No. 05-04-01517-CR
Opinion issued October 19, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 3, Collin County, Texas, Trial Court Cause No. 003-82658-04. Affirmed.
Before Justices MORRIS, WRIGHT, and RICHTER.
Opinion By Justice MORRIS.
At Richard Thomas Vasquez's trial for driving while intoxicated, the trial court permitted a State's witness to perform an in-court horizontal gaze nystagmus test on him. Following his conviction, appellant now contends the trial court abused its discretion in admitting the HGN test because it was irrelevant and because the test violated his constitutional privilege against self-incrimination. We affirm the trial court's judgment.
Factual Background
At approximately 12:15 in the morning, a Plano police officer saw appellant's car pull up to a stoplight, stopping past the designated stop line and into the lane for crossing traffic. The officer followed appellant until he could safely pull him over. When the officer approached appellant's car, he could smell the odor of alcohol. As he talked to appellant on the side of the road, he smelled a strong odor of alcohol on appellant's breath. Appellant admitted to the officer that he had two drinks at a nearby sports bar. His eyes were bloodshot. He stuttered a great deal when speaking with the officer, but periodically he also slurred his speech. The officer performed the horizontal gaze nystagmus test on appellant, and appellant exhibited all six HGN clues indicating intoxication. Appellant next attempted to perform the walk-and-turn field sobriety test. Of eight possible clues of intoxication, appellant exhibited four, a sufficient number to fail the test. On the one-leg-stand field sobriety test, appellant exhibited three of four possible clues of intoxication, also sufficient for him to fail the test. The officer then arrested appellant. Afterward, appellant refused to allow a second police officer to test his blood alcohol with a portable breath testing machine. The officer testified at trial that in his opinion, based on the totality of the circumstances, appellant had lost the normal use of his mental and physical faculties due to alcohol consumption. At the time of the arrest, the officer told appellant he considered him a "borderline" case. On cross-examination, the defense challenged the officer's performance in administering the HGN field sobriety test. The defense focused on how the officer performed the test at the scene in the presence of passing traffic. The officer stated that he turned appellant away from the highway traffic because passing traffic could affect the HGN result. The officer admitted, however, that appellant still had to face the passing traffic from an access road while he took the test. The officer stated that "[n]o scenario on any stop is ever perfect." The officer also admitted that some people exhibit nystagmus regardless of whether they have had any alcohol to drink. Afterward, over multiple objections by the defense, the trial court permitted the officer to perform an in-court HGN test on appellant in the presence of the jury. At that time, appellant exhibited no clues of intoxication. Discussion
In his first issue, appellant complains that compelling him to submit to the in-court HGN test violated his privilege against self-incrimination under the Fifth Amendment of the United States Constitution and Article 1, Section 10 of the Texas Constitution. Appellant admits that the HGN field sobriety test does not violate the privilege against self-incrimination because the physical results of the test are not "testimonial" in nature. See Martin v. State, 97 S.W.3d 718, 720 (Tex.App.-Waco 2003, pet. ref'd); see also Gassaway v. State, 957 S.W.2d 48, 51 (Tex.Crim.App. 1997) (field sobriety tests do not violate privilege against self-incrimination). Nevertheless, he argues that allowing the jury to compare the different HGN test results was the equivalent of compelling him to testify against himself. In this case, we cannot come to such a conclusion. Appellant acknowledges that his field sobriety HGN test did not violate his privilege against self-incrimination. And he has failed to show how his second, in-court HGN test — or the combination of the two tests — yielded results that did violate his privilege. The physical information sought was the same for the two tests; the only difference was the result. Appellant attempts to argue that the combined effect of the two tests somehow changed the nature of the HGN test itself. We might agree "[i]f the scope of the privilege [against self-incrimination] coincided with the complex of values it helps to protect." Schmerber v. California, 384 U.S. 757, 762 (U.S. 1966). But we recognize "the privilege has never been given the full scope which the values it helps to protect suggest." Id. Compulsion of physical evidence, as opposed to compulsion of testimonial evidence, is generally not protected by the privilege. See id. at 764. Because physical results of an HGN test are not testimonial, the trial court in this case did not abuse its discretion in overruling appellant's objection that the in-court test violated his privilege against self-incrimination. We resolve appellant's first issue against him. In his second issue, appellant contends the trial court abused its discretion in permitting the in-court HGN test because it was irrelevant. This Court reviews rulings on the admissibility of evidence under an abuse of discretion standard. We do not overturn the trial court's ruling as long as it is within the zone of reasonable disagreement. Carter v. State, 145 S.W.3d 702, 707 (Tex.App.-Dallas 2004, pet. ref'd). Here, the State did not request that appellant submit to the in-court HGN test until after the defense vigorously cross-examined the arresting officer about the reliability of the HGN field sobriety test. The cross-examination left open the possibility that appellant might have exhibited nystagmus even though he was not intoxicated. Moreover, the HGN field sobriety test was among the strongest evidence showing appellant was, in fact, intoxicated at the time of his arrest. The arresting officer had said at the time of arrest that he considered appellant a "borderline" case for DWI. Accordingly, the officer's ability to perform the test and the usual nystagmus of appellant's eyes were within the zone of reasonable disagreement of relevant evidence. Although we initially questioned relevancy, given the specific facts of this case, we conclude the trial court did not err in overruling appellant's relevance objection. We resolve appellant's second issue against him. We affirm the trial court's judgment.