






Gary Lee Wisdom v. State of Texas
















IN THE
TENTH COURT OF APPEALS
 

No. 10-99-186-CR

Â Â Â Â Â GARY LEE WISDOM,
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellant
Â Â Â Â Â v.

Â Â Â Â Â THE STATE OF TEXAS,
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellee
 

From the County Criminal Court No. 3
Denton County, Texas
Trial Court # CR-97-08254-C
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
O P I N I O N
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 

Â Â Â Â Â Â Gary Lee Wisdom was charged with and convicted of Driving While Intoxicated by a jury,
enhanced by one prior DWI.  The evidence to convict him included a videotape and an officerâs
testimony regarding his performance on standard sobriety tests.  On appeal, Wisdom contends the
trial court erred when it admitted pages from a DWI Detection Manual, which  included a general
statement regarding the correlation between standardized sobriety test results and blood-alcohol
concentration.  The judgment of the trial court is affirmed.
Â 
Procedural Background
Â Â Â Â Â Â Gary Lee Wisdom was charged by information with the misdemeanor offense of Driving
While Intoxicated, enhanced by one prior DWI.  To this charge, he pled not guilty.  The jury
convicted him and the trial court sentenced Wisdom to 365 days in jail and a $4000 fine.  The trial
court suspended the imposition of jail time and reassessed Wisdomâs punishment to include two
years community supervision, a $4000 fine, and a 30-day jail sentence as a condition of the
probation.  He appeals one issue.
Facts
Â Â Â Â Â Â On September 29, 1997, at approximately 10:30 p.m., Officer Greg Nealâs attention was
drawn to a black jeep.  He clocked the jeep going 52 mph in a 35-mph zone so he turned his patrol
car around and pulled the vehicle over for speeding.  Wisdom was the driver of the black jeep. 
Neal testified that when Wisdom handed his driverâs license and insurance to him, he noticed a
strong smell of alcohol.  He also testified that he noticed that Wisdomâs eyes were watery and that
his speech was slurred.
Â Â Â Â Â Â After running a license check, Neal asked Wisdom to step out of the vehicle.  Neal testified
that as Wisdom stepped out of the vehicle, Wisdom braced himself on the side of the jeep, closed
the door and walked to the rear.  Neal then asked Wisdom to perform three standardized sobriety
tests to determine whether he was intoxicated to the point of being impaired.  
Â Â Â Â Â Â The first test was the horizontal gaze nystagmus test (HGN) and Neal testified that Wisdom
exhibited all of the six clues of intoxication.  Next, Neal asked Wisdom to perform the one-leg
stand test, but Wisdom refused to perform this test because he told the officer that he had a bad
knee.  Last, Neal asked Wisdom to perform the walk and turn test.  During this test, Neal testified
that Wisdom did not maintain a straight line, that he failed to touch heel to toe on all except three
steps, and that he exhibited two clues on the test.
Â Â Â Â Â Â After conducting the two tests, Neal concluded that Wisdom was intoxicated and placed him
under arrest for DWI.  Neal testified that in his opinion Wisdom had lost the normal use of his
mental faculties because he had poor judgment in relationship to speed, distance, and his
maneuverability of the vehicle.  Wisdom was then transported to jail where Officer Mark Gibbons
asked him to perform additional field sobriety tests.  Wisdom refused to do these tests.
Â Â Â Â Â Â At trial, the only element of DWI Wisdom contested was the element of intoxication.  He
attacked Nealâs assessment of his intoxication by testifying that his âstrong odor of alcoholâ was
due to only a few beers consumed with an earlier meal, that his red, watery eyes were due to sinus
problems, and that his unsteady balance was due to the roadway.  Furthermore, Wisdom argued
that the field sobriety tests were poorly done and improperly administered, and thus there was no
evidence of intoxication.
Issue on Appeal
Â Â Â Â Â Â Wisdom asserts that the trial court erred by admitting pages from a DWI Detection Manual
that included the National Highway Transportation Safety Administrationâs finding that there is
a correlation between standardized sobriety test results and blood-alcohol concentration (BAC). 
He argues that the State was attempting to correlate the results of his performance on the sobriety
tests to a precise blood-alcohol concentration as prohibited by the Court of Criminal Appeals in
Emerson.  Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994).  We disagree.
Â Â Â Â Â Â After the State rested, Wisdom requested permission to read selected portions of the DWI
Detection Manual to the jury.  He offered the manual as a public record published by the National
Highway Traffic Safety Administration.  The State then requested that pages seven through twelve
be admitted into evidence in their entirety so that the jury could read the manual themselves. 
Wisdom objected, arguing that the remainder of those pages was inadmissible under Emerson. 
See Emerson, 880 S.W.2d 759 at 769.  The trial court sustained Wisdomâs objections to several
portions of the manual.  However, the only objection made by Wisdom that the trial court
overruled was his objection to section Q entitled âWhat did the researchers learn?â  This section,
which is found on page twelve, reads as follows:
The three standardized tests were found to be highly reliable in identifying subjects whose
BACs were 0.10 or more.  Considered independently, the nystagmus test was 77%
accurate, the Walk-and-Turn, 68% accurate, and the One-Leg Stand, 65% accurate. 
However, Horizontal Gaze Nystagmus used in combination with Walk-and-Turn was
80% accurate.
Â 
The importance of this large scale field evaluation study deserves to be emphasized.  It
was the first significant assessment of the âworkabilityâ of the standardized field sobriety
tests under actual enforcement conditions, and it was the first time that completely
objective clues and scoring criteria had been defined for the tests.  The results of the
study validated the SFSTs.
Â 
But it is also necessary to emphasize one final and major point.  This validation applies
ONLY WHEN THE TESTS ARE ADMINISTERED IN THE PRESCRIBED,
STANDARDIZED MANNER; AND ONLY WHEN THE STANDARDIZED CLUES
ARE USED TO ASSESS THE SUSPECTâS PERFORMANCE; AND, ONLY WHEN
THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT
PERFORMANCE.
Â 
IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS
CHANGED, THE VALIDITY IS COMPROMISED.

