                                   NO. 07-07-0471-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                               NOVEMBER 25, 2008
                         ______________________________


                                   KURT T. WELLS,

                                                              Appellant

                                            v.

                                THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

        FROM THE COUNTY COURT AT LAW NO. 2 OF LUBBOCK COUNTY;

                NO. 2006-498,230; HON. DRUE FARMER, PRESIDING
                       _______________________________

                                     Opinion
                         _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Kurt T. Wells (appellant) appeals his conviction for driving while intoxicated. Via

three issues, he contends that the trial court erred by allowing in unauthenticated hearsay

evidence that violated his Sixth Amendment right to confront witnesses. The State

concedes that the admission of the evidence violated the aforementioned constitutional

right; nonetheless, it believes the error to be harmless. We disagree and reverse the

judgment.
       The evidence in question consisted of a written report or resolution purportedly

issued by the American Optometric Association acknowledging the “scientific validity and

reliability of the HGN test as a field sobriety test when administered by properly trained and

certified police officers . . . .” The State offered this resolution after the appellant purported

to “question the validity of” that test. Furthermore, it did so through its sole witness, the

arresting officer. Yet, nothing of record indicates that the arresting officer was a member

of the Optometric Association, was an optometrist, had any expertise in optometry, knew

the origins or authenticity of the exhibit, or knew of the tests or studies, if any, undertaken

by the Association in support of its alleged opinion. Despite that, the State had the officer

identify the item in front of the jury, after which the prosecutor personally read aloud its

content. The timing of this event was quite interesting for not only was it one of the last

pieces of evidence tendered by the State before opting to rest but it was also some of the

last testimony heard by the jury before the trial court recessed for the day. Yet, that was

not the last time the State alluded to the resolution.

       During its closing argument, the State again mentioned the exhibit. In effort to sway

the jury and gain a conviction, the prosecutor suggested that defense counsel was “going

to get up here, and he’s going to holler and yell and scream about this piece of paper, and

all this does is tell you that HGN . . . HGN is a scientific, reliable, valid, tool for judging

sobriety.” Appellant’s legitimate objection to the report was also used by the State, during

its closing, as a means of discrediting defense counsel.            This happened when the

prosecutor directed the jurors’ attention to the supposed inconsistency in defense counsel

attempting to admit appellant’s medical records while simultaneously attempting to exclude

the Association’s inadmissible resolution.

                                                2
        As previously mentioned, the State concedes that admission of the report violated

appellant’s Sixth Amendment right to confront his accusers. Thus, we are obligated to

assess whether the error was harmful.                   And, since the error in question is one of

constitutional magnitude, then we must apply the test incorporated in Rule 44.2(a) of the

Texas Rules of Appellate Procedure. That test obligates us to reverse the conviction

unless we conclude, beyond reasonable doubt, that the error did not contribute to the

outcome. TEX . R. APP. P. 44.2(a); Gibson v. State, 253 S.W.3d 709, 716-17(Tex. App.–

Amarillo 2007, pet. ref’d). Were it possible for us to interview the jurors to accurately

assess whether it affected them, our job would be easy. But, that we cannot do. Instead,

we look at the nature of the wrong, its egregiousness, its repetition, its timing, the quantum

of evidence illustrating guilt, and like indicia to gauge the possibility and extent, if any, of

its impact. See Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007) (describing the

factors to consider).

        With that said, we now turn to the record before us and immediately note that the

HGN test and its validity was a focal point of the trial. The prosecutor stated as much to

the trial court in response to appellant’s objection. And, while that test was not the only

one administered by the arresting officer, it was one of the ones used by him in assessing

appellant’s loss of mental or physical ability due to the ingestion of alcohol, that is,

intoxication.1 And, a substantive amount of time was spent at trial in discussing that test

and its administration on appellant.

        1
          It is of im port to understand that the State was attem pting to prove appellant guilty of driving while
intoxicated by showing that his m ental faculties and physical abilities had been im paired through the ingestion
of alcohol. It was not attem pting to prove intoxication via blood alcohol levels. Thus, the validity of the tests
adm inistered, the m anner in which they were adm inistered, and appellant’s perform ance on those tests was
critical.

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       Next, the timing of the State’s effort cannot be ignored. Again, it waited until it was

about to finish its evidentiary presentation to tender the document. Additionally, that

instant happened to coincide with the end of the day’s proceedings. So, it can be said that

the Association’s alleged resolution about the validity of the HGN test was received at a

most opportune time for the State, that being at a time when it had the greatest potential

to ring uninterrupted in the jurors’ ears.

       That the State redirected the jury’s attention to the resolution during its closing

argument merits comment as well. This served not only to remind the jurors of the

inadmissible evidence but also to renew its prior impact. And, by peppering its argument

with such emotive words as “scream,” and “holler,” and “yell” in describing its opponent’s

reference to the report, the State found an effective way to catch the jurors’ attention while

also belittling defense counsel for voicing a legitimate concern.

       Next, we acknowledge that there exists a quantum of evidence, apart from that

relating to the HGN report, that illustrates appellant’s guilt. Moreover, it is quite possible

that the jury would have convicted appellant had the evidence now at issue not been

admitted. Yet, that is not to say that the evidence of guilt was uncontradicted; it was

contradicted. For instance, appellant did not exhibit slurred speech. Nor did he engage

in erratic driving. So too was he able to respond to various directives from the officer and

manipulate small objects like his keys. And, that the jurors were deadlocked on the issue

of guilt until the trial court submitted its “Allen Charge” is further indicia suggesting that the

evidence of appellant’s culpability was less than overwhelming.

       To this we add that while it is laudable for the State to concede error, it seems

somewhat incongruous to invite like conduct in the future by simply holding that its actions

                                                4
were harmless. