Lesa Roche Horton v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-158-CR
LESA ROCHE HORTON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Appellant Lesa Roche Horton appeals her conviction for driving while
intoxicated (DWI). In two points, Appellant contends that the trial court erred
by failing to suppress evidence of field sobriety tests because the tests did not
meet the standard set in Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App.
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… See Tex. R. App. P. 47.4.
2002), and that the trial court impermissibly placed the burden of proof to show
that the police wrongfully performed the tests on Appellant. We will affirm.
II. Factual and Procedural Background
On March 13, 2008, at approximately 9:00 p.m., Amanda Cobb was
driving home from work on I-35 when she saw the driver of a van, which was
later identified as Appellant’s van, driving erratically, swerving, and running
other drivers off the road. Cobb called 911 to report the erratic driver. After
relaying a description of the van to the 911 dispatcher, Cobb, on the advice of
the 911 dispatcher, turned on her car’s emergency flashers and began following
Appellant’s van at a safe distance. Cobb stated that she was driving between
85–90 m.p.h. to keep up with Appellant’s van. Cobb followed Appellant for
ten to twelve miles until a police officer arrived and stopped Appellant’s van.
Cobb did not stop to talk with police that night.
Laura Nicole Stephenson, a Denton police officer, received a dispatch call
of a reckless driver in a Honda Odyssey van. When Officer Stephenson saw the
van, she noticed that it was not maintaining a single lane of traffic and that the
van would speed up and then slow down. Officer Stephenson then activated
her patrol car’s overhead lights and stopped Appellant’s van.
When Officer Stephenson approached the van, she noticed that Appellant
smelled of alcohol, that she had red and heavy eyes, and that she was fumbling
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with her bag. Appellant stated that she was a banker and that she was coming
home from work, but later stated that she was on her way home from dinner
in Southlake. 2 Appellant told Officer Stephenson that she had three glasses of
wine with dinner and that it takes two to three drinks for her to feel the effects
of alcohol. Appellant stated that she was not on any medication, that she did
not feel drowsy, and that she was not sick.
Officer Stephenson then had Appellant get out of her van to perform the
standardized field sobriety tests. During the Horizontal Gaze Nystagmus (HGN)
test, Appellant exhibited six out of six possible clues and was not able to follow
directions. During the walk-and-turn test, Appellant exhibited five out of eight
possible clues. Officer Stephenson stated that two clues means that a person
is intoxicated. Finally, during the one-leg-stand, Appellant exhibited three out
of four possible clues. Officer Stephenson stated that two clues indicates that
a person is intoxicated during this test.
After administering the field sobriety tests, Officer Stephenson then
arrested Appellant. Officer Stephenson asked Appellant for a blood or breath
test, but Appellant refused both tests. Appellant asked Officer Stephenson if
she could take the field sobriety tests again, but Officer Stephenson refused.
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… At trial, Appellant testified that she stopped in Lake Dallas, not
Southlake, and had dinner with her sister on her way home from work.
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Appellant was charged by information with the offense of DWI. Appellant
pleaded not guilty to the charged offense. A jury found Appellant guilty and
assessed her punishment at 150 days in jail, probated for eighteen months, and
a $700 fine. This appeal followed.
III. Discussion
In two points, Appellant contends that the trial court abused its discretion
by failing to suppress evidence of the field sobriety test results because Officer
Stephenson did not administer the tests in accordance with the National
Highway and Transportation Safety Administration (NHTSA) manual.
Specifically, Appellant argues that because she was fifty pounds or more
overweight, the tests should not have been administered. Additionally,
Appellant asserts that the trial court wrongfully placed the burden of proof on
her to show that the police wrongfully performed the tests because she was
fifty pounds or more overweight. Because both of Appellant’s points concern
whether evidence of the field sobriety test results should have been admitted
under the Kelly standard, we will address both points together.
