Recent Cases

(continued)

Following a traffic stop, Leanne Beth Martinez was arrested for driving while intoxicated (DWI), second offense. Martinez filed a motion to suppress "any and all evidence seized or developed as a result" of the stop and "[a]ll statements made and actions done" by Martinez following the stop. After the trial court denied the motion, Martinez pleaded nolo contendere to the charge, and the trial court assessed punishment of 180 days' confinement in the Collin County jail, probated for eighteen months, and a $ 1200 fine. In one issue, Martinez asserts the trial court erred by denying the motion to suppress because the police officer did not have reasonable suspicion to stop her. We affirm the trial court's judgment.

Background

At 2:49 a.m. on a Sunday morning, Rajib Bhattacharjee, a patrol officer with the Richardson Police Department, was driving behind Martinez on a flat, well-lit, clearly-marked road. Although Bhattacharjee did not see any obstacles in the road, he saw and heard Martinez's vehicle strike the curb along the outside of the road hard enough to push the car back into the lane. Bhattacharjee stopped Martinez to investigate whether she was intoxicated. After conducting field sobriety tests, Bhattacharjee arrested Martinez for DWI. Martinez filed a motion to suppress any evidence discovered after the stop asserting Bhattacharjee did not have reasonable suspicion to stop her.

At the hearing on the motion, Bhattacharjee testified he had been a certified peace officer for approximately two years and, in addition, was further certified in conducting field sobriety tests. He routinely conducts DWI investigations and has performed approximately 100 DWI stops. He has also observed the driving patterns of intoxicated drivers. In previous DWI investigations, Bhattacharjee has seen a vehicle strike a curb. In his opinion, this demonstrates the intoxicated driver is unable to maintain a single lane or to avoid obstacles in the road. Bhattacharjee stopped Martinez because in his "training and experience, the inability to navigate the roadway safely is usually indicative of some sort of intoxication. . . ." Further, in Bhattacharjee's experience, Sunday mornings between 2:00 a.m. and 4:00 a.m. are a "high DWI time" because the bars have recently closed. Bhattacharjee stopped Martinez's vehicle based on "the day of the week, the time, the nature of the road, the fact there was a clear, level, well lit, well marked road, and the nature of the offense when the subject hit the curb."

Bhattacharjee testified Martinez committed a traffic violation by failing to maintain a single lane. However, there were no other vehicles in the area, and Martinez was a not a threat to any other vehicle. Bhattacharjee agreed that a vehicle straying out of its lane is not, by itself, evidence the driver is intoxicated.

The State introduced the recording from the police cruiser's dashboard camera of the stop, the field sobriety tests, and the arrest. Although the recording is not completely clear, Bhattacharjee provided testimony indicating the point on the recording at which Martinez's vehicle hit the curb. Martinez testified she did not strike the curb.

The trial court denied the motion to suppress. The trial court also entered findings of fact that Martinez's vehicle hit the curb and Bhattacharjee, based on his training and experience, reasonably believed that a "vehicle that strikes a curb early on a Sunday morning, at approximately 2:49 A.M., with the bars closing at 2:00 A.M., is usually indicative of intoxication." Relying on State v. Curtis, 238 S.W.3d 376 (Tex. Crim. App. 2007), the trial court concluded that, based on the totality of the circumstances, Bhattacharjee was reasonable in assuming Martinez might be intoxicated and had reasonable suspicion to stop Martinez to determine if she was intoxicated.

Analysis

Martinez contends the trial court erred by overruling her motion to suppress because the State failed to show her failure to maintain a single lane of traffic was unsafe, and therefore she did not commit a traffic offense. In response, the State does not rely on the commission of a traffic offense as justification for the stop. Instead, the State argues the stop was justified because, based on the totality of the circumstances, Bhattacharjee had reasonable suspicion to believe Martinez may have been intoxicated. After reviewing the record, we agree with the State.

