Eddie Mack Gipson v. The State of Texas--Appeal from County Court of Ellis County

AFFIRMED

MARCH 15, 1990

NO. 10-89-017-CR

Trial Court

# 39,619

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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EDDIE MACK GIPSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From County Court at Law

Ellis County, Texas

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Pleading not guilty, appellant was found guilty by a jury for the misdemeanor offense of driving while intoxicated. Punishment was assessed by the jury at confinement in jail for a term of two years, probated, and a fine of $1,000.00.

Appellant contends first for reversal that the evidence was not sufficient to support the conviction. His remaining three points of error question on various grounds the admission into evidence of proof of a probated sentence he had previously received on a drug charge. We overrule appellant's contentions and we affirm the judgment.

On April 11, 1988, Trooper Steve McKinney of the Texas Department of Public Safety was patrolling south on Interstate 35 in Ellis County when he observed a northbound vehicle traveling at an excessive speed. Radar indicated that the speed of the vehicle was 93 miles per hour. McKinney immediately made a U-turn whereupon he saw the vehicle's rear brake lights. After losing sight of the speeding vehicle because of a rise in the roadway, McKinney soon noticed a vehicle ahead with similar brake lights exit into a rest area. The vehicle was "weaving from side to side in the rest area driveway" and stopped after McKinney turned on his "red lights." As McKinney approached the vehicle appellant got out and met McKinney at the rear of appellant's vehicle. When told that he had been stopped for speeding, appellant stated he could not have been speeding because he had been in the rest area for some time. Trooper McKinney asked appellant for his driver's license and appellant cooperated. During this time McKinney noticed that there was a strong odor of alcoholic beverage on appellant's breath, that appellant's eyes were bloodshot, and that appellant was unsteady on his feet.

After observing appellant, McKinney administered the horizontal gaze nystagmus test (HGN) which is a field sobriety test. In this test appellant was asked to stare at the tip of a pen and follow it from one side to the other, moving only his eyes. This test is to determine if the subject has nystagmus or involuntary jerking of the eye. Three things are considered in determining if the subject is intoxicated: (1) smooth pursuit of the pen, (2) maximum deviation without jerking the eyes, and (3) the onset of nystagmus. If the onset of nystagmus is at 45 degrees or less there is a 77% chance that the subject has a blood alcohol content of 0.10. Appellant failed all parts of the test. He was unable to follow the pen smoothly, there was a jerking of his eyes at maximum deviation, and the onset of nystagmus was very close to 45 degrees. After administering the HGN test, Trooper McKinney placed appellant under arrest for driving while intoxicated.

While McKinney was conducting a visual inventory of appellant's car, appellant, a physician, stated that he was carrying a travel bag that contained a large quantity of prescription medication. Appellant's reason for carrying such a large amount of drugs was that he was in the process of moving his office. Once the visual inventory was completed, McKinney took appellant to the Ellis County Jail in Waxahachie and proceeded to conduct two more field sobriety tests. These tests were videotaped. The first test was the "walk-and-turn" test. McKinney testified that the test score ranges from 0-5 with 5 being the most intoxicated. Appellant's score was 5 with one point being given for each of the following: (1) difficulty in understanding the instructions, (2) failure to remain in the heel-to-toe position throughout the instructions, (3) asking if he was performing the test properly, (4) occasional gaps between heel and toe, and (5) swaying while walking. The second test was the "one-leg-stand" test. The score on this test ranges from 0-5 with 5 being the most intoxicated. Appellant's score was 5 with one point being given for each of the following: (1) difficulty in understanding the instructions, (2) using arms for balance, (3) swaying from side to side, (4) dropping his foot on several occasions, and (5) failing to complete the test. The jury and the trial judge viewed the videotape, and we have viewed it. Although its quality is poor, it generally supports Trooper McKinney's testimony.

Next, appellant took an intoxilyzer test of his breath which showed a blood alcohol content of 0.04. Because the 0.04 result on the intoxilyzer test did not correspond with appellant's physical appearance or his performance on the three field tests, Trooper McKinney concluded that appellant was intoxicated on a substance other than alcohol or on a combination of both. He asked appellant to submit to a drug test. Appellant refused.

