author: PHYLIS J. SPEEDLIN, Justice.

text:
    Cruz Manuel MARQUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 04-04-00349-CR.
    Court of Appeals of Texas, San Antonio.
    April 6, 2005.
    Rehearing Overruled April 21, 2005.

      George E. Shaffer, San Antonio, for appellant.
    Robert Lee Little, Asst. Dist. Atty-293rd Judicial Disk, Eagle Pass, for appel-lee
    Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

PHYLIS J. SPEEDLIN, Justice.

Appellant, Cruz Manuel Marquez, was convicted of aggravated sexual assault. On appeal, Marquez contends (1) the trial court erroneously admitted testimony from an outcry witness; and (2) the trial court erred in denying his motion to dismiss on grounds that his right to a speedy trial had been violated. We affirm the judgment of the trial court.

Background

On October 27, 2002, T.M.C. went on a trip to Piedras Negras with her mother, sister, and aunt. On the way, T.M.C. began to cry and stated that Marquez, her mother’s former boyfriend, “had tried to touch her.” After returning home from Piedras Negras, T.M.C. explained to her mother that, several months before, Marquez had “fingered her.” The police were notified of the incident. Marquez was arrested on November 8, 2002, and released on bond that same day. On December 12, 2003, an indictment was returned alleging that Marquez committed aggravated sexual assault. A jury trial commenced on March 15, 2004. Marquez was convicted and sentenced to five years in prison.

Analysis

Outcry Witness Testimony

In his first point of error, Marquez argues the trial court erred in admitting the testimony of Diana Gomez, the victim’s mother, as an outcry witness. Marquez contends that the State failed to establish compliance with Article 38.072 of the Texas Code of Criminal Procedure which allows admission of hearsay testimony in the prosecution of certain offenses committed against children twelve years of age or younger. Tex.Code CRiM. PROC. Ann. art. 38.072 (Vernon Supp.2004-05). The outcry statute applies only to statements made (1) by the child against whom the offense was allegedly committed, and (2) to the first person, eighteen years of age or older, to whom the child made a statement about the offense. Id. at § 2(a). To be admissible under this statute, the child’s statement to the witness must describe the alleged offense in some discernible manner and “must be more than words which give a general allusion that something in the area of child abuse was going on.” Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App.1990).

A trial court has broad discretion in determining the admissibility of outcry statements pursuant to this statute, and the trial court’s exercise of that discretion will not be disturbed on appeal unless a clear abuse of discretion is established by the record. Id. at 92; Reed v. State, 974 S.W.2d 838, 841 (Tex.App.-San Antonio 1998, pet. ref'd). When the trial court’s admission of evidence rests on the interpretation of a statute, however, the issue is a question of law and we review the trial court’s ruling de novo. Hohn v. State, 951 S.W.2d 535, 536 (Tex.App.-Beaumont 1997, no pet.); see also Bowie v. State, 135 S.W.3d 55, 59 (Tex.Crim.App.2004) (question of law based on undisputed facts is reviewed de novo).

Marquez argues that the outcry testimony of Diana Gomez was inadmissible because T.M.C. was over the age of twelve at the time of the offense. The pertinent outcry statute only allows hearsay testimony of a child victim “12 years of age or younger.” Tex.Code Grim. PROC. Ann. art. 38.072 § 1. Here, the indictment alleged that the offense occurred “on or about March 14, 2001.” At that time, T.M.C. was 11 years old, clearly within the statute’s purview. However, Gomez’s trial testimony suggested that the offense may have occurred just five months before the outcry statement was made on October 27, 2002, which would mean that T.M.C. was twelve years old and three months at the time of the offense. Marquez argues that the statutory language “12 years of age or younger” should be interpreted to exclude outcry testimony where the victim has passed his or her twelfth birthday. Marquez asserts that the outcry statute was not applicable because the testimony indicated that T.M.C. had passed her twelfth birthday at the time of the offense. We disagree.

It appears that no other court of appeals has directly addressed the meaning of a child “twelve years of age or younger” under Article 38.072. However, the Court of Criminal Appeals has interpreted the meaning of a child “fourteen years of age or younger” under Texas Penal Code § 22.04(a). See Tex. Pen.Code Ann. § 22.04(a) (Vernon 2003); Phillips v. State, 588 S.W.2d 378, 380 (Tex.Crim.App.1979)(holding statute was intended to protect children who are fourteen years of age and children who are under fourteen, and citing ten other statutes with similar interpretations). Under the reasoning of Phillips, since the phrase “12 years of age or under” in Article 38.072 is written in the disjunctive, it is clear that the statute is intended to apply to two distinct groups of children: those who are twelve years of age and those who are under twelve at the time the offense is committed. See Phillips, 588 S.W.2d at 380. Therefore, we hold Article 38.072 applies to children who have not yet reached their thirteenth birthday. See id.

Here, the evidence established that T.M.C. was, at most, twelve years old and three months when the offense occurred. Thus, regardless of whether the offense occurred on the date alleged in the indictment or five months before the outcry statement, the record is clear that T.M.C. had not yet reached her thirteenth birthday at the time of the offense. The trial court was correct in ruling that the outcry statement fell within Article 38.072 because T.M.C. was “12 years of age or under” at the time of the offense.

Marquez also argues that T.M.C.’s initial outcry claiming that Marquez “had tried to touch her” was inadmissible because it was only “a general allusion that something in the area of child abuse was going on.” See Garcia, 792 S.W.2d at 91. However, the record shows that once T.M.C. and her mother returned home, T.M.C. specifically stated that Marquez had “fingered her” and that he “put his finger inside her.” The trial court properly admitted all of Gomez’s outcry testimony because T.M.C.’s subsequent statement sufficiently described the offense and was part of the same outcry statement as her initial statement. See Norris v. State, 788 S.W.2d 65, 69 (Tex.App.-Dallas 1990, pet. ref'd) (child’s subsequent outcry statement describing the nature of the offense was admissible as part of the same outcry as initial statement); Moon v. State, 856 S.W.2d 276, 281 (Tex.App.-Fort Worth 1998, pet. ref'd)(children’s statements were one continuous outcry told over several weeks).

Finally, Marquez argues that the outcry testimony should not have been admitted because T.M.C.’s outcry was not reliable. As a predicate for admission, the trial court must find that the outcry statement is rehable based on “the time, content, and circumstances of the statement.” Tex.Code CRIm. Proc. Ann. art. 38.072 § 2(b)(2). The phrase “time, content, and circumstances” refers to the time the child makes the statement to the proffered outcry witness, the content of the statement, and the circumstances surrounding the making of the statement. Broderick v. State, 89 S.W.3d 696, 699 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd)(quoting MacGilfrey v. State, 52 S.W.3d 918, 921 (Tex.App.-Beaumont 2001, no pet.)). The determination of whether outcry testimony is reliable must be made on a case-by-case basis, and is reviewed for abuse of discretion. Davidson v. State, 80 S.W.3d 132, 139 (Tex.App.-Texarkana 2002, pet. ref'd); Reed, 974 S.W.2d at 841.

Here, Marquez argues that the outcry statement was unreliable because the content of Gomez’s testimony was not consistent with the testimony of T.M.C. Specifically, Marquez points to Gomez’s testimony that on the way to Piedras Negras, T.M.C. told her Marquez “had tried to touch her,” and T.M.C.’s own testimony that she could not stop crying on the way to Piedras Negras and therefore did not tell her mother anything until they got home. Marquez asserts that this inconsistency indicates that the outcry statement was not reliable and should not have been admitted. While the testimony of Gomez and T.M.C. is not identical, we do not find it to be so contradictory that it undermines the reliability of the outcry testimony. Both Gomez and T.M.C. testified that T.M.C. was too upset to describe the details of the offense until they returned home. Further, Gomez’s testimony describing the more detailed outcry statement made by T.M.C. once they returned home was entirely consistent with T.M.C.’s testimony. Any inconsistency between the testimony of Gomez and T.M.C. is a matter of credibility and goes to the weight of the evidence, not its admissibility. See Tex. Dept. Public Safety v. Walter, 979 S.W.2d 22, 27 (Tex.App.-Houston [14th Dist.] 1998, no pet.). Therefore, we hold that the trial court did not abuse its discretion by finding that the outcry statement was reliable and admissible. Marquez’s first point of error is overruled.

Right to Speedy Trial

In his second point of error, Marquez argues that he was denied his right to a speedy trial guaranteed by the Sixth Amendment of the United States Constitution and Article I, section 10, of the Texas Constitution. U.S. Const. amend. VI; Tex. Const, art. I, § 10. We apply a bifurcated standard of review when reviewing a trial court’s decision on a speedy trial claim. State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App.1999). We review the trial court’s determination of historical facts under an abuse of discretion standard, while we review de novo the trial court’s application of the law to the facts. Id. When, as here, the defendant does not prevail on a speedy trial claim, we presume the trial court resolved any disputed fact issues in favor of the State, and we defer to the implied findings of fact supported by the record. Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App.2002). In determining whether a defendant’s right to a speedy trial has been violated, we weigh and balance four factors: (1) length of the delay; (2) reasons for the delay; (3) assertion of the right; and (4) prejudice to the defendant resulting from the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Munoz, 991 S.W.2d at 821. This balancing test requires weighing case-by-case “the conduct of both the prosecution and the defendant,” and no single factor is a “necessary or sufficient condition to the finding” of a speedy trial violation. Munoz, 991 S.W.2d at 821 (quoting Barker, 407 U.S. at 530, 533, 92 S.Ct. 2182). The Barker factors are considered together along with any other circumstances that may be relevant. Id. We address the four Barker factors below.

