Zill v. State

• Decision Date: 06 October 2011
• Docket Number: No. 01–10–00679–CR.,01–10–00679–CR.
• Citation: 355 S.W.3d 778
• Parties: Donna Jean ZILL a/k/a Donna Zill, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

355 S.W.3d 778

Donna Jean ZILL a/k/a Donna Zill, Appellant,

v.The STATE of Texas, Appellee.

No. 01–10–00679–CR.

Court of Appeals of Texas, Houston (1st Dist.).

Oct. 6, 2011.

Thomas A. Martin, Houston, TX, for Appellant.

Rebecca Klaren, Assistant Criminal District Attorney, Kurt Sistrunk, Criminal District Attorney, Galveston, TX, for Appellee.

Panel consists of Justices KEYES, HIGLEY, and MASSENGALE.

OPINION

EVELYN V. KEYES, Justice.

A jury convicted appellant, Donna Jean Zill, of the third degree felony offense of driving while intoxicated—third offense, and assessed punishment at four years' confinement and a $2,000 fine.¹ In three issues, appellant contends that (1) the State failed to present sufficient evidence to show that she was intoxicated; (2) the trial court erroneously admitted testimony regarding the Vertical Gaze Nystagmus (“VGN”) test; and (3) her trial counsel rendered ineffective assistance by failing either to object to the VGN testimony or to request that the trial court conduct a “gatekeeper” hearing before introduction of the VGN testimony.

We affirm.

Background

Around 2:30 a.m. on May 23, 2009, Texas Department of Public Safety Trooper J. Petrillo was patrolling the Bacliff/San Leon area when he saw appellant driving toward him “at a high rate of speed.” Trooper Petrillo confirmed by radar that appellant was driving 77 miles-per-hour in a 50 miles-per-hour speed zone. Trooper Petrillo turned around and turned on his emergency lights, which activated his in-car video camera. He acknowledged that, other than the speeding, he did not notice any other problems with appellant's driving, such as weaving between lanes or fluctuations in speed. He testified that appellant immediately and properly pulled over into a parking lot.

As Trooper Petrillo approached the driver's side window, appellant immediately handed him her ID card and then provided proof of insurance. Appellant did not provide her driver's license, but she was able to correctly recite her license number. Trooper Petrillo observed that appellant's eyes were glassy, and he testified that he noticed a “strong odor” of alcohol when he walked up to the driver's side door. Trooper Petrillo asked appellant where she was driving from, and she responded that she was coming from the San Leon Beach Pub.

Trooper Petrillo asked appellant to step out of her vehicle, and, as she did so, she “kind of held onto the door and then she swayed back toward the driver's seat before she started to walk back to the back of the patrol car.” After appellant complied with Trooper Petrillo's instruction to walk to the front of his patrol car, he asked her if she had been drinking. Appellant responded that she had been drinking at the San Leon Beach Pub, and although she first stated that she had had three cans of beer, she then stated that she had had four cans. Trooper Petrillo testified that appellant's speech was “mumbled and slurred” and that she was “slow to respond to questions.”

Before performing the Horizontal Gaze Nystagmus (“HGN”) field sobriety test, Trooper Petrillo asked appellant if she had any head injuries. Appellant did not specifically tell Trooper Petrillo that she had had a head injury, but she did state that she “had died about three years ago.” Trooper Petrillo stated that he did not ask any follow-up questions because he did not feel that a potential head injury that occurred three years ago was relevant. Trooper Petrillo also stated that before beginning the HGN test, he checked for unequal pupil size and unequal tracking, both of which can indicate a head injury. According to Trooper Petrillo, appellant had equal pupil size and equal tracking. Trooper Petrillo testified that he observed six out of six clues of intoxication when he performed the HGN test. He also testified that, during the test, appellant

had difficulty following the instructions when [asked] to keep her head still and just follow the stimulus with the eyes. She kept wanting to turn the head and move her whole head. She was staggering a little bit or unsteady on her feet, swaying. And the odor of alcohol [was] coming from her breath. And as she was talking, she was mumbling and her speech was very slurred.

Additionally, appellant mumbled and repeated “the same things over and over throughout” her encounter with Trooper Petrillo.

During Trooper Petrillo's testimony regarding appellant's performance of the HGN test, he and the prosecutor had the following exchange:

[The State]: What other nystagmus might you find in administering [the HGN]?

