Brodrick Dechone Delane AKA Broderick Shun Delane AKA Shaun Scott v. State

HARVEY BROWN, Justice,

dissenting.

Appellant contends that “the trial court erred in admitting unreliable and irrelevant scientific evidence” that he was intoxicated due to his use of two pharmaceutical medications. I agree with the Court that certain portions of Officer Morrison’s testimony regarding the details of the two prescription drugs in question would have *426 been inadmissible based on lack of qualifications and reliability if appellant had timely and properly objected to that testimony. Because appellant did not preserve either of these objections, however, I respectfully dissent. At best, appellant preserved error on relevance grounds, but Officer Morrison’s objected-to testimony was relevant and any error in its admission was harmless. The testimony to which appellant objected was also cumulative of other testimony for which no objection was made. I would therefore affirm the trial court’s judgment.

I. Appellant did not preserve his objections to Officer Morrison’s qualifications or the reliability of his testimony before or during trial.

A. “Motion in Limine to Suppress Drug/Medication Evidence”

Appellant’s pretrial motion, which he titled “motion in limine to suppress drug/medication evidence,” did not preserve his objections to either Officer Morrison’s qualifications or the reliability of Officer Morrison’s testimony that appellant was intoxicated due to medication for two reasons: (1) it operated as a motion in limine, not a motion to suppress, and (2) the objections made in it are not the same as the objections raised on appeal.

Whether a motion operates as a motion to suppress or a motion in limine is a decisive issue because an adverse ruling on a motion to suppress preserves error for our review and an adverse ruling on a motion in limine preserves nothing. 1 See Gonzales v. State, 685 S.W.2d 47, 50 (Tex.Crim.App.1985); Roberts v. State, 545 S.W.2d 157, 158 (Tex.Crim.App.1977). “A motion to suppress is a specialized objection regarding the admissibility of evidence.” Wade v. State, 814 S.W.2d 763, 764 (Tex.App.-Waco 1991, no writ). In contrast, “a ruling on a motion in limine does not purport to be one on the merits but one regarding the administration of the trial.” Norfleet v. State, Nos. 01-10-00429-CR and 01-10-00430-CR, 2011 WL 2436494 , at *3 (Tex.App.-Houston [1st Dist.] June 16, 2011, no pet.) (mem. op., not designated for publication). The fundamental purpose of a motion in limine is to obtain an order requiring an initial offer of objectionable evidence outside the jury’s presence. See Thierry v. State, 288 S.W.3d 80, 86 (Tex.App.-Houston [1st Dist.] 2009, pet. ref'd) (explaining that “[a] motion in limine is ‘a method of raising objection to an area of inquiry prior to the matter reaching the ears of the jury through a posed question, jury argument, or other means’ ” and is “ ‘by its nature, subject to reconsideration by the court throughout the course of the trial’ ”) (quoting Norman v. State, 523 S.W.2d 669, 671 (Tex.Crim.App.1975)).

Appellant’s ambiguously-titled pretrial motion is most akin to a motion in limine. It embraces the fundamental purpose of a motion in limine by requesting that the trial court “instruct all counsel for the State not to mention, refer to, allude to, or present audio or visual evidence pertaining directly or indirectly to [appellant’s] use of any drug or medication.” Nowhere in the motion does appellant expressly request that the trial court exclude evidence; his prayer for relief requests only that the trial court “grant this motion and instruct all counsel for the State as moved for above.” That the motion was argued immediately after another motion in limine *427 further confirms its character. 2 The Court correctly observes that, during the pretrial conference, the State identified the motion as a “motion to suppress drug and medication evidence.” See Delane v. State, 369 S.W.3d 412, 424 (Tex.App.-Houston [1st Dist.] 2012, no pet. h.). Beyond that single reference, which was made by the State and not appellant, there was no argument or statement making clear that the relief sought by appellant was exclusionary rather than limine in nature. I would conclude that it was appellant’s burden, as the party charged with preserving error, to make clear the relief requested. Because I believe appellant’s pretrial motion operated as a motion in limine, and not as a motion to suppress, I would conclude appellant has not preserved error for our review.