1. Length of the Delay

The length of delay is a triggering mechanism for analysis of the other Barker factors. Id. Further analysis is required if the length of the delay is “presumptively prejudicial.” State v. Rangel, 980 S.W.2d 840, 843 (Tex.App.-San Antonio 1998, no pet.). Texas courts have generally found a delay beyond eight months to be presumptively prejudicial, thus triggering further analysis of the Barker factors. Id. The length of the delay is measured from the time the defendant is arrested or formally accused. Id. Here, Marquez was arrested on November 8, 2002. The indictment was returned on December 12, 2003, and Marquez went to trial on March 15, 2004. The State concedes, and we agree, that the sixteen-month delay between the date of arrest and the date of trial triggers consideration of the remaining three Barker factors. See Dragoo v. State, 96 S.W.3d 308, 314 (Tex.Crim.App.2003) (“[i]n general, courts deem delay approaching one year to be ‘unreasonable enough to trigger the Barker [ijnquiry,’ ” quoting Doggett v. United States, 505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)).

2. Reasons for the Delay

Upon a finding that a presumptively prejudicial delay has occurred, the State bears the initial burden of justifying the delay. Rangel, 980 S.W.2d at 843. Different weights are assigned to different reasons for a delay. Munoz, 991 S.W.2d at 822. A deliberate attempt to delay a trial is weighed heavily against the State, while more neutral reasons such as negligence or overcrowded dockets are weighed less heavily. Id. If the record is silent regarding the reason for the delay, we presume neither a deliberate attempt by the State to prejudice the defense, nor a valid reason for the delay. Dragoo, 96 S.W.3d at 314.

Here, nothing in the record indicates the reason for the delay and the State has failed to offer any justification. Therefore, this factor is weighed against the State, since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. See Zamorano, 84 S.W.3d at 649. However, because there is no evidence that the State deliberately attempted to delay the trial, this factor is not weighed heavily against the State. See id. at 649-50; Dragoo, 96 S.W.3d at 314.

3.Assertion of the Right

The third factor that a trial court must consider is the defendant’s assertion of his right to a speedy trial. Munoz, 991 S.W.2d at 825. A defendant is responsible for asserting or demanding his right to a speedy trial. Id. A lengthy delay or lack of persistence in asserting the right attenuates a speedy trial claim. Russell v. State, 90 S.W.3d 865, 873 (Tex.App.-San Antonio 2002, pet. ref'd). However, a defendant’s failure to assert his right to a speedy trial is not necessarily dispositive of his claim. Munoz, 991 S.W.2d at 825. Instead, a defendant’s failure to do so is weighed and balanced with the other Barker factors. Id. A defendant’s failure to assert his right makes it more difficult for him to prove he was denied a speedy trial. Id.

Here, Marquez filed a motion to dismiss for violation of his right to a speedy trial and requested a hearing on February 17, 2004, two months after his indictment was returned, and one month before his trial was held. However, Marquez did not demand a speedy trial; rather, he sought a dismissal of the indictment. Marquez’s motivation in asking for a dismissal rather than a prompt trial is relevant and attenuates the strength of his speedy trial claim. See Phillips v. State, 650 S.W.2d 396, 401 (Tex.Crim.App.1983); see also McCarty v. State, 498 S.W.2d 212, 215-16 (Tex.Crim.App.1973) (stating that a defendant’s speedy trial claim is weakened where his prime object is not to gain a speedy trial but to have the charges against him dismissed). This factor weighs against Marquez, although not heavily.

4. Prejudice Caused by the Delay

The last Barker factor is prejudice to the defendant. Munoz, 991 S.W.2d at 826. Prejudice to the defendant is assessed in light of the interests the right to a speedy trial is designed to protect: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. Id. Of these interests, the most important is protecting a defendant’s ability to adequately prepare his defense because compromise of this interest “skews the fairness of the entire system.” Id. (quoting Barker, 407 U.S. at 532-33, 92 S.Ct. 2182). The defendant has the burden to make some showing of prejudice, although a showing of actual prejudice is not required. Id. When the defendant makes a prima facie showing of prejudice, the burden shifts to the State to show that the defendant suffered “no serious prejudice beyond that which ensued from the ordinary and inevitable delay.” Id. (quoting Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex.Crim.App.1973)). For purposes of showing a speedy trial violation, the prejudice suffered by the defendant must emanate from the delay. Anderson v. State, 8 S.W.3d 387, 392 (Tex.App.-Amarillo 1999, pet. ref'd).

Here, Marquez does not attempt to show that he was subjected to oppressive pretrial incarceration as he was promptly released on bail pending trial. Rather, Marquez argues that the delay in his case caused him anxiety and caused his defense to be impaired. The only evidence that Marquez presented to show anxiety was his own testimony. Marquez testified that as a result of the delay, he was nervous, and subject to public ridicule and embarrassment. He also testified that his employment was impaired because the charges prevented him from transferring or retiring. Since the State did not rebut Marquez’s testimony, it constitutes a pri-ma facie showing that Marquez suffered anxiety due to the delay. Zamorano, 84 S.W.3d at 654.

In attempting to show his defense was impaired as a result of the delay, Marquez testified that some of his co-workers were unavailable to testify on his behalf because they had been transferred. In order to make “some showing of prejudice’’ on this sub-issue, Marquez must show the witnesses were unavailable for trial, their testimony would have been relevant and material to his defense, and that he used due diligence to locate the witnesses for trial. Harris v. State, 489 S.W.2d 303, 308 (Tex.Crim.App.1973); Meyer v. State, 27 S.W.3d 644, 650 (Tex.App.-Waco 2000, pet. ref'd). Marquez has failed to show what material information these witnesses would have provided in their testimony, how it would have benefited his defense, and that he diligently attempted to secure their presence. Consequently, Marquez has failed to make a prima facie showing that his defense was impaired by the absence of these witnesses.

Marquez also contends that his defense was impaired due to the dimming memories of the State’s witnesses. To make a showing of prejudice based on dimming memories, Marquez is required to show that the “lapses of memory” are in some way “significant to the outcome” of the case. Munoz, 991 S.W.2d at 829 (quoting Barker, 407 U.S. at 534, 92 S.Ct. 2182), Marquez asserts the witnesses were unable to consistently remember when the alleged offense occurred, and that this inconsistency was significant because it was determinative of whether the outcry testimony would be admitted. However, as noted supra, the evidence was undisputed that T.M.C. had not yet turned thirteen on the date of the outcry statement; therefore, the offense necessarily occurred prior to her thirteenth birthday, making the outcry testimony admissible under Article 38.072. Marquez has not made a prima facie showing that his defense was impaired due to dimming witness memories.

While Marquez presented some evidence that the delay caused him some anxiety, he failed to make a prima facie showing that his defense was impaired by the delay. We conclude any prejudice that Marquez suffered as a result of the delay was “minimal,” and this factor should be weighed against him. See Schenekl v. State, 996 S.W.2d 305, 314 (Tex.App.-Fort Worth 1999) (“[tjhough appellant has established, and the State has failed to rebut, the anxiety element, it is not enough to cause the prejudice prong to weigh in appellant’s favor.”), aff'd, 30 S.W.3d 412. (Tex.Crim.App.2000); Munoz, 991 S.W.2d at 829 (prejudice was “minimal” where defendant was incarcerated for seventeen months and was able to show oppressive pretrial incarceration and anxiety, but failed to show that his defense was impaired by the delay).

Weighing the Barker factors based on the record before us, we conclude that Marquez’s right to a speedy trial was not violated. While there was no explanation for the delay and Marquez did assert his right to a speedy trial, Marquez’s claim is weakened by the fact that he sought a dismissal of the ■ indictment rather than a speedy trial. Furthermore, Marquez was released on bond pending trial and was only able to show a minimal degree of prejudice as a result of the delay. We overrule this issue on appeal.

The judgment of the trial court is affirmed.

      . T.M.C.’s date of birth is February 14, 1990.


source: Caselaw Access Project

author: CATHERINE STONE, Justice.

license: Public Domain

text:
    Wesley SURREDIN, Appellant, v. The STATE of Texas, Appellee.
    No. 04-04-00474-CR.
    Court of Appeals of Texas, San Antonio.
    April 6, 2005.

      Jennifer S. Nisbet, Robert Edward Ran-gel, San Antonio, for appellant.
    Alan E. Battaglia, Asst. Criminal Dist. Atty., San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by

CATHERINE STONE, Justice.

Wesley Surredin appeals his misdemeanor conviction of driving while intoxicated with an open container. Surredin contends that the trial court erred by: (1) allowing the State to read the open container enhancement during the guilt/innocence phase of trial; and (2) precluding defense counsel from cross-examining the arresting officer regarding a field sobriety test conducted in another case. Surredin also contends he received ineffective assistance of counsel because the attorney he retained to file a motion for new trial failed to timely set a hearing on the motion and failed to file a sworn motion. We affirm the trial court’s judgment.

Open ContaineR Enhancement

In his first point of error, Surredin complains that the trial court violated article 36.01(a)(1) of the Texas Code of Criminal Procedure by allowing the open container enhancement to be read during the guilt/innocence phase of trial. Although the State counters that Surredin’s objection was too general to preserve this complaint for appellate review, we believe that the “specific grounds [for the objection] were apparent-.from the context.” See Tex.R.App. P. 33.1(a)(1)(A).