Â Â Â Â Â Â Specifically, Wisdom objected to the following sentence, âThe three standardized tests were
found to be highly reliable in identifying subjects whose BACs were 0.10 or more.â  In a hearing
outside the juryâs presence, the State asserted that pages seven through twelve were admissible in
their entirety under the rule of optional completeness.  Tex. R. Evid. 107.  The trial court agreed
and allowed the State to admit the pages, after redacting three sentences.
Â Â Â Â Â Â The trial court redacted the following statement regarding the HGN test: âIf a suspect exhibits
four or more clues, it should be considered evidence that the suspectâs BAC is above 0.10.â  The
court removed the same language as it related to the one-leg-stand and the walk-and-turn test. 
Other than those three statements, pages seven through twelve of the manual were admitted in their
entirety, including the general statement regarding the correlation between general test results and
blood-alcohol concentration.
Â Â Â Â Â Â In Emerson, the Court of Criminal Appeals stated that an officer qualified as an expert on the
administration and technique of the horizontal gaze nystagmus test could testify concerning a
defendantâs performance on the HGN test but could not correlate the defendantâs performance on
the test to a precise BAC.  Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994).  In
other words, an officer trained to administer the standardized sobriety tests may opine that a
defendant was under the influence of alcohol, but he or she may not testify to that defendantâs
exact BAC.  Id. at 769-770.
Â Â Â Â Â Â There was no effort made by the State at any stage of the proceeding to correlate Wisdomâs
test results with a specific BAC.  The indictment does not allege that Wisdom was intoxicated by
having a blood-alcohol concentration in excess of .10.
  Officer Neal did not attempt to quantify
Wisdomâs exact BAC based on his performance on the field sobriety tests. The State did not
mention blood-alcohol concentration during any other witnessâs testimony or in closing argument. 
The jury was charged with determining only whether Wisdom was intoxicated by the introduction
of alcohol into his body and not whether he was intoxicated by having a blood-alcohol
concentration in excess of the legal limit.  The admission of the statement from the DWI Detection
Manual was not an attempt to correlate the results of the test with a specific BAC for Wisdom. 
Thus, Emerson does not apply here.  
Â Â Â Â Â Â Here, Wisdom offered only the portions of the DWI Detection Manual emphasizing that
following the correct procedure was critical to the validity of the tests which left the jury with only
part of the information needed to make a fair assessment of the officerâs reliance on the test
results.  Upon the Stateâs request, the trial court admitted the entirety of those pages, except for
three redacted statements, on the basis of the rule of optional completeness.  Tex. R. Evid. 107. 
This rule was designed to guard against âthe possibility of confusion, distortion, or false
impression that could arise from the use of an act, writing, conversation, declaration, or
transaction out of proper context.â  Livingston v. State, 739 S.W.2d 311, 331 (Tex. Crim. App.
1987).
Â Â Â Â Â Â As such, the jury was entitled to know all of the relevant information regarding the validity
of the tests, both as to factors that could invalidate the results as well as the reliability of the tests
if done correctly.  By the plain language of the rule, when part of a writing is placed into evidence
by one party, the other party can put the remainder of the writing into evidence to explain the prior
writing or otherwise make it fully understood.  Tex. R. Evid. 107.  The standard of review for
a trial courtâs ruling on the admissibility of evidence is an abuse of discretion.  Angleton v. State,
971 S.W.2d 65, 67 (Tex. Crim. App. 1998).  The trial court was within its discretion in
determining that the manual, as redacted, was admissible.  This issue is overruled.
Conclusion
Â Â Â Â Â Â We overrule Wisdomâs sole issue on appeal and affirm the judgment of the trial court.
Â 
TOM GRAY
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice
Â 
Before Chief Justice Davis,
Â Â Â Â Â Â Justice Vance, and
Â Â Â Â Â Â Justice Gray
Affirmed
Opinion delivered and filed January 31, 2001
Publish

