                                  NO. 07-02-0347-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL E

                                 SEPTEMBER 9, 2003

                         ______________________________


                     GREGORY LAWAYNE PEACE, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

              FROM THE COUNTY COURT OF ARMSTRONG COUNTY;

                    NO. 2502; HONORABLE HUGH REED, JUDGE

                        _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1


      In this appeal, appellant Gregory Lawayne Peace seeks reversal of his conviction,

after a guilty plea, of the misdemeanor offense of driving while intoxicated. The plea was

entered after permission was given to appeal the denial of a motion to suppress. His



      1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
punishment was assessed by the trial court at 45 days confinement in the Armstrong

County Jail, probated for 45 days, and a $500 fine. In pursuing his appeal, appellant

presents two issues for our determination. In those issues, he argues the trial court

abused its discretion in overruling his motion because 1) there was no probable cause for

his arrest, and 2) the results of the horizontal gaze nystagmus (HGN) test should not have

been admitted because the test was not conducted in a proper manner. Disagreeing that

reversal is required, we affirm the judgment of the trial court.


       Appellant and the arresting officer, Brian Glen Freeman, were the witnesses at the

suppression hearing. In his testimony, appellant denied that he was ever given his

statutory warnings prior to being given a breath test. However, he did admit that he

agreed to take the test and that he failed it. Officer Freeman testified that he stopped

appellant because he was driving in excess of 90 miles per hour in a 70 mile zone. He

also said he observed appellant cross both lines onto the shoulder of the highway and go

over the middle line of the highway. The officer averred that as he approached appellant’s

vehicle after stopping it, he noticed a smell of alcohol coming from the vehicle. Appellant’s

speech was “fairly slurred” and his eyes were “pretty glassy.” When queried, appellant

initially denied he had been drinking, but “a few seconds later,” he admitted he had been

drinking.


       Freeman had appellant perform various physical field sobriety tests, including the

“walk and turn,” “one-leg stand,” and “finger count” tests. Although appellant did not



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perform these tests perfectly, he did pass them.         Even so, because of his other

observations, the officer concluded appellant was intoxicated, and he administered the

HGN test.2 According to the officer, appellant failed the HGN test.


       Freeman averred that he was trained in administering the HGN test at a Texas

Commission on Law Enforcement Standards and Education (TCLOSE) sanctioned course

at Texas A & M University, which he successfully completed. In accordance with his

training, he testified, he first made sure that appellant could clearly see the pen used as

a stimulus. He then moved the pen from right to left for the purpose, he said, of checking

the tracking of the movement. Making approximately four passes with each eye, he

checked the maximum deviation nystagmus, as well as whether the onset angle of

nystagmus was 45 degrees or less. In performing the test, he said he looked for six signs

or “clues” from both eyes that indicate intoxication. All six “clues” were present during

appellant’s performance in the test. Freeman conceded he did not ask if appellant had

received a head injury or had eye trouble.


       Generally, a ruling on a motion to suppress is reviewed on an abuse of discretion

standard. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). The amount of

deference a reviewing court affords to a trial court’s ruling on a mixed question of law and

fact, such as the issue of probable cause, is often determined by which judicial actor is in


       2
       In Emerson v. State, 880 S.W.2d 759, 766 n.3 (Tex. Crim. App.), cert. denied, 513
U.S. 931, 115 S.Ct. 323, 130 L.Ed.2d 284 (1994), the Court related the scientific theory
underlying the HGN test and the technique prescribed by the National Highway Traffic
Safety Administration to correlate nystagmus with intoxication.

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a better position to decide the issue. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim.

App. 1997). The reviewing court should afford almost total deference to the trial court’s

determination of historical facts, especially when the trial court’s fact findings are based

upon an evaluation of witness credibility and demeanor. Id. at 89. In such cases, when

the trial court made no explicit findings of historical fact, we presume it made those

findings necessary to support its rulings, if supported by the record and the evidence

viewed in a light most favorable to the trial court’s ruling. State v. Ballard, 987 S.W.2d

889, 891 (Tex. Crim. App.1999). However, in instances involving mixed questions of law

and facts that do not involve evaluations of credibility and demeanor, appellate review may

be de novo. Guzman, 955 S.W.2d at 89. Thus, an appellate court should conduct a de

novo review in instances in which the facts related to the ruling are undisputed.