Section 49.04(a) of the Texas Penal Code provides that a person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. Tex. Pen.Code Ann. § 49.04(a) (Vernon 2003). Although generally a conviction of driving while intoxicated has a minimum term of confinement of 72 hours, the minimum term of confinement increases to six days if it is shown that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person’s immediate possession. Com pare Tex. Pen.Code Ann. § 49.04(b) (Vernon 2003) with Tex. Pen.Code Ann. § 49.04(c) (Vernon 2003).

Surredin contends that reading the open container enhancement provision during the guilt/innocence stage of the trial violated article 36.01(a)(1) which provides: “When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment.” Tex.Code CRiM. PROC. Ann. art. 36.01(a)(1) (Vernon Supp.2004-2005) (emphasis added). In this case, the open container allegation is not a prior conviction; therefore, reading the enhancement provision did not violate article 36.01(a)(1).

Even if we broadly construed article 36.01(a)(1) to prohibit the reading of any allegations relating to punishment enhancements during the guilt/innocence phase of trial, any error in allowing the open container enhancement to be read in this case would be harmless. Evidence of the open container would have been admissible during the guilt/innocence phase of trial because it tended to make it more probable that Surredin was intoxicated at the time he drove since the open container was evidence that he consumed alcohol. See Stewart v. State, 129 S.W.3d 93, 96 (Tex.Crim.App.2004); Amaro v. State, No. 03-01-00385-CR, 2002 WL 1289793, at *1 (Tex.App.-Austin June 13, 2002, no pet.) (not designated for publication). Because the jury would have heard testimony regarding the open container even if the enhancement provision was not read, error, if any, in reading the allegation was harmless.

Surrediris first point of error is overruled.

Impeachment

Surredin next contends that the trial court erred in refusing to allow him to impeach the arresting officer with extrinsic evidence. Specifically, the officer testified that he would not perform a horizontal gaze nystagmus test on a person with an eye disease that “caused one eye to look this way and one eye to look in another direction.” Surredin wanted to impeach the officer with testimony from a person who was arrested by the officer after the officer administered an HGN test on him even though the person had a visible eye abnormality. The trial court ruled that the cross-examination would not be permitted unless Surredin called the other person as a witness and he testified that he had an eye disease.

In addition to complaining about the trial court’s refusal to allow the cross-examination, Surredin contends that the trial court erred in not allowing him sufficient time to locate the potential witness. Surredin never filed a written motion for a continuance; therefore, any complaint about having insufficient time to locate the witness is waived. See Dewberry v. State, 4 S.W.3d 735, 755 (Tex.Crim.App.1999).

With regard to the cross-examination, the trial court has considerable discretion in determining how and when bias may be proved, and what collateral evidence is material for that purpose. Stults v. State, 23 S.W.3d 198, 204 (Tex.App.Houston [14th Dist.] 2000, pet. ref'd). The court has the discretion to limit the scope of cross examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence. Id.

A cross-examining party may not introduce evidence to contradict a witness’s answer regarding a collateral matter. Shipman v. State, 604 S.W.2d 182, 183 (Tex.Crim.App.1980). A matter is collateral if the cross-examining party would not be entitled to prove that matter as part of his case tending to establish his plea. Id. Only general questions can be asked during cross-examination in an effort to discredit a witness, and the witness cannot be asked questions regarding a collateral fact merely with a view to contradict him afterwards by calling another witness. Bates v. State, 587 S.W.2d 121, 142 (Tex.Crim.App.1979).

In this case, the evidence of the officer’s testing of another person was a collateral matter. Accordingly, the trial court did not err in disallowing the cross-examination especially absent evidence that the other person had an eye disease. Absent that evidence, the officer’s testimony that he had never performed an HGN test on a person with an eye disease would not be inconsistent with his having performed an HGN test on the person in question. Sur-redin’s second point of error is overruled.

Motion for New Trial/Ineffective Assistance of Counsel

Surredin’s final point of error is that the attorney he retained to file a motion for new trial was ineffective in failing to timely obtain a hearing on his motion and failing to prepare a sworn motion.

To prevail on a claim for ineffective assistance of counsel, Surredin must show by a preponderance of the evidence that counsel’s performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). In addition, Surredin must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. In order to meet the second prong of the test, Surredin asserts “but for his attorney’s poor performance, his case would have turned out differently as the law as outlined in point of error number one is unquestionably in Appellant’s favor.” Sur-redin concludes, “The law regarding the enhancement paragraph upon which the motion for new trial was filed is clearly in Appellant’s favor and since no hearing was received, Appellant has now incurred further expense in hiring yet another attorney to file this appeal.” Because we have determined that the trial court did not err in allowing the open container enhancement to be read, Surredin’s ineffective assistance of counsel complaint fails because his only basis for asserting that the result of the proceeding would have been different fails. Surredin’s third point of error is overruled.

Conclusion

The trial court’s judgment is affirmed.

      . We acknowledge that the Fort Worth court held the reading of an open container allegation during the guilt/innocence phase of trial to be erroneous in Doneburg v. State, 44 S.W.3d 651, 655 (Tex.App.-Fort Worth 2001, pet. ref’d); however, Doneburg does not analyze article 36.01(a)(1).

      . The State’s alternative argument based on the United States Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 600, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), is misplaced. Because the enhancement only increased the minimum penalty and did not increase the maximum penalty for the crime, the enhancement was not required to be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt. Harris v. U.S., 536 U.S. 545, 566, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002).


author: KAREN ANGELINI, Justice.

text:
    Nancy J. WOLFRAM, Appellant, v. Lou Ann WOLFRAM, Individually, and as Trustee of the Herbert E. Wolfram and Lou Ann Wolfram Revocable Living Trust Agreement dated June 24, 1997, Appellee.
    No. 04-03-00686-CV.
    Court of Appeals of Texas, San Antonio.
    April 6, 2005.

      Jeff Small, Law Office of Jeff Small, San Antonio, for appellant.
    John E. Bakke, III, The Law Office of John E. Bakke, III, Thomas H. Crofts, Jr., Nissa M. Sanders, Crofts & Callaway, P.C., San Antonio, for appellee.
    Sitting: PAUL W. GREEN, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.

      . Justice Paul W. Green not participating.

   OPINION

Opinion by

KAREN ANGELINI, Justice.

In an opinion and judgment dated December 29, 2004, we reversed the trial court’s summary judgment rendered in*favor of Lou Ann Wolfram, individually and as trustee of the Herbert E. Wolfram and Lou Ann Wolfram Revocable Living Trust Agreement dated June 24, 1997, and remanded the cause to the trial court for proceedings consistent with this opinion. Lou Ann filed a motion for rehearing in which she contends we erred in holding that filing a foreign judgment against an “estate” had adequately complied with the domestication procedures under the Uniform Enforcement of Foreign Judgments Act (“Uniform Act”), thus creating a valid and final Texas judgment. We agree. Accordingly, we grant Lou Ann’s motion for rehearing, and we vacate our earlier opinion and issue this opinion and judgment in its place.

BACKGROUND

Nancy J. Wolfram (“Nancy”) and Herbert E. Wolfram (“Herbert”), residents of the state of California, divorced in 1987. On February 4, 1988, the Superior Court of California for Orange County ordered spousal support from Herbert to Nancy in the sum of $1,900.00 per month, “commencing on January 1, 1988, and continuing thereafter until the death of either party, re-marriage of [Nancy] or until further order of court, whichever shall first occur.” In August of 1990, Herbert, who had remarried, moved with his new wife, Lou Ann Wolfram (“Lou Ann”), to Bexar County, Texas, at which time it appears he stopped making payments to Nancy.

Nancy petitioned the Superior Court of Orange County, California, for issuance of an Abstract of Judgment and Writ of Execution on the unpaid balance of the California alimony judgment, which she received on February 11, 1997. This amount of total judgment plus accrued interest totaled $179,173.88. Following the issuance of this abstract of judgment and writ of execution, on or about June 24, 1997, Herbert and Lou Ann created and transferred assets into the HERBERT E. WOLFRAM AND LOU ANN WOLFRAM REVOCABLE LIVING TRUST (“Wolfram trust”). Herbert died on September 7, 1999. Following Herbert’s death, Nancy filed a Petition to Enforce Foreign Judgment against Herbert Wolfram and Estate in the Probate Court of Bexar County, Texas.

At the time of his death, Herbert, by his will, requested that Lou Ann serve as independent executor. Nancy contested Lou Ann’s appointment and, on June 18, 2001, filed suit to Request for TRO and Temporary Injunction against Lou Ann in District Court in cause number 2001-CI-08847. Nancy sued Lou Ann individually and as trustee, alleging violations of the Texas Uniform Fraudulent Transfer Act (TEX. BUS. & COM. CODE ANN. § 24.001 et seq.) and requesting judgment for the principal sum of $207,000.00, the amount of the California judgment. Nancy and Lou Ann filed cross motions for summary judgment.

In her motion for summary judgment, Nancy asserted that: (1) Nancy domesticated the California alimony judgment in Texas state court pursuant to the Uniform Act contained within chapter 35 of the Texas Civil Practice and Remedies Code; (2) Nancy, therefore, is a judgment creditor of Herbert; (3) Herbert transferred all of his assets to the Wolfram trust as sole beneficiary to his Estate; (4) Herbert made this transfer with the actual intent to hinder, delay and defraud Nancy of her right as a creditor of Herbert in violation of the Texas Uniform Fraudulent Transfer Act (“FTA”).

