Emerson v. State

• Decision Date: 13 April 1994
• Docket Number: No. 204-93,204-93
• Citation: 880 S.W.2d 759
• Parties: Sharon Lee EMERSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 759

880 S.W.2d 759

Sharon Lee EMERSON, Appellant, v. The STATE of Texas, Appellee.

No. 204-93.

Court of Criminal Appeals of Texas,

En Banc.

April 13, 1994.

Rehearing Denied May 4, 1994.

Nathaniel G. Rhodes, Corpus Christi, for appellant.

Carlos Valdez, County Atty., and Jacqueline Del Llano-Chapa, Asst. County Atty., Corpus Christi, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

A jury found appellant, Sharon Lee Emerson, guilty of the misdemeanor offense of driving while intoxicated. See Tex.Rev.Civ.Stat. art. 6701l-1(b). The trial judge assessed punishment at 90 days confinement in the county jail, probated for two years, and a $500 fine. The Thirteenth Court of Appeals affirmed appellant's conviction. Emerson v. State, 846 S.W.2d 531 (Tex.App.-Corpus Christi 1993). We granted appellant's petition for discretionary review, pursuant to Texas Rule of Appellate Procedure 200(c)(2), to determine whether the court of appeals erred in holding that the trial court did not abuse its discretion by admitting results of the horizontal gaze nystagmus (HGN) test. We will affirm.

The relevant facts are not in dispute. Shortly before midnight on December 15, 1990, Corpus Christi police officer Arturo Trevino arrived at the scene of an automobile accident, where he observed an ambulance and two wrecked vehicles. Trevino noticed "a very strong odor of an intoxicating beverage" and ascertained that appellant was the driver of one of the vehicles involved in the collision. Trevino also noticed that appellant and her vehicle both smelled of alcohol. Upon inspecting appellant's vehicle, Trevino Trevino asked appellant to perform a number of sobriety tests at the accident scene. Appellant consented. Trevino first asked appellant to recite the alphabet. Appellant began with the letter "A," jumped to "G" and then "Q," then went back to "H," and thereafter continued correctly. Trevino next asked appellant to count her fingers out loud, which she did correctly.

discovered an empty glass containing alcoholic residue. He also noted that the floorboards were wet and smelled of alcohol.

Trevino then administered the HGN test. Trevino testified at trial that appellant showed "all six clues" on the HGN test. Trevino also asked appellant to perform the "one-leg stand" and "walk and turn" tests, both of which she attempted but did not perform correctly. Based upon his observations at the accident scene and appellant's performance on the various field sobriety tests, Trevino concluded that appellant was intoxicated.

At trial, Trevino described, both verbally and through visual demonstration, how he administers the HGN test in the field. He described how he moves an object horizontally in front of a suspect's eyes while the suspect attempts to follow the object without moving her head. Trevino explained that he looks for a distinct "jerking movement" in the suspect's eyes as she attempts to focus on the moving object. Trevino further explained that the "clues" for which he looks are: 1) the inability of the suspect to follow the object smoothly with her eyes; 2) a pronounced "jerking" of the suspect's eyeball when the object is moved to the extreme corner of the suspect's vision; and 3) an initial "jerking" of the suspect's eyeball at an angle of vision of less than 45 degrees. Trevino stated that he examines each of the suspect's eyes, for a possible total of six clues in all.

Trevino testified that he had been a police officer with the Corpus Christi Police Department for two and a half years and had previously been with the Bexar County Sheriff's Department for approximately one year. He received training in the detection of intoxicated persons both in Bexar County and at the Corpus Christi Police Academy. He received further training at a three-day "state school" in Bexar County. At this "state school," Trevino was introduced to a battery of field sobriety tests advocated by the National Highway Traffic Safety Administration (NHTSA), a division of the United States Department of Transportation. He learned how to administer the HGN test as part of this training. Trevino testified that he had been certified by the State of Texas to administer the HGN test, in addition to the other tests that comprise the three-test battery. Nothing in the record indicates that Trevino had received medical or scientific training in the effects of alcohol on human eye movement.

