                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo
                            ________________________

                                 No. 07-12-0277-CR
                            ________________________


                             Chad Jeremy Holliday, Appellant

                                            v.

                               The State of Texas, Appellee

                       On Appeal from the County Court at Law No. 1
                                  Randall County, Texas
           Trial Court No. 2011-0533-1, Honorable James W. Anderson, Presiding


                                    March 25, 2013

                           MEMORANDUM OPINION
                  Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Appellant, Chad Jeremy Holliday, appeals his conviction for driving while

intoxicated. Through a single issue, he contends that the trial court erred by admitting

evidence of the horizontal gaze nystagmus (HGN) test because the investigating officer

failed to ask if appellant suffered from any medical ailments that could affect the test

results. That omission purportedly rendered the evidence inadmissible because the test

was administered improperly. The trial court disagreed. We affirm.
      Assuming arguendo that it was error to admit the testimony regarding the HGN

test, we find the error to be harmless under Texas Rule of Appellate Procedure 44.2(b)

(which requires the error to have affected substantial rights). TEX. R. APP. P. 44.2(b).

This is so due to the uncontested evidence that appellant blew more than .08 on the two

breath intoxilyer tests administered to him. That alone established intoxication. See

TEX. PENAL CODE ANN. § 49.01(2)(B) (West 2011) (stating that one is intoxicated by

“having an alcohol concentration of 0.08 or more,” among other things). To this we add

evidence showing that 1) appellant was observed weaving in and out of his lane

resulting in two near accidents with a semi-truck and a guardrail, 2) police observed him

driving on the yellow line, 3) he smelled of alcohol and had red, watery eyes, 4) he

swayed when he got out of his car, and 5) he deficiently performed two other field

sobriety tests unrelated to the HGN. Simply put, and after perusing the record before

us, we deem it unreasonable to conclude that the testimony about the HGN test had a

substantial or injurious effect or influence on the jury’s verdict. See Rodriguez v. State,

280 S.W.3d 288, 291 (Tex. App.–Amarillo 2007, no pet.) (describing this to be the test

in determining harm from the improper admission of evidence).

      Accordingly, the issue is overruled and the judgment is affirmed.



                                                Brian Quinn
                                                Chief Justice
Do not publish.




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