At trial, "Appellant's counsel's relentless cross examination demolished the evidentiary value of the HGN test results as well as effectively exposed other shortcomings in Officer Graham's investigation." Graham conceded that he had administered the test incorrectly. On appeal however, the appellate court found that the error in admitting the HGN was not properly preserved:
“When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.” Tex.R. Evid. 103(a)(1); Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991). An objection must be made unless the complaining party obtains a running objection or obtains a ruling on his complaint in a hearing outside the presence of the jury. Lopez v. State, 253 S.W.3d 680, 684 (Tex.Crim.App.2008).
Out of the presence of the jury and before the reading of the information, Appellant's counsel stated, “Your Honor, at this time, we would reurge our—the defense motion in limine in regard to the horizontal gaze nystagmus test.” The trial court heard no testimony during the short hearing. Appellant summarized for the court Officer Graham's testimony from the first trial, which counsel argued demonstrated that the HGN test given Appellant was incorrectly administered and Graham unqualified to give it. The trial court denied Appellant's motion. Appellant thereafter raised no objection to Officer Graham's testimony regarding the HGN test. Instead, Appellant's counsel effectively cross examined Officer Graham, eventually eliciting his admission that the test, as given, was not valid. Appellant did not ask the court to strike Officer Graham's testimony regarding the results of the HGN test. By failing to continue to object to Graham's testimony regarding the HGN test, Appellant waived error, if any, in admitting the testimony.
NOTE: This case contains several important and necessary steps in preserving a error on appeal.
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