Appellant testified that she hit her head on her car windshield as a result of the collision. Appellant also testified that she consumed wine prior to the accident. Appellant stated that she did not remember clearly much of what occurred on the night of the collision.

The Corpus Christi Court of Appeals held that the trial court did not abuse its discretion by allowing Trevino to testify as an expert concerning the HGN test. The court of appeals cited Finley v. State, 809 S.W.2d 909 (Tex.App.-Houston [14th Dist.] 1991), and Lancaster v. State, 772 S.W.2d 137 (Tex.App.-Tyler 1988) in support of its holding. The courts of appeals in Finley and Lancaster held that testimony by a police officer concerning a defendant's performance on the HGN test is admissible as lay opinion testimony on the issue of whether a defendant is intoxicated. Finley at 914; Lancaster at 138-39.

Appellant now argues that the court of appeals erred in holding that the results of the HGN test were admissible at her trial. Appellant makes two arguments. First, appellant argues that the HGN test is a "scientific" test, similar to a breathalyzer test, and that the HGN test results should not have been admitted because Officer Trevino was not qualified as a scientific expert. Second, appellant argues that the trial court erred in admitting the HGN evidence since the court failed to determine the reliability of the HGN test pursuant to Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992).

The State makes two arguments in response. First, the State argues that Trevino's testimony concerning the HGN test was admitted properly, since it was merely "opinion testimony," in that Trevino used the HGN test results merely to support his "opinion" that appellant was intoxicated. Second, the State argues that Trevino was qualified as an expert to testify concerning the HGN results, since he was trained and certified by the State of Texas to administer the test.

The State Prosecuting Attorney argues that it is unnecessary for a law enforcement officer to be qualified as a "scientific" expert if the subject matter of the officer's testimony is not "scientific" but merely "specialized" in nature. According to the State Prosecuting Attorney, Texas Rule of Criminal Evidence 702 contemplates different standards of scrutiny for qualification of experts for purposes of testimony on "scientific" and "specialized" topics. The State Prosecuting Attorney argues that, if a trained and experienced police officer testifies as to the results of an HGN test "merely to corroborate or explain the basis of his opinion that the defendant was intoxicated," the officer's testimony is of a "specialized" nature. If, however, the officer testifies as to the test subject's exact blood alcohol content (BAC) based on the HGN test results, the State Prosecuting Attorney argues, then the officer's testimony is "scientific." The important consequence of the "scientific" versus "specialized" distinction, according to the State Prosecuting Attorney, is that, if the HGN evidence is offered in the former context, the proponent of the HGN evidence should demonstrate both: "1) ... the scientific validity of estimating BAC based upon HGN test results, and 2) ... that the officer is qualified to make such a correlation." If, instead, the HGN evidence is offered as "specialized" testimony, the State Prosecuting Attorney argues, then the proponent of the HGN evidence need only show that "the officer was ... competent to administer and interpret the test...."

I. Novel Scientific Evidence

We will proceed with an analysis of the issues and arguments presented. Due to the nature of the HGN test, we disagree with the State's assertion that HGN test results should be admissible as mere opinion testimony of a police officer. We have held previously that lay opinion testimony by a police officer generally is admissible to prove a defendant's intoxication. Vaughn v. State, 493 S.W.2d 524, 525 (Tex.Crim.App.1972). However, the HGN test is based on a scientific theory. We have not determined whether that theory or the technique employed in the HGN test is reliable. We will therefore consider testimony concerning the HGN test as novel scientific evidence, just as we considered DNA evidence in Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992).

The admissibility of novel scientific evidence is governed by Texas Rule of Criminal Evidence 702, which addresses the admissibility of expert testimony. 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.

The threshold determination in an inquiry into the admissibility of expert testimony under Rule 702 is whether such testimony is helpful to the trier of fact. Pierce v. State, 777 S.W.2d 399, 414 (Tex.Crim.App.1989). For such testimony to be helpful, the basis of the testimony must be reliable. Kelly v. State, 824 S.W.2d at 572. If novel scientific evidence is found to be reliable, it may still be determined unhelpful for some other reason. Id. The evidence may be unhelpful, even though reliable, if its probative value is substantially outweighed by, e.g., the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or the...