Jones, Kirby Leonard v. The State of Texas

 
AFFIRM; Opinion issued November 18, 2011
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-10-00494-CR
............................
KIRBY LEONARD JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 15th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 056840
.............................................................
OPINION
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.
 
MOLLY FRANCIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100494F.U05
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