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Court of Appeals of Texas, Dallas.


No. 05–10–00494–CR

Decided: November 18, 2011

Before Justices FitzGerald, Francis, and Lang–Miers


Opinion By Justice Francis

Kirby Leonard Jones appeals his conviction for felony driving while intoxicated.   After the jury found appellant guilty, the trial court assessed punishment at three years in prison.   In two issues, appellant claims the trial court erred in allowing certain testimony and in charging the jury.   We affirm.

On August 10, 2007, Texas Department of Public Safety Trooper J. Rodney Odom was patrolling State Highway 91 when, around midnight, he saw appellant driving north in a pickup truck.   Appellant failed to maintain a single lane and caused another car to take “evasive action.”   When he turned on a connector road to go south on Highway 91, appellant drove through the grass on the side of the road, kicking up debris.   Odom stopped appellant who smelled of alcohol and had glassy red eyes.   Odom administered several sobriety tests and determined appellant was intoxicated.   Appellant was arrested.   Although asked to provide a breath sample, he declined to do so.   He was charged and subsequently found guilty of felony driving while intoxicated.

In his first issue, appellant contends the trial court erred by overruling his objection to Odom's testimony that scoring four out six clues on the horizontal gaze nystagmus was equivalent to being “over the legal limit of .08” in terms of blood alcohol content.   Appellant claims the error was not harmless.

The Texas Court of Criminal Appeals has determined “the technique employed in the HGN test to be a reliable indicator of intoxication ” but not “a sufficiently reliable indicator of precise BAC.” Emerson v. State, 880 S.W.2d 759, 768–69 (Tex.Crim.App.1994).   Therefore, a witness qualified as an expert on the administration and technique of the HGN test may testify about a defendant's qualitative performance on the HGN test but may not correlate the defendant's performance on the HGN test to a quantitative result, specifically a precise BAC. Id. at 769;  Lorenz v. State, 176 S.W.3d 492, 496–97 (Tex.App.—Houston [1st Dist.] 2004, pet. ref'd).   It is error to allow such testimony at trial.   See Smith v. State, 65 S.W.3d 332, 345 (Tex.App.-Waco 2001, no pet.) (concluding officer's testimony that “a suspect who exhibits at least four clues would indicate a blood-alcohol content ‘over 0.08.’ ” was impermissible correlation of defendant's performance on HGN test to blood alcohol content);  Webster v. State, 26 S.W.3d 717, 723 (Tex.App.—Waco 2000, pet. ref'd) (State asking witness to correlate defendant's performance on HGN to conclusion that his BAC exceeded legal limit impermissible).

In this case, Trooper Odom testified at length about the sobriety tests he administered to appellant, including the HGN. When administering the HGN, Odom looks for lack of smooth pursuit, distinct and sustained nystagmus, and the onset of nystagmus prior to forty-five degrees.   Odom gave appellant the HGN and assessed appellant two clues on each of these tests for a total of six clues.   Odom continued:

ODOM:  A decision point is what [the National Highway Traffic Safety Administration] who has designed these manuals, who has done these studies has designed or implemented a decision point.   So there is a total of six clues on this HGN or eye test.   There are six clues.   A decision point is [when] you [meet] a certain number of clues, that implies a person is intoxicated.

STATE:  There are statistics that go along that you talked about?

ODOM:  Yes, if they meet that decision point which in this case is four.   If they meet the four out of six requirement, yes, that implies that they are over the legal limit of .08.

DEFENSE:  Your Honor, I am going to object to that.   That is improper.   In Texas it is not recognized as being equivalent to any number.   It would be on BAC. That is case law.

COURT:  I think that is cross examination.   Overruled.

Odom's testimony was an impermissible correlation of appellant's performance on the test to a blood alcohol content, and the trial court erred in overruling appellant's objection.   See Smith, 65 S.W.3d at 345.

Having concluded the trial court erred, we must address whether the error mandates reversal of this case.   Non-constitutional errors must be disregarded unless they affect substantial rights.  Tex.R.App. P. 44.2(b).  We will not overturn a criminal conviction for non-constitutional error if, after examining the record as a whole, we have fair assurance the error did not influence the jury or influenced the jury only slightly.   See Barshaw v. State, 342 S.W.3d 91, 93–94 (Tex.Crim.App.2011);  Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App.2002) (conviction will not be overturned unless, after examining whole record, court concludes error may have had “substantial influence” on outcome of proceeding).   In other words, if we have a “grave doubt” about whether the conviction was free from the substantial influence of the error, then we must treat the error as if it did;  grave doubt occurs when the matter is so evenly balanced that the reviewing court believes the record is “in virtual equipoise as to the harmlessness of the error.”  Webb v. State, 156 S.W.3d 653, 655–56 (Tex.App.-Dallas 2005, pet. ref'd) (citing Burnett, 88 S.W.3d at 637–38).