A. Rule 702 and Kelly v. State
Rule 702 of the Texas Rules of Evidence provides as follows: “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
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as an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise.” Tex. R. Evid. 702. It is a trial
court’s responsibility under rule 702 to determine whether proffered scientific
evidence is sufficiently reliable and relevant to assist the jury. Jackson v.
State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000). A trial court’s ruling on
the admissibility of scientific expert testimony is reviewed under an abuse of
discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim.
App. 2000).
The proponent of the scientific evidence must demonstrate through clear
and convincing evidence that the evidence is in fact reliable. Id. The proponent
of the evidence must satisfy three criteria to demonstrate reliability: (1) the
underlying scientific theory is valid; (2) the technique applying the theory is
valid; and (3) the technique was properly applied on the occasion in question.
Kelly, 824 S.W.2d at 573. Other nonexclusive factors that could affect a trial
court’s determination of reliability include (1) the extent to which the underlying
scientific theory and technique are accepted as valid by the relevant scientific
community, if such a community can be ascertained, (2) the qualifications of
the expert testifying, (3) the existence of literature supporting or rejecting the
underlying scientific theory and technique, (4) the potential rate of error of the
technique, (5) the availability of other experts to test and evaluate the
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technique, (6) the clarity with which the underlying scientific theory and
technique can be explained to the court, and (7) the experience and skill of the
person who applied the technique on the occasion in question. Id.
B. HGN Test 3
The Texas Court of Criminal Appeals has held that the HGN test is a
scientific test. Emerson v. State, 880 S.W.2d 759, 764 (Tex. Crim. App.
1994). The HGN test is based on scientific theory, and the results are
admissible under rule 702 when the test is properly administered by a qualified
officer. Id. at 768–69; see Tex. R. Evid. 702; Osbourn v. State, 92 S.W.3d
531, 537 (Tex. Crim. App. 2002); Kelly, 824 S.W.2d at 573. Testimony
concerning the HGN test is scientific evidence and subject to the criteria of
Kelly. See Emerson, 880 S.W.2d at 763.
Nystagmus is an involuntary rapid oscillation of the eyes in a horizontal,
vertical, or rotary direction. Id. at 765. Horizontal gaze nystagmus refers to
the inability of the eyes to smoothly follow an object moving horizontally across
the field of vision, particularly when the object is held at an angle of forty-five
degrees or more to the side. See Webster v. State, 26 S.W.3d 717, 719 n.1
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… In her brief, Appellant does not state which field sobriety test result
evidence the trial court improperly admitted. Therefore, we will address each
of the three field sobriety tests.
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(Tex. App.—Waco 2000, pet. ref’d). Consumption of alcohol exaggerates
nystagmus to the degree that it can be observed by the naked eye. Emerson,
880 S.W.2d at 766. In determining whether a person's performance of the
HGN test suggests intoxication, an officer must look for the following clues in
each eye: (1) the lack of smooth pursuit, (2) distinct nystagmus at maximum
deviation, and (3) the onset of nystagmus prior to 45 degrees. McRae v. State,
152 S.W.3d 739, 743 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (op.
on reh’g). The Emerson court also determined that the HGN testing technique
in the NHTSA manual is valid. See Emerson, 880 S.W.2d at 768–69. The
HGN technique is applied properly when the officer follows the standardized
procedures outlined in the DWI Detection Manual published by NHTSA. See id.
Appellant’s complaint on appeal is that the trial court abused its discretion
by allowing the field sobriety test results to be admitted because the State did
not show that they were properly administered under Kelly. Specifically,
Appellant complains that Officer Stephenson did not question Appellant
regarding her weight. However, as stated above, the HGN test focuses on the
movement of a person’s eyes, rather than a person’s ability to balance or
coordinate. See Webster, 26 S.W.3d at 719 n.1. As such, Appellant’s weight
had no effect on the outcome of the HGN test. Emerson, 880 S.W.2d at 766.
Accordingly, we hold that the trial court did not abuse its discretion by failing
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to suppress the HGN test evidence nor did the trial court improperly place the
burden of proof on Appellant as to that test.