More importantly, appellant’s objection to this evidence in this appeal is different than his trial objection. In the trial court, appellant objected that expert testimony on the impact of the prescription medications was necessary and, without it, the evidence regarding the prescription medications was not relevant. Appellant’s written motion argued that expert testimony was necessary to provide a “proper foundation” for the evidence of his use of prescription medications. 3 Citing Layton v. State, 280 S.W.3d 235, 240 (Tex.Crim.App.2009), he further argued that evidence of his use of prescription medications was “not relevant” in the absence of expert testimony. During the hearing, appellant contended that, before evidence of his use of prescription medication could be admitted, the State was required to present scientific evidence of “how [the] medication is administered, how long it has to be administered or taken, how long it last[s] in the system, and how quickly it is metabolized,” as well as whether these medications “could contribute to his intoxication.” Thus, instead of contesting reliability, appellant argued that evidence of his use of prescription medications was not relevant and was unfairly prejudicial in the absence of scientific evidence. 4 Because these were appellant’s only specific pretrial objections, he did not preserve a qualifications or reliability challenge before trial.

The Court concludes that appellant preserved error by discussing and providing the trial court with a copy of Layton . I do not agree that the parties’ oral arguments “should have” made the trial court aware of appellant’s contention that the use of medications was inadmissible because Officer Morrison was unqualified and his testi *428 mony was unreliable. Appellant’s contention here is that the trial court erred in admitting “unreliable and irrelevant scientific evidence.” In the motion itself, however, appellant contended that evidence of his use of medications was “irrelevant” and also inadmissible under Rule 403. Appellant’s motion makes no mention that Officer Morrison was not qualified or that his testimony was unreliable. During the trial court’s pretrial hearing, appellant orally contended “that the State was required to present expert testimony about his alleged ingestion of medications and the effects of the medications on him” and that absent such expert testimony his use of medications was “not relevant” and was “not more probative than prejudicial.” Appellant’s oral arguments during the pretrial hearing likewise made no reference to a problem with Officer Morrison’s qualifications or the reliability of his testimony. Because there was no objection to the qualifications of Officer Morrison, I disagree that this objection was preserved and therefore believe the Court errs in relying upon his lack of qualifications to reverse the trial court’s judgment. 5

I also disagree that a reliability challenge was preserved under the holding in Layton . There, in contrast to this case, the appellant’s arguments were the same in the trial court and in the appellate courts. Layton, 280 S.W.3d at 240 . He argued in the trial court that his use of medications was inadmissible without proof of “the accuracy and reliability of the evidence and its relevance” and on appeal argued that the medical evidence was “not reliable, and, therefore, irrelevant.” Id. at 240-41 . 6 Although unreliable evidence or scientific evidence without a proper foundation may be irrelevant, the converse is not true. Irrelevant evidence is not necessarily unreliable. 7 Thus, when the objecting party contends that evidence is irrelevant because it is unreliable, a reliability objection is necessary to alert the trial court that the three criteria for measuring reliability and the Kelly factors must now be considered by the court. See Layton, 280 S.W.3d at 241 (discussing Kelly’s three criteria and five factors for determining *429 reliability). Appellant’s written and oral objections never notified the trial court that reliability, and its attendant criteria and factors, were at issue. Merely handing the trial court a copy of a case that addresses multiple issues (relevance and reliability) does not preserve error for an issue on appeal. 8

