OPINION
A jury convicted appellant Craig Allen Neale of boating while intoxicated. In four issues, appellant asserts the trial court erred by: (1) denying his motion to suppress evidence based on an allegedly illegal stop; (2) admitting testimony concerning a horizontal gaze nystagmus test; (3) admitting retrograde, extrapolation, testimony; and (4) admitting appellant’s blood test results. The State concedes error as to the third and fourth issues, and the parties have filed a joint motion to reverse and remand this case. However, our review of the record reveals no reversible error. Accordingly, wp deny the parties’ joint motion to reverse and remand, and we affirm appellant’s conviction.
Background
In the early morning hours of September 15, 2013, on the Trinity River near Anahuac, Texas, Parks & Wildlife Warden Patricia Vannoy saw a -boat approaching her marked patrol vessel at a “fairly high rate of speed” as she conducted a water safety check on another boat. Concerned that the approaching boater had not seen her patrol vessel or the boat on which she was performing the safety check, Vannoy made a brief “sweeping motion” with her flashlight towards the other vessel. Van-noy’s boat was a marked patrol vessel and was lit with navigation lights.' Vannoy’s boat also was equipped with flashing blue police lights, but they' were not activated. After Vannoy'shone her flashlight at the oncoming boat, she continued with her water safety inspection. Unbeknownst to Vannoy, appellant, who was operating the oncoming boat, decelerated and approached ■ her patrol boat. Vannoy completed the safety inspection and noticed appellant’s boat drifting nearby.- She decided to perform a water safety inspection on appellant’s boat and approached. She introduced herself to appellant as a game warden and performed a water safety inspection.
As' Vannoy was performing her inspection, she detected a “strong smell of alcohol” emanating from appellant. She asked appellant if he had been drinking, and he responded that he consumed about five beers earlier in the evening. At’that point, her focus shifted from water safety to a boating while intoxicated (“BWT”) investigation.
At Vannoy’s request, appellant performed several “afloat” field sobriety teste; based on Vannoy’s training and experience, appellant’s performance indicated possible intoxication. Vannoy then conducted four standardized seated -field sobriety teste, including the horizontal, gaze nystag-mus (“HGN”) test, the finger-to-nose te'st, the palm pat test, and the hand coordination test. While performing these testes appellant exhibited numerous signs of -intoxication. Based on her investigation, Vannoy arrested appellant for BWI. She asked appellant to provide a. breath or blood sample, and appellant agreed. After they returned to shore, Vannoy transported appellant to a nearby hospital where a medical technician took a sample of appellant’s blood. Vannoy took the blood kit home with her and placed it in her refrigerator for safekeeping before mailing it to the Department of Public Safety (“DPS”) crime lab for analysis. •
At appellant’s trial,
After hearing the evidence, a jury found appellant guilty of” Class B misdemeanor BWI. The trial court assessed punishment at 180 days’ confinement, suspended imposition of the sentence, placed appellant on community supervision for 18 months, and assessed a $1,000 fine. This appeal timely followed.
Analysis
A. Motion to Suppress
. In his first issue, appellant challenges the trial court’s .denial of. his motion, to suppress evidence. Specifically, he asserts that the trial court erred in denying his motion to suppress evidence of his intoxication because the . game warden did not decide to perform.a water safety check on appellant’s bpat until after she had seized the boat. According to appellant, a seizure unsupported by reasonable suspicion, occurred at the moment Vannoy shone her flashlight in appellant’s direction. Therefore, appellant contends, the stop was illegal and all intoxication evidence adduced after the inception of the seizure should have been excluded.
1. Standard of Review and■ Governing Law
■ A defendant asserting a motion to suppress bears thé initial burden of producing evidence that rebuts the presumption of proper police conduct. Ford v. State,
We review the trial court’s ruling on a motion to suppress under an abuse of discretion standard. Swain v. State,
There are three distinct categories of interactions between peace officers and citizens: (1) consensual encounters, (2) investigative detentions, and (3) arrests. See Crain v. State,
2. Application
Appellant contends that Vannoy made a “show of authority” — by shining her flashlight at his boat — to which he “submitted,” thus establishing that Vannoy’s initial contact with appellant was a detention for Fourth Amendment purposes. We disagree for the following reasons.