[Petrillo]: Well, there's numerous nystagmus. There's certain examples like caloric nystagmus or anything with vestibular, rotational, post-rotational.

[The State]: I won't get into those in detail. Will you check for vertical nystagmus?

[Petrillo]: Yes, we do.

[The State]: And why would you check for that?

[Petrillo]: Checking for vertical nystagmus would just indicate a high level of intoxication.

[The State]: Would an absence of vertical nystagmus indicate that a person's not intoxicated?

[Petrillo]: No.

[The State]: So, can a person be intoxicated and not have vertical nystagmus?

[Petrillo]: Yes.

....

[The State]: When you gave the Defendant the HGN, how many clues of the test did you note?

[Petrillo]: Six clues.

[The State]: And did you note any vertical nystagmus?

[Petrillo]: No.

Defense counsel did not object to any of the references to vertical nystagmus.

Trooper Petrillo testified that he then started to administer the Walk and Turn field sobriety test to appellant. Before he finished explaining the test and before he asked appellant if she had any injuries that would impair her performance on the test, appellant improperly began the test. Trooper Petrillo asked appellant to return to the starting position, and, after he asked whether she had any injuries, she told him that she had had her right knee replaced, that her left knee needed to be replaced, and that she also needed surgery on her shoulder. Trooper Petrillo decided not to have appellant perform the Walk and Turn and One–Leg Stand field sobriety tests because of her injuries.

Trooper Petrillo testified that by this point during the traffic stop, he had determined that appellant was intoxicated based on “the odor of alcohol, the glassy eyes, the slurred speech, the unsteady balance, and the six clues of HGN.” He stated that appellant turned around and put her hands behind her back after he asked her to do so, but when he pulled out his handcuffs, she started to walk away toward the passenger compartment of her truck and told him “no.” Appellant was “visibly upset,” yelled obscenities, and told Trooper Petrillo that he “was going to have to shoot her.” She continued to yell obscenities and act belligerent after Trooper Petrillo handcuffed her and placed her in the front seat of his patrol car. Appellant refused to submit to either a breath or blood sample.²

On cross-examination, Trooper Petrillo acknowledged that he did not include in his offense report any “good” driving facts that suggested that appellant had use of her mental faculties—i.e., that she appropriately used her turn signal and immediately pulled over after seeing Petrillo's emergency lights. He also acknowledged that he did not include in his offense report any information about appellant stumbling after getting out of her truck or having general problems with her balance and coordination. Trooper Petrillo agreed with defense counsel that appellant informed him that she had to open the driver's side door by using the outside handle, but he further testified that she stumbled back toward the driver's seat and had to use the door handle for support after she had already gotten out of her truck. He further agreed that appellant “candid[ly]” told him how many beers she had had that evening, and he acknowledged that he did not ask her when in the evening she had consumed those beers.

Trooper Petrillo testified that appellant giggled throughout the traffic stop and that this behavior “caught [his] attention,” but he believed that this behavior was the result of intoxication and, therefore, he did not ask her any questions about possible brain damage. He agreed that appellant's response to his question about whether she had any head injuries was unusual, and he confirmed that he did not ask her any follow-up questions to determine if a head injury was the cause of her behavior. Trooper Petrillo further agreed that appellant's behavior—such as her giggling and repetition of statements—could be a side effect of a brain injury.

Defense counsel also asked Trooper Petrillo the following questions about vertical nystagmus on cross examination:

[Defense]: And you testified that the vertical nystagmus is done to decide whether there's a high level of intoxication in a person, correct?

[Petrillo]: Correct.

[Defense]: And you did this. You performed this test on Ms. Zill and it wasn't there, correct?

[Petrillo]: Correct.

Trooper Petrillo also testified that he was eventually able to evaluate appellant on the HGN test, but he had to repeat his instruction not to move her head several times. He further testified that when appellant attempted the Walk and Turn test, she did not have a problem with her balance, but she did exhibit two clues: she did not walk heel to toe in a straight line and she did not wait for him to finish the instructions.

After the trial court admitted appellant's medical records, defense counsel recalled Trooper Petrillo and asked him several questions about the contents of those records. The records reflected that appellant suffered a head injury in 1987—twenty-two years before the events of this case—and she was combative and belligerent, used abusive language and inappropriate words, had a short attention span, and was “responding and doing things that made no sense” while at the hospital after her injury. Trooper Petrillo agreed that appellant exhibited similar behavior when he...