B. Trial objection

Likewise, appellant’s trial objection did not preserve error for our review. We require a party to “let the trial judge know what he wants, why he thinks himself entitled to it, and ... do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.” Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992). When the State asked Officer Morrison if he would “expect to see someone on Lisinopril exhibit the horizontal gaze nystagmus (HGN) clues demonstrated by appellant, appellant made a single, vague objection: “scientific testimony.” Assuming this trial objection was sufficiently specific to notify the trial court of the existence of a Daubert-Kelly issue, it was not sufficient to identify the specific deficiency with respect to reliability or qualifications. See Scherl v. State, 7 S.W.3d 650, 652 (Tex.App.-Texarkana 1999, pet. refd) (objection that expert testimony was inadmissible “under Rule 702, Daubert, Kelly, and Hartman ” was effective as general objection to improper predicate, but was insufficient to inform trial court of specific complaint on which it should rule); Chisum v. State, 988 S.W.2d 244, 250-51 (Tex.App.-Texarkana 1998, pet. refd) (objection to expert opinions without specifying particular deficiency in qualifications or reliability waived error); see also Elmore v. State, No. 07-04-0587-CR, 2005 WL 2347401 , at *2 (TexApp.-Amarillo Sept. 26, 2005, pet. refd) (mem. op., not designated for publication) (objection to “no reliable foundation” was too general to advise trial court of any specific deficiency in testimony and did not preserve error).

Even interpreting the trial objection as being made in the context of appellant’s pretrial relevance objection, the objection still would not preserve error with respect to the qualification or reliability of Officer Morrison’s testimony. See Shaw, 329 S.W.3d at 654 (noting that three requirements of expert testimony — (1) qualification, (2) reliability, and (3) relevance— raise distinct questions and issues and that objection based on one requirement does not preserve error as to another).

Equally important is the fact that appellant did not assert a “scientific testimony” objection to Officer Morrison’s testimony about information from the nursing handbook, the effects of Lisinopril on his wife, the labels on the medication bottles, and the notes in his arrest report regarding the medications. Appellant himself testified that he had taken at least one of the medications, conceded that the labels on the medications warned against the operation of heavy machinery, and agreed that his medications sometimes made him dizzy. Appellant twice stated on video that his medications were affecting him, and at the conclusion of the videotape, when asked if he understood his rights, appellant stated that the medications were making him drowsy.

In sum, the record indicates that appellant waived his appellate challenge to the “scientific testimony” on the effects of Li-sinopril on the HGN test results. See Lane v. State, 151 S.W.3d 188, 193 (Tex. *430 Crim.App.2004) (stating that “to preserve error in admitting evidence, a party must ... object each time the inadmissible evidence is offered or obtain a running objection” and that “[a]n error in the admission of evidence is cured where the same evidence comes in elsewhere without objection”) (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App.2008)).

Additionally, appellant’s own testimony, and his videotaped statements regarding the prescription warning labels and the medication’s effect on him, rendered Officer Morrison’s testimony cumulative. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim.App.1999) (providing that admission of inadmissible evidence becomes harmless error if other evidence proving same fact is admitted elsewhere without objection); Smith v. State, 286 S.W.3d 282, 300 (Tex. App.-Houston [1st Dist.] 2007, pet. refd) (stating that “improper admission of evidence is harmless if the same or similar evidence is admitted without objection at another point in the trial”). Consequently, I would conclude that any error with respect to the admission of the challenged evidence was either not preserved or was harmless and did not affect appellant’s substantial rights. See Tex.R.App. P. 44.2.

II. Layton does not establish the trial court’s error.

Layton does not compel a holding that the evidence that appellant objected to before or during the trial — i.e., that appellant used prescription medications and Li-sinopril does not cause a person to fail an HGN test — was irrelevant and inadmissible. The Layton court determined that evidence of the use of two prescription medications by a driver was irrelevant in a case in which the driver was charged with intoxication by alcohol, not prescription medication combined with alcohol. But here, there was no reference to alcohol in either the evidence or the jury charge. Intoxication was defined only by reference to the introduction of a controlled substance or drug. On this record, the use of prescription medication certainly was relevant to the question presented to the jury in the charge.