GEORGE PATRICK RAMBO IV, APPELLANT v. THE STATE OF TEXAS, STATE

NO. 2-08-407-CR

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

March 25, 2010, Delivered

I. INTRODUCTION

Appellant George Patrick Rambo IV appeals his conviction for driving while intoxicated (DWI). In a single point, he complains that the trial court abused its discretion and violated his constitutional rights by admitting the audio portion of his DWI videotape in which a police officer reads him his Miranda 2 warnings. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

Officer C.A. Bain of the Fort Worth Police Department saw Rambo run a stop sign at 2:30 one morning. He followed Rambo and saw him stop at another stop sign, travel straight into the middle of the intersection, and then quickly make a wide right turn without signaling. Officer Bain turned on his overhead lights and stopped Rambo. Officer Bain noticed a moderate odor of alcoholic beverage on Rambo. Rambo explained that he was on his way home from the Fox and Hound, where he had consumed two or three beers. Officer Bain saw a spot of blood on Rambo's pants and asked about it. Rambo said he had been in a fight with his friend at the Fox and Hound. He declined the officer's offer to call an ambulance.

Because Officer Bain did not have a video or audio recorder in his patrol car, he called for backup to record the remainder of the stop. When backup arrived, Officer Bain asked Rambo to step out of the car, and the officer began to administer field sobriety tests. The horizontal gaze nystagmus test showed that Rambo's eyes were tracking unequally, which indicated a possible head injury. Officer Bain asked if Rambo had any head injuries or had recently lost consciousness, to which Rambo responded that he was "knocked out" during the fight earlier that night. After Rambo again refused medical attention, Officer Bain administered the walk-and-turn and one-leg-stand tests, both of which Rambo failed. 3 Officer Bain also had Rambo recite the alphabet; Rambo paused between two letters and slurred several letters. Officer Bain arrested Rambo for DWI and took him to the Fort Worth jail.

At the jail. Officer Bain took Rambo to the intoxilyzer room, where the following events were recorded. Officer Bain read Rambo the DIC-24 warnings and asked if he would give a breath specimen. Rambo asked if he could talk to his parents first and if he could have a lawyer present; Officer Bain told Rambo that he had to make the decision on his own. Rambo agreed to take the breath test, but before performing any tests, he stated, "I'd like to reject unless I have a lawyer present. I'd like to talk to my parents first." The intoxilyzer operator, Officer Martinez, then read Rambo his Miranda warnings and asked if he wanted to waive his rights, to which Rambo responded that he did not. Officer Martinez concluded the video.

Officer Bain was the State's sole witness at trial. Through his testimony, the State introduced the videotape of the stop and of the events in the intoxilyzer room. The jury convicted Rambo of DWI, and the trial court sentenced him to ninety days' confinement and a $ 550 fine. The trial court suspended imposition of the jail portion of the sentence and placed Rambo on two years' community supervision.

III. RIGHT TO REMAIN SILENT

In his sole point, Rambo argues that the trial court abused its discretion by allowing the jury to hear the audio portion of his DWI videotape in which Officer Martinez read Rambo his Miranda warnings. Rambo argues that this penalized him for exercising his Fifth Amendment rights because it led the jury to the inescapable conclusion that he had exercised his constitutional right to remain silent.

A. Standard of Review

This court reviews the trial court's decision to admit evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996), cert, denied, 520 U.S. 1200, 117 S. Ct. 1561, 137 L. Ed. 2d 707 (1997); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g). As long as the trial court's ruling falls within the zone of reasonable disagreement, we will affirm Its decision. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).

