusively established when lab follows same procedure).

If correct, appellant’s contention, that a break in the chain of evidence was created because the State never specifically linked the three cotton swab tips to their specific wooden stick counterparts, would go only to the weight of McCue’s DNA-match testimony and not its admissibility. See Medellin, 617 S.W.2d at 232 (noting that most questions of care and custody of item go to weight and not admissibility when chain is complete from initial collection to inside lab). Appellant was free to argue the weight of this evidence in closing arguments, which he did.

Appellant’s sixth point of error is overruled.

CONCLUSION

We affirm the judgment of the trial court.