State v. Trinidad

Full title: THE STATE OF TEXAS, Appellant, v. RICHARD RAY TRINIDAD, Appellee

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: Sep 13, 2006

No. 4-05-00550-CR (Tex. App. Sep. 13, 2006)

Opinion

No. 4-05-00550-CR

Delivered and Filed: September 13, 2006. DO NOT PUBLISH.

Appeal from the County Court at Law, Medina County, Texas, Trial Court No. 21789, Honorable Vivian Torres, Judge Presiding. Affirmed.

Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.

MEMORANDUM OPINION

Opinion by: KAREN ANGELINI, Justice.

The State appeals the trial court's suppression of evidence relating to the officer's administration of the horizontal gaze nystagmus field sobriety test. On appeal, the State argues that the trial court abused its discretion in determining that because the officer improperly administered the test, the test was unreliable. We disagree and affirm the trial court's order.

BACKGROUND

Richard Trinidad was charged with driving while intoxicated. He filed a "Motion in Limine to Prohibit Police Officer Opinion Testimony on Reliability, Accuracy, and Results of Standardized Field Sobriety Tests Under Texas Rule of Evidence 702." At the hearing on the motion, Trooper Larry Wilson of the Texas Department of Public Safety testified about administering the field sobriety tests. Wilson had worked for the Department of Public Safety for over four years and was certified by the National Highway Traffic Safety Administration (NHTSA) as a practitioner of the Horizontal Gaze Nystagmus (HGN) test. The HGN test tests for nystagmus, i.e., the involuntary jerking of the eye, and is used to determine whether a suspect is under the influence of alcohol. During Trooper Wilson's testimony, the videotape depicting Trooper Wilson's administration of the HGN test was played and admitted in evidence. The videotape shows that at least once, Trooper Wilson indicated that Norman should focus on both his pen and his finger. At the beginning of the test, Trooper Wilson's finger remained on the tip of his pen; however, after the beginning of the test, Trooper Wilson would frequently "flick" his finger on the pen. Wilson maintained that the flicking motion was intended to get Trinidad's attention. Trinidad argued that by flicking his finger, Wilson deviated from NHTSA standards and tainted the results of the HGN test. After reviewing the evidence, the trial court determined that Trooper Wilson did not perform the HGN test in compliance with NHTSA standards. Therefore, the trial court granted the motion in limine with respect to the HGN test, declaring that expert testimony related to the HGN test would be inadmissible. On appeal, the State argues that the trial court abused its discretion by suppressing evidence of the HGN test.

JURISDICTION

We must first determine whether we have jurisdiction over this appeal. The State's ability to appeal is limited by statute. See Tex. Code Crim. Proc. Ann. art. 44.01 (Vernon Supp. 2006). Article 44.01 allows the State to appeal an order that "grants a motion to suppress evidence, a confession, or an admission." Id. art. 44.01(a)(5). Here, Trinidad titled his motion, a "motion in limine." The State would not have the authority to appeal from the granting of a motion in limine. See Westmoreland v. State, 174 S.W.3d 282, 290 (Tex.App.-Tyler 2005, pet. ref'd) (motion in limine is a preliminary ruling and violation of it preserves nothing for appeal); see also State v. Medrano, 67 S.W.3d 892, 903 (Tex.Crim.App. 2002) ("The State may appeal an adverse ruling on any pretrial motion to suppress evidence as long as the other requirements of the statute are met."). However, although Trinidad's motion was called a motion in limine, in substance, it was a motion to suppress evidence.¹ And, in ruling on the motion, the trial court suppressed evidence:

Court: The ruling is that before you attempt to introduce it into evidence during the course of the trial, that we will take up that matter outside the presence of the jury.

State: I understand that, Judge.

Court: I do deem it to be unreliable, scientifically, based on

State: We have already had a ruling on it. We've had a hearing on it. The Court says it's going to rule that it's not admissible. So the Court has conceptively [sic], regardless of what sort of hearing it's called, suppressed our evidence.