B. Law On Invocation of Rights as Inference of Guilt

It is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police interrogation. Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991) (citing Miranda, 384 U.S. at 468, 86 S. Ct. at 1624-25). "The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation." Miranda, 384 U.S. at 468 n.37, 86 S. Ct. at 1625 n.37 (1966). This is true even when the right or privilege was erroneously extended to the defendant because the requirements of a fair trial make it impermissible to tell a defendant that he has a right, even if he does not, and then use his exercise of that right against him. Hardie, 807 S.W.2d at 322. To permit the use of this evidence for purposes of incrimination would erode the protection guaranteed by both the state and federal constitutions. Dumas v. State, 812 S.W.2d 611, 614 (Tex. App.--Dallas 1991, pet. ref'd). The danger lies in the possibility that a jury may adversely or improperly consider such an invocation as an inference of guilt. See Hardie, 807 S.W.2d at 322.

The audio portion of a sobriety test videotape, however, is not per se inadmissible. Jones v. State, 795 S.W.2d 171, 175 (Tex. Crim. App. 1990). It serves such legitimate purposes as (1) providing a general interpretive aid to the visual record, [2] allowing the jury to evaluate the quality of the suspect's speech and his loss of mental or physical faculties at the time of arrest, and (3) allowing the jury to hear the suspect's volunteered statements. Moreover, "audio tracks from DWI videotapes should not be suppressed unless the police conduct depicted expressly or impliedly calls for a testimonial response not normally incident to arrest and custody or is conduct the police should know is reasonably likely to elicit such a response."

The Fifth Amendment is not implicated if there is no custodial interrogation. Griffith v. State, 55 S.W.3d. 598, 603 (Tex. Crim. App. 2001); see Jones, 795 S.W.2d at 176. Thus, in deciding whether to admit the audio portion of a videotape in a custodial setting, it is necessary to determine whether the evidence involves compelled testimony resulting from interrogation. Miffleton v. State, 777 S.W.2d 76, 81-82 (Tex. Crim. App. 1989). Police requests to perform sobriety tests, directions on how to perform the tests, and queries concerning a suspect's understanding of his rights do not constitute interrogation. See Jones, 795 S.W.2d at 176 (noting that requests for breath specimens seek physical evidence, not testimonial confessions of guilt).

C. Audio Portion of Rambo's DWI Videotape

Here, the videotape of the events in the intoxilyzer room shows that when Rambo was asked to provide a breath specimen, he replied that he would like to talk to his parents first. Officer Bain responded that he could not do so at that time. Rambo asked if a lawyer could be present; the officer responded that he had to make this decision on his own. Rambo asked, "So I can't have a lawyer?" Officer Bain again told him that he had to decide on his own whether to give a breath specimen. Rambo then consented to the breath test. Officer Martinez asked Rambo to step back against the wall and announced, "This will be the walk and turn evaluation." The following exchange then took place:

Rambo: Can I ask you a question?

Officer Martinez: Sure.

Rambo: Um, if I don't have a lawyer present, is that ok?

Officer Martinez: I can't advise you.

Rambo: Huh?

Officer Martinez: I can't advise you about an attorney.

Rambo: Can I reject unless I have a lawyer present?

Officer Martinez: It's, uh, it's totally up to you.

Rambo: I mean, I'd like to reject unless I have a lawyer present. I'd like to talk to my parents first.

Officer Martinez: Ok, I need for you to stand on the white "X" again.

Rambo: Yes, sir.

Officer Martinez: This is the video of George Patrick Rambo IV. Date of birth 12/08/84. By intoxilyzer operator [unintelligible] Martinez, Jr., ID number 19978. Statutory warning read by Officer Bain, initial C. Mr. Rambo, at this time I will be reading to you the Miranda warning, which is your rights. . . .

Officer Martinez proceeded to read Rambo the Miranda warnings. He then asked if Rambo understood his rights; Rambo responded that he did. Officer Martinez asked if he wished to waive those rights and answer questions without an attorney present; Rambo responded that he did not. Officer Martinez stated, "This concludes the video of George Patrick Rambo IV," and he turned off the videotape.