Whether an interaction between a peace officer and a citizen amounts to a “detention” or “seizure” depends on specific facts as to the manner of the encounter, the degree of authority displayed, and all other circumstances surrounding the incident. Cf. id. at 244. Instances when a citizen’s interaction with police amounts to a seizure, as opposed to a consensual encounter, include those attended by the threatening presence of several officers, the officer’s display of a weapon, physical touching of the citizen by the officer, the officer’s words or tone of voice indicating that compliance with the officer’s request might be compelled, or the officer’s use of flashing lights or blocking a suspect’s vehicle. Cf., e.g., United States v. Mendenhall,
In evaluating whether Vannoy’s use of her flashlight on this occasion constituted a detention, we look first to precedent from the Texas Court of Criminal Appeals, which has examined whether officers’ use of spotlights implicate the Fourth Amendment. In Gardar-Cantu, for example, the court distinguished the use of a patrol car spotlight from use of its flashing emergency lights. Garcia-Cantu,
In the present case, it is undisputed that appellant was approximately one hundred yards from Vannoy’s boat at the time she initially flashed her light in appellant’s direction. Vannoy testified that, in shining her flashlight at appellant’s boat, she simply was letting appellant know that she was on the river for safety’s sake. The blue “takedown” lights on Vannoy’s patrol boat were not activated, nor is there any indication that Vannoy directed her patrol boat’s spotlights towards appellant’s boat before appellant approached her. Vannoy did not attempt to call out verbally to appellant, nor did she terminate the water safety inspection she was performing to approach appellant’s boat. Further, the record does not indicate that any additional officers were nearby when Vannoy first flashed her light in appellant’s direction. The trial court, as the finder of fact, was free to believe Vannoy’s testimony that her use of the flashlight on the night in question was not a show of authority and was instead an effort on Vannoy’s part to warn appellant that he was approaching boats stopped on the river. See Ross,
Viewing the evidence in the light most favorable to the trial court’s ruling, and considering the totality of the circumstances, we conclude Vannoy did not effect
Accordingly, an investigative detention did not incept until Vannoy boarded appellant’s boat to conduct a water safety inspection, which is authorized by statute.
For the foregoing reasons, the trial court did not abuse its discretion in denying appellant’s motion to suppress. See Schenekl v. State,
We overrule appellant’s first issue.
B. Evidentiary Issues
In his remaining three issues, appellant challenges the admission of various evidence.
1. Standard of Review
We review a trial court’s admission of evidence for an abuse of discretion. Willover v. State,
2. HGN Test
In his second issue, appellant asserts that the trial court erroneously admitted evidence of his HGN test results and performance, Specifically, he asserts that this evidence was inadmissible because Vannoy deviated from the proper HGN procedures in the following respects: (1) performing one pass of the test slightly quicker than the requisite two seconds; (2) failing to give explicit seating/positioning instructions; and (3) failing to screen appellant for various physical factors that could' invalidate the test.
. Governing Lau>. “Nystagmus is an involuntary rapid oscillation of the eyes in a horizontal, vertical, or rotary direction.” Plouff v. State,
Testimony concerning an HGN test is scientific evidence subject to the requirements of Kelly v. State.
Analysis. Appellant contends that the State did not meet the third requirement of Kelly because it did not prove the test was administered properly on the occasion in question. See Kelly,
Regarding appellant’s contention that Vannoy did not precisely follow the timing outlined in the NHTSA manual, such slight deviations in timing do not affect the validity of the test; instead, these differences go to the weight of the evidence, rather than its admissibility. See id.; Compton,
Because appellant has not demonstrated that the trial court abused its discretion in admitting his HGN test results, appellant’s second issue is overruled.
3. Retrograde Extrapolation
In issue three, appellant urges that the trial court erred in admitting testimony from DPS forensic scientist Brian Nacu regarding his opinion of appellant’s likely blood alcohol level at the time of appellant’s arrest. In other words, appellant complains that Nacu improperly testified regarding retrograde extrapolation.
On appeal, the State concedes error on this issue. However, the State’s concession does not necessarily resolve the issue in favor of appellant. “A confession of error by the prosecutor in a criminal case is important, but not conclusive, in deciding an appeal.” Saldano v. State,
A trial court’s error in admitting retrograde extrapolation testimony does not rise to the level of constitutional error. Bagheri v. State,
In cases involving intoxication offenses, the issue is “whether the erroneously admitted testimony might have prejudiced the jury’s consideration of other evidence or substantially affected their [sic] deliberations.” Bagheri,
In Bagheri, the State conceded that testimony regarding retrograde extrapolation should not have been placed before the jury. Bagheri,
In Owens, this court followed Bagheri and concluded that Owens was harmed by the erroneous admission of retrograde extrapolation testimony. Owens,
Similarly, in Veliz, this court determined that Veliz was harmed by retrograde extrapolation testimony erroneously admitted by the trial court. Veliz,
In contrast, in Douthitt, the Austin Court of Appeals concluded that Douthitt was not harmed by the erroneous admission of retrograde extrapolation testimony. Douthitt,
,[T]he retrograde extrapolation testimony in this cause was elicited from an expert,, but there is no indication that the jurors were predisposed to give such testimony greater weight than the other evidence before them. The retrograde extrapolation testimony was cumulative of other evidence of intoxication and was not given special emphasis by the State. Although the prosecutor did remind the jurors of Ortiz’s testimony during his arguments, he did not claim special expertise for Ortiz or suggest that his testimony was alone sufficient to convict.
