Howard v. State
| Decision Date | 23 December 1987 |
| Docket Number | No. B14-86-917-CR,B14-86-917-CR |
| Citation | 744 S.W.2d 640 |
| Parties | John Thomas HOWARD, Appellant, v. The STATE of Texas, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Paul Nugent, Houston, for appellant.
John B. Holmes, Jr., Timothy G. Taft, Houston, for appellee.
Before PAUL PRESSLER, MURPHY and ELLIS, JJ.
Appellant was convicted of driving while intoxicated. The court assessed punishment at one year in jail, probated for two years, and a $500 fine. Appellant complains that his consent to take an intoxilyzer test was involuntarily given. We reverse and remand for a new trial.
A police officer saw the appellant driving in circles in a parking lot. The officer stopped him and, after observing him, gave him the warnings from the implied consent law. SeeTEX.REV.CIV.STAT. art. 6701l -5. Appellant agreed to take a breath test. The intoxilyzer indicated a blood alcohol content of 0.16 percent.
The first point of error is that the trial court should have suppressed the results of the test. Appellant alleges that his consent was involuntary because the officer incorrectly told him that the implied consent law applied. This statute applies only to driving on a public highway or a public beach but not to driving on a parking lot. See art. 6701l -5. On the other hand, the driving while intoxicated law does apply to parking lots. See art. 6701l -1. In essence, appellant has found a loophole which only legislative action can close. A reversal is required. Hall v. State, 649 S.W.2d 627 (Tex.Cr.App.1983); Turpin v. State, 606 S.W.2d 907 (Tex.Cr.App.1980); see TEX.CODE CRIM.PROC. art. 38.23. The first point of error is sustained. The second and third points of error are not reached because they presuppose the overruling of the initial point of error.
The fourth point of error relates to testimony of the arresting officer about a sobriety test's being given to the appellant. The officer performed a horizontal gaze nystagmus (HGN) test before taking the appellant to the station. The HGN test calls for the subject's eyes to follow the movement of an object. As the object moves steadily to one side of the subject's field of vision, the subject's eyes eventually fail to track the object smoothly. The HGN test presumes that a sober person will exhibit smooth eye movement up to a greater angle than an intoxicated person.
Appellant contends that since the officer was not qualified as an expert, the evidence of the HGN performance should not have been admitted. The state maintains that an HGN test is merely an optical version of the routine "walk a straight line" test. No Texas case addresses the use of HGN evidence in DWI cases, but other states have considered the issue. The most persuasive decision is that of the Arizona Supreme Court in State v. Superior...
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Hulse v. State, Dept. of Justice, Motor Vehicle Div.
...the position of these courts in allowing the admission of the tests." Clark, 234 Mont. at 226, 762 P.2d at 856 (citing Howard v. State (Tex.App.1987), 744 S.W.2d 640; Superior Court, 718 P.2d 171; and People v. Vega (1986), 145 Ill.App.3d 996, 99 Ill.Dec. 808, 496 N.E.2d 501). We then point......
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...229 Ill.App.3d 538, 592 N.E.2d 1222; State v. Armstrong, supra, 561 So.2d 883; Fargo v. McLaughlin, supra, 512 N.W.2d 700; Howard v. State, supra, 744 S.W.2d 640 (subsequent to Howard, Texas developed a test for the admission of novel scientific evidence in accord with Federal Rule of Evide......
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...v. Bresson (1990) 51 Ohio St.3d 123, 554 N.E.2d 1330, 1334; Anderson v. State (Tex.Ct.App.1993) 866 S.W.2d 685, 686; Howard v. State (Tex.Ct.App.1987) 744 S.W.2d 640, 641.)For a comprehensive review of the literature regarding the HGN test see State v. Superior Court, supra, 718 P.2d 171. T......
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City of Fargo v. McLaughlin
...Bresson, 51 Ohio St.3d 123, 554 N.E.2d 1330, 1334 (1990); Anderson v. State, 866 S.W.2d 685, 686 (Tex.Ct.App.1993); Howard v. State, 744 S.W.2d 640, 641 (Tex.Ct.App.1987). In effect, based upon the conclusions of other courts in other cases, these courts have held the HGN test scientificall......
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Evidence
...as to the qualitative issue of intoxication but not as to the quantitative issue of precise blood alcohol content. Howard v. State, 744 S.W.2d 640 (Tex.App.—Houston [14th Dist.] 1987). Slight variations in the administration of the HGN test do not render the evidence inadmissible or unrelia......
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Evidence
...as to the qualitative issue of intoxication but not as to the quantitative issue of precise blood alcohol content. Howard v. State, 744 S.W.2d 640 (Tex.App.—Houston [14th Dist.] 1987). Slight variations in the administration of the HGN test do not render the evidence inadmissible or unrelia......
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Evidence
...as to the qualitative issue of intoxication but not as to the quantitative issue of precise blood alcohol content. Howard v. State, 744 S.W.2d 640 (Tex.App.—Houston [14th Dist.] 1987). Slight variations in the administration of the HGN test do not render the evidence inadmissible or unrelia......
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Evidence
...as to the qualitative issue of intoxication but not as to the quantitative issue of precise blood alcohol content. Howard v. State, 744 S.W.2d 640 (Tex.App.—Houston [14th Dist.] 1987). Slight variations in the administration of the HGN test do not render the evidence inadmissible or unrelia......