Opinion
No. 05-08-00236-CR
Opinion Filed February 3, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b)
On Appeal from the County Criminal Court No. 6, Dallas County, Texas, Trial Court Cause No. MB07-14990-G.
Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
MEMORANDUM OPINION
A jury convicted Manuelita Garcia of driving while intoxicated. The trial court assessed punishment at 102 days' confinement in the county jail and a $700 fine. The trial court then suspended imposition of the sentence and placed Garcia on community supervision for eighteen months. Garcia appeals, arguing that the trial court erred by overruling her trial objection to the police officer's testimony about her performance of the horizontal gaze nystagmus (HGN) test, and by denying her motion for new trial based on that ruling. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment. Officer Bruce Kyer testified he stopped Garcia for speeding. He smelled alcohol when Garcia rolled down her window. Garcia told him she had been to a party and had consumed two or three beers. Kyer performed three field sobriety tests, including the HGN test. Kyer testified he was certified to administer the HGN test through his completion of a three-day training program on field sobriety tests. Based on the totality of the circumstances, including Garcia's performance on those tests, Kyer concluded she was intoxicated and arrested her. Garcia timely objected to Kyer's testimony about the HGN test, asserting he was not an expert as to the conclusions that could be drawn from that test. The trial court overruled her objection, and later denied her motion for new trial, which was based on that ruling. In two issues, Garcia complains of both of those rulings. We discuss both issues together. The court of criminal appeals has held that the HGN test is a reliable indicator of intoxication. See Emerson v. State, 880 S.W.2d 759, 764, 768-69 (Tex.Crim.App. 1994). "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 on the HGN test to a precise [blood alcohol content]." Id. at 769. Kyer's testimony did not correlate Garcia's performance on the HGN test to a precise blood alcohol content. He testified based on the totality of the circumstances and his observations that Garcia was intoxicated. We conclude the trial court did not abuse its discretion in overruling the objection at trial or the motion for new trial. See McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005) (trial court's decision to admit evidence reviewed under abuse of discretion standard). We overrule Garcia's points of error and affirm the trial court's judgment.