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Balderama v. State

Court of Appeals of Texas, Fourth District, San Antonio

December 18, 2013

Nicholas A. BALDERAMA, Appellant
v.
The STATE of Texas, Appellee

Page 248

From the County Court at Law No. 11, Bexar County, Texas. Trial Court No. 252539. Honorable Carlo Key, Judge Presiding.

For APPELLANT: Brent De La Paz, Attorney at Law, San Antonio, TX.

For APPELLEE: Nathan E. Morey, San Antonio, TX.

OPINION

Page 249

Marialyn Barnard, Judge.

A jury convicted appellant Nicholas A. Balderama of driving while intoxicated (" DWI" ). The trial court sentenced Balderama to fourteen months probation. On appeal, Balderama raises a single point of error, complaining the trial court denied his rights under the Sixth Amendment by limiting his cross-examination of the State's witness, George Allan McDougall. We affirm the trial court's judgment.

Background

A detailed rendition of the facts of this case is unnecessary to our disposition. Accordingly, we provide only the relevant procedural facts.

At Balderama's DWI trial, the State introduced into evidence without objection Balderama's breath test results. The State called McDougall, the former breath test technical advisor for Bexar County, to authenticate the breath test results produced by the intoxilyzer. After a brief direct examination of McDougall to establish his ability to authenticate the breath test results, the State passed the witness to Balderama for cross-examination.

Balderama was permitted to examine McDougall about a wide range of subjects over two days of trial. McDougall provided substantial testimony about the procedures for breath testing blood alcohol content, and the operation of the machine used by Bexar County to perform the test, the Intoxilyzer 5000. He also provided testimony concerning alcohol absorption rates. However, Balderama's attempts to cross-examine McDougall about his knowledge and opinions on particular academic studies and writings on breath testing for alcohol were largely unsuccessful based on the State's objection that McDougall was not an expert. McDougall testified repeatedly that he had not read the relevant material in months, sometimes years, and that he could not confidently recall their contents. When asked if he could remember testifying and offering his opinion about such information in the past, McDougall could not clearly recall doing so.

Eventually, at the State's request, a Rule 702 hearing was held to determine whether McDougall should be permitted to testify as an expert witness during trial. See Tex. R. Evid. 702. Although it was established that McDougall had testified as an expert in similar criminal cases for the past thirty years, and allegedly as recently as a month before trial,[1] the trial court declined to find McDougall qualified as an expert witness for this trial, in large part based on McDougall's own statements about his lack of current expertise. When asked by the trial court if he felt comfortable testifying as an expert, McDougall responded that he did not, stating, " I am not a hundred percent." Moreover, McDougall admitted he was no longer a certified technical supervisor.

Thereafter, multiple attempts by Balderama to elicit expert testimony from McDougall or introduce his past expert testimony were denied based on objections by the State. The trial court permitted Balderama to make a bill of exception in an effort to preserve his complaint for appellate review. Ultimately, the jury returned a verdict of guilt, and the ...


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