Court: I would agree with you on that.

* * *

Defense: I would just like to say, Your Honor, that motions in limine where the trial court effectively suppresses something [are] not unheard of and it's quite customary. In fact, the motion in limine is for that very purpose.

State: That might be true, but the State has the right of appeal if it's suppressed.

* * *

Court: Because I agree with [the State]'s interpretation that while it is a motion in limine and that while 702 does allow you to object at any time during the trial regarding the reliability of scientific evidence, what it, in effect, does is exclude or suppress evidence that the State has. . . .

Thus, we have jurisdiction over this appeal.

STANDARD OF REVIEW

We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review, giving almost total deference to a trial court's determination of historical facts and review de novo the court's application of the law. Rayford v. State, 125 S.W.3d 521, 528 (Tex.Crim.App. 2003), cert. denied, 543 U.S. 23 (2004); see also Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App. 1997). We view the evidence in the light most favorable to the trial court's ruling, and give almost total deference to the trial court's evaluation of the credibility and demeanor of witnesses. Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App. 2005).

ANALYSIS

In Emerson v. State, 880 S.W.2d 759, 765-70 (Tex.Crim.App. 1994), the court of criminal appeals discussed the HGN test at length and held it to be admissible as a reliable indicator of intoxication. It also held that "the technique employed in the HGN test, as designed and promoted by NHTSA," was reliable pursuant to Texas Rule of Evidence 702. Id. at 768. As such, the court held that the HGN test is admissible if three criteria are met: (1) the testifying officer must qualify as an expert witness regarding the test's administration and technique, e.g., a law enforcement officer who is state-certified to administer the test; (2) the test must be properly administered; and (3) the results must not be used as an indicator of a precise blood alcohol content. Id. at 769 (emphasis added). Here, the trial court determined that the officer had improperly administered the HGN test based on the officer's testimony and a videotape depicting him administering the test. Based on that determination of fact, the trial court excluded the arresting officer's expert testimony relating to the HGN test. See Emerson, 880 S.W.2d at 768-69 (test must be properly administered to be admissible). The State urges us to take judicial notice of scientific articles outside of the record and hold that any deviation of Trooper Wilson's technique from NHTSA standards in administering the test did not affect the results. Such scientific articles and whether Trooper Wilson's deviation was harmful should have been considered at the trial court level, not at the appellate level. In Hernandez v. State, 116 S.W.3d 26, 30 (Tex.Crim.App. 2003), the State in its appellate brief presented "a plethora of cites to scientific articles and learned treatises, as well as to some cases from other jurisdictions concerning" the reliability of the ADX analyzer as a method of detecting the presence of marijuana in the body. The court of criminal appeals explained that while "[t]his is swell stuff," "[t]he trial court should have been given this material, and appellant should have been allowed an opportunity to cross-examine any witnesses who sponsored it." Id. According to the court, "[t]he trial court hearing is the main event for Daubert/Kelly gatekeeping hearings; it is not a try-out on the road to an appellate scientific seminar." Id. The court explained that "[a]lthough appellate courts may take judicial notice of other appellate opinions concerning a specific scientific theory or methodology in evaluating a trial judge's Daubert/Kelly `gatekeeping' decision, judicial notice on appeal cannot serve as the sole source of support for a bare trial court record concerning scientific reliability." Id. at 31-32. Here, the record clearly shows that Trooper Wilson deviated from the NHTSA standards in administering the HGN test by using two stimuli in the test, i.e., his finger and his pen. Further, the flicking motion of Trooper Wilson's finger could reasonably be seen to compromise the test. And, the record does not show that despite his deviation, the HGN test was reliable. The trial court found the results from the HGN test were tainted because of Trooper Wilson's improper administration of the test. Having reviewed the record and the videotape, we can find no abuse of discretion on the part of the trial court.

CONCLUSION

Viewing the evidence in the light most favorable to the trial court's ruling, we affirm the trial court's order.