Opinion
No. 05-04-00629-CR
Opinion Filed November 3, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 8, Dallas County, Texas, Trial Court Cause No. MA02-62626-J. Affirmed as Modified.
Before Justices WHITTINGTON, FRANCIS, and LANG.
OPINION
Felix Arnold Gallichio appeals the trial court's judgment convicting him of driving while intoxicated (DWI) and sentencing him to 365 days of confinement, probated for twenty-four months, and a $1,500 fine. In his sole issue on appeal, Gallichio argues the trial court abused its discretion when it overruled his objection to an officer's testimony regarding the horizontal gaze nystagmus (HGN) test because he was not shown to be qualified to interpret the HGN test as it relates to the degree of intoxication. Also, in a cross point, the State requests this Court to modify the judgment to correctly reflect Gallichio did not plead guilty and that the jury found him guilty. We conclude the trial court did not abuse its discretion when it overruled Gallichio's objection to the officer's testimony regarding the HGN test. Gallichio's sole issue on appeal is decided against him. Also, we modify the judgment to correctly reflect that Gallichio pleaded not guilty and the jury found him guilty of DWI. The trial court's judgment is affirmed as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
Officers Herbert and Standige received a call regarding a hit and run. They were provided with a description of the vehicle, a maroon Jeep Cherokee with a temporary dealer tag. The officers observed a vehicle matching that description and followed it. The officers stopped the Jeep Cherokee after it ran a red traffic light. Gallichio was in the driver's seat of the Jeep Cherokee. The officers believed Gallichio was intoxicated because Gallichio's breath smelled of alcohol, his eyes were bloodshot, his speech was slurred, and he could not stand up. The officers requested the assistance of another officer proficient in conducting the field sobriety tests. Officer Jones arrived to conduct the field sobriety tests. He observed that Gallichio smelled of alcohol. Also, Gallichio told Officer Jones that he consumed ten Coors Light beers. Officer Jones administered the HGN test and Gallichio exhibited all six clues. Then, he administered the one-leg stand test, but Gallichio stumbled and almost fell. Officer Jones discontinued the field sobriety tests and arrested Gallichio for DWI. Gallichio was charged by information with DWI. The jury found Gallichio guilty. He was sentenced to 365 days of confinement, probated for twenty-four months, and a $1,500 fine.II. HORIZONTAL GAZE NYSTAGMUS TESTIMONY
In his sole issue on appeal, Gallichio argues the trial court abused its discretion in admitting the testimony of Officer Jones regarding the HGN test over his objection because the State did not show that Officer Jones was qualified to interpret the HGN test as it relates to the degree of intoxication. The State responds that the record shows Officer Jones was qualified to testify about the HGN test, he did not give his opinion as to Gallichio's level of alcohol, and his testimony was within the parameters of legally permissible HGN testimony. We agree with the State.A. Standard of Review
The question of whether a witness offered as an expert possesses the required qualifications rests largely in the trial court's discretion. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000). Absent an abuse of discretion, the trial court's decision to admit or exclude testimony will not be disturbed. Id. The party proffering the expert witness bears the burden of showing that the witness is qualified on the specific matter in question. Id.B. Applicable Law
Texas Rule of Evidence 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Tex. R. Evid. 702. To assist the trier of fact, the basis of the testimony must be reliable. See Emerson v. State, 880 S.W.2d 759, 763 (Tex.Crim.App. 1994). To be reliable, the evidence must meet three criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App. 1992). The theory underlying the HGN test is sufficiently reliable pursuant to Texas Rule of Evidence 702. See Emerson, 880 S.W.2d at 768. Also, the technique employed in the HGN test, as designed and promoted by National Highway Traffic and Safety Administration (NHTSA), is reliable pursuant to Texas Rule of Evidence 702. See id. For testimony concerning a defendant's performance on the HGN test to be admissible, it must be shown that the testifying witness is qualified as an expert concerning its administration and technique. Id. at 769. A law enforcement officer is qualified as an expert concerning the administration and technique of the HGN test if he has received practitioner certification by the State of Texas. Id. A law enforcement officer's testimony that he is certified by the State to administer the HGN test, without any written documentation confirming his certification, is sufficient to qualify him as an expert. See Reagan v. State, 968 S.W.2d 571, 574 (Tex.App.-Texarkana 1998, pet. ref'd). A witness qualified as an expert on the administration and technique of the HGN test may testify concerning a defendant's performance on the HGN test, but may not correlate the defendant's performance to a precise blood alcohol content. Emerson, 880 S.W.2d at 769. A law enforcement officer may testify to the qualitative results of the HGN test, but not the quantitative results. Youens v. State, 988 S.W.2d 404, 406 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (citing Emerson, 880 S.W.2d at 769).C. Application of the Law to the Facts
At trial, Officer Jones testified: (1) he has been employed by the Dallas Police Department for four and one-half years; (2) he was trained to recognize the basic signs of intoxication during the eight month police training course; (3) after graduating from the academy, he attended a twenty-four hour course and was certified in standardized field sobriety testing; (4) six months after becoming certified, he obtained a proficiency rating by making thirty-five correct predictions regarding an individual's intoxication; (5) the standardized filed sobriety tests are those tests studied in field studies commissioned by NHTSA; and (6) he is a certified practitioner. Officer Jones also testified about the process of conducting the HGN test. Afterward, the following testimony occurred, which Gallichio argues should not have been admitted:STATE: And based on the training and standardized system that [the HGN test] is based on, how many clues do you need to indicate that a subject is intoxicated?