C. Walk-and-Turn and One-Leg-Stand Tests
Unlike the HGN test, the one-leg-stand and walk-and-turn tests are not
grounded in science. Texas courts have held that, because an officer’s
testimony about a suspect’s coordination, balance, and any mental agility
problems exhibited during the one-leg-stand and walk-and-turn tests are
observations grounded in common knowledge, the officer’s testimony based on
these observations is considered lay witness opinion testimony under rule 701
and not expert testimony under rule 702. Plouff v. State, 192 S.W.3d 213,
223 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (op. on reh’g); see
Emerson, 880 S.W.2d at 763 (explaining that peace officer need not qualify as
expert to express opinion about whether person he observed was intoxicated).
An officer’s testimony regarding a suspect’s performance in the walk-and-
turn and one-leg-stand tests can cross the line from permissible lay opinion to
impermissible expert opinion testimony. See Smith v. State, 65 S.W.3d 332,
346 (Tex. App.—Waco 2001, no pet.). However, Texas courts have held that
an officer who uses terms such as “test,” “standardized clues,” or “divided
attention” when describing the walk-and-turn and one-leg-stand tests is not
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testifying as an expert. See Plouff, 192 S.W.3d at 224; McRae, 152 S.W.3d
at 746.
Appellant argues that the trial court abused its discretion by failing to
suppress the field sobriety test results because Officer Stephenson did not
inquire into Appellant’s weight, and therefore, did not properly administer the
tests. Appellant argues that the failure to ask how much she weighed at the
time of the tests should result in the exclusion of the evidence. Additionally,
Appellant argues that the trial court improperly placed the burden of proof on
her to show that she was fifty pounds or more overweight and, therefore, that
the field sobriety tests were not properly applied.
In her brief, Appellant states that the field sobriety tests are subject to
Kelly. However, as stated above, the walk-and-turn and one-leg-stand tests are
not scientific evidence and therefore not subject to Kelly except when an
officer’s testimony crosses the line from lay testimony to expert testimony.
Smith, 65 S.W.3d at 346. Here, Appellant does not assert that Officer
Stephenson’s testimony was impermissible expert opinion testimony, nor does
she point to the record as evidence that Officer Stephenson’s testimony
crossed the line to expert testimony.
Regardless, after reviewing the record, we hold that Officer Stephenson’s
testimony regarding the walk-and-turn and one-leg-stand tests is lay witness
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testimony governed by rule 701. See Plouff, 192 S.W.3d at 224. Officer
Stephenson stated that, during the walk-and-turn test, suspects are to “stand
with their left foot down and their right foot, heel to toe, in front of the left
one” and to “place their hands at their side and to hold that position while the
instructions are being given.” She testified that there are eight clues for the
walk-and-turn test. Officer Stephenson further stated that, when conducting
the tests, she looks to “make sure they maintain their balance while listening
to the instructions, that they don’t start the test before the instructions are
finished being given, [and] that they touch their steps heel to toe.” Officer
Stephenson continued that she is “looking to see if they step off the line, if
they stop while walking to steady themselves, if they raise their hands over six
inches for balance, if they turn incorrectly, or if they take an incorrect number
of steps.” Officer Stephenson testified that Appellant exhibited five out of the
eight clues during the test. She further stated that two clues means that the
subject is intoxicated.
Additionally, Officer Stephenson stated that the one-leg-stand test is a
“divided attention” test. She stated that she has the subject “stand with [his
or her] feet together and [his or her] hands at their side.” Officer Stephenson
said that she has the subject hold that position while she gives them the
instructions for the test. She elaborated that the instructions are “to raise
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either the right or left foot approximately six inches off the ground, point the
toe towards the ground, look at your elevated foot, and count aloud: One
thousand one, one thousand two, one thousand three, one thousand four, so
on until I tell [the person] to stop.” She stated that the test lasts approximately
thirty seconds. Officer Stephenson testified that she gave Appellant the
instructions verbally and also demonstrated how the test was to be performed.
