Huong Van Cai AKA Tony Van Pool v. State ( 1998 )

Huong Van Cai v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-98-029-CR

     HOANG VAN CAI,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the County Court at Law

Coryell County, Texas

Trial Court # 44194

O P I N I O N

                                                                                                                     A jury convicted Appellant Hoang Van Cai of driving while intoxicated. See Tex. Pen. Code Ann. § 49.09(a) (Vernon 1998). Punishment was assessed by the trial court at 90 days confinement in the Coryell County Jail, with credit for time served.

      Van Cai presents one issue on appeal in which he claims that the trial court erred when it allowed the testimony of the State’s only witnesses, because the State failed to prove the validity of the underlying scientific theories of the witnesses’ specialized knowledge regarding field sobriety tests. We affirm the judgment.

FACTUAL BACKGROUND

      At 1:52 a.m. on July 22, 1997, Officer Jeffery Stoddard of the Copperas Cove Police Department observed Van Cai speed through a stop sign at the intersection of Georgetown and Highway Avenue in Copperas Cove. Officer Stoddard stopped Van Cai and, based upon his observations, suspected that Van Cai might be intoxicated. Officer Stoddard radioed for back-up police officers. Officers Charles Cline and Christopher Palmer responded to the back-up call and arrived shortly.

      Officer Cline administered several field sobriety tests to Van Cai. These tests included the finger-to-nose, the one-leg stand, and the walk-and-turn. Based upon Van Cai’s performance of the tests, Officer Stoddard arrested Van Cai for driving while intoxicated and took Van Cai to the Copperas Cove Police Department where he was subsequently interviewed on videotape.

      Before trial, Van Cai filed a motion in limine requesting that the trial court conduct a hearing outside the presence of the jury to determine whether the underlying scientific theories of the officers’ testimony regarding their specialized knowledge of field sobriety tests were valid. At the hearing, the court determined that the officers’ testimony was admissible. Van Cai then received a running objection to the testimony on the grounds that the State failed to prove the validity of the underlying theories of the officers’ testimony.

      During trial, the State presented two witnesses, Officer Stoddard and Officer Palmer. Officer Stoddard testified that although he did not personally administer the field sobriety tests to Van Cai, he observed Van Cai’s performance. Officer Stoddard testified that when Van Cai was asked to perform the finger-to-nose test, Van Cai missed his nose on two of his five attempts. Officer Stoddard also testified that when Van Cai performed the one-leg stand, Van Cai was instructed to hold one leg six inches above the ground for thirty counts. When Van Cai began the test, he moved his arms to steady himself and put his foot down at the count of thirteen. Officer Stoddard further testified Van Cai was asked to perform the walk-and-turn by walking heel-to-toe in a straight line for nine steps, then turning around and walk nine steps in the same manner. Officer Stoddard testified that when Van Cai performed the walk-and-turn, Van Cai did not walk heel-to-toe as he was instructed, stepped off the line, and did not take the correct number of steps.

      Based upon the strong odor of an alcoholic beverage on Van Cai’s breath, the fact that he sped through a stop sign, and his poor performance of the field sobriety tests, Officer Stoddard arrested Van Cai for driving while intoxicated.EXPERT WITNESS TESTIMONY OR LAY WITNESS TESTIMONY?

      Van Cai’s sole issue on appeal states that the trial court erred because Officer Stoddard’s testimony concerning Van Cai’s performance of the field sobriety tests required specialized knowledge and under Kelly v. State, the State, as the proponent of the testimony, was required to prove the validity of the field sobriety tests’ underlying scientific theories before the trial court could consider the officer’s testimony reliable and thus admissible. 824 S.W.2d 568, 573 (Tex. Crim. App. 1992) (en banc).

      Van Cai contends that the administered field sobriety tests — the finger-to-nose, one-leg stand, and the walk-and-turn — are based upon scientific theories and require specialized knowledge when administering and interpreting the results of the tests. A trial court must determine, in a hearing outside the presence of the jury, whether scientific evidence is reliable and relevant before the evidence is admitted. See Tex. R. Evid. 702; Hartman v. State, 946 S.W.2d 60, 62 (Tex. Crim. App. 1997) (en banc); Kelly, 824 S.W.2d at 572-73. Van Cai complains on appeal that since the trial court did not determine if the underlying theories of the field sobriety tests were valid scientific theories, the trial court erred when it admitted the officer’s testimony concerning his specialized knowledge.

      The State claims that the administered field sobriety tests are not scientific tests and that the officers who administer these tests do not have specialized knowledge with regards to interpreting the test results. The State claims that these field sobriety tests are coordination and dexterity tests used by the police officers to help them form opinions as to whether a suspect is intoxicated.

      We agree with the State. The officer’s testimony regarding the administered field sobriety tests (not including the HGN) did not concern specialized knowledge. Instead, the officer’s testimony about Van Cai’s performance of the tests and his opinion whether Van Cai was intoxicated, was as a lay witness, not an expert witness. As such, this testimony does not need scrutiny under a Rule 702 and Kelly analysis.

      A lay witness may testify in the form of an opinion if his testimony is (1) rationally based on his perceptions and (2) helpful to a clear understanding of his testimony or a fact in issue. Tex. R. Evid. 701. A lay witness’ opinion is rationally based on his perceptions when the witness establishes personal knowledge of the events and his opinion is rationally based on that knowledge. Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997) (en banc); Lum v. State, 903 S.W.2d 365, 369 (Tex. App.—Texarkana 1995, pet. ref’d). Van Cai’s performance of the field sobriety tests provided Officer Stoddard with a rational basis for his opinion concerning Van Cai’s intoxication. State v. Welton, 774 S.W.2d 341, 343 (Tex. App.—Austin 1989, pet. ref’d) (police officer allowed to give lay opinion testimony regarding intoxication based upon officer’s observance of field sobriety tests). Officer Stoddard’s opinion was helpful to a clear understanding of a fact in issue — whether Van Cai was intoxicated. Thus, Officer Stoddard’s testimony is admissible under Rule 701.

      The trial court’s determination that testimony meets the criteria of Rule 701 is within the trial court’s discretion. Fairow, 943 S.W.2d at 901. In this case the record supports the trial court’s decision to admit the lay opinion testimony of Officer Stoddard under Rule 701. The trial court did not abuse its discretion.

            We affirm the judgment of the trial court.

                                                                               REX D. DAVIS

                                                                               Chief Justice

Before   Chief Justice Davis

            Justice Cummings and

            Justice Vance

Affirmed

Opinion delivered and filed October 14, 1998

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