Opinion filed October 21, 2010




                                           In The


   Eleventh Court of Appeals
                                          __________

                                     No. 11-09-00017-CR
                                         __________

                          DICKEY RAY MAUPIN, Appellant

                                              V.

                                 STATE OF TEXAS, Appellee


                          On Appeal from the 371st District Court

                                     Tarrant County, Texas

                                 Trial Court Cause No. 1097900D



                           MEMORANDUM OPINION
       The jury convicted Dickey Ray Maupin of felony driving while intoxicated, and the trial
court sentenced him to fifteen years confinement. We affirm.
                                      I. Background Facts
       Benbrook Police Officer J. Hughes stopped Maupin for a traffic violation.       Officer
Hughes smelled alcohol when he approached Maupin’s vehicle and on Maupin’s breath when
they talked. Maupin told Officer Hughes that he had drunk one beer. Officer Hughes noticed
that Maupin’s speech was slightly slurred, his eyes were red, and his balance was unsteady.
Officer Hughes decided to conduct a DWI investigation.
       Officer Hughes first performed a horizontal gaze nystagmus (HGN) test.               Maupin
exhibited all six possible signs of intoxication. Officer Hughes then had Maupin perform a walk-
and-turn test. Maupin had balance problems and exhibited six out of a possible eight signs of
intoxication. Maupin attempted the one-leg stand test but was unable to complete it because he
swayed and kept dropping his foot. Officer Hughes arrested Maupin and searched his vehicle.
He found one open beer can and two empties. Maupin was taken to the Benbrook police station
and was administered a breath test. This did not register a BAC reading because Maupin only
imitated blowing into the intoxilyzer.
                                              II. Issues
       Maupin challenges his conviction with three issues. Maupin contends that the trial court
abused its discretion by admitting the HGN test results because Officer Hughes was not certified
to administer the test, because he was not qualified to testify as an expert witness, and because he
did not follow standard testing protocol.
                                            III. Discussion
       Maupin had appointed counsel, but he filed a pro se motion to suppress the State’s
sobriety test.   Trial counsel filed a motion in limine and requested a hearing prior to the
admission of any HGN test evidence to determine if Officer Hughes was qualified to administer
the test and if the test was properly administered. The trial court conducted a pretrial hearing
during which Officer Hughes testified and described his training and experience with the HGN
test and the procedures he followed when testing Maupin. At the conclusion of the hearing,
Maupin objected to any HGN test evidence contending that the test was improperly
administered. The trial court characterized Maupin’s objection as a challenge to the weight
rather than admissibility of the evidence and overruled it.
       A. Standard of Review.
       We review the trial court’s ruling on the admissibility of evidence under an abuse of
discretion standard. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985). Appellate courts will uphold a trial court’s admissibility decision when that decision is
within the zone of reasonable disagreement because trial courts are in the best position to decide
questions of admissibility. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). An

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appellate court may not reverse a trial court’s decision regarding the admissibility of evidence
solely because the appellate court disagrees with the decision. Id. A trial court abuses its
discretion when its decision lies outside the zone of reasonable disagreement. Montgomery v.
State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).
       B. Did Maupin Preserve the Issues He Advances on Appeal?
       Maupin complains in Issues One and Two that the trial court abused its discretion by
admitting HGN test evidence because Officer Hughes was not properly certified to administer
the test and because Officer Hughes was not qualified to testify as an expert witness. The State
responds that these issues are disparate from Maupin’s trial court objection and, therefore, have
not been properly preserved. We agree.
       To preserve error for appellate review, the complaining party must make a timely
objection that states the grounds for the ruling with sufficient specificity to make the trial court
aware of the complaint. TEX. R. APP. P. 33.1(a)(1)(A). The complaint raised on appeal must
comport with the objection made at trial. Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App.
1998). An objection stating one legal basis may not be used to support a different legal theory
on appeal. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).
       At the beginning of the pretrial hearing, the prosecutor said: ―I want to clarify with
defense counsel, essentially what we’re doing is a motion to suppress the HGN; is that right?‖
The trial court added: ―I understand it to be a Daubert1 hearing, Daubert Emerson.‖2 Defense
counsel responded by saying: ―Yes. And that actually is the same thing, Your Honor, because if
we prevail in the motion, then you would suppress any findings on the HGN. I think we’re using
different words, but it’s the same vehicle.‖ At the conclusion of the evidence, defense counsel
made the following argument:
               [DEFENSE COUNSEL]: And, Your Honor, first of all, as there was no
       request to take judicial notice of the law regarding HGN as an expert – excuse me
       – as a reliable science, under Daubert, it has to be a recognized theory that –

              TRIAL COURT: Well, and I – as a gatekeeper, I do have notice of the
       laws of Texas and the case of Emerson specifically. So let’s get beyond that
       argument.



       1
        Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

       2
           Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994).

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                [DEFENSE COUNSEL]: The officer himself testified that it’s not an
        exact science.

                Second of all, he didn’t just vary a little bit, which the law allows, on the
        administration of the HGN. Twenty-five percent is a significant number. If it had
        been twenty-five percent over, the manual says that’s all right because there are
        minimum times that he has to do. He did not do that. The manual says you have
        to do this properly, and even Daubert says, if you don’t do it properly, then it’s
        inadmissible. He didn’t do it properly.

                It says he’s supposed to keep his head still, specifically keep your head
        still. He didn’t do that. He let his eyes – let his head move. There again, that is
        not per the protocol of the HGN. Giving the test in forty-three seconds versus
        sixty-four is significant. There again, that is not incidental. That would make the
        test invalid. And both those – either one separately or both combined would make
        this test not administered properly. Therefore, it should be inadmissible and
        excluded.