III. Any error in the admission of evidence was harmless.

The elements of a DWI “are: (a) a person (b) is intoxicated (c) while operating (d) a motor vehicle (e) in a public place.” Gray v. State, 152 S.W.3d 125, 131 (Tex.Crim.App.2004); Tex. Penal Code Ann. § 49.04 (a) (West 2011). “Intoxicated” may be defined in subjective or objective terms. See Tex. Penal Code Ann. § 49.01 (2)(A), (B) (West 2011). Only the subjective definition of “intoxicated” is implicated in this case, so appellant was “intoxicated” if he did not have “the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.” Tex. Penal Code Ann. § 49.01 (2)(A); see also Atkins v. State, 990 S.W.2d 763, 765 (Tex.App.-Austin 1999, pet. ref'd) (explaining the “subjective” and “objective” definitions of intoxication). The type of intoxicant that caused the loss of the normal use of a person’s faculties is not an element of the offense. Gray, 152 S.W.3d at 132 . The term “intoxicated” therefore has two components: (1) impairment (2) caused by alcohol or drugs.

The State proved the first component, impairment. A woman informed Officer Morrison that appellant was driving a car “crazy,” had almost hit her car, and had run a number of other cars off the road. Officer Morrison testified that he followed appellant and observed his dangerous driving. He also observed appellant driving *431 only 10 mph in a 30 mph speed zone even though other traffic was driving near the posted speed limit. Officer Morrison witnessed appellant drive through a stop sign and red blinking traffic light without stopping and nearly hit a vehicle. Officer Morrison testified that when he flashed his patrol car lights, appellant ran over the curb and almost into a fence. Appellant then had difficulty standing, fumbled for his identification, and “slurred” his speech. Appellant’s responses to Officer Morrison’s questions were “very, very slow and diminished.” Appellant had to lean against the vehicle while Officer Morrison performed the field-sobriety tests, which appellant failed at the scene and then again in part at the police station.

Appellant’s testimony raised issues about his credibility. In addition to disputing Officer Morrison’s account of the accident, 9 he denied that Officer Morrison pulled him over. Instead, he claimed that he flagged down Officer Morrison for assistance. He accused Officer Morrison of lying about the debris on the road and the need to drive around the debris. Appellant also stated that Officer Morrison lied about appellant’s failure to stop at the stop sign and at red blinking traffic light. Appellant admitted that he previously had been convicted of possession of a controlled substance and that he had used cocaine many years earlier, but he denied that he was using cocaine for many years before that arrest. He also claimed not to remember whether his conviction was for possession of cocaine or some other drug. Although he pleaded guilty to assault of a family member, he denied committing the assault.

Appellant offered two excuses for his conduct: (1) he was dehydrated and (2) he had been awake for three days and had not eaten because of Hurricane Ike. Setting aside the line of testimony to which appellant objected (i.e., Officer Morrison’s testimony on the side-effects of Lisinopril on the HGN test), we should consider the other evidence that appellant’s impairment was due to use of prescription medications and not either of these two potential causes. I would conclude that the other evidence was so overwhelming that, even if appellant’s relevance objection extended to reliability issues, any error was harmless.

First, it is undisputed that appellant had two prescription medications, Lisinopril and Pyridoxine, in his car and had taken them recently before driving erratically and dangerously. Appellant told Officer Morrison at the scene that he was taking “non-narcotic” medicine for his heart and high blood pressure. Appellant stated that he took his blood pressure pill “right before” he drove his car.

Second, appellant made four other admissions: (1) at the scene to Officer Morrison that he was not supposed to drive while on medication; (2) on cross-examination that after taking his medications he noticed that he “was lightheaded” and “dizzy” as he began driving from his house; (3) on videotape that he was “under the influence of my medication. It is making me drowsy”; and (4) during cross-examination that his medications sometimes made him dizzy and that sometimes the dizziness “comes out of nowhere.”

