Alonso Fernandez v. The State of Texas--Appeal from Co Crim Ct at Law No 2 of Harris County

Opinion issued September 21, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00946-CR

ALONSO JORES FERNANDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1225419

MEMORANDUM OPINION

A jury found appellant, Alonso Jores Fernandez, guilty of driving while intoxicated (DWI), and, pursuant to an agreed recommendation, the trial court sentenced him to 180 days in jail, suspended for one year of community supervision, and an $850 fine. In two points of error, appellant contends that the trial court erred (1) in admitting evidence of the horizontal gaze nystagmus (HGN) test and (2) in refusing to permit cross-examination of the arresting officer concerning possible bias against homosexuals. We affirm.

Background

At 2:30 a.m., Officer Allen of the Houston Police Department was monitoring the intersection of Grant and Hyde Park in the Montrose area when he saw appellant run the stop sign. He pulled over the car and, while talking with appellant, he noticed a strong odor of alcoholic beverage on his breath. He had a very thick, mumbly, slurred speech and red, bloodshot eyes. When appellant told Officer Allen that he had two vodka and tonics, Officer Allen asked appellant to get out of the car so that he could conduct some field sobriety tests on him.

Officer Allen, who is certified to conduct the tests, testified that he performed the three standard field sobriety tests the HGN test, the one-leg stand test, and the walk-and-turn test to determine whether appellant was intoxicated. While performing the HGN test, the officer is looking for three clues in each eye: (1) lack of smooth pursuit, (2) distinct nystagmus at maximum deviation, and (3) onset prior to 45 degrees. The maximum score for failing an HGN test is six clues, but Officer Allen testified that, even with only four clues, a suspect is intoxicated. Appellant exhibited all six clues on the night in question. Officer Allen testified that, if a person is nervous or afraid, it will not affect the HGN test.

Appellant had a hard time following Officer Allen s instructions during the HGN test, and the test took a lot longer than it normally takes to administer. Officer Allen testified that this did not, however, affect the reliability of the test. Appellant also failed the one-leg-stand test by dropping his foot several times and using his arms for balance. Officer Allen asked appellant to recite the alphabet starting with g and ending with x. Appellant was unable to do so, started over several times, and finally said that he could not do it.

Improperly Admitted/Excluded Evidence

In point of error one, appellant argues that, in violation of Texas Rule of Evidence 702, the trial court erred in admitting evidence of the HGN test because the evidence did not establish that the test was properly applied. In point of error two, appellant asserts that, in violation of the Sixth and Fourteenth Amendments of the United States Constitution, the trial court erred in refusing to permit cross-examination of the arresting officer concerning possible bias against homosexuals.

Standard of Review

On appeal, a trial court s admission or exclusion of evidence is subject to an abuse of discretion standard. Sells v. State, 121 S.W.3d 748, 766 (Tex. Crim. App. 2003); Edwards v. State, 178 S.W.3d 139, 145 (Tex. App. Houston [1st Dist.] 2005, no pet.). If the trial court s decision was within the bounds of reasonable disagreement we will not disturb its ruling. Sells, 121 S.W.3d at 748; Edwards, 178 S.W.3d at 146.

HGN Test

In point of error one, appellant argues that, in violation of Texas Rule of Evidence 702, the trial court erred in admitting evidence of the HGN test because the evidence did not establish that the test was properly applied.

Rule 702 states, If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Tex. R. Evid. 702. Testimony concerning the HGN test is considered novel scientific evidence and is governed by Texas Rule of Evidence 702. Emerson v. State, 880 S.W.2d 759, 763 (Tex. Crim. App. 1994). To be considered reliable, evidence based on a scientific theory must satisfy 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. Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992); Emerson, 880 S.W.2d at 763. Appellant challenges prong three, contending that Officer Allen did not properly administer the HGN test and alleging that the officer admitted, during the motion to suppress hearing, that he performed the test in a non-standardized manner by stopping and starting each portion of the test multiple times and by significantly extending the duration of the test. Specifically, appellant relies on a portion of testimony by Officer Allen during the pretrial evidentiary hearing.

