Lancaster v. State, 12-87-00134-CR
| Decision Date | 28 March 1988 |
| Docket Number | No. 12-87-00134-CR,12-87-00134-CR |
| Parties | Gary Wayne LANCASTER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
John Sickel, Canton, for appellant.
Tommy Wallace, Crim. Dist. Atty., Canton, for appellee.
This is an appeal from a conviction for driving while intoxicated (DWI). A jury convicted the appellant of this offense, and the trial court assessed a term of fifteen days' confinement in the county jail and a fine of $750.00. Imposition of sentence was suspended, and appellant was placed on probation for two years. We affirm.
At 8:30 on the evening of October 10, 1986, Texas Department of Public Safety (DPS) Trooper Kim Drummond arrested Gary Wayne Lancaster for DWI. Traveling east on I-20 near the town of Canton, Lancaster drove his pickup truck past Drummond's vehicle at a speed of 65 m.p.h. in a 55 m.p.h. zone. Drummond pulled over Lancaster for speeding after pacing his car for several seconds. Noticing the appellant's bloodshot eyes and detecting the smell of alcohol on his breath, Drummond conducted a field sobriety test on Lancaster. Believing the appellant intoxicated because of his unsatisfactory performance on this test, Drummond arrested Lancaster for DWI. Upon arrival at the highway patrol office in Canton, Drummond administered an intoxilyzer test and videotaped Lancaster's performance on a sobriety test. After blowing a 0.15 on the intoxilyzer test, Lancaster was charged with the offense of DWI. The appellant brings three points of error.
In his first point of error, the appellant contends that the trial court erred in allowing the opinion testimony of Drummond on the field sobriety test he gave Lancaster without requiring the State to establish the trooper as an expert witness. Trooper Drummond gave Lancaster a type of field sobriety test known as the horizontal nystagmus gaze test. The American Heritage Dictionary (2d ed.1982) defines nystagmus as a spasmodic, involuntary motion of the eyeball. This procedure tests the ability of the subject to focus his eyes on an object, usually a pen or pencil, and track its movement with only his eyes. In conducting this test, Drummond held a pen about twelve inches from Lancaster's face and asked him to follow the pen without moving his head as he moved the pen back and forth and left and right. Drummond testified that Lancaster exhibited jerky eye movement which indicated that he had been drinking.
The appellant contends that because the test is not well known or widely understood only an expert should present his opinion on the results of the test. Texas courts have consistently upheld DWI convictions based on the opinion testimony of police officers who observed the defendant's unsatisfactory performance on field sobriety tests. Cockerham v. State, 401 S.W.2d 839, 840 (Tex.Cr.App.1966); Watkins v. State, 741 S.W.2d 546, 549 (Tex.App.--Dallas 1987, no pet.); Barraza v. State, 733 S.W.2d 379, 380 (Tex.App.--Corpus Christi 1987, no pet.); Lewis v. State, 708 S.W.2d 561, 562 (Tex.App.--Houston [1st Dist.] 1986, no pet.); Irion v. State, 703 S.W.2d 362, 363 (Tex.App.--Austin 1986, no pet.). Drummond testified that the horizontal nystagmus gaze test is simply one of the battery of sobriety tests given to those suspected of drinking while driving. In fact, the court in Martin v. State, 724 S.W.2d 135, 137 (Tex.App.--Fort Worth 1987, no pet.), upheld a DWI conviction based on the opinion testimony of the arresting officer who gave the defendant a horizontal gaze sobriety test. For this reason, the State did not have to qualify Trooper Drummond as an expert to solicit his opinion testimony about Lancaster's performance on this field sobriety test. Appellant's first point of error is overruled.
In Lancaster's second point of error, he contends that the trial court erred in granting the State's motion for continuance during trial. The trial court granted the State's motion for continuance at 4:00 p.m. on the first day of trial because the State's second and final witness was testifying in another court on that afternoon. The continuance was granted for James Hughes, a technical supervisor for the DPS, who testified the following morning about the accuracy of the intoxilyzer which the appellant had used. The granting or denying of a motion for...
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