Third, Officer Morrison opined that appellant was intoxicated due to the introduction of drugs or a controlled substance into his body. Officer Morrison believed that appellant was intoxicated by use of “drugs based on the lack of odor of any alcoholic beverage.” Officer Morrison testified that he had received a complaint *432 from a citizen regarding appellant’s dangerous driving, followed appellant and observed his reckless driving, conducted or attempted to conduct various field-sobriety tests at the scene and at the police station, and observed appellant’s physical and mental faculties during the course of his interaction with appellant. Officer Morrison, therefore, could testify based on his experience and observations that appellant was intoxicated as a result of the presence of the medications in his system. See Waller v. State, No. 05-09-00097-CV, 2009 WL 4642850 , at *8 (Tex.App.-Dallas Dec. 9, 2009, no pet.) (mem. op., not designated for publication). As the Court recognizes, such testimony is “unremarkable and within the bounds of Morrison’s training and experience.” Delane, 369 S.W.3d at 423 . Officer Morrison’s testimony on the medical side-effects of each particular medication was simply unnecessary detail that did not subtract from his other testimony.

Fourth, Officer Morrison’s observations also supported his opinion that appellant was intoxicated due to the use of medications. Officer Morrison testified that appellant’s pupils were dilated. He had difficulty following instructions and explaining himself. During the HGN test, which Officer Morrison testified is designed to test for a central nervous system depressant, appellant exhibited the “maximum number of clues” to indicate “intoxication.” According to Officer Morrison, these results demonstrated that appellant “was under the influence of a central nervous system depressant.” Appellant also failed a “vertical nystagmus” test, which Officer Morrison testified indicated “a very high level of intoxicants” in his system. Finally, Officer Morrison performed a “convergence test,” and appellant was “positive for that clue as well.” Officer Morrison then helped appellant to his patrol car because appellant was not able to walk without support. These signs are evidence of intoxication. See Cotton v. State, 686 S.W.2d 140 , 143 n. 3 (Tex.Crim.App.1985); Paschall v. State, 285 S.W.3d 166, 177 (Tex.App.-Fort Worth 2009, pet. ref'd); Compton v. State, 120 S.W.3d 375, 380 (Tex.App.-Texarkana 2003, pet. refd). Officer Morrison was qualified to provide this testimony, and appellant did not object to it.

Fifth, documentary evidence supported Officer Morrison’s conclusion. Officer Morrison was “familiar” with Lisinopril because he had a “nursing drug handbook.” Officer Morrison reviewed the handbook, which explained that this medication “causes drowsiness and ataxia.” Officer Morrison described ataxia as “the inability to walk .... very well.” The Lisinopril prescription bottle contained a warning label stating, “Do not drive or operate heavy machinery.” In regard to the Pyridoxine prescription, Officer Morrison also reviewed the nursing directory handbook, and he explained that it also caused ataxia. Officer Morrison referred to his notes in his arrest report, in which he had written that Pyridoxine caused ataxia and malaise, which Officer Morrison described as being “real laid back” and “feeling kind of lethargic.” The nursing handbook also stated, in regard to both prescriptions, that users should “avoid alcoholic beverages or any other depressant.” Officer Morrison noted that the Pyridoxine bottle also contained a warning label stating, “Warning, do not drive or operate heavy machinery while taking this medication.”

Sixth, appellant declined to provide a breath sample, which itself supports an inference of intoxication. See Tex. Transp. Code Ann. § 724.061 (West 1999) (“A person’s refusal of a request by an officer to submit to the taking of a specimen of breath or blood, whether the refusal was express or the result of an intentional failure to give the specimen, may be introduced into evidence at the person’s trial.”); *433 see also Finley v. State, 809 S.W.2d 909, 913 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd).