Q: (Defense Counsel) You have to keep stopping and starting over?

A: (Officer Allen) Correct.

Q:That s not how you are supposed to administer the test. That s not how you re supposed to do it?

A:Absolutely no.

Appellant cites McRae v State, alleging that, where the undisputed testimony established that the arresting officer did not administer the HGN technique properly, the third requirement of Kelly was not met. 152 S.W.3d 739, 743 (Tex. App. Houston [1st Dist.] 2004, pet. ref d.). McRae is, however, distinguishable on its facts. In McRae, although the officer testified at trial that he administered all three parts of the HGN test to the appellant, he admitted at appellant s Administrative License Revocation hearing that he conducted only two of the three required parts of the HGN test. Id. at 743. He admitted to making only one pass of each eye, rather than the two required. Id. at 744 n.2. The officer also admitted to making several other misstatements concerning the HGN test. Id. at 743. Further, when asked whether there was a valid HGN test performed on the appellant, he replied that there was none. Id. at 744.

In contrast, here, Officer Allen testified that the test was done with the appellant in the same manner it is done with all suspects, but that it had to be done in bits and pieces because appellant would not follow his directions. Officer Allen stated that appellant kept looking at the pen, looking at me, looking at his hand, looking at me; so I kept having to do it over and over before I finally got a good test. Officer Allen, who has been certified to administer the HGN test for six years, testified that he followed the standardized procedures as he was trained on the night in question and performed a valid test. When asked if the test is meant to be administered by constant stopping and starting, Officer Allen responded, absolutely no, but explained that would not affect the test s reliability.

Appellant asserts that the prolonged test could have caused fatigue nystagmus, which would have rendered the test unreliable. Officer Allen explained that the fatigue occurs when you actually move the eye and you hold it out there to where you actually fatigue the muscles out. He further explained that the prolonged test that he administered when appellant refused to follow his instructions would not have caused fatigue nystagmus.

This Court acknowledged in McRae that slight variations in the administration of the HGN test do not render the evidence inadmissible or unreliable, but may affect the weight given the testimony. Id. at 743. We hold the trial court here acted within its discretion in admitting evidence of the HGN test.

We overrule point of error one.

Testimony Regarding Homosexual Bias

In point of error two, appellant asserts that the trial court erred in refusing to permit cross-examination of the arresting officer concerning possible bias against homosexuals, in violation of the Sixth and Fourteenth Amendments of the United States Constitution.

Outside the presence of the jury, appellant questioned Officer Allen about his bias against homosexuals. Officer Allen testified that he called appellant Hotrod because he started the test too soon. He testified that, although appellant was arrested in a predominantly gay area, there was nothing about appellant s car that led him to believe that appellant was gay, and he never asked appellant if he was gay. Furthermore, he made several arrests that night, some of which were of heterosexuals. Appellant contended that the tenor of the roadside investigation and just the way the whole thing went about had something to do with this officer s bias toward this person. Relevancy whether the Court believes it or doesn t believe it, if it goes to my theory of the case, I should be able to present the evidence. The trial court never actually made a ruling on appellant s bill. It simply asked, anything else? and the jury was brought back into the courtroom.

Rule 33.1 of the Texas Rules of Appellate Procedure requires that a party state the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1(a)(1)(A). Appellant s point of error on appeal must comport with his objection at trial. Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003) (holding that appellant failed to preserve any error regarding victim-impact evidence s admission because his objection at trial did not comport with complaint raised on appeal). A party s failure to timely and specifically object at the trial court level, thereby preserving the objection, waives his right to complain regarding that objection on appeal. Tex. R. App. P. 33.1.

Appellant s stated basis for admissibility on appeal fails to comport with the stated basis at trial. Therefore, we hold that, because appellant failed to preserve the issue at trial, the issue is waived.

We overrule point of error two.

Conclusion

We affirm the trial court s judgment.

George C. Hanks, Jr.

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Do not publish. Tex. R. App. P. 47.4.