In response, Lou Ann asserted that she was entitled to summary judgment on two grounds. First, Lou Ann argued that Nancy could not maintain an action against her because no debtor-creditor relationship existed between them. Second, Lou Ann argued that the FTA suit was time-barred by section 16.066(b) of the Texas Civil Practice and Remedies Code.

The trial court granted summary judgment in favor of Lou Ann. Nancy appeals from this summary judgment.

STANDARD OF REVIEW

We review a summary judgment de novo. Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex.App.-San Antonio 2000, no pet.). Accordingly, we will uphold a summary judgment only if the summary judgment record establishes that there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law on a ground set forth in the motion. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); TEX. R. CIV. P. 166a(c). In deciding whether the summary judgment record establishes 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 v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). When, as in the instant case, the trial court enters a general summary judgment order, the summary judgment must be affirmed on appeal if any of the theories advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

ENFORCEMENT OF A FOREIGN JUDGMENT

In one issue, Nancy contends that the trial court erred in granting Lou Anris motion for summary judgment because Nancy’s cause of action against Lou Ann was not time-barred by section 16.066(b) of the Texas Civil Practice and Remedies Code. We have consistently applied section 16.066(b) as the relevant statute of limitations to actions brought to enforce foreign judgments from federal courts and sister states. See Carter .v. Jimerson, 974 S.W.2d 415, 417 (Tex.App.Dallas 1998, no pet.);, see also Lawrence Sys., Inc. v. Superior Feeders, Inc., 880 S.W.2d 203, 207 (Tex.App.-Amarillo 1994, writ denied). Section 16.066(b) provides that “[a]n action against a person who has resided in this state for 10 years prior to the action may not be brought on a foreign judgment rendered more than 10 years before the commencement of the action in this state.” Tex. Civ. PRAC. & Rem.Code Ann. § 16.066(b) (Vernon 1997). Here, Nancy brought her suit to enforce the California judgment under the FTA, filing her petition more than 10 years after both the rendition of the California judgment and the commencement of Herbert’s Texas residence.

Nevertheless, on appeal, Nancy contends that section 16.066(b) did not apply to her suit against Lou Ann because it was not a suit brought to enforce a foreign judgment. Instead, Nancy argues that, because she had previously domesticated the California judgment in a Bexar County, Texas probate court, her suit was an attempt to collect on a valid and final Texas judgment — one subject to a wholly different statute of limitations. Therefore, Nancy argues that she is entitled to bring action against Lou Ann, in her capacity as sole beneficiary of the Wolfram trust, to satisfy the judgment. For the following reasons, we disagree.

Nancy claims to have domesticated the California judgment in the Bexar County, Texas probate court prior to filing suit against Lou Ann. Under the Uniform Act, by filing an authenticated copy of a sister state judgment in a Texas court, the judgment holder can “domesticate” the foreign judgment. In other words, the filed foreign judgment instantly becomes a valid and enforceable Texas judgment, as if it had been rendered by the filing court. Tex. Civ. Prac. & Rem.Code Ann. § 35.003(c) (Vernon 1997 & Supp.2004-05); Walnut Equip. Leasing Co., Inc. v. Wu, 920 S.W.2d 285, 286 (Tex.1996) (“when a judgment creditor proceeds under the [Uniform Act], the filing of the foreign judgment comprises both a plaintiffs original petition and a final judgment”); see generally 9 William V. Doksaneo In, Texas Litigation Guide § 134.51 (Nov.1999). No other pleading is required; nothing else needs to be introduced into evidence. Id.

Here, Nancy filed an authenticated copy of the foreign judgment in Bexar County probate court on October 19, 2000. Nancy filed this judgment, however, after Herbert had died, and absent any court-appointed representative, through a petition against his “estate.” In her motion for rehearing, Lou Ann asserts that filing a foreign judgment against a man who had died, in a Texas suit against his “estate,” cannot result in a final and non-appealable Texas judgment under the Uniform Act. We agree.

It has long been settled that the “estate” of a decedent is not a legal entity that can either sue or be sued. Henson v. Estate of Crow, 734 S.W.2d 648, 649 (Tex.1987); Price v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex.1975); Miller v. Estate of Self, 113 S.W.3d 554, 556 (Tex.App.-Texarkana 2003, no pet.). Instead, a suit seeking to establish the decedent’s liabihty on a claim and subject property of the estate to its payment should be filed against the personal representative, or, under appropriate circumstances, against the heirs or beneficiaries. Miller, 113 S.W.3d at 556; Estate of C.M. v. S.G., 937 S.W.2d 8, 10 (Tex.App.-Houston [14 Dist.] 1996, no writ) (holding that not naming the personal representative of an estate in a lawsuit was a matter of fundamental jurisdiction that cannot be waived). This principle also apphes to judgments filed under the Uniform Act. See Tex. Civ. Prac. & Rem. Code Ann. § 35.003(c) (Vernon 1997) (“[a] filed foreign judgment has the same effect and is subject to the same procedures, defenses, and proceedings, for reopening, vacating, staying, enforcing, or satisfying a judgment as a judgment of the court in which it is filed”). Therefore, here, compliance with the Uniform Act necessitated filing the judgment against the personal representative of Herbert’s estate, or, in the absence of such a person, against his heirs or beneficiaries. Accordingly, we hold that Nancy failed to properly domesticate the California judgment pursuant to the Uniform Act.

Moreover, even assuming domestication was proper, Nancy could not seek to enforce the amount of the judgment in a direct suit against Lou Ann. A judgment domesticated under the Uniform Act is equivalent to a judgment rendered by a Texas court with regard to the collection and enforcement proceedings available to the judgment creditor. Id. In Texas, when a judgment debtor dies, “execution may not issue thereon, but the judgment may be proved up and paid in the due course of administration.” See Tex.R. Civ. P. 625. Therefore, the judgment creditor may not file judgment against a dead person and subsequently bring action to enforce it against a person who was not a party to the suit. Here, Herbert Wolfram was the only party defendant to the California suit and, therefore, the only judgment debtor to Nancy. Accordingly, enforcement of the judgment could not be executed against Lou Ann, and instead should have been settled, if at all, through a proper administration of the estate.

Conclusion

In accordance with this opinion, we overrule all issues and affirm the judgment of the trial court.

      . Nancy claims such payments ended December of 1990.

      . Lou Ann concedes the inquiry posed in Appellant’s first issue and suggests that it need not be decided in resolving this appeal. See Johnson v. Rancho Guadalupe, 789 S.W.2d 596, 597 (Tex.App.-Texarkana 1990, writ denied).

      . Here, the pertinent dates are as follows: California judgment was rendered on February 4, 1988; Herbert began his Texas residency in August 1990; and Nancy filed this suit on June 18, 2001. Therefore, Lou Ann met her summary judgment burden to prove as a matter of law that section 16.066(b) applied because Nancy did not file suit within the ten-year statutory period. Once the movant has produced sufficient evidence to show entitlement to judgment as a matter of law, the non-movant has the burden to show that a fact question exists to an element of the affirmative defense to the claim relied on by the movant or as to each element of a "defense to the defense” relied upon by the movant. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996) (holding that once defendant established its statute of limitations defense as a matter of law, plaintiff had burden to prove a fact issue about fraudulent concealment to defeat summary judgment).
      Here, as an ancillary argument brought for the first time on appeal, Nancy contends that Herbert’s death in September of 1999 suspended the running of the statutory period for twelve months, tacking one year onto the original ten-year limitation period. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.062 (Vernon 1997). Therefore, Nancy contends that, even under Lou Ann’s theory, the suspended statute did not expire until July 2001, and her FTA suit was timely filed on June 18, 2001. Nancy did not raise this argument at the trial court, however, and a summaty judgment cannot be reversed on appeal on the basis of an issue that was not expressly and timely presented to the trial court by written response or other document. See TEX. R. CIV. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979). Therefore, Nancy has waived this argument on appeal.

      . In her efforts to comply with the Uniform Act, Nancy made two filings with the Probate Court of Bexar County, Texas: (1) an Original Petition to Enforce Foreign Judgment ("Original Petition”) on April 10, 2000, and (2) a Supplement to Original Petition ("Supplement”) on October 19, 2000. In her Original Petition, however, Nancy failed to attach an authenticated copy of the California judgment, choosing instead to file an authenticated copy of the abstract of judgment. Therefore, here, we are called on to decide whether the California court’s abstract of judgment met the requirement of section 35.003 that a "copy” of a foreign judgment be filed in any court of competent jurisdiction in this state. Black’s Law Dictionary defines the term "copy” as "a transcript, double, imitation, or reproduction of an original writing, painting, instrument, or the like.” BLACK’S LAW DICTIONARY 303-04 (5th ed.1979). Moreover, the word " ‘copy’ implies that the instrument so labeled is identical with another instrument.” See In re Janes' Estate, 18 Cal.2d 512, 116 P.2d 438, 441 (1941); see also Rasmussen v. Baker, 7 Wyo. 117, 50 P. 819, 825 (1897) ("We are convinced that a copy of that instrument can consist only in a reproduction of the words of which it is composed in the same relation as they are there found, and thus, as a necessary consequence, in the language in which it is written”).
      The abstract of judgment cannot fit these definitions of "copy.” An abstract of judgment is not identical to the original judgment. It is not a reproduction of the words of the original judgment. Indeed, an abstract is not even signed by the judge of the rendering court. Rather, an abstract of judgment is a printed form designed to give parties notice of a judicial lien upon the property of a judgment debtor. See TEX. PROP. CODE ANN. § 52.001 (Vernon 1995 & Supp.2004-05); see also Citicorp Real Estate, Inc. v. Banque Arabe Internationale D’Investissement, 747 S.W.2d 926, 929 (Tex.App.-Dallas 1988, writ denied). Accordingly, we cannot hold that Nancy filed a "copy” of a judgment with her Original Petition as required under the Uniform Act.