       In Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000), after reciting the

general rules of appellate review we have cited above, the court explicated that in an

instance in which a videotape “presents indisputable visual evidence” that contradicted

essential parts of the State’s evidence, in “these narrow circumstances, we cannot blind

ourselves to the videotape evidence,” even though the State’s evidence could be read to

support the trial court’s ruling. Id. at 332. Relying upon the Caramouche teaching,

appellant argues that because the events immediately surrounding his arrest were

captured on videotape, it is our duty to review that tape in a de novo review conducted

without any deference to the trial court’s ruling.      The videotape certainly must be




                                             4
considered in our review; however, because there is other evidence, the tape must be

considered with all the evidence before the trial court.


       Appellant contends that the results of the HGN test may not be considered because

the State did not establish Officer Freeman was a certified practitioner. In the seminal

case of Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App.), cert. denied, 513 U.S. 931,

115 S.Ct. 323, 130 L.Ed.2d 284 (1994), the Court determined that test was sufficiently

reliable to be admitted if a proper predicate was laid, and in order for testimony concerning

a defendant’s performance on the test to be admissible:


       . . . it must be shown that the witness testifying is qualified as an expert on
       the HGN test, specifically concerning its administration and technique. In
       the case of a police officer or other law enforcement official, this requirement
       will be satisfied by proof that the officer has received practitioner certification
       by the State of Texas to administer the HGN.


Id. at 769.


       In Kerr v. State, 921 S.W.2d 498 (Tex. App.– Fort Worth 1996, no pet.), the court

in considering the Emerson explication opined:


       . . . [W]e do not interpret the quoted portion of Emerson to require that an
       expert must be certified by the State of Texas before his testimony on the
       subject of an HGN test will be admissible.

       In order for a witness’s expert testimony to be admissible under Rule 702,
       the witness must qualify as an expert by ‘knowledge, skill, experience,
       training, or education.’ TEX. R. CRIM. EVID. 702. Whether a particular
       witness qualifies as an expert is a decision to be made by the trial judge . . .



                                               5
       [citations omitted]. A trial court’s decision in this area will not be disturbed
       absent a clear showing of abuse.


Id. at 502. See also Singleton v. State, 91 S.W.3d 342, 348 (Tex. App.–Texarkana 2002,

no pet.) (even though the arresting officer lacked HGN certification, the trial court did not

abuse its discretion in receiving his testimony because it was sufficient to justify a

conclusion that the officer was qualified under Texas Rule of Evidence 702). In Smith v.

State, 65 S.W.3d 332, 344 (Tex. App.–Waco 2001, no pet.), the court noted its agreement

with the Kerr court that Emerson did not require an expert be certified by the State of

Texas before his testimony on the subject of the HGN test would be admissible and it was

within the trial court’s discretion to determine whether the witness was qualified to testify

as an expert. We agree with the holdings in these cases. The instruction of the Emerson

opinion is that if it be shown that the testifying officer has received practitioner certification,

it is sufficient to justify admission of the evidence. However, if it is not shown that the

officer has received that certification, the trial court must, within its discretion, determine

if other evidence is sufficient to establish the officer’s expertise in administering the test.


       Officer Freemen testified at some length about his training at Texas A & M

University in the theory and implementation of the HGN tests. We cannot say that the trial

court erred in receiving his testimony. Moreover, the fact that the officer did not inquire

whether appellant had suffered a head injury prior to administering the test is not sufficient

to show an abuse of discretion in admitting the test. See Webster v. State, 26 S.W.3d 717,

720 (Tex. App.– Waco 2000, pet. ref’d) (the testing procedures themselves are designed


                                                6
to screen for medical conditions or medications that may have been taken prior to the test).

Moreover, appellant made no claim that he had suffered an injury or taken medication that

might have affected the test.


       Appellant does not contest that he was speeding at the time of his stop. The

videotape shows the visible circumstances surrounding his stop and his activities during

the field sobriety tests. However, the officer testified about the other circumstances

leading to this decision that appellant was intoxicated, including the odor of alcohol that

might reasonably be attributed to him, his admission that he had been drinking, his slurred

speech, and his “glassy” eyes. The trial judge could reasonably have concluded that such

testimony, in addition to the testimony about the result of the test, was sufficient to justify

the overruling of the motion to suppress.


       In summary, both of appellant’s issues are overruled, and the judgment of the trial

court is affirmed.



                                                   John T. Boyd
                                                   Senior Justice

Do not publish.




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