In a pretrial hearing, Rambo's defense counsel objected to "the entire sound on the entire tape." The trial court ruled that the audio could be played up until the officer read the Miranda warnings:

I'm going to find on this that since he does not have the right to counsel at that point until the Miranda is read and at that point they will be turning the sound off. But that he doesn't have a right to counsel at that point, and so I'm not going to make them turn the video sound off until –

At trial, and prior to the State playing the tape for the jury, defense counsel reasserted his objection and requested that the court reporter write down "the actual word verbiage" that was played to the jury. The trial court simply responded that the videotape would be available for this court. Thus, we do not have a transcript of the exact audio that the jury heard.

On appeal, Rambo and the State both agree that the record is unclear as to what portion of the videotape the jury heard; the State argues that, consequently, Rambo failed to preserve error. But [*10] defense counsel's specific objection is on the record, and he even requested a written transcript of the audio played to the jury. We decline to hold that Rambo has not preserved error. See Lajoie v. State, 237 S.W.3d 345, 352 (Tex. App.--Fort Worth 2007, no pet.) (holding defendant preserved error when record unclear as to what portions of video jury heard but clear as to what portions defendant objected to).

However, the record does provide some indication of exactly what portion of the audio the jury heard. After the tape was played at trial, defense counsel objected,

Your Honor, the State of Texas played the tape to the point where they said, 'We are now going to read you your Miranda warnings.' Your Honor, that is not admissible according to the rule on that. It is an implication to the jury … by the State on his invocation of his right to remain silent, and we object. [Emphasis added.]

The State responded that the reading of Miranda warnings can be played for the jury, and the trial court overruled Rambo's objection. Based on the arguments of counsel and the trial court's pretrial ruling, the record demonstrates that the tape was muted or stopped after Officer Martinez either (1) told Rambo that he would be reading the Miranda warnings "at this time" or (2) actually read the Miranda warnings to Rambo. It is undisputed that the jury did not hear the audio of Officer Martinez asking Rambo if he understood his rights and if he wanted to waive them or of Rambo answering that he did not wish to waive his rights.

We will assume for purposes of our analysis that the tape was muted after Officer Martinez read Rambo the Miranda warnings. Thus, the issue is whether the audio portion of Rambo's DWI videotape that was played for the jury -- up to and including the reading of the Miranda warnings--"led the jury to the inescapable conclusion that [Rambo] exercised his constitutional privilege to remain silent." Dumas, 812 S.W.2d at 614. Applying existing case law, we hold that it did not.

Rambo relies on Hardie to support his position. In Hardie, the jury heard audio of the defendant receiving the Miranda warnings and then requesting. to speak with an attorney or his mother before he would submit to a breath test. See 807 S.W.2d at 319. The court of criminal appeals held that a jury should not be allowed to hear evidence that a defendant has invoked his right to counsel, even if the right was erroneously extended. See id. at 322. Thus, Hardie clarified that when police erroneously extend Miranda rights to a DWI suspect and the suspect invokes those erroneously-granted rights, the State cannot use the invocation of those rights at trial as an adverse inference of guilt.