      . In Henson, the plaintiff sued the defendant for rental payments due under an oral lease. The defendant died shortly before the trial. Henson thereafter amended his petition and named the Estate of Bruce L. Crow as the defendant. The trial was had on those pleadings. Henson argued the Estate of Crow had waived the error by failing to except to the defect in Henson’s pleadings. However, the Texas Supreme Court rejected that argument, saying, "This merely begs the question. Inasmuch as no legal entity was named as a defendant, there was no one to except to the pleadings or waive any defect therein.” Henson, 734 S.W.2d at 649 (discussed in Miller v. Estate of Self, 113 S.W.3d 554, 556-57 (Tex.App.-Texarkana 2003)).

      . A judgment creditor under the Uniform Act may have a writ of execution issued, enforce a judgment lien on the judgment debtor’s nonexempt real property found in Texas, or resort to judicial remedies such as garnishment or an order that the debtor turn property over to an intermediary for sale.


author: PER CURIAM.

text:
    Ex parte Guadalupe HERNANDEZ.
    No. 11-04-00001-CV.
    Court of Appeals of Texas, Eastland.
    April 7, 2005.

      J. K.(Rusty) Wall, Midland, for appellant.
    Al Schorre, District Attorney, Eric Kale-nak, Assistant, Midland, for appellee.
    Panel consists of: ARNOT, C.J., and MeCALL, J., and HILL, J.

      . John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.

   Opinion

PER CURIAM.

Guadalupe Hernandez appeals from the trial court’s order denying his petition for expunction of the records of certain convictions. The trial court found that, while Proclamation No. 87-1475 issued by the Governor of the State of Texas was a pardon, the proclamation did not contain any language indicating the proclamation was predicated on a subsequent proof of innocence. Hernandez contends in a single issue that the trial court incorrectly ordered that he deserved no relief on his expunction request. We reverse and remand this cause to the trial court for the entry of an order of expungement of the arrest records for the convictions for which Hernandez has been pardoned.

Hernandez petitioned the trial court for expunction of his convictions for burglary and murder without malice.. He was convicted of burglary in 1957 in Cause No. 002105 in the 142nd District Court of Midland County and received a sentence of three years. He was convicted of murder without malice in 1962 in Cause No. 002652 in the 142nd District Court of Midland County and received a sentence of five years. He was subsequently discharged in 1973. He sought relief based upon TEX. CODE CRIM. PRO. ANN. art. 55.01(a)(1)(B) (Vernon Pamph. Supp. 2004-2005) in light of a 1987 proclamation issued by Texas Governor Bill Clements, “acting upon and because of the recommendation of the Board of Pardons and Paroles,” that, by its terms, restored Hernandez’s full civil rights of citizenship that he may have lost as a result of his conviction of the offenses in question.

A person who has been arrested for the commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if he or she is tried for the offense for which the person was arrested and is convicted and subsequently pardoned. Article 55.01(a)(1)(B). The Governor of the State of Texas has the power to pardon, subject to the written recommendation and advice of the Texas Board of Pardons and Paroles. TEX, CONST, art. IV, § 11. A pardon has been defined as an act of grace exempting the individual on whom it has been bestowed from the punishment that has been assessed against him or her by the court. Ex parte Lefors, 165 Tex.Crim. 51,. 303 S.W.2d 394, 397 (1957). The term also includes the restoration of civil rights where the person convicted has served the full term of his or her sentence. See Holmes v. State, 70 Tex.Crim. 423, 157 S.W. 487, 492 (1913). There is no difference between the “full pardon” discussed in Holmes and the proclamation issued by Governor Clements, other than the fact that the document in the case at bar does not mention the term “pardon.” Given the fact that Governor Clements’s proclamation has the attributes of a pardon, despite the fact that it does not contain the word “pardon,” we agree with the trial court in holding that the proclamation restoring Hernandez’s civil rights was, in fact, a pardon. The trial court also found. that the pardon Hernandez received was not based upon his guilt or innocence, a fact that Hernandez does not dispute.

The State contends that Hernandez is not entitled to the relief he seeks because Governor Clements’s proclamation restoring Hernandez’s civil rights following his conviction was not a pardon and that, even if it were, it is a nullity because a statute authorizing the governor to restore civil rights had 'been repealed. For the reason previously stated, we disagree with the State’s conclusion that the proclamation was not a pardon.. Inasmuch as the authority of the governor to restore the full civil rights of one previously convicted of crime is derived from the governor’s right under the Texas Constitution to grant a pardon, upon the recommendation and advice of the Texas Board of Pardons and Paroles, the legislature does not have the power to interfere with his right to do so by the repeal of a statute. See Sanders v. State, 108 Tex.Crim. 467, 1 S.W.2d 901 (1928).

As we have previously noted, the trial court found that the proclamation was a pardon that restored Hernandez’s full civil rights of citizenship, but not one based upon subsequent proof of Hernandez’s innocence of the offenses. Inasmuch as the trial court denied the relief Hernandez sought, despite its finding that the proclamation was a pardon, we conclude that the trial court’s denial was based upon an inferred finding that the pardon referred to in Article 55.01(a)(1)(B) does not apply to pardons restoring full civil rights of citizenship. The language of Article 55.01(a)(1)(B) does not distinguish between different kinds of pardons. We must apply the language of the statute as written unless it is ambiguous or the plain language of the statute would lead to absurd results.

The State does not contend that the statute is ambiguous or that, as written, it would lead to absurd results. While one might argue as to the wisdom of the statute as written, we are unable to determine that the application of the statute as urged by Hernandez would lead to absurd results. TEX. GOV’T CODE ANN. § 311.023 (Vernon 2005) allows for other factors, such as legislative history, to be taken into consideration whether or not the statute is ambiguous. However, we are to utilize those factors only if the statute is ambiguous or leads to an absurd result. Boykin v. State, 818 S.W.2d 782, 785-86 (Tex.Cr.App.1991). We sustain Hernandez’s sole issue on appeal.

The order denying Hernandez expungement relief is reversed. We remand this cause to the trial court for the entry of an order of expungement of the arrest records for the convictions for which Hernandez has been pardoned.


author: ALMA L. LÓPEZ, Chief Justice.

text:
    David Javier TRILLO, Appellant, v. The STATE of Texas, Appellee.
    No. 04-02-00358-CR.
    Court of Appeals of Texas, San Antonio.
    April 13, 2005.

      George Scharmen, Kimberly S. Keller, The Keller Group, San Antonio, for appellant.
    Scott Roberts, Asst. Criminal Dist. Atty., San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice.
   OPINION

Opinion by

ALMA L. LÓPEZ, Chief Justice.

This appeal is on remand from the Texas Court of Criminal Appeals. On original submission, we held that the trial court committed reversible error in admitting the results of a breath test in the absence of retrograde extrapolation, citing this court’s opinion in Stewart v. State, 103 S.W.3d 483 (Tex.App.-San Antonio 2003), rev’d, 129 S.W.3d 93 (Tex.Crim.App.2004). After reversing this court’s opinion in Stewart, the Texas Court of Criminal Appeals vacated our judgment in the instant appeal and remanded the cause to this court for reconsideration in light of its opinion in Stewart. Trillo v. State, No. 633-03, 2004 WL 3093235 (Tex.Crim.App. Apr. 21, 2004).

On remand, David Javier Trillo elected to rely on his original brief and presents eight issues on appeal, contending: (1) the trial court erred in denying his motion for instructed verdict and his objection to the jury charge because the evidence was legally insufficient to prove that his blood alcohol concentration at the time he was driving was .08; (2) the trial court erred in admitting the intoxilyzer test results in the absence of admissible extrapolation evidence under either Rule 401 or Rule 403; (3) the trial court erred in denying Trillo’s challenge for cause to two veniremembers; (4) the trial court erred in refusing to quash the jury panel; and (5) the intoxilyzer test results should have been excluded because the evidence failed to demonstrate that the scientific principles underlying the operation of the intoxilyzer were properly applied. We affirm the trial court’s judgment.

Background

Officer John Saenz pulled Trillo over for speeding. As soon as Officer Saenz activated his overhead lights, Trillo activated his turn signal to take the next exit. Trillo disregarded a stop sign, turned right, and stopped. Two of Trillo’s friends were in the car. Officer Saenz noticed that Trillo’s eyes were watery and bloodshot. Trillo told the officer that he had consumed alcoholic beverages. Officer Saenz also smelled the odor of alcoholic beverages on Trillo’s breath. Trillo was cooperative, and his speech was fair.

Officer Saenz testified regarding his experience in field sobriety tests and stated that Trillo failed the horizontal gaze nys-tagmus test, the walk and turn test, and the one-leg stand test. Officer Saenz also administered the Romberg balance test, which is not a validated field test. Officer Saenz uses the Romberg balance test to measure the individual’s perception of time and the amount of sway in the individual’s stance with the individual’s eyes closed and head tilted back. Officer Saenz observed approximately two inches in sway. Officer Saenz administered the test for thirty seconds, and Trillo estimated that the test took twenty-seven seconds. Officer Saenz admitted that Trillo’s time estimation was good. After arresting Trillo, Officer Saenz observed an open alcoholic beverage in the car. Officer Saenz released the passengers in the car.