OFFICER JONES: The clues are building blocks. In other words, greater clues-the clues increase with qualitatively higher levels of intoxication. In other words, when a person starts drinking, you're going to see-the first thing you're going to see is lack of smooth pursuit. You may see the lack of smooth pursuit, but not the distinct and the onset prior to 45 degrees. If you see-if you see distinct at max without seeing —
DEFENSE: Judge, I'm going to have to object at this time. This witness hasn't been shown to be qualified to interpret the HGN test as it relates to a degree of intoxication.COURT: The objection is overruled. STATE: Continue officer.
OFFICER JONES: In other words, the clues are building blocks. In other words, you're not going to see distinct at max without seeing the lack of smooth pursuit. If you do, something is wrong. So taking the typical case, once a person starts drinking, you begin to see lack of smooth pursuit. As they drink more, you will see distinct at max, which is four clues. As they drink more, you will begin to see the onset prior to 45 degrees. Four out of the six clues is considered the predictive model-the predictive value for intoxication.Officer Jones testified that Gallichio exhibited vertical nystagmus in both eyes and all six possible clues. Also, he testified that based on his interview with Gallichio, the indicators of intoxication he observed, and Gallichio's performance on the standardized tests, he arrested him for DWI. Officer Jones made no mention of Gallichio's blood alcohol content based on his performance on the HGN test, nor did he attempt to correlate Gallichio's performance on the HGN test to a precise blood alcohol content. See Gullatt v. State, 74 S.W.3d 880, 884 (Tex.App.-Waco 2002, no pet.). Gallichio contends the facts of this appeal are similar to Mata v. State, 46 S.W.3d 902 (Tex.Crim.App. 2001). In Mata, the expert's testimony on retrograde extrapolation failed to explain the theory with clarity, was inconsistent, and essentially conceded that all of the calculations were speculative with respect to the defendant. Mata, 46 S.W.3d at 914-15. The Texas Court of Criminal Appeals concluded that the State failed to prove by clear and convincing evidence that the expert's retrograde extrapolation was reliable. Id. at 917. Mata is not similar to the facts of this appeal. We conclude the trial court did not abuse its discretion when it overruled Gallichio's objection to Officer Jones's testimony regarding the HGN test. Gallichio's sole issue on appeal is decided against him.
III. MODIFICATION OF JUDGMENT
In a cross-point, the State requests the Court to modify the judgment to correctly reflect that Gallichio pleaded not guilty and that the jury found him guilty. An appellate court has the power to modify an incorrect judgment to make the record speak the truth when the matter has been called to its attention and it has the necessary data to do so. See Tex.R.App.P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App. 1992); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd).The title on the judgment states, "JUDGMENT ON PLEA OF GUILTY BEFORE THE JURY." The judgment also states that Gallichio's plea was "GUILTY." The clerk's record contains a jury verdict of guilty and the reporter's record reflects that Gallichio pleaded not guilty. Accordingly, the trial court's judgment is modified as follows:
1. The portion of the title of the trial court's judgment that reads, "JUDGMENT ON PLEA OF GUILTY BEFORE THE JURY," is modified to read, "JUDGMENT ON PLEA OF NOT GUILTY BEFORE THE JURY"; and
2. The portion of the trial court's judgment that reads, "PLEA: GUILTY," is modified to read, "PLEA: NOT GUILTY."The State's cross-point on appeal is decided in its favor.
IV. CONCLUSION
The trial court did not abuse its discretion when it overruled Gallichio's objection to the officer's testimony regarding the HGN test. Gallichio's sole issue on appeal is decided against him. Also, the judgment is modified to correctly reflect that Gallichio pleaded not guilty and the jury found him guilty of DWI.The trial court's judgment is affirmed as modified. See Tex.R.App.P. 43.2(b).