In assessing harm, we examine the entire record and “calculate, as much as possible, the probable impact of the error upon the rest of the evidence.”   Coble v. State, 330 S.W.3d 253, 280 (Tex.Crim.App.2010), cert. denied, 131 S.Ct. 3030 (2011).   We consider, among other relevant factors, the testimony or physical evidence admitted for the fact finder's consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with the other evidence in the case.  Haley v. State, 173 S.W.3d 510, 518 (Tex.Crim.App.2005).   The reviewing court may also consider the jury instructions, the State's theory and any defensive theories, closing arguments, voir dire and whether the State emphasized the error.  Motilla v. State, 78 S.W.3d 352, 355–56 (Tex.Crim.App.2002).   The weight of the evidence of the defendant's guilt is also relevant in conducting the harm analysis under rule 44 .2(b).  Neal v. State, 256 S.W.3d 264, 285 (Tex.Crim.App.2008).

The transcript of the prosecutor's direct examination of Trooper Odom is seventy-five pages long.   Odom testified at length about his decision to stop appellant, his personal roadside interview of appellant who smelled of alcohol and had red glassy eyes, and the sobriety tests he administered appellant, including the HGN, the heel-to-toe walk, and the one-legged stand test.   Appellant admitted he stopped at the Dusty Saddle in Whitewright and drank two lite beers.   He was eating a burrito when stopped by Odom.

About two-thirds of the way through Odom's testimony, the prosecutor asked him about statistics regarding the HGN test.   Instead of discussing statistics, Odom stated four out of six clues implied the person was “over the legal limit of .08.”   The prosecutor did not ask Odom to correlate the HGN results to a BAC number;  thus, Odom's answer was nonresponsive.   During the remainder of his direct examination, the prosecutor again focused Odom's testimony on the totality of the circumstances surrounding his decision to arrest appellant.

During the sixty-three pages of cross-examination, Trooper Odom admitted he could not get an exact BAC number based on the HGN test and that some states do not recognize the test for any purpose.   On redirect, Odom stated he could not tell how many drinks a person had based on HGN. He further noted the HGN test is designed to detect intoxication, not consumption.

After the State rested, appellant called Dr. Lance Platt, an expert witness on sobriety testing, particularly the HGN test.   Platt is a peace officer who is certified by the Texas Department of Transportation and the NHTSA to train people on standardized field sobriety testing.   His doctoral dissertation was an evaluation of the HGN test at .08 BAC for Texas.   According to Platt, there are three parts to an investigation for driving while intoxicated:  vehicle in motion, personal contact, and sobriety testing.   Officers consider all three parts and look at the totality of the circumstances when deciding to make an arrest for driving while intoxicated.

Regarding the HGN test, Platt stated he had not seen any studies correlating or matching the results of the HGN to impairment for intoxication, so he could not say “you have X so therefore, your blood concentration is X.” However, Platt said the HGN is “a good test for consumption” to tell whether a central nervous system depressant is in a person's system.   Platt also discussed the heel-to-toe walk and the one-legged stand tests overall.   Platt reviewed the videotape of the traffic stop, appellant's performance on the sobriety tests, and his arrest.   When asked about appellant's heel-to-toe walk and one-legged stand tests, he noted appellant's performance was “poor.”

On cross-examination, Platt stated his dissertation examined the number of clues officers said they observed after administering three standardized field sobriety tests and compared those results with the breath or blood alcohol content results for each individual tested.   Platt testified without objection that, in his research, 91.6% of the people tested who scored four clues on the three standardized field sobriety tests had BAC levels of .08 or higher.   Platt stated that, under his dissertation, Odom's “arrest decision would have been correct.”   He had no reason to dispute that Odom saw all six HGN clues and again commented appellant did “poorly” on the walk and turn and one-legged stand tests.   Nevertheless, he maintained appellant was not intoxicated that night because appellant did not appear intoxicated on the video when not performing the field sobriety tests.