But here, the jury did not hear the audio of Rambo invoking his Miranda rights after they had been extended to him. To the extent that the jury heard Rambo request an attorney prior to being read his Miranda warnings, his Fifth Amendment right to counsel had not yet attached because, at that time, the officer's requests and directives to Rambo had not risen to the level of custodial interrogation. See Griffith, 55 S.W.3d at 603; Jones, 795 S.W.2d at 176. The jury did not hear the officer ask Rambo whether he understood his rights or whether he desired to waive those rights. But cf. Kalisz v. State, 32 S.W.3d 718, 723 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd) (holding as erroneous admission of audio in which officer asked defendant if he understood his right to counsel when jury also saw appellant shuffle toward door after being questioned and then heard officer ask if he was terminating interview before tape stopped); Dumas, 812 S.W.2d at 614 (finding error when jury heard audio of officer reading defendant Miranda warnings and asking if he wished to waive those rights). Based on the facts of this case, we hold that the videotape played to the jury -- including the audio of Officer Martinez reading Rambo his Miranda warnings -- did not lead the jury to the inescapable conclusion that Rambo had exercised his constitutional privilege to remain silent. See Mathieu v. State, 992 S.W.2d 725, 729 (Tex. App. -- Houston [1st Dist.] 1999, no pet.) (op. on reh'g). ("[T]he reading of Miranda warnings by themselves are not suppressible, unless the reading in conjunction with the turning down of the audio could lead the jury to the conclusion that the defendant invoked his rights."); see also Seifert v. State, No. 05-96-01634-CR, 1999 Tex. App. LEXIS 5786, 1999 WL 570963, (Tex. App.--Dallas 1999, no pet.) (not designated for publication) (holding that allowing jury to hear officer giving Miranda warnings was not erroneous but noting that the "better practice" would be to exclude warnings). Consequently, we conclude that the trial court did not abuse its discretion by admitting the audio portion of Rambo's DWI videotape during which Officer Martinez read Rambo the Miranda warnings. See Green, 934 S.W.2d at 101-02. We overrule Rambo's sole point.

CHRIS RANDALL COWGER, APPELLANT v. THE STATE OF TEXAS, APPELLEE

NO. 12-08-00459-CR

COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

January 29, 2010, Opinion Delivered

MEMORANDUM OPINION

Appellant Chris Randall Cowger appeals his conviction for felony driving while intoxicated (DWI). He raises five issues on appeal. We affirm.

BACKGROUND

Shortly after midnight on October 30, 2007, Longview police officer Jason Hampton observed Appellant driving away from a house that was a known narcotics trafficking location. The house had been the site of at least twenty-five felony arrests that had occurred over the two to three year period preceding the arrest. Officer Hampton stopped Appellant after seeing him commit two traffic violations. Appellant was upset because he had been stopped, and Officer Hampton considered his behavior "erratic." The officer asked Appellant to step out of his vehicle, and Appellant complied. However, Appellant fumbled getting his license out of his wallet and provided inconsistent details in explaining why he possessed three different drivers licenses. Officer Hampton suspected that Appellant was intoxicated, and began conducting field sobriety tests. He checked for horizontal nystagmus, which he did not find. Officer Hampton did not detect any odor of alcohol coming from Appellant's person, but he noticed gold paint on Appellant's knuckles. Officer Hampton observed that, even though the stop occurred at night, Appellant had fixed, "pinpointed" pupils, when ordinarily a person's pupils would have been dilated until presented with a light source. The officer asked Appellant to perform other field sobriety tests requiring coordination, but decided not to proceed with them after Appellant stated that he was disabled. Therefore, Officer Hampton did not conduct the walk and turn test or the one leg stand.

Appellant offered to give a breath sample, but refused to give a blood sample. Based on his observations of Appellant, the officer arrested Appellant. Appellant was indicted for felony DWI because he had two prior DWI convictions. At trial, the jury convicted Appellant of felony DWI and assessed four years of imprisonment.

IMPERMISSIBLE COMMENT ON THE EVIDENCE

In his first issue, Appellant challenges the portion of the jury charge instructing the jury that it "may consider the Defendant's refusal to submit to a blood test, if he did, as evidence of intoxication in this case." Appellant argues that this instruction was an impermissible comment on the weight of the evidence.

Standard of Review

The function of the jury charge is to inform the jury of the applicable law and to guide the jury in its application of the law to the case that the jury must decide. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). Because judges are neutral arbiters in the Texas adversarial system, the charge must not express any opinion as to the weight to be accorded to the evidence. See TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007); Brown v. State, 122 S.W.3d 794, 797 (Tex. Crim. App. 2003). When reviewing a jury charge, we first determine whether error exists and, if error does exist, we address whether the harm caused by the error warrants reversal. Hutch, 922 S.W.2d at 170-71.

