Opinion
NO. 01-17-00245-CR
07-17-2018
JOSE ALEJANDRO GOMEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 8 Harris County, Texas
Trial Court Case No. 2118808
MEMORANDUM OPINION
A jury found appellant, Jose Alejandro Gomez, guilty of driving while intoxicated, enhanced by a prior felony offense, and the trial court sentenced him to ninety days' confinement in the Harris County jail. In his sole point of error, appellant contends that the trial court erred in admitting testimony regarding his performance on a horizontal gaze nystagmus (HGN) test. We affirm.
Background
On October 27, 2016, at approximately 10:40 p.m., Sergeant Reid Cashdollar, a patrol officer with the Houston Police Department, observed appellant racing another truck on the freeway. Sergeant Cashdollar testified that the trucks were driving in excess of eighty or ninety miles per hour, weaving through lanes of traffic, and narrowly missing a collision with other vehicles. After Sergeant Cashdollar radioed for assistance, Houston Police Officer Adam Ancira responded and stopped appellant's vehicle.
Sergeant Cashdollar testified that appellant had glassy eyes and that his vehicle contained two empty cans of beer and one half-empty can that was still cold. Officer Ancira testified that appellant admitted that he had been racing another vehicle. Officer Ancira further testified that there were containers of beer in appellant's vehicle: three empty containers, four full containers, and one half-empty container. Based on their training and experience, the officers testified that that they believed appellant had been drinking and driving.
When Houston Police Officer Marisol Gonzalez arrived at the scene, she observed appellant slumped over in the backseat of Officer Ancira's patrol car. She subsequently observed that appellant's eyes were red and bloodshot, his speech was slurred, he was unsteady on his feet and leaned on the car for balance, and that a strong odor of alcohol emanated from him. The jury saw video footage from Officer Gonzalez's body camera showing her administering the HGN test and other standard field sobriety tests (SFST) to appellant.
Officer Gonzalez testified that the first step prior to administering the HGN test is to pass a pen across the subject's face to see if his pupils track together and if they are of equal size. She stated that if the pupils do not track or are not the same size, then the subject might have a medical disorder and may not be a candidate for the HGN test. Officer Gonzalez admitted that she did not perform this preliminary step. Officer Gonzalez then testified that she would have been able to see whether his pupils tracked unequally during her administration of the test, she did not observe that appellant had a problem with tracking, and she would have stopped the test if she had. Defense counsel objected to the admissibility of the HGN test results on the ground that "the application of the scientific theory that the officer employed did not satisfy the standard procedures set out under NHTSA [National Highway Transportation and Safety Administration] as required by law." The trial court allowed the testimony, concluding that whether Officer Gonzalez followed the instructions went to the weight of the testimony, rather than its admissibility.
Officer Gonzalez testified that appellant exhibited six out of six clues on the HGN test, two out of three clues on the one-leg stand test, and five out of eight clues on the walk-and-turn test. In addition to the SFST, Officer Gonzales administered the Rhomberg test to appellant, which required him to stand with his legs together and hands by his side, tilt his head up, close his eyes, and estimate thirty seconds and then stop. Appellant stopped at fourteen seconds.
Appellant was transported to a police department facility downtown where he provided breath samples for testing. The test results revealed a blood-alcohol concentration of 0.118 and 0.115, respectively. Appellant was subsequently arrested for DWI.
Discussion
In his sole point of error, appellant contends that the trial court erred in admitting Officer Gonzalez's testimony regarding his performance on the HGN test. He further argues that the erroneous admission of the testimony unduly influenced the jury's verdict and therefore was not harmless.
A. Standard of Review
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably. See State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). We view the evidence in the light most favorable to the trial court's ruling. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We will not reverse a trial court's ruling unless it falls outside the zone of reasonable disagreement. Torres, 71 S.W.3d at 760.
B. Applicable Law
Under Texas Rule of Evidence 702, the proponent of scientific evidence must show, by clear and convincing evidence, that the proffered evidence is "sufficiently relevant and reliable to assist the jury in accurately understanding other evidence or in determining a fact in issue." Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); see also Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992) (en banc). In Kelly, the Court of Criminal Appeals held that evidence based on a scientific theory is reliable when it satisfies the following 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 applied properly on the occasion in question. See Kelly, 824 S.W.2d at 573; see also Weatherred, 15 S.W.3d at 542; McRae v. State, 152 S.W.3d 739, 743 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd).
Testimony concerning HGN testing is considered scientific evidence, subject to the requirements of Kelly. See Emerson v. State, 880 S.W.2d 759, 763 (Tex. Crim. App. 1994) (en banc). In Emerson, the Court of Criminal Appeals took judicial notice of (1) the validity of the scientific theory and (2) the validity of the technique applying the theory. See id. at 764. Thus, to establish the reliability of HGN testing, the proponent does not have to prove that the theory of HGN testing and the technique of applying that theory are reliable. Id. at 768-69. But, Emerson squarely places the burden on the proponent of the HGN testing—in this case, the State—to establish that the officer properly applied the HGN test. See id. at 769 (concluding that HGN test was applied properly on occasion in question and officer followed DWI Detection Manual). Whether the HGN test is properly applied is decided on a case-by-case basis. Somers v. State, 368 S.W.3d 528, 536 n.27 (Tex. Crim. App. 2012). The State, therefore, must offer evidence to establish that the HGN test is properly applied on the occasion in question.