Although Odom's testimony was improper and the trial court erred in overruling appellant's objection, we nevertheless conclude the error did not influence the jury.   The effect of the single statement is slight when compared with Odom's remaining testimony which spanned 173 pages.   The State did not elaborate or emphasize the comment and, in fact, did not elicit Odom's comment.   The emphasis of Odom's testimony, both on direct and cross-examination, was the totality of the circumstances that evening.   The jury heard Odom's testimony as well as that of the defense witnesses and observed the video of appellant's stop, the sobriety tests, and his interview at the police station.   Appellant's own expert stated appellant performed “poorly” on the sobriety tests, he had no reason to dispute Odom saw all six clues when he administered the tests, and he believed Odom was in the position to determine whether appellant was intoxicated that night.   After examining the entire record, we conclude the error had a slight effect, if any, on the outcome of appellant's trial.

In his second issue, appellant erred by charging the jury on his two prior DWI convictions alleged for jurisdictional purposes rather than instructing the jury as requested by appellant.   Appellant filed a pretrial motion stating he would stipulate to the two prior convictions and waive any error associated with the jurisdictional paragraphs but asked that the trial court prevent any reference to the convictions during voir dire or trial.   He further asked the jury be instructed regarding the convictions, stating the jurisdictional convictions “need not be specifically found by the jury.”

Initially, we question whether, under the facts of this case, appellant may raise this issue.   According to his own motion, he stipulated and waived “any potential error involving the two jurisdictional paragraphs.”   A reasonable interpretation of his motion would include that he waived any error associated with the presentation of the paragraphs in the jury charge.   Nevertheless, a defendant is not required to object to jury charge error in order to complain about the same on appeal.   See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh'g).   Therefore, addressing only the issue of egregious harm, we turn to his complaint.

A jury charge must distinctly set forth the law applicable to the case and set out all of the essential elements of the offense.  Tex.Code Crim. Proc. Ann. art. 36.14 (West 2007).   This requirement includes jurisdictional elements.   Martin v. State, 200 S.W.3d 635, 639 (Tex.Crim.App.2006).   The jury charge “must inform the jury of the existence of the two prior DWI convictions that the defendant has stipulated to and that the State relies upon for conviction of a felony DWI offense.”  Id. The court of criminal appeals outlined several nonexclusive ways in which the trial court could instruct the jury, including listing “the specific indictment allegations of the two prior DWI convictions in the application paragraph with a separate paragraph stating that the defendant has stipulated to the existence of those two prior convictions.”  Id.

Here, the jury charge provided:

[I]f you find from the evidence beyond a reasonable doubt that on or about the 10th day of August, 2007, A.D., in the County of Grayson and State of Texas, the Defendant did then and there operate a motor vehicle in a public place, while the said defendant was intoxicated by not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body,

And, prior to the commission of the aforesaid offense, hereafter styled the primary offense, on the 27th day of June, 1997, in cause number 0639084 in the County Criminal Court No. 9 of Tarrant County, Texas, the defendant was convicted of an offense relating to the operating of a motor vehicle while intoxicated;

And on the 27th day of June, 1997, and prior to the primary offense, in cause number 0655719 in the County Criminal No. 9 of Tarrant County, Texas, the defendant was convicted of an offense relating to the operating of a motor vehicle while intoxicated, then you will find the defendant guilty of Driving While Intoxicated 3rd or More, as charged in the indictment and so say by your verdict.

The defendant has stipulated to the prior convictions referenced in the previous paragraphs.

* * *

You are further instructed that the defendant's prior convictions for driving while intoxicated are no evidence that he was intoxicated on August 10, 2007, and you will not consider the prior convictions as evidence of his intoxication on August 10, 2007.

Although appellant claims this was error and harmed him because the jury received details about his prior convictions, nothing in the court of criminal appeals opinion in Martin precludes this type of presentation of the jurisdictional elements of the charged offense.   Although the Martin opinion states the details of the prior convictions may be “specified or unspecified,” it does not require the details be “removed” as appellant suggests.   And the trial court included a paragraph instructing the jury that “the jurisdictional prior convictions may not be used for any other purpose in determining the guilt of the defendant on the charged occasion” to prevent the exact harm the appellant claims he suffered.   We conclude the trial court did not err in charging the jury.   We overrule appellant's second issue.

We affirm the trial court's judgment.


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