Finally, the State was not required to identify the particular drug that caused appellant’s impairment. Gray, 152 S.W.3d at 132 . Officer Morrison ruled out impairment due to alcohol. Officer Morrison’s testimony about appellant’s performance on the sobriety tests, the significance of the test results, and Officer Morrison’s other observations, when combined with appellant’s admissions, were more than sufficient to rule out the two causes of impairment claimed by appellant and demonstrate intoxication due to medications generally.

Conclusion

Respectfully, I would affirm the judgment of the trial court.

Justice BROWN, dissenting.

. "For error to be preserved with regard to the subject of a motion in limine, an objection must be made at the time the subject is raised during trial.” Fuller v. State, 253 S.W.3d 220, 232 (Tex.Crim.App.2008); Webb v. State, 760 S.W.2d 263, 275 (Tex.Crim.App. 1988).

. Before trial, appellant also filed a "Motion in Limine to Suppress HGN Evidence.” The motion does not request the suppression of the evidence; rather, it requests that defense counsel be permitted to conduct a voir dire examination of any witness outside the presence of the jury before the witness testified regarding Horizontal Gaze Nystagmus (HGN) test results. Despite the ambiguity created by the use of the word "suppress” in the title of the motion, the requested relief makes clear that this was also a motion in limine.

. An objection that expert evidence is necessary to prove an element of a crime or a cause of action is different than an objection that the presented evidence is unreliable or is offered by an unqualified witness. See Shaw v. State, 329 S.W.3d 645, 655 (Tex.App.-Houston [14th Dist.] 2010, pet. ref’d) (explaining specificity required in making objection to expert testimony); see also FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 91 (Tex.2004) (expert testimony required because "the layman does not know what the standard of care is for inspection and maintenance of the upper coupler assembly, kingpin, and base rail of a refrigerated trailer.”); Offshore Pipelines, Inc. v. Schooley, 984 S.W.2d 654, 665 (Tex. App.-Houston [1st Dist.] 1998, no pet.) (expert testimony needed when subject matter requires "scientific interpretation”).

.On appeal, Appellant does not rely on Texas Rule of Evidence 403.

. While I agree with the Court that Officer Morrison was not qualified to provide some of his detailed testimony regarding the prescription medications and their effects — particularly his testimony that appellant was under the influence of an unnamed pain medication and that the two identified medications had passed through his system by the time his performance of the sobriety tests was videotaped at the police station — appellant’s objection was based on Rule 403 and relevance. These two objections do not preserve a qualifications objection.

. The issue in Layton was the admissibility of the defendant’s use of medications without any evidence from which to extrapolate that his use of medications hours before the incident would still have altered his behavior at the time of his arrest. When the court asked whether the defendant had any scientific evidence to demonstrate the medications "impact on the body” and "life expectancy” in the body, the defendant responded that the state bore that burden of proof "under Kelly,’’ which is the seminal case in which the Court of Criminal Appeals foreshadowed Daubert and adopted the reliability inquiry. Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App.1992). Thus, the defendant’s objection in Layton invoked the reliability inquiry. The appellant’s objection did not.

. See Jordan v. State, 928 S.W.2d 550, 555 (Tex.Crim.App.1996) ("The focus of the courts in Kelly, Daubert and Robinson was on assessing the scientific reliability of the evidence at issue, rather than its relevance.... Relevance is by nature a looser notion than reliability. Whether evidence ‘will assist the trier of fact’ and is sufficiently tied to the facts of the case is a simpler, more straightforward matter to establish than whether the evidence is sufficiently grounded in science to be reliable.”). See also Shaw v. State, 329 S.W.3d 645, 654 (Tex.App.-Houston [14th Dist.] 2010, pet. ref’d).

. The Court is correct that Layton addresses the reliability of expert testimony on the effects of prescription medications and the rele-vanee of prescription medications. But appellant did not raise a reliability objection to the trial court.

. He testified that he had lost control of his vehicle as he reached for his cell phone on the car floorboard. He also denied Officer Morrison's testimony that he went over the curb.