Officer Stephenson stated that although Appellant appeared to be a good
candidate for the test, Appellant told Officer Stephenson that “her legs were
fat.”
Officer Stephenson testified that Appellant raised her arms, swayed while
balancing, put her foot down during the test, and was unable to count the way
Officer Stephenson had instructed. Officer Stephenson stated that Appellant
exhibited three out of the four possible clues for the test. She stated that the
“decision point” on this test was two clues, so the test indicated that Appellant
was intoxicated.
After reviewing the record, we cannot say that Officer Stephenson’s
testimony crossed the line from lay testimony to expert testimony. See Plouff,
192 S.W.3d at 224; McRae, 152 S.W.3d at 746. Accordingly, we hold that
the trial court did not abuse its discretion by allowing the admission of the field
sobriety test results at trial.
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Additionally, because we hold that Officer Stephenson’s testimony was
lay witness testimony, and therefore the Kelly standard does not apply, we hold
that the trial court did not wrongfully place the burden of proof on Appellant to
show her weight at the time of her arrest. See Kelly, 824 S.W.2d at 573
(stating that the proponent of the scientific evidence must show that the
technique was properly applied on the occasion in question).
D. Harm Analysis
Even assuming the trial court erred by admitting the results of the field
sobriety tests, we conclude that Appellant was not harmed by the admission
of the evidence.
The erroneous admission of evidence is nonconstitutional error. See King
v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A substantial right is
affected when the error had a substantial and injurious effect or influence in
determining the jury’s verdict. Id. (citing Kotteakos v. United States, 328 U.S.
750, 776, 66 S. Ct. 1239, 1253 (1946)); Coggeshall v. State, 961 S.W.2d
639, 643 (Tex. App.—Fort Worth 1998, pet. ref’d). Conversely, an error does
not affect a substantial right if we have “fair assurance that the error did not
influence the jury, or had but a slight effect.” Solomon v. State, 49 S.W.3d
356, 365 (Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417
(Tex. Crim. App. 1998). In making this determination, we review the record as
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a whole, including any testimony or physical evidence admitted for the jury’s
consideration, the nature of the evidence supporting the verdict, and the
character of the alleged error and how it might be considered in connection with
other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.
App. 2002).
Here, Cobb testified that she was driving home when she saw Appellant’s
van swerving and moving erratically. She stated that other drivers were having
to run off the road to avoid being hit by Appellant’s van. She stated that after
she called 911, she continued following Appellant until an officer pulled
Appellant’s van over.
Officer Stephenson testified that she received a dispatch of a reckless
driver driving a Honda Odyssey van. When she located the van, Officer
Stephenson stated that she noticed that the van was not maintaining a single
lane of traffic and that the van would speed up and then slow down. Officer
Stephenson then turned on her overhead lights to stop Appellant’s van, but
Appellant missed the exit and then stopped on the shoulder of the highway.
Officer Stephenson stated that when she approached Appellant’s van, Appellant
smelled of alcohol, her eyes were red and heavy, and Appellant was fumbling
with her bag. When Officer Stephenson first questioned Appellant about where
she was coming from, Appellant stated that she was on her way home from
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work. However, Appellant later changed her story and stated that she was
coming home from dinner. After getting out of the van, Appellant stated that
she had consumed three glasses of wine with dinner and that it takes two to
three drinks for her to feel the effects of alcohol. Appellant stated that she was
not on any medication, nor was she sick or feeling drowsy.
We conclude that, in the context of the entire case against Appellant, any
possible error in admitting the results of the field sobriety tests would not have
had a substantial or injurious effect on the jury’s verdict and would not have
affected Appellant’s substantial rights. See King, 953 S.W.2d at 271. Thus,
we disregard any alleged error. See Tex. R. App. P. 44.2(b).
IV. Conclusion
Having overruled Appellant’s two points, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL: GARDNER and MCCOY, JJ.; and DIXON W. HOLMAN (Senior Justice,
Retired, Sitting by Assignment)
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 31, 2010
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