Maupin’s objection went strictly to Officer Hughes’s testing protocol. He did not object to
Officer Hughes’s credentials to administer or testify about the test. Because Maupin’s first two
issues do not comport with his trial objection, they have not been preserved and are overruled.
        C. Did the Trial Court Abuse its Discretion by Admitting HGN Test Evidence?
        Maupin contends in his third issue that the test’s validity was impermissibly
compromised because Officer Hughes did not follow standardized testing procedures as
established by the National Highway Traffic Safety Administration (NHTSA) DWI Detection
and Standardized Field Sobriety Testing Student Manual. The State responds that the trial court
did not abuse its discretion because it had sufficient information to conclude that the test results
were reliable.
        Texas law unequivocally holds that the results of a properly administered HGN test are
admissible and that a test performed in compliance with the NHTSA’s DWI Detection Manual is
a properly administered test. Emerson v. State, 880 S.W.2d 759, 768-69 (Tex. Crim. App. 1994).
Maupin describes the NHTSA protocol as a mandatory guideline and argues that
Officer Hughes’s testimony was inadmissible because he moved the stimulus further than
proscribed in the manual and because he completed the test in less than the minimum permitted
time.
        Officer Hughes testified that he was given a manual when he was trained to administer
the HGN test. This manual states that test subjects are to keep their heads still. Officer Hughes

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testified that he instructed Maupin to keep his head still during the test but that Maupin moved
his head with the stimulus and, thus, that he was required to move the stimulus further than
normal. Officer Hughes testified that neither the manual nor his training covered what to do
when the subject moved his head during the test. He agreed that he had not been trained to
simply keep moving the stimulus. Officer Hughes also testified that he was trained to perform
each component of the test for a minimum number of seconds and that the test should take at
least sixty-four seconds. However, according to the videotape of the stop, he completed the test
in as little as forty-three seconds. Nonetheless, Officer Hughes maintained that the test results
were valid. He testified that the HGN test is designed for field use and that he cannot watch a
clock and the subject’s eyes.
        Maupin did not offer any evidence during the pretrial hearing. The trial court, therefore,
was faced with unrefuted testimony that the test results were valid. Conversely, it was also
undisputed that Officer Hughes performed the test in less time than called for in the NHTSA
manual and that there is no protocol for testing subjects unable or unwilling to keep their head
still. The question we must address is whether the trial court had the discretion to decide that
these departures from the manual went to the weight of the evidence rather than its admissibility.
        Texas courts have consistently held that slight variations from the manual’s testing
protocol do not render HGN test results inadmissible but may affect the weight to be given the
testimony. See, e.g., Kamen v. State, 305 S.W.3d 192, 196-99 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d); see also Plouff v. State, 192 S.W.3d 213, 219 (Tex. App.—Houston [14th Dist.]
2006, no pet.). Permissible variations include performing the test faster than proscribed. See,
e.g., Compton v. State, 120 S.W.3d 375, 378 (Tex. App.—Texarkana 2003, pet. ref’d). In
Compton, the investigating officer performed the smooth pursuit portion of the HGN test in
eleven seconds instead of sixteen and the maximum deviation in nineteen seconds rather than
thirty-two. The court found that this did not render the test inadmissible, noting that the manual
provides approximations of the time required to properly administer the test and that, for the
maximum deviation test, any variation in the time taken to appropriately position the eye would
have no effect on the reliability of the test. Id. at 378-79.
        Texas courts have, however, held that noncompliance with the NHTSA guidelines
renders the evidence inadmissible. See, e.g., McRae v. State, 152 S.W.3d 739, 743 (Tex. App.—
Houston [1st Dist.] 2004, pet. ref’d). In McRae, the court held that the officer’s error was not a

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mere slight variation in test administration when the officer admitted that he did not administer
all three parts of the HGN test, that he did not comply with the manual because he made only one
pass of each eye rather than two, and that his test was not valid. Id. at 743-44.
       The trial court did not err by finding Officer Hughes’s testimony admissible. The test
was performed quicker than the manual proscribes, but the variance was comparable to the
leeway courts have previously afforded officers to reflect the fact that this is a field test.
Moreover, there was no attempt to exclude that portion of the test for which time discrepancies
can have no impact. The trial court could reasonably conclude that Officer Hughes’s decision to
move the stimulus further when Maupin refused to keep his head still during the exam was
appropriate. There was no evidence to suggest that this impacted the test’s validity, and if
Maupin’s position were accepted, an individual could always defeat the test merely by moving
his head.
       If the trial court did abuse its discretion, any error was harmless. There was considerable
evidence Maupin was intoxicated in addition to the HGN test. Officer Hughes smelled alcohol
coming from Hughes’s vehicle as he approached and on Maupin’s breath when they talked.
Maupin failed the walk-and-turn test and was unable to perform the one-leg stand test for lack of
balance. Maupin’s eyes were bloodshot, his speech was slurred, and he was unsteady on his feet.
He admitted to drinking. Officer Hughes found one open and two empty beer cans in Maupin’s
vehicle. Maupin was at a minimum confused about where he was going to and where he had
come from. His behavior at the scene and police department was consistent with intoxication –
in fact counsel conceded that his behavior rendered him guilty of being a felony jerk, and he
imitated blowing into the intoxilyzer. Issue Three is overruled.
                                          IV. Conclusion
       The judgment of the trial court is affirmed.




                                                      RICK STRANGE
October 21, 2010                                      JUSTICE
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.


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