When administering an HGN test, an officer must follow the standardized procedures outlined in the NHTSA manual. Emerson, 880 S.W.2d at 768; McRae, 152 S.W.3d at 743. In administering the test, an officer looks for three criteria: (1) the lack of smooth pursuit—an inability to pursue an object, or stimulus, moving horizontally across the suspect's field of vision smoothly; (2) distinct, sustained, and pronounced nystagmus at the eye's maximum deviation; and (3) the onset of nystagmus at less than or equal to forty-five degrees. Emerson, 880 S.W.2d at 766; McRae, 152 S.W.3d at 743. An "officer must look for these criteria in each eye, for a total of six 'clues.'" Emerson, 880 S.W.2d at 766. To ascertain these clues, an officer conducts "passes"—asking an individual to follow an object or stimulus, such as a pen, with his or her eyes. See Kamen v. State, 305 S.W.3d 192, 195 n.1 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd). The procedures also require an officer to screen "for factors such as corrective lenses, brain damage, medical disorders, or blindness, which could lead potentially to an incorrect determination as to whether [a] suspect is intoxicated." Emerson, 880 S.W.2d at 766.
C. Analysis
Appellant argues that the trial court abused its discretion in admitting Officer Gonzalez's testimony regarding his performance on the HGN test because she failed to properly administer the test to him. Specifically, he argues that Officer Gonzalez failed to perform the initial step of checking appellant's pupils for equal size and tracking, and that her failure to do so rendered the test invalid and, thus, inadmissible.
Courts have consistently held that "[s]light variations in the administration of the HGN test do not render the evidence inadmissible or unreliable, but may affect the weight to give the testimony." McRae, 152 S.W.3d at 743 (citing Compton v. State, 120 S.W.3d 375, 378 (Tex. App.—Texarkana 2003, pet. ref'd)); see also Plouff v. State, 192 S.W.3d 213, 219 (Tex. App.—Houston [14th Dist.] 2006, no pet.); Winstead v. State, No. 11-13-00053-CR, 2014 WL 4536379, at *6 (Tex. App.—Eastland Sept. 11, 2014, no pet.) (mem. op., not designated for publication); Leverett v. State, No. 05-05-01496-CR, 2007 WL 1054140, at *3 (Tex. App.—Dallas Apr. 10, 2007, no pet.) (not designated for publication). Here, Officer Gonzalez did not initially check appellant's eyes for equal size and tracking before administering the test. It is undisputed, however, that Officer Gonzalez properly administered all three prongs of the test. Officer Gonzalez testified that she would have been able to see whether his pupils tracked unequally during administration of the test, she did not observe that appellant had a problem with tracking, and she would have stopped the test if she had. The fact that Officer Gonzalez did not separately check appellant's pupils for size and tracking to screen for possible head injuries or medical conditions prior to administering the test did not render the test invalid. See Williams v. State, 525 S.W.3d 316, 324 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd) (noting that screening for potential causes of nystagmus, other than alcohol ingestion, can be performed while conducting HGN test, consistent with NHTSA manual); Quinney v. State, 99 S.W.3d 853, 858 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (concluding that because officer testified he checked defendant for all indicators required by NHTSA Manual, and manual does not require that pupil size be checked at different time, officer properly performed screening as required by manual); Webster v. State, 26 S.W.3d 717, 721 (Tex. App.—Waco 2000, pet. ref'd) (noting that "the plain language of the 1992 NHTSA Manual and the 1995 edition [then] in use do not require a separate pre-test screening procedure"); see also McCarthy v. State, No. 01-12-00240-CR, 2013 WL 5521926, at *7 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (mem. op., not designated for publication) (concluding that officer met NHTSA manual requirements because he testified that he checked defendant for pupil size and equal tracking as he performed HGN test); Liles v. State, No. 01-08-00927-CR, 2009 WL 3152174, at *6 (Tex. App.—Houston [1st Dist.] Oct. 1, 2009, no pet.) (mem. op., not designated for publication) (same). Moreover, we are not aware of any evidence in the record—and appellant does not direct us to any—suggesting that appellant had a head injury, medical condition, or other medical disorder which could have impacted the results of his HGN test.
The trial court could have reasonably concluded that Officer Gonzalez satisfied the requirements of the HGN test and that any variation in the administration of the test was slight and did not affect admissibility. See Plouff, 192 S.W.3d at 222 ("Because all three criteria of Kelly were satisfied, [the officer's] testimony concerning the results of the HGN test was admissible."). We hold that the trial court did not abuse its discretion by allowing Officer Gonzalez to testify regarding appellant's performance on the HGN test. Accordingly, we overrule appellant's point of error.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Chief Justice Radack and Justices Jennings and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).