Applicable Law

"A person's refusal of a request by an officer to submit to the taking of a specimen of breath or blood . . . may be introduced into evidence at the person's trial." TEX. TRANSP. CODE ANN. § 724.061 (Vernon 1999). In the past, trial judges often instructed juries in DWI trials using language similar to that in the statute. This practice is now prohibited by the holding of the Texas Court of Criminal Appeals "that a jury instruction informing the jury that it may consider evidence of a refusal to take a breath [or blood] test constitutes an impermissible comment on the weight of the evidence." Bartlett v. State, 270 S.W.3d 147, 154 (Tex. Crim. App. 2008). Of course, that evidence is still admissible, and the jury may consider it. See TEX. TRANSP. CODE ANN. § 724.061 (Vernon 1999).

Where, as here, a defendant does not object to the jury charge, reversible error exists only if the record shows a defendant has suffered not only actual harm, but egregious harm resulting from the incorrect charge. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (establishing proper standard of review for jury charge error in absence of objection to jury charge). Egregious harm arises if the error is so severe that it deprived the accused of a fair and impartial trial. In determining whether egregious harm exists, we consider the following factors: (1) the entire jury charge; (2) the state of the evidence; (3) the arguments of counsel; and (4) any other relevant information in the record as a whole. Id.; see also Vargas v. State, 271 S.W.3d 338, 340 (Tex. App.--San Antonio 2008, no pet.) (applying egregious harm test to instruction at issue here). "Egregious harm is a difficult standard to prove and such determination must be done on a case-by-case basis." Hutch, 922 S.W.2d at 171.

SEAN LEE MCINTOSH, APPELLANT V. THE STATE OF TEXAS, APPELLEE

NO. 03-07-00338-CR

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

February 4, 2010, Filed

MEMORANDUM OPINION

A jury found appellant Sean Lee McIntosh guilty of driving while intoxicated. See Tex. Penal Code Ann. § 49.04 (West 2003). Punishment was assessed at ninety days in jail and a $ 2000 fine, imposition of sentence was suspended, and appellant was placed on community supervision. In a single point of error, appellant contends that the trial court erred by admitting testimony regarding field sobriety tests as expert opinion evidence. Although we agree that the complained-of testimony may have been improper, reversible error is not presented because the issue was not preserved for appeal and appellant's substantial rights were not affected. Accordingly, we affirm the conviction.

Jeremy Manning testified that he was driving home from work late on the night of September 7, 2006, when a yellow Jeep swerved and cut in front of him on an off-ramp, coming "within about a foot" of hitting his front bumper. Debi Estes was stopped at a red light on the access road a short distance from the off-ramp. Estes testified that she watched in her mirror as the yellow Jeep approached her from the rear. Estes said that after stopping behind her car, the Jeep began "bumping up and down. You know, their headlights were going up and down like with the revving of the engine." Before the light could change, the Jeep lurched forward and struck the rear of Estes's car.

Both Estes and Manning, who had stopped after seeing the collision, approached the Jeep and found appellant motionless behind the wheel, with a blank expression. Appellant got out of the Jeep and joined Estes and Manning as they examined the damage to the vehicles. Appellant was argumentative and denied damaging Estes's car. Estes and Manning testified that appellant's speech was slurred, he was unsteady on his feet, and he had the odor of an alcoholic beverage about him. Eventually, appellant sat down in the street behind Estes's car. Both witnesses testified that appellant appeared to be intoxicated. Austin police officer Michael Joseph was dispatched to the scene, and he also testified to appellant's apparent intoxication. Joseph called for a special "DWI unit" to investigate whether appellant had been driving while intoxicated.

Officer Roman Santos of the police department's DWI enforcement unit was sent to the scene in response to Joseph's call. Santos testified to his extensive training and experience in DWI investigations and stated that he was certified to administer the standardized field sobriety tests. Like the other witnesses, Santos noticed that appellant smelled of alcoholic beverage and displayed the usual signs of intoxication. Appellant told Santos that he was not ill or injured, and he admitted having consumed four shots of tequila during the course of the evening.