Id. at 339. The court determined that, given the strength of the State’s case and the “relative weakness of appellant’s defensive theories,” it could “state with fair assurance that the erroneous admission of the retrograde extrapolation testimony had, at most, a slight effect on the jury.” Id.
And, in Burns, the San Antonio Court of Appeals determined that the erroneous admission of retrograde extrapolation testimony did not harm Burns. Burns,
We conclude that-the facts of this case are similar to those in Douthitt and Bums and are distinguishable from the facts in Bagheri, Owens, and Veliz. For example, the record does not reflect that the State -told the,jury it would present expert scientific evidence, that appellant was over the. legal blood alcohol content limit at the time he was operating his
Based on our review of the record in light of the factors enunciated in Bagheri, we are fairly assured that Nacu’s extrapolation testimony, at most, had only a slight effect on the jury. See Burns,
For the foregoing reasons, appellant’s third issue is overruled.
4. Admission of Blood Test Results
In his fourth issue, appellant asserts that the trial court abused its discretion in admitting his blood test results because the State failed to prove that Nacu úsed properly compounded chemicals or that Nacu understood the scientific theory behind the machinery he used to test appellant’s blood. As it did regarding issue three, the State concedes error on appellant’s fourth issue. Yet, the State’s confession of' error will not warrant a remand if our examination of the record shows that appellant failed to preserve error. See Saldano,
Appellant contends he preserved error, citing several pages of the reporter’s record. But the record reflects that the only
In short, appellant’s trial objections do not comport with his argument on appeal; thus, this issue was not preserved for our review. See Pena v. State,
Under these circumstances, despite the State’s confession of error, we conclude that this issue is not presented for our review because appellant failed to object at trial on the grounds presented on appeal. See Pena,
We overrule appellant’s fourth and final issue.
Conclusion
Having overruled appellant’s issues, we affirm the trial court’s judgment.
Notes
. See Tex, Penal Code § 49.06(a) (providing that a person commits an offense if he is intoxicated while operating a watercraft).
. Before the admission of most of the evidence in this, case, the trial court held a lengthy "suppression” hearing outside the jury's presence. The hearing, which continued until the second day of trial, encompassed nearly 300 pages of the reporter’s record and included the testimony of Vannoy, hospital technician Lee Sampson, and forensic scientist Brian Nacu.
. See Tex. Penal Code § 49.01 (defining "intoxicated” as, relevantly, having an alcohol concentration of 0.08 or more).
. The Parks and Wildlife Code requires a boat operator to reduce speed and stop upon sight- . ing activated flashing blue takedown lights on water safety vessels. See Tex. Parks & Wild. Code § 31.123 (“The operator of a vessel underway, on sighting a rotating or flashing blue beacon of light, shall reduce power immediately and bring the vessel to a no-wake speed and subsequent stop until the intention of the .water safety vessel is understood.” (emphasis added)).
. Cf. Garcia-Cantu,
. The Texas Parks and Wildlife Code permits ■ a game warden to "stop and board any vessel subject to this chapter [to] determine compliance with applicable provisions." See Tex. Parks & Wild. Code § 31.124(a); see alsoSchenekl v. State,
. Appellant has not asserted that his conduct during the safety inspection did not give rise to reasonable suspicion that criminal activity had occurred or was occurring, ,
. Kelly v. State,
. Vannoy testified that when conducting an HGN test on a boat, the examiner should ensure that the suspect is sitting on the edge of his seat, arms by his side, and feet shoulder width apart, for stability. Additionally, the examiner should advise the suspect not to move his feet until the test is over and to hold his position during the test. Although Vannoy did not provide these detailed instructions to appellant, the record reflects that appellant was in a seated position, at the edge of his seat in a stable position with his arms by his sides, and with his feet approximately shoulder distance apart. Further, Vannoy-asked appellant if he felt stable, and appellant said that he did.
. Further, in light of Vannoy's testimony that she noticed a strong smell of alcohol emanating from appellant, that appellant admitted to having consumed five beers, and that appellant’s performance on two other standardized field sobriety tests indicated impairment, any error in admitting Vannoy's testimony concerning the HGN test likely did not substantially sway or influence the jury’s verdict and, accordingly, was harmless. See Plouff,
. We do not have a record from the voir dire proceedings in this case. Under Rowell v. State,