No. 05-02-01724-CR.
Opinion Issued August 25, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
Appeal from the County Court At Law No. 3, Collin County, Texas, Trial Court Cause No. 003-84639-00. Affirmed.
Before Chief Justice THOMAS and Justices FRANCIS and HADDEN.
The Honorable Roby Hadden, Former Judge, Twelfth Court of Appeals, Tyler, Texas, sitting by assignment.
Opinion By Justice HADDEN.
A jury convicted appellant Jon Bradley Burkhart of driving while intoxicated. The trial judge assessed punishment at 180 days confinement, probated for two years, and a $600 fine. In one issue, appellant asserts the trial court erred in admitting certain expert testimony of the arresting officer. We affirm.
BACKGROUND
On June 9, 2000, at around 3:00 a.m., Dallas Police Officer James Weisinger ("Weisinger") made a traffic-stop on appellant. When he approached appellant, Weisinger noticed the smell of an alcoholic beverage on appellant's breath. Weisinger had appellant perform several field sobriety tests at the scene. One of the tests administered by Weisinger was the horizontal gaze nystagmus ("HGN") test. Based on these field tests, Weisinger arrested appellant. The State charged appellant with the offense of driving while intoxicated. During trial, the State offered Weisinger's testimony regarding the field tests he had administered to appellant at the scene. Weisinger testified that, based on these tests, it was his opinion appellant was intoxicated. Appellant objected to the admission of Weisinger's testimony regarding the HGN test on the ground that the State did not establish Weisinger was qualified as an expert in such a test. The trial court overruled appellant's objection. It is from this ruling of the trial court that appellant now appeals. APPLICABLE LAW
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 court of criminal appeals has already concluded both the theory and technique underlying the HGN test are reliable pursuant to rule 702. See Emerson, 880 S.W.2d at 768. However, to satisfy the third factor, it must be shown that the witness testifying is qualified as an expert on the HGN test. Id. at 769; Quinney v. State, 99 S.W.3d 853, 857 (Tex.App.-Houston [14th Dist.] 2003, no pet.). The question of whether a witness offered as an expert possesses the required qualifications rests largely in the trial court's discretion, and absent a clear abuse of that discretion, the trial court's decision to admit or exclude testimony will not be disturbed. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000). A law enforcement officer will qualify as an expert on HGN if he has received practitioner certification by the State of Texas. See Emerson, 880 S.W.2d at 769. However, this is not the exclusive means by which an officer may qualify as an expert. See Kerr v. State, 921 S.W.2d 498, 502 (Tex.App.-Fort Worth 1996, no pet.); Smith v. State, 65 S.W.3d 332, 344 (Tex.App.-Waco 2001, no pet.). If it is shown that the officer has extensive training and experience in administering the HGN test and has been certified through a training course specifically including the administration of the HGN test, the trial court does not abuse its discretion in allowing the officer to testify as an expert on the technique and administration of the test. See Kerr, 921 S.W.2d at 502; Smith, 65 S.W.3d at 344. ANALYSIS
The evidence shows that Weisinger became a police officer in 1978. He received training in 1979 at the Regional Police Academy, North Central Texas Council of Governments, Arlington, Texas. Weisinger worked for several different law enforcement agencies before joining the Dallas Police Department in 1989. He received additional training through the Dallas Police Department in 1989. In 1992, Weisinger received specialized field sobriety test training that included training in the HGN test. The course consisted of three days of lectures, videos, and practical application of the concepts that were taught. On the final day of the course, the participants were required to administer the field sobriety tests to test subjects who had ingested varying amounts of alcohol and predict each subject's blood alcohol concentration based on his or her performance on the tests. To become certified, the officer was required to complete this practical part of the course. Weisinger specifically testified that he was certified to administer the HGN test on June 9, 2000, the date of the offense. In addition Weisinger testified that since his training, he has had occasion to administer the HGN test, although not often. Weisinger demonstrated specific knowledge about the test. He properly defined nystagmus, as described by the court in Emerson, and correctly explained the components of the test, including