Santos testified that he administered four field sobriety tests to appellant on the night in question: the three standardized tests that are routinely used (the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-leg stand test) and the Rhomberg balance test (which involves standing with one's eyes closed for thirty seconds). Santos described each test and testified that in each, appellant displayed all or most of the clues indicating intoxication. A video unit in Santos's patrol car recorded the field tests as they were administered, and this video was admitted in evidence and shown to the jury.

In his point of error, appellant complains that Santos was improperly allowed to testify that the walk-and-turn and one-leg stand tests have been scientifically validated and that the results of those tests are scientific evidence of intoxication. Before directly addressing this contention, we review the nature of the three standardized field sobriety tests and the bases for admitting the test results into evidence.

The HGN test is a scientific test. Emerson v. State, 880 S.W.2d 759, 764 (Tex. Crim. App. 1994). The HGN test is based on scientific theory, and HGN test results are admissible under rule 702 when the test is properly administered by a qualified officer. Id. at 768-69; see Tex. R. Evid. 702; Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002); Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). The walk-and-turn and one-leg stand tests, on the other hand, are not grounded in science. Instead, they are based on the common knowledge that excessive alcohol consumption can cause problems with coordination, balance, and mental agility, and the tests are designed to reveal such problems. McRae v. State, 152 S.W.3d 739, 745 (Tex. App.--Houston [1st Dist.] 2004, pet. ref'd). Texas courts have held that because a police officer's testimony describing the coordination, balance, and mental agility problems exhibited by a suspect during these tests are observations based on common knowledge, such testimony constitutes lay opinion testimony under rule 701 and not expert opinion testimony under rule 702. Plouff v. State, 192 S.W.3d 213, 223-24 (Tex. App.--Houston [14th Dist.] 2006, no pet.); McRae, 152 S.W.3d at 745-46; Smith v. State, 65 S.W.3d 332, 347 (Tex. App.--Waco 2001, no pet.); see Tex. R. Evid. 701. In its brief, the State acknowledges the holdings in these opinions and does not contend that the walk-and-turn and one-leg stand tests are grounded in scientific principles.

An officer's testimony regarding a suspect's performance in the walk-and-turn and one-leg stand tests can cross the line from permissible lay opinion to impermissible expert opinion testimony. In Smith, for example, an officer was allowed to testify that there is an eighty-three percent probability that a suspect who exhibits two or more clues on the one-leg stand test is legally intoxicated, and a seventy-nine percent probability that a suspect who exhibits two or more clues on the walk-and-turn test is legally intoxicated. 65 S.W.3d at 346. The court of appeals held that this testimony improperly gave these tests an imprimatur of scientific accuracy and may have caused the jury to give the test results undue significance as scientific truths. Id. at 347.

Appellant argues that although Santos did not ascribe a precise alcohol concentration to appellant based on the field test results, he nevertheless gave an imprimatur of scientific accuracy to the walk-and-turn and one-leg stand tests by testifying that these tests had been scientifically validated. When asked by the prosecutor to describe the HGN test, Santos testified that he looked for "these scientifically validated clues, the eyes will noticeably jerk as they gaze toward the side." Although this testimony was not improper, Santos used the same terminology when describing the other standardized tests. Santos testified that during the instruction phase of the walk-and-turn test, "there are two clues, two validated clues that I'm looking for." Similarly, Santos testified that "[t]here's four validated clues of impairment that I'm looking for" in the one-leg stand. When describing the Rhomberg balance test, Santos testified that "it is not a scientifically validated test but it is a useful tool to uncover any indications of intoxication," thereby suggesting that the other field tests are scientifically validated. When asked the basis for his conclusion that appellant was intoxicated, Santos replied, "That is based on the totality of the circumstances of everything that I observed that night, all the indicators of intoxication, my training, my experience and the validated clues of impairment." Later, during cross-examination, Santos explained that he did not consider the rate at which alcohol is metabolized in forming his opinion that appellant was intoxicated because, "I use the clues, the validated clues of intoxication that tell me whether they're intoxicated or not. It's as simple as that."

