Kamen v. State

Full title: HELEN KIANSKY KAMEN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: May 7, 2009

No. 01-07-00589-CR (Tex. App. May. 7, 2009)

Opinion

No. 01-07-00589-CR

Opinion issued May 7, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).

On Appeal from County Court at Law No. 3, Fort Bend County, Texas, Trial Court Cause No. 110544.

Panel consists of Chief Justice RADACK and Justices ALCALA and HANKS.

MEMORANDUM OPINION

GEORGE C. HANKS, JR., Justice.

A jury convicted appellant, Helen Kiansky Kamen, of driving while intoxicated. See TEX. PENAL CODE ANN. § 49.04 (Vernon 2003). The trial court assessed punishment at 180 days in jail, probated for fifteen months, plus additional fines, fees, and community service. In two issues, appellant contends that the trial court erred in denying her motion to suppress a field sobriety test and that the evidence is factually insufficient to support her conviction. We affirm.

Background

At approximately 2:30 a.m. on March 20, 2004, Texas Department of Public Safety Trooper Thomas Radford saw a car accident in the southbound lanes of U.S. Highway 59 in Sugar Land and stopped to assist the Sugar Land Police Department with traffic control. Using burning road flares and their patrol cars, the officers set up a "safety zone" around the accident, which was in the center lanes of the five-lane freeway. While the accident was being cleared, a Sugar Land police officer wearing a reflective vest used a traffic direction flashlight to direct traffic around the safety zone. During the investigation, Radford testified, another officer "kind of yelled out to [him], `Look out' or `Get out of the way'" and a car drove into the safety zone, stopping just inside of it. Radford testified that he then approached the vehicle because "no [other] vehicle had ever gotten that particular [sic] close to us." Radford testified that he asked appellant, who was driving the car, if she was okay and that appellant did not respond. Radford then asked a second time, to which appellant responded "that she was fine and she was on her way home." Because appellant appeared "disoriented or confused" and had a "blank . . . look on her face," Radford asked appellant to exit her vehicle. Radford took appellant to his vehicle and began asking her questions. Radford testified that appellant slurred her speech, admitted to drinking "some wine" earlier that evening, and refused to submit to a portable breath test. Because he and appellant were in the middle of the freeway, Radford testified, he did not have appellant perform any field sobriety tests. Radford placed appellant under arrest. During the investigation and arrest, Radford testified, appellant was "angry" and "a little violent." She "yelled" at Radford, "cried," "used profanity," and kicked the camera in Radford's patrol car. When Radford informed appellant that she was under arrest, appellant "refused to get out of [Radford's] vehicle[,]" requiring Radford to "forcefully take her out of the vehicle to handcuff her." Radford drove appellant to Fort Bend County Jail, where appellant agreed to attempt a battery of field sobriety tests but again refused to provide a breath sample. Radford administered five field sobriety tests: the horizontal gaze nystagmus ("HGN") test, which checks for involuntary eye movement by directing a subject to follow a stimulus (usually a pen or a light) with her eyes; the walk-and-turn test, which requires the subject to take nine steps heel to toe while counting out loud, then turn 180 degrees and repeat the process in the other direction; the one-leg stand test, which requires the subject to hold the foot of her choice six inches off the ground, look at it, and count "one thousand one, one thousand two," and so on until instructed by the officer to stop; the Rhomberg balance test, which requires the subject to stand still with his head tilted back and his eyes closed and count silently to 30; and the alphabet test. Radford testified that, when he administered the HGN test, he observed lack of smooth pursuit and distinct nystagmus at maximum deviation in both of appellant's eyes, meaning that appellant displayed four out of a possible six clues of intoxication. During the walk-and-turn test, Radford testified, appellant exhibited six out of a possible eight clues — she failed to maintain her balance while Radford explained the test; began before she was instructed to; stopped while walking; failed to remain heel-to-toe; made an improper turn; and took ten steps instead of nine. During the one-leg stand test, appellant displayed one out of four possible clues, a slight sway. During the Rhomberg test, appellant gauged 22 seconds as being 30 seconds and swayed back and forth. Lastly, when Radford asked appellant to say the alphabet, she began to recite the Russian alphabet. Radford testified that, based on the totality of the circumstances, he believed that appellant was intoxicated. Appellant and a friend, Gregory Olszewski, both testified that appellant drank two glasses of wine with dinner and a smaller glass of wine afterward at a friend's apartment. Appellant testified that she ordered her first glass of wine at about 10 p.m. and left her friend's apartment at about 2 a.m. Appellant further testified that she drove straight toward the accident safety zone because heavy traffic on both sides prevented her from changing lanes. She admitted to being "very mad and very upset" at the time of her arrest because she "had a lot of things going on in [her] personal life" and "just snapped." Appellant denied being intoxicated.

Motion to Suppress

In her first issue, appellant contends that the trial court erred in denying her motion to suppress the results of the HGN test because "the HGN test was not administered in accordance with the National Highway Traffic Safety Administration (NHTSA) protocol."

Standard of Review

We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006). We review the record in the light most favorable to the trial court's conclusion. Id. We will sustain the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Id. We give almost total deference to the trial court's determination of historical facts and review de novo the trial court's application of the law to those facts. Id. When, as in this case, the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings of fact are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000).