The jury was shown a videotape of the stop, and Officer Saenz testified that it was approximately one hour from the time of the arrest to the time the breath test was administered. Officer Saenz testified that he was certified to administer the intoxi-lyzer test and observed Trillo for the requisite period of time prior to administering the test.

On cross-examination, Officer Saenz admitted that the wind was blowing about 15 to 20 miles per hour while Trillo was performing the field sobriety tests. Officer Saenz testified that the manner in which Trillo was driving was not a factor in his arrest. Officer Saenz arrested Trillo based on his performance on the field sobriety tests.

The breath test technical supervisor for Bexar County, George Allen McDougall, Jr., testified that he maintains the intoxi-lyzer machines and supervises the breath test operators in Bexar County. McDou-gall testified that the two laws underlying the operation of the intoxilyzer are Henry’s Law and the Beer-Lambert Law and explained each of the laws. McDou-gall stated that the laws were considered valid in the scientific community. McDou-gall testified that the machine was operating correctly on the night Trillo was tested. Trillo’s first test at 12:02 a.m. was 0.133, and his second test at 12:06 a.m. was 0.130. McDougall testified that the difference in results is not an accurate indication as to whether the blood alcohol content is rising or falling because the sample differs, and the difference in results can easily be caused by differences in sample size not time.

Michael Cobarrubias was with Trillo the night he was arrested. Cobarrubias testified that Trillo was not intoxicated that night and still had the normal use of his mental and physical faculties. Cobarrubi-as stated that he would not have ridden as a passenger in Trillo’s car if Trillo had been intoxicated.

Sufficiency of the Evidence

In his first and second issues, Trillo contends that the trial court erred in overruling his motion for directed verdict and his objection to the jury charge because the evidence was legally insufficient to support a finding that Trillo’s blood alcohol concentration at the time he was driving was 0.08.

A challenge to the denial of a motion for instructed verdict is in fact a challenge to the legal sufficiency of the evidence. Cook v. State, 858 S.W.2d 467, 470 (Tex.Crim.App.1993); Prescott v. State, 123 S.W.3d 506, 510 (Tex.App.-San Antonio 2003, no pet.). In reviewing legal sufficiency challenges, we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found beyond a reasonable doubt all of the elements of the offense. Santellan v. State, 939 S.W.2d 155, 160 (Tex.Crim.App.1997); Prescott, 123 S.W.3d at 510.

In Stewart v. State, 129 S.W.3d 93, 96 (Tex.Crim.App.2004), the court recognized that breath test results might not be conclusive proof that a defendant was intoxicated at the time she was driving; however, the court concluded that evidence of breath test results, coupled with the arresting officer’s testimony of his observations and the videotape recording of the stop, were probative evidence of the defendant’s intoxication. Id. Similarly, in this case, the test results, coupled with the testimony of Officer Saenz and the videotape of the stop, were legally sufficient evidence to support Trillo’s conviction.

Trillo’s first and second issues are overruled.

Admissibility of IntoxilyzeR Test Results

In his third issue, Trillo contends that the trial court erred in admitting the intox-ilyzer test results into evidence in the absence of retrograde extrapolation evidence. Trillo contends that the results were irrelevant under Rule 401 and overly prejudicial under Rule 403.

A trial court’s ruling on the admissibility of evidence is reviewed under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990). The test for whether a trial court abused its discretion is whether the action was arbitrary or unreasonable. State v. Mechler, 153 S.W.3d 435, 439-40 (Tex.Crim.App.2005). An appellate court should not reverse a trial judge whose ruling was within the zone of reasonable disagreement. Id.

In Stewart, the Texas Court of Criminal Appeals held that the results of breath tests are relevant without retrograde extrapolation evidence. Accordingly, Trillo’s complaint under Rule 401 is overruled.

In Mechler, the Texas Court of Criminal Appeals analyzed the admissibility of intoxilyzer test results in the absence of retrograde extrapolation in response to a Rule 403 challenge. Under Rule 403, all relevant evidence is admissible unless “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex.R. Evid. 403. In Mechler, the court instructed us that, “A proper Rule 403 analysis includes, but is not limited to, four factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the evidence.” 153 S.W.3d at 439.

Probative Value

“The first factor looks to the evidence’s probativeness or how compellingly the evidence serves to make a fact of consequence more or less probable.” Id. “The relative probative value of the test depends primarily on two variables: 1) the degree to which the test result exceeds the legal limit of 0.08%; and 2) the amount of time elapsed between driving and the taking of the test.” Id. at 449 (Cochran, J., concurring). “The higher the test result and the shorter the time between driving and testing, the more likely the logical inference is that the defendant had a BAC level at or above 0.08% at the time of driving.” Id.

In this case, the tests were administered approximately one hour after the stop. Trillo’s first test at 12:02 a.m. was 0.133 BAC, and his second test at 12:06 a.m. was 0.130 BAC. These test results “indicate that [Trillo] had consumed alcohol. As a result, they tend to make it more probable that he was intoxicated at the time of driving under both the per se and impairment definitions of intoxication.” Id. at 440.

Irrational Impression

“The second factor asks whether the evidence has the potential to impress the jury in some irrational but indelible way.” Id. “Rule 403 does not exclude all prejudicial evidence. It focuses only on the danger of ‘unfair prejudice.’ ” Id. “Unfair prejudice” only occurs if relevant evidence tends to tempt a jury into a finding of guilt on grounds other than proof of the charged offense. Id. Although the in-toxilyzer test results are prejudicial to Trillo, “they are not unfairly prejudicial because [they relate] directly to the charged offense.” Id.

Time to Develop

“The third factor looks to the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense.” Id. “Because the intoxilyzer results relate directly to the charged offense, a jury could not be distracted away from the charged offense regardless of the required time to present the results.” Id.

Need for the Evidence

“The fourth factor focuses on the proponent’s need for the evidence.” Id. at 441. This last factor encompasses the issues of whether the proponent has other evidence establishing the fact sought to be established by the evidence. Id. “The conduct prescribed by the Penal Code is the act of driving while in a state of intoxication.” Bagheri v. State, 119 S.W.3d 755, 762 (Tex.Crim.App.2003). In this case, the record included Officer Saenz’s testimony and the videotape of the stop. “In light of this other evidence probative of [Trillo’s] intoxication, the State does not have a great need for the test results.” Mechler, 153 S.W.3d at 441-42.

Evaluation

After evaluating all of the relevant factors, we hold that the trial court did not abuse its discretion in admitting the intoxi-lyzer test results. Trillo’s third issue is overruled.

Challenges FOR Cause

In his fourth and fifth issues, Trillo contends that the trial court erred in denying his challenge for cause to veniremember number nine and veniremember number nineteen. Trillo asserts that his challenges should have been granted because both veniremembers responded affirmatively to the question of whether they could determine on the basis of a failed breath test taken an hour or so after a person was driving that the individual had an alcohol concentration of .08 or greater while the person was driving.

The denial of a challenge for cause is reviewed under an abuse of discretion standard. Swearingen v. State, 101 S.W.3d 89, 98 (Tex.Crim.App.2003). The test for whether a trial court abused its discretion is whether the action was arbitrary or unreasonable. Mechler, 153 S.W.3d at 439-40. An appellate court should not reverse a trial judge whose ruling was within the zone of reasonable disagreement. Id.

A prospective juror who has a bias or prejudice against any phase of the law upon which a party is entitled to rely is properly challengeable for cause. Threadgill v. State, 146 S.W.3d 654, 667 (Tex.Crim.App.2004). The. test is whether the bias or prejudice would substantially impair the prospective juror’s ability to carry out his oath and instructions in accordance with the law. Id. Before a prospective juror can be excused for cause on this basis, however, the law must be explained to him and he must be asked whether he can follow that law regardless of his personal views. Id. Great deference is given to the trial court’s decision because the trial judge was present to observe the demeanor of the prospective juror and to listen to his tone of voice. Id. Particular deference is given when the potential juror’s answers are vacillating, unclear or contradictory. Id.

Before addressing whether either of the prospective jurors in this case were properly challengeable for cause, we must first determine what the applicable law is. We believe the law continues to be the law announced in Forte v. State, 707 S.W.2d 89 (Tex.Crim.App.1986). In that case, the court concluded:

To prove the element of intoxication in a prosecution for the offense of driving while intoxicated, the State must offer proof beyond a reasonable doubt as to that element. To be sure, if the State relies upon the 0.10% definition of intoxication, then such proof will normally appear in the form of a chemical test showing the alcohol concentration in a defendant’s body near the time of the offense. However, a conviction will not necessarily follow from the offer of such a test. First, the trier of fact must still be convinced beyond a reasonable doubt that the chemical test provides trustworthy evidence of alcohol concentration in a defendant’s breath, blood or urine. Second, the jury must still be convinced beyond a-reasonable doubt that an inference can be made from the results of the chemical test that the defendant had a 0.10% alcohol concentration in his body at the time of the offense.

