Peter Cooper v. The State of Texas--Appeal from County Criminal Court No. 1 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

PETER COOPER, )

) No. 08-05-00106-CR

Appellant, )

) Appeal from the

v. )

) County Criminal Court at Law #1

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20040C17258)

)

O P I N I O N

Appellant appeals his conviction for the offense of driving while intoxicated. The jury found Appellant guilty as charged by information and the trial court sentenced Appellant to 60 days= confinement in the El Paso County Jail, which was later reduced to 30 days= confinement for time credit served. In his sole issue, Appellant contends the trial court erred in permitting testimony of a police officer witness regarding the results of the horizontal gaze nystagmus test in violation of Rule 702 of the Texas Rules of Evidence. We affirm.

At approximately 1:50 a.m. on November 27, 2004, El Paso Police Officer Robert Daniels was on patrol on Dyer Street when he saw a van pull out of a private driveway directly in front of him, cross three lanes of traffic, and then proceed to travel at approximately twenty to twenty-five miles per hour in a fifty mile-per-hour zone. The vehicle strayed to the right, crossed the dotted white lines into the center lane, before slowly drifting back into the far left-hand lane in front of the officer. Officer Daniels initiated in-car video and observed the vehicle drift into another lane again. At this point, Officer Daniels conducted a traffic stop.

When Officer Daniels made contact with the driver, later identified as Appellant, he smelled a strong odor of an alcoholic beverage from the vehicle and asked Appellant to exit the van. Appellant swayed as he walked toward the rear of the van. Officer Daniels noticed that the odor of alcohol was coming from Appellant=s person and breath. He also observed that Appellant had bloodshot eyes and slow speech.

Officer Daniels asked Appellant to perform several standardized field sobriety tests, including the horizontal gaze nystagmus (AHGN@) test. Officer Daniels found six out of six clues of impairment while performing the HGN test on Appellant. Appellant also failed the walk-and-turn and one-legged stand tests. Based upon his training, experience, observations of Appellant=s driving behavior, the results of the standardized field sobriety tests, the strong odor of alcohol on Appellant, his bloodshot eyes, and slow speech, Officer Daniels formed the opinion that Appellant was possibly intoxicated and placed Appellant in custody.

During Officer Daniels= testimony regarding the field sobriety tests, Appellant repeatedly objected to the admission of Officer Daniels= testimony on the HGN test on the sole ground that the State had not properly tendered him as a certified practitioner to administer the HGN test. The trial court overruled Appellant=s objection. Appellant now appeals this ruling by the trial court.

We review a trial court=s ruling to admit or exclude evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991)(Op. on reh=g). Absent a clear abuse of discretion, a trial court=s decision to admit or exclude expert testimony will not be disturbed. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000). An abuse of discretion exists when the trial court=s decision was so clearly wrong as to lie outside the zone of reasonable disagreement, in other words, the trial court=s decision or action was arbitrary, unreasonable, and made without reference to any guiding rules or principles. See Montgomery, 810 S.W.2d at 391.

For a witness=s expert testimony to be admissible, the witness must be qualified as an expert by Aknowledge, skill, experience, training, or education . . . .@ Tex.R.Evid. 702. Rule 702 provides:

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.

The party offering the evidence has the burden of showing the witness is qualified as an expert on the specific matter in question. Wyatt, 23 S.W.3d at 27. To be considered reliable, evidence based on a scientific theory must satisfy 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).

In Emerson v. State, the Court of Criminal Appeals, determined that both the theory underlying the HGN test and the technique employed in administering it is sufficiently reliable pursuant to Texas Rule of Evidence 702. See Emerson v. State, 880 S.W.2d 759, 768 (Tex.Crim.App. 1994). In each individual case, however, for testimony concerning a defendant=s performance on the HGN test to be admissible, it must be shown that the testifying witness is qualified as an expert on the HGN test, specifically concerning its administration and technique. Emerson, 880 S.W.2d at 769. A law enforcement officer is qualified as an expert concerning the administration and technique of the HGN test if he has received practitioner certification by the State of Texas to administer the HGN test. Id. This, however, is not the exclusive means by which an officer may qualify as an expert. See Kerr v. State, 921 S.W.2d 498, 502 (Tex.App.--Fort Worth 1996, no pet.)(Emerson does not require that an expert must be certified by the State of Texas before his testimony on the subject of HGN test will be admissible); see also Ellis v. State, 86 S.W.3d 759, 761 (Tex.App.--Waco 2002, pet. ref=d)(reaffirming its holding in Smith v. State, 65 S.W.3d 332, 344 (Tex.App.--Waco 2001, no pet.) that Emerson does not require that certification be issued by the State). Rather, if it is shown that the officer has extensive training and experience in administering the test, and has been certified through a training course specifically including the administration of the HGN test, the trial court does not abuse its discretion in allowing the officer to testify as an expert on the administration and technique of the HGN test. See Kerr, 921 S.W.2d at 502.

Appellant argues that the trial court erred in admitting Officer Daniels= testimony regarding the results of the HGN test over his objection because there was no testimony that Officer Daniels was qualified to administer any of the field sobriety tests.[1] Officer Daniels testified that he was a police officer with the El Paso Police Department for nine and half years, had received special training on the use of standardized field sobriety testing, including the HGN test, and was also a certified intox operator for the State of Texas. Officer Daniels specifically testified that he was a Acertified practitioner@ to administer the field sobriety tests. Further, he stated that he had observed the administration of the tests approximately four to five times on a weekly basis.

It is unclear from the testimony whether Officer Daniels received his practitioner certification from the State of Texas, although Officer Daniels later testified that he conducted the field sobriety tests as he was trained by the Texas Department of Public Safety. Regardless, we find that his testimony on his specialized training, experience, and practitioner certified status was sufficient to establish that he was an expert on the administration and technique of the HGN test. Therefore, we conclude the trial court did not abuse its discretion in overruling his objection to Officer Daniels= testimony concerning the HGN test and the results. Appellant=s sole issue is overruled.

We affirm the trial court=s judgment.

February 2, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] Appellant also complains that the trial court erred in failing to take judicial notice of the reliability of the HGN test or in making other inquiry concerning the admissibility of the HGN test pursuant to Rule 702, complaints which were not raised at trial. See Tex.R.App.P. 33.1. However, as noted above, the Court of Criminal Appeals has previously held HGN evidence is scientifically reliable, therefore the State was not required to present evidence on that issue and furthermore, the reviewing court may take judicial notice as to its reliability on appeal. See Hernandez v. State, 116 S.W.3d 26, 29 (Tex.Crim.App. 2003); Emerson, 880 S.W.2d at 768-69. Therefore, even if preserved, no abuse of discretion would exist on these grounds.