The HGN Test

Appellant argues that evidence from the HGN test was inadmissible and unreliable because Trooper Radford did not administer the HGN test in accordance with NHTSA protocol. Specifically, she argues that Radford took only eight seconds to administer the smooth pursuit phase, while NHTSA protocol requires approximately 16 seconds; that Radford ignored her complaint that she could not see the stimulus during the smooth pursuit phase; and that Radford did not readminister the maximum deviation phase when appellant moved her head. The Texarkana Court of Appeals has held that, although they may affect the weight to be given the testimony, slight variations in the administration of the HGN test do not render the evidence inadmissible or unreliable. Compton v. State, 120 S.W.3d 375, 378 (Tex.App.-Texarkana 2003, pet. ref'd). Appellant contends that the Texarkana Court's holding in Compton contradicts the holding of the Court of Criminal Appeals in Emerson v. State, 880 S.W.2d 759, 764-69 (Tex.Crim.App. 1994), which established the admissibility requirements for testimony concerning a defendant's performance on the HGN test. We disagree. As the Fourteenth Court of Appeals held in Plouff v. State:

In Compton, the Texarkana Court of Appeals properly applied all the requirements and factors in Emerson and simply concluded that a police officer's slight deviation in the number of seconds taken to conduct the HGN test from the number of seconds recommended by the [NHTSA] DWI Detection Manual did not invalidate test results otherwise indicating that defendant was driving while intoxicated. . . . We agree with the conclusion in Compton that it would be unreasonable to conclude that any variation in administering the tests, no matter how slight, could automatically undermine the admissibility of an individual's performance of the tests.

Plouff v. State, 192 S.W.3d 213, 221 (Tex.App.-Houston [14th Dist.] 2006, no pet.). Appellant further contends that, assuming Compton was properly decided, the variations in her case were not slight but rather were substantial enough to affect the admissibility of the HGN evidence and not just its weight. We disagree. At the hearing on appellant's motion to suppress, Radford testified as to how he followed protocol with respect to the HGN test. Radford also testified that he was able to observe signs of intoxication despite appellant's repeated failures — which required Radford to "start [the test] over a few times" — to obey his commands to keep her head still.¹ The trial court, sitting as factfinder, was entitled to credit Radford's testimony that he followed the required protocol as closely as possible and discredit the claims of appellant's expert witness that Radford deviated too greatly from that protocol for the test results to be reliable. We conclude that the trial court could reasonably have found that any deviations from NHTSA protocol in Radford's administration of the HGN test were slight and therefore only affected the weight, and not the admissibility, of the evidence. Compare Plouff, 192 S.W.3d at 220 (trial court did not abuse its discretion in admitting HGN evidence under circumstances that showed slight variations to administration of HGN test) with McRae v. State, 152 S.W.3d 739, 743-44 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd) (trial court abused its discretion in admitting evidence because administering officer himself acknowledged that HGN test administered to defendant was invalid). We hold that the trial court did not abuse its discretion in denying appellant's motion to suppress the HGN test and overrule appellant's first issue.

Factual Sufficiency

In her second issue, appellant contends that the evidence supporting her conviction is factually insufficient.

Standard of Review

When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex.Crim.App. 1999). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). A jury is in the best position to evaluate the credibility of witnesses, and we are required to afford "due deference" to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). The jury is free to accept or to reject any or all of the evidence presented by either side. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). Reconciling conflicting testimony is within the exclusive province of the jury. Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001).

The Evidence

Radford testified that appellant drove into, rather than around, a clearly marked safety zone. Radford further testified that, during his initial investigation, appellant seemed confused, slurred her speech, smelled like alcohol, admitted to drinking wine earlier that night, refused to submit to a portable breath test, yelled obscenities, cried, kicked the camera in Radford's patrol car, and refused to exit the patrol car so that Radford could handcuff her. At the police station, according to Radford's testimony, appellant again refused to provide a breath sample. Radford additionally testified that appellant exhibited four of six possible clues on the HGN test, six of eight possible clues on the walk-and-turn test, and one of four possible clues on the one-leg-stand test. Appellant also gauged 22 seconds as 30 seconds and swayed back and forth during the Rhomberg test. When Radford asked her to perform the alphabet test, appellant recited the Russian alphabet instead of the English alphabet. Appellant's friend, Gregory Olszewski, and appellant both testified that appellant drank two glasses of wine with dinner and a smaller glass of wine later that night at another friend's apartment. Appellant argues that Radford mischaracterized appellant's performance on the field sobriety tests; that appellant, who is a native of Russia, has a strong accent, which explains why Radford thought that her speech was slurred; that appellant was prevented from avoiding the accident safety zone by heavy traffic on both sides; and that appellant's confusion, aggressive conduct, and recital of the wrong alphabet stemmed not from intoxication but from the unusual and stressful circumstances. The jury has the sole province to decide what weight is to be given to contradictory testimony, as it turns on an evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). The jury is free to believe some, all, or none of the testimony of a witness, and the jury's decision is not manifestly unjust because it has resolved conflicting views of evidence in favor of the State. Id. at 409-10. Hence, the jury was free to discredit appellant's trial testimony and believe that of Radford, and the jury was also free to resolve any conflict in the evidence in favor of the State. Appellant does not show how the jury's verdict was clearly wrong, manifestly unjust, or against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 11. We overrule appellant's second issue.

Conclusion

We affirm the judgment of the trial court.