Texas courts have held that an officer who uses terms such as "test," "standardized clues," or "divided attention" when describing the walk-and-turn and one-leg stand tests is not testifying as an expert or giving those tests a scientific patina that they do not deserve. Plouff, 192 S.W.3d at 224; McRae, 152 S.W.3d at 746. This Court has expressed the same view in an unpublished opinion. Taylor v. State, No. 03-03-00624-CR, 2006 Tex. App. LEXIS 5148, (Tex. App.--Austin June 16, 2006, pet. ref'd) (mem. op., not designated for publication). But by repeatedly testifying that the walk-and-turn and one-leg stand tests provide "validated" or "scientifically validated" clues of impairment, Santos gave these tests an imprimatur of scientific accuracy that they have not been shown to possess and that, in any event, he was not shown qualified to confer. See McRae, 152 S.W.3d at 747 (assuming without deciding that officer's testimony that one-leg stand test was "recognized" and "certified" by highway safety agency constituted expert testimony).

Any error was not preserved, however, because appellant did not object to Santos's testimony on this basis. After questioning Santos outside the jury's presence regarding his training and experience, appellant's counsel objected, "This witness has not stated with sufficient specificity anything regarding [the] underlying facts or data which would give him the ability to testify regarding the foundational science for which he is brought here today to testify about. His training is about the application." Counsel added, "My objection is specifically to the scientific relevance and reliability of the science itself. That's the objection. Not his knowledge from learning about application of the science. I'm questioning the foundation itself of this science for all three."

Insofar as appellant was urging that the HGN test was not shown to be scientifically reliable or that Santos was not qualified to testify regarding the scientific basis of the test, the objection was properly overruled because the reliability of the science was recognized in Emerson. 2 See 880 S.W.2d at 768-69. As applied to the walk-and-turn and one-leg stand tests, appellant's objection assumed, contrary to his contention on appeal, that the tests are based on scientific principles. The objection that Santos was not qualified to testify regarding those principles was properly overruled because these tests, as appellant now argues, are grounded in common knowledge, not science. Santos could testify as a lay witness under rule 701 that appellant's lack of coordination, balance, and mental agility during these tests were indicative of intoxication. See Plouff, 192 S.W.3d at 223-24; McRae, 152 S.W.3d at 745-46; Smith, 65 S.W.3d at 347.

Later, appellant voiced no objection when Santos testified that the walk-and-turn and one-leg stand tests provide scientifically validated clues of intoxication. During his cross examination of Santos, appellant's trial counsel (who is not appellant's attorney on appeal) asked if it were not true that the "only three recognized tests that are scientifically validated are the horizontal gaze nystagmus, the walk and turn and the one leg stand, correct?" Santos replied that this was correct. Far from objecting, counsel asserted in this question that the walk-and-turn and one-leg stand tests are scientifically validated and asked Santos to confirm that fact.

Finally, even if the error was preserved, the admission of the challenged testimony did not affect appellant's substantial rights. See Tex. R. App. P. 44.2(b). There was substantial evidence of appellant's intoxication, including his admission that he had consumed four shots of tequila and the testimony of four witnesses describing his reckless driving, odor of alcoholic beverage, bloodshot eyes, slurred speech, and lack of balance. In addition, Santos testified to the incriminating results of the field sobriety tests, and the jury saw and heard appellant on the video recording. Although the prosecutor emphasized the field test results during his final argument, he did not assert that these results were scientific proof of intoxication. Under the circumstances, there is a fair assurance that Santos's testimony that the walk-and-turn and one-leg stand tests are scientifically valid indicators of intoxication had little or no affect on either the finding of guilt or the punishment assessed.

The point of error is overruled, and the judgment of conviction is affirmed.

back to front page