Trooper McKinney testified at trial that in his opinion appellant did not have the normal use of his mental and physical faculties by reason of "the introduction of a combination of alcohol and drugs."

Appellant testified that he was not intoxicated at the time in question. He blamed any inadequate performance of the sobriety tests on the facts that he was tired because he had driven over 400 miles that day and that he suffered a deformity in his feet that affected his walk. However, he admitted to drinking one beer about two hours before encountering Trooper McKinney and to taking medication for high blood pressure during that day.

Viewing the evidence in the light most favorable to the prosecution we must determine if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Alexander v. State, 740 S.W.2d 749, 761 (Tex.Cr.App.1987).

Within the meaning of our DWI laws, "Intoxicated" is defined as:

(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of those substances into the body; or

(B) having an alcohol concentration of 0.10 or more.

Vernon's Tex.Civ.St. art. 6701l-1, (a)(2). "Drug" is defined to include "a substance . . . intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or animals." Vernon's Tex.Civ.St. art. 6701l-1, (a)(6); V.T.C.A., Health & Safety 481.002(16).

The complaint and information charging the offense and the trial court's instructions to the jury permitted a verdict of "guilty" if appellant was operating a motor vehicle on a public road "while [he] did not have the normal use of his mental or physical faculties by reason of the introduction of a combination of alcohol and drugs into his body."

The courts of our state have consistently upheld DWI convictions based on the opinion testimony of police officers who observed the defendant's unsatisfactory performance on field sobriety tests. See Lancaster v. State, 772 S.W.2d 137, 138-39 (Tex.App.--Tyler 1988, no pet.), and the cases cited there. In Lewis v. State, 708 S.W.2d 561 (Tex.App.--Houston [1st Dist.] 1986, no pet.), the court upheld a conviction for driving under the influence of a combination of drugs and alcohol. The defendant had testified that he had taken "one puff of a marijuana cigarette" and had drunk two beers earlier that day. His result on the intoxilyzer was 0.00. The officer testified that the defendant was intoxicated based on field sobriety tests. The court of appeals stated that "the trier of fact was free to believe the arresting officer's testimony that [defendant] was intoxicated and [defendant's] statements that he had consumed both marijuana and alcohol, but reject [defendant's] statements regarding when and how much he had consumed." Id. at 562.

In our case, we hold there was sufficient evidence to convict appellant.

Near the end of direct examination appellant was asked, "And you wouldn't risk your [medical] license by abusing drugs and alcohol, would you?" Appellant's response was, "No sir." On cross-examination the State was permitted to prove over appellant's objections that in December 1973 appellant was convicted of the offense of possession of a dangerous drug while he was a licensed physician and assessed punishment of "two years, probated." Appellant then testified on redirect examination that his medical license was not suspended as a result of the conviction.

Appellant objected to the questions about the 1973 conviction on grounds that the conviction was too remote and that the probative value of the evidence of the conviction was outweighed by its prejudicial effect. Appellant raises the grounds of these objections on appeal, citing Texas Rules of Criminal Evidence 403 and 609(b). Rule 403 vests discretion in the trial court to exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice." Rule 609(b) provides that evidence of a prior conviction for a felony or a misdemeanor involving moral turpitude that might otherwise be admissible to impeach the credibility of a witness "is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for the conviction, whichever is the later date, unless the court determines in the interest of justice that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."

When the accused leaves a false impression on direct examination concerning his exemplary conduct, such as not violating the law, he is commonly said to have "opened the door" to an inquiry by the state as to the truth of his testimony, and the state may refute such testimony despite the nature of the conviction used or its remoteness. Prescott v. State, 744 S.W.2d 128, 131 (Tex.Cr.App.1988); Stephens v. State, 417 S.W.2d 286, 288 (Tex.Cr.App.1967).

We hold that the trial court properly determined that appellant had "opened the door" for the evidence to the jury surrounding his conviction for possessing a dangerous drug while he was a licensed physician when on direct examination appellant attempted to leave the impression with the jury that he would not risk loss of his medical license by abusing drugs. The probative value of the evidence to offset the false impression outweighed its prejudicial effect. There was no abuse of discretion.

Appellant's points and contentions are overruled. The judgment is affirmed.

VIC HALL

DO NOT PUBLISHJustice