       The parties offered little
documentary evidence to substantiate their testimony regarding their own and
each otherÂs income.Â  In a letter to the trial court, SylvesterÂs counsel asked
the court to base SylvesterÂs child support obligation on these figures, which
are consistent with SylvesterÂs testimony regarding his monthly benefits.Â  Therefore,
we are treating these figures as net income.
Â 

[3]
Â Â Â Â Â Â Â Â Â Â Â Â Â  Sylvester testified that his
disability came from unspecified Âneck and pain injuriesÂ which he sustained
while lifting weights.Â  He explained that he had been on a Marine Corps
weightlifting team and was a five-time world champion.


[4]
Â Â Â Â Â Â Â Â Â Â Â Â Â  The court actually conducted
four hearings in this matter: (1) an October 31, 2005 ÂFinal Divorce HearingÂ;
(2) a February 8, 2006 hearing for entry of judgment; (3) a May 9, 2006 hearing
on SylvesterÂs motion for new trial; and (4) a June 6, 2006 ÂFinal HearingÂ in
which the parties provided additional testimony regarding child support and
visitation.Â  Sylvester provided this particular testimony during the June 6
hearing.


[5]
Â Â Â Â Â Â Â Â Â Â Â Â Â  There were actually two
divorce decrees in this case.Â  In the first decree, the court ordered Sylvester
to pay $600 per month in child support.Â  However, the court granted SylvesterÂs
motion for new trial in part based on SylvesterÂs contention that the child
support award had been calculated based on 100% of SylvesterÂs military
retirement, even though the court had awarded 50% of his retirement to Diona.
Â 


[6]
Â Â Â Â Â Â Â Â Â Â Â Â Â  $5,000 per year is
approximately $417 per month.Â  $875 + $505 + $417 = $1,797.Â  In this scenario,
25% of SylvesterÂs actual and potential net monthly income of $1,797 would be
$449.Â  See Tex. Fam. Code Ann.
Â§ 154.125(b) (Vernon 2002) (child support for two children is 25% of monthly
net resources).
Â 


[7]
Â Â Â Â Â Â Â Â Â Â Â Â Â  $875 + $505 + $4,500 = $5,880
x 0.25 = $1,470