707 S.W.2d at 94-95 (emphasis in original); see also Bagheri v. State, 119 S.W.3d 755, 760 (Tex.Crim.App.2003) (quoting same language from Forte). The following comments by Judge Cochran in her concurring opinion in Mechler also appear to recognize a jury’s ability to draw inferences from the test results:

In turn, the relative probative value of the test depends primarily upon two variables: 1) the degree to which the test result exceeds the legal limit of 0.08%; and 2) the amount of time elapsed between driving and the taking of the test. The higher the test result and the shorter the time between driving and testing, the more likely the logical inference is that the defendant had a BAC level at or about 0.08% at the time of driving. The stronger the inference of a BAC of 0.08% or greater at the time of driving, the less significant is the necessity for expert retrograde extrapolation testimony. Conversely, the weaker the inference of guilt, the more vital is the necessity for evidence that relates an accused’s BAC test result back to the time of driving. When a test result is obtained long after the arrest and the result is at or below the legal limit, the logical inference that the person had a 0.08% BAC at the time of driving may be so tenuous that a trial judge appropriately exercises his discretion by excluding the specific test results under Rule 403 absent expert testimony that extrapolates the test result back to the time of driving.

Mechler, 153 S.W.3d at 449 (Cochran, J., concurring) (emphasis added). Accordingly, the applicable law as pronounced by the Texas Court of Criminal Appeals permits a juror to draw an inference of an alcohol concentration of 0.08% or greater at the time of driving if the jury is convinced beyond a reasonable doubt that such an inference can be made.

In this case, Trillo contends that the potential jurors expressed bias against the law in responding affirmatively to the following question, “Do you believe based on what you know that you can determine the alcohol concentration of an individual at an earlier point in time based solely upon a failed breathe [sic] test an hour or so earlier? In other words, that he was .08 or greater while driving based solely upon a failed breathe [sic] an horn’ later. Do you believe you can do that.”

In regard to veniremember nine, defense counsel restated the question, and the veniremember responded as follows:

MR. SCHARMEN: Okay. And Ms. Cadena, I’m asking you the same question. Do you believe based upon what you know, that you .can determine on the basis of a failed breathe [sic] test taken an hour or so after a person was driving that that individual had an alcohol concentration of .08 or greater while they were driving?
VENIRE PERSON [9]: I mean, he was intoxicated. I — I guess, I could.
MR. SCHARMEN: You — you could?
VENIRE PERSON: I believe I could.

With regard to veniremember nineteen, the following dialogue occurred:

MR. SCHARMEN: Okay. And then finally Ms. Kasper?
VENIRE PERSON: I would think that he would.
MR. SCHARMEN: Be [J08 or greater?
VENIRE PERSON: Right.
MR. SCHARMEN: And you think that you can make that determination?
VENIRE PERSON: Yes.

In response to this line of questioning, the State posed the following follow-up question:

MR. BRAVENEC: All right. And I’m sorry to have to do it in this fashion, but believe it or not it makes it a little faster. My question to you, and let me take the Atoid from my mouth, is the law requires that someone be .08 or greater at the time of driving.
Now, you can use whatever evidence you’re given. Whether it’s a blood test or not, to determine it, but it does require that you believe beyond a reasonable doubt if that’s the theory we’re [sic] relied upon, that it will be .08 or greater.
So, you know, you may be given instructions by the Court that say you can consider a breathe [sic] test as evidence of that and you’re welcomed [sic] to use that as evidence, but you have to know that it’s a .08 or greater at the time of trial [sic]. So, you can use that as evidence, but you just have to be convinced of that at the time of trial [sic]. That’s the theory. I know it’s legal mumble jumble.
Let me just ask you, Mr. Genco, would you be able to look at the evidence and determine whether it’s .08 or greater at the time of driving?
MR. BRAVENEC: Same question to you, Ms. Cadena. Am I saying that correctly?
VENIRE PERSON: That’s correct.
MR. BRAVENEC: You can use whatever evidence you want, but at the time of driving, if you thought it was .08 or greater, whether it’s [sic] was from anything, a breathe [sic] test or whatever, later on or earlier on or you thought it was .08 or greater at driving, would you be able to follow the law and make it a .08 or greater?
VENIRE PERSON: Yes.
MR. BRAVENEC: Ms. Mendez, would you be able to follow the law, .08 or greater?
VENIRE PERSON: Yes, I guess.
MR. BRAVENEC: All right. And at the time of driving, right?
VENIRE PERSON: Yeah.
MR. BRAVENEC: And Ms. Kasper?
VENIRE PERSON: Yes, I would.

The State’s follow-up question was sufficient to rehabilitate the potential jurors to the extent their initial responses can be considered to be statements contrary to the applicable law. Moreover, the jurors were never asked if they would draw an inference to a BAC level at the time of driving even if they were not convinced beyond a reasonable doubt that the inference could be made. Although allowing the jury to draw such an inference seems inconsistent with the holding in Mata v. State that excludes expert testimony regarding retrograde extrapolation without proof of scientific reliability, the Texas Court of Criminal Appeals’ decision in Forte, which was recognized in Bagheri, and Judge Cochran’s concurring opinion in Mechler, require us to conclude that a jury is permitted to make such an inference if it is convinced beyond a reasonable doubt that the inference can be made. Forte, 707 S.W.2d at 94-95. Trillo’s fourth and fifth issues are overruled.

Motion to Quash

In his sixth and seventh issues, Trillo contends that the trial court erred in denying his motion to quash the jury panel after the trial court instructed the panel that they could draw reasonable inferences from the intoxilyzer test results.

The denial of a motion to quash is reviewed under an abuse of discretion standard. Thomas v. State, 621 S.W.2d 158, 163 (Tex.Crim.App. [Panel Op.] 1980). The test for whether a trial court abused its discretion is whether the action was arbitrary or unreasonable. Mechler, 153 S.W.3d at 439-40. An appellate court should not reverse a trial judge whose ruling was within the zone of reasonable disagreement. Id.

Initially, the trial court engaged in the following discourse with defense counsel during a bench conference:

MR. SCHARMEN: Judge, I’m saying they may not infer that it’s .08 or greater if it’s [not] scientifically reliable to do so.
THE COURT: I think they can infer.
MR. SCHARMEN: Is the Court ruling that the jury may extrapolate if an expert cannot?
THE COURT: I’m saying that they can infer.
MR. SCHARMEN: They can infer that a person is .08 or greater on a breathe [sic] test alone?
THE COURT: Yes.

Later, in the jury’s presence, the following exchange occurred:

MR. SCHARMEN: That jurors may infer or extrapolate when the Court has ruled that it’s unreliable. Is that what this Court is saying? Is that what the Court has sustained?
THE COURT: I’m saying that the jurors can infer from an alcohol test, the breathalyzer, they can infer that they were intoxicated. They can consider that as a fact they were intoxicated at the time of their arrest.
MR. SCHARMEN: Okay. I’m not talking about that. I’m talking about alcohol concentration, Judge, not whether the person was intoxicated.
THE COURT: That is one factor that they can infer in and they can consider.
MR. SCHARMEN: Okay. Now, I’m talking about alcohol concentration in the blood. That’s what this lady was talking about, Judge. Not about intoxication, but about alcohol concentration in the blood.
THE COURT: Okay. I already stated what I think the law infers and requires, so and I’ve ruled on the objection of the State. Let’s move on.

Finally, during defense counsel’s presentation of his motion to quash outside of the jury’s presence, the following exchange occurs:

MR. SCHARMEN: Okay. And our motion is that we quash this panel or instruct them that they may not infer a breathe [sic] alcohol concentration in an earlier point in time based upon a breathe [sic] test alone because that is no evidence.
THE COURT: I disagree with that. I disagree with that.

The statements made by the court regarding the law are not so inconsistent with the law as stated in Forte that the denial of the motion to quash was outside the zone of reasonable disagreement. The trial court’s comments indicated that the jury could draw an inference of intoxication and, possibly, an inference of an alcohol concentration at the time of driving from test results based on the totality of the circumstances. Although the trial court did not verbally instruct the jury that it could only make such an inference if it was “convinced beyond a reasonable doubt that such an inference can be made,” Forte, 707 S.W.2d at 95, the jury charge instructed the jury that the prosecution had the burden of proving each and every element of the offense charged beyond a reasonable doubt. In view of the totality of the circumstances and instructions given to the jury, the trial court did not abuse its discretion in denying the motion to quash because it did not instruct the jury contrary to the applicable law. Trillo’s sixth and seventh issues are overruled.

Scientific Reliability of Intoxilyzer Test Results

In his final issue on appeal, Trillo contends that the trial court erred in admitting the intoxilyzer tests results because the State failed to demonstrate by clear and convincing evidence that the scientific principles underlying the operation of the intoxilyzer machine were properly applied. Specifically, Trillo contends that because Officer Saenz failed to measure Trillo’s body temperature, breath temperature, and lung capacity before taking the breath specimen, he contaminated the reliability of Trillo’s test.

A trial court’s ruling on the admissibility of evidence is reviewed under an abuse of discretion standard. Montgomery, 810 S.W.2d at 391. The test for whether a trial court abused its discretion is whether the action was arbitrary or unreasonable. Mechler, 153 S.W.3d at 439-40. An appellate court should not reverse a trial judge whose ruling was within the zone of reasonable disagreement. Id.

McDougall testified at length regarding the scientific theory underlying the test results, i.e., Henry’s Law. In addition, Officer Saenz testified regarding the procedures followed in implementing the test. Although McDougall acknowledged that temperature can affect breath testing accuracy, such testimony goes to the weight to be given the evidence, not its admissibility.

Conclusion

The trial court’s judgment is affirmed.

      . McDougall explained that Henry’s Law relates the alcohol in breath to the alcohol in blood.

      . McDougall explained that the Beer-Lambert Law provides that the amount of decrease in the light detected by the intoxilyzer is proportional to the number of interfering molecules created by the alcohol.

      . At the time Forte was written, a blood alcohol concentration of 0.10% or greater was required to establish the per se theory of driving while intoxicated; however, the statute was subsequently amended to decrease the required blood alcohol concentration to 0.08% or greater.