a preliminary screening to check for head injury and observing the eyes for lack of smooth pursuit, nystagmus at maximum deviation, and the onset of nystagmus before a forty-five-degree angle. See Emerson, 880 S.W.2d at 765 (defining nystagmus as "involuntary rapid oscillation of the eyeballs in a horizontal, vertical, or rotary direction"). Appellant argues, however, that under the DWI detection requirements of the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE), as outlined by the court of criminal appeals in Emerson, police officers in Texas must complete the NHTSA-approved, State-sponsored training course to be certified to administer the HGN test. Appellant points out that the evidence in this case does not identify the school Weisinger attended as a TCLEOSE/NHTSA authorized class or one that leads to an automatic State of Texas certification in administering the HGN test; the evidence does not show Weisinger received a practitioner certification by the State of Texas through either the Dallas Police Department Academy or the other unidentified school; and that whatever "certification" Weisinger received was in 1992 when the Blood Alcohol Concentration (BAC) standard was a .10, not .08, as it has been since 1999. Appellant contends that because of these deficiencies, Weisinger was not qualified as an expert on appellant's performance on the HGN test. However, the Emerson court simply held that it must be shown that the witness testifying is qualified as an expert on the HGN test before testimony concerning a defendant's performance on the HGN test to be admissible. And, in the case of a police officer or other law enforcement official, this requirement will be satisfied by proof that the officer has received practitioner certification by the State of Texas to administer the HGN. Emerson, 880 S.W.2d at 769. The court concluded that certification through the NHTSA-approved, State-sponsored training course was one way of satisfying the requirement that the witness be qualified as an expert. The court did not hold that such training was the exclusive means by which an officer may qualify as an expert. See Kerr, 921 S.W.2d at 502; Smith, 65 S.W.3d at 344. If it is shown that the officer has extensive training and experience in administering the HGN test and has been certified through a training course specifically including the administration of the HGN test, the trial court does not abuse it discretion in allowing the officer to testify as an expert on the technique and administration of the test. Kerr, 921 S.W.2d at 502; Smith v. State, 65 S.W.3d at 344. At the time he administered the HGN test on appellant, Weisinger had twenty-four years of experience as a police officer and was working as a training officer for the Dallas Police Department. He had received specialized, field sobriety test training that included training on the HGN test. The course included not only lectures and videos but also a practical application of the HGN test on subjects who had ingested alcohol. Weisinger specifically testified that he was certified to administer the HGN test on the date of the offense. Although the evidence is not clear as to what organization provided Weisinger's training and certification and whether his certification was the "practitioner certification" referred to in Emerson, our sister courts in Kerr and Smith have held officers could qualify as experts despite the lack of specific testimony that the officers were "practitioner certified" by the State. Kerr, 921 S.W.2d at 502 (officer received training at DPS training academy and other courses and was certified through the NHTSA); Smith, 65 S.W.3d at 344 (twelve-year veteran officer received training at the police academy and certification through a course at Texas A M University). Two other sister courts have allowed officer testimony on HGN without regard to certification. See Singleton v. State, 91 S.W.3d 342, 348 (Tex.App.-Texarkana 2002, no pet.) (concluding trial court could determine officer was an expert from his knowledge, skill, experience, and training despite evidence that officer is not certified); Lewis v. State, 933 S.W.2d 172, 181 (Tex.App.-Corpus Christi 1996, pet. ref'd) (concluding no error in allowing officer to testify regarding HGN based on statement from officer that he was a qualified expert in administering the test). CONCLUSION
Having examined all the evidence bearing on Weisinger's qualifications as an expert on the technique and proper application of the HGN test, we conclude that the trial court did not abuse its discretion in admitting Weisinger's testimony regarding appellant's performance on the HGN test. We overrule appellant's sole point of error. We affirm the trial court's judgment.