      . 46 S.W.3d 902 (Tex.Crim.App.2001).


author: SANDEE BRYAN MARION, Justice.

text:
    Larry M. ELLISON, Appellant, v. The STATE of Texas, Appellee.
    No. 04-04-00599-CR.
    Court of Appeals of Texas, San Antonio.
    April 13, 2005.
    Rehearing Overruled April 28, 2005.

      Michael C. Gross, Law Office of Michael C. Gross, San Antonio, for appellant.
    Anton Hackebeil, Dist. Atty., Hondo, M. Patrick Maguire, Danford, Emerson & Maguire, P.L.L.C., Kerrville, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

SANDEE BRYAN MARION, Justice.

Defendant, Larry M. Ellison, pled guilty to sexually assaulting a thirteen-year-old child. A jury assessed punishment at twenty years’ confinement. On appeal, defendant asserts the trial court reversibly erred, during the punishment phase, by (1) allowing a probation officer to testify regarding defendant’s suitability for probation; (2) allowing the probation officer to testify as an expert; and (3) refusing to allow defendant’s cross-examination of the complainant about matters “to which the door had been opened on direct examination by the state.” We affirm.

PROBATION OFFICER’S EXPERT TESTIMONY

During the punishment phase, the trial court allowed a probation officer to offer her opinion on whether defendant was a suitable candidate for probation. In his first and second issues, defendant contends the trial court erred in allowing such testimony because (1) testimony regarding a criminal defendant’s suitability for probation is not an issue in the punishment phase of trial, and (2) the probation officer here was not qualified to offer her opinion on his suitability.

Texas Code of Criminal Procedure article 37.07, section 3(a), governs the admissibility of evidence during the punishment phase. The original version of the article was very restrictive, and provided that, “[rjegardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation and his character.” Cases interpreting the former version of article 37.07 held that testimony regarding a defendant’s suitability for probation was objectionable as irrelevant. See Ortiz v. State, 834 S.W.2d 343, 346 (Tex.Crim.App.1992); Murphy v. State, 777 S.W.2d 44, 62-67 (Tex.Crim.App.1989). However, the 1989 amendment to article 37.07 widened the scope of admissible evidence considerably. See Muhammad v. State, 46 S.W.3d 493, 505 (Tex.App.-El Paso 2001, no pet.); Peters v. State, 31 S.W.3d 704, 716-17 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). The current version of article 37.07, which governs this case, reads in pertinent part as follows:

Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or bad act.

Tex.Code Crim. Proc. Ann. art. 37.07 § 8(a)(1) (Vernon Supp.2005) (emphasis added). At least two of our sister courts analyzing the current version of article 37.07, section 3(a) hold that it does not preclude evidence of a defendant’s suitability for probation. Muhammad, 46 S.W.3d at 505 (seeing “no logical reason for excluding evidence on suitability for probation from” punishment deliberation); Peters, 31 S.W.3d at 716-17 (concluding that nothing in current article 37.07, section 3(a) makes evidence of defendant’s suitability for probation inadmissible per se). We believe the admissibility of such evidence is now judged by its relevancy to sentencing. See Tex.Code CRiM. Proc. Ann. art. 37.07 § 3(a); see. also Peters, 31 S.W.3d at 719 (holding that suitability for probation can be relevant to a jury’s recommendation). Therefore, we cannot say the trial court abused its discretion by allowing into evidence testimony regarding defendant’s suitability for probation.

Defendant also complains that the probation officer was not qualified to testify as an expert. Expert testimony is admissible only after the trial court is satisfied that (1) the expert is qualified by knowledge, skill, experience, training, or education; (2) the subject of the testimony is appropriate for expert testimony; and (3) the testimony will assist the trier of fact in deciding the case. Tex.R. Evm 702; see also Alvarado v. State, 912 S.W.2d 199, 215-16 (Tex.Crim.App.1995). The special knowledge that qualifies a witness to give an expert opinion may be derived from specialized education, practical experience, a study of technical works, or a varying combination of these things. Tex.R. Eved. 702; Penry v. State, 903 S.W.2d 715, 762 (Tex.Crim.App.1995). Whether a witness offered as an expert possesses the required qualifications is a question that rests largely within the trial court’s discretion, and the decision to admit or exclude the testimony will not be disturbed absent a clear abuse of discretion. Penry, 903 S.W.2d at 762.

Here, the probation officer testified she has a psychology degree with an emphasis on sex crimes and aggression, a degree in criminal justice, and has supervised sex offenders as part of her duties as a probation officer. Additionally, she stated she had special training involving sex crimes and supervising sex offenders; had attended seminars on violence, domestic violence, and sex crimes; and, in the past year alone, had received seventy-five horns of specialized training. She testified as to her experience as a probation officer and her training involving sex offenders and their victims, both of which comprise legitimate fields of expertise. See Hardin v. State, 20 S.W.3d 84, 92 (Tex.App.-Texarkana 2000, pet. ref'd) (holding a probation officer’s extensive experience and training in the investigation and supervision of sex offenders qualified her to testify as an expert regarding whether a convicted sex offender posed a continuing threat to society). She testified the complainant’s conduct after the assault was consistent with her knowledge about the behavior of victims of sexual assault in general, and defendant’s conduct was consistent with her knowledge about how sex offenders generally behave. Based on the probation officer’s extensive background, experience, and expertise in the area of sexual offenders, the trial court could have reasonably concluded she was qualified to testify as an expert on defendant’s suitability for probation. Accordingly, we cannot say the trial court abused its discretion in allowing the probation officer to testify as an expert.

COMPLAINANT’S PRIOR SEXUAL HISTORY

In his third issue, defendant asserts the trial court reversibly erred by refusing to allow him to cross-examine the complainant about her sexual relations with several other men in order to show (1) her motive or bias, and (2) to refute the implied testimony that the complainant was involved only with a minor-aged boyfriend prior to the assault.

After complainant testified on direct examination by the State that she had sexual intercourse with a minor-aged boyfriend prior to the assault, defense counsel sought to inquire on cross-examination about the complainant’s relationship with several adult men. The trial court conducted a hearing outside the jury’s presence on whether this line of questioning was permissible under Texas Rule of Evidence 412. During the hearing, complainant testified she had five sexual partners, including the minor-aged boyfriend, prior to being assaulted by the defendant. Four of those partners were adults. The trial court excluded any testimony from the complainant about any of her sexual partners other than her minor-aged boyfriend. On appeal, defendant relies on this court’s opinion in Draheim v. State, 916 S.W.2d 593 (Tex.App.-San Antonio 1996, pet. ref'd), for his argument that Rule 412 does not apply to evidence that a child complainant has been sexually abused by other adults.

Rule 412, commonly known as the “rape shield law,” precludes reputation or opinion evidence of an alleged sexual assault victim’s past sexual behavior, except in certain specific instances. Tex.R. Evid. 412. Among those instances is if the evidence relates to the alleged victim’s motive or bias and if the probative value of the evidence outweighs the danger of unfair prejudice. Tex.R. Evid. 412(b)(2)(C), (3). Therefore, before evidence of an alleged victim’s sexual behavior may be admitted under Rule 412, a defendant must first establish the relevancy of the evidence to a material issue in the case. See Tex.R. Evid. 401. If the evidence is not relevant, it is not admissible. See Tex.R. Evid. 402.

In Draheim, a panel of this court noted that the admissibility of evidence elicited on cross-examination is based upon a determination of its relevancy. Draheim, 916 S.W.2d at 598. Evidence relevant to sentencing may be admitted during the punishment phase of trial. Tex.Code Crim. Proc. art. 37.07, § 3(a). “The focus of the punishment phase is ... the personal responsibility and moral blameworthiness of the defendant for the crime of which he has been convicted.” Draheim, 916 S.W.2d at 600. Thus, evidence “regarding the offense or the defendant, which tends to reduce a defendant’s moral blameworthiness, may be received as mitigating evidence.” Id. We conclude here that evidence of the complainant’s relationship with other adult men is “not evidence regarding either the circumstances of the offense or [defendant] himself, nor is it evidence a juror might regal’d as reducing [defendant’s] moral blameworthiness.” See Draheim, 916 S.W.2d at 600 (determining that evidence the complainant had been sexually abused by persons other than appellant was irrelevant). Accordingly, we cannot say the trial court abused its discretion in excluding the complainant’s testimony.

CONCLUSION

We overrule defendant’s issues on appeal and affirm the trial court’s judgment.

      . Acts 1973, 63rd Leg., R.S., ch. 399, § 2, 1973 Tex. Gen. Laws 883, 971-72, amended by Acts of 1989, 71st Leg., R.S., ch. 785, § 4.04, 1989 Tex. Gen. Laws 3471, 3492.

      . Two other courts of appeals have continued to exclude testimony as to a defendant’s suitability for probation, but both have done so without addressing the effect of the 1989 amendment to article 37.07. See Hardin v. State, 20 S.W.3d 84, 90 (Tex.App.-Texarkana 2000, pet. ref’d); Johnson v. State, 991 S.W.2d 427, 430 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd).

      . The Texas Court of Criminal Appeals has not considered whether, under the current version of the statute, suitability for probation is an appropriate subject of expert testimony in the sentencing phase of a trial. See Ortiz, 834 S.W.2d at 346 n. 7 (noting the case was tried "prior to the 1989 amendment" and stressing it did not "address the question whether 'suitability' for probation is an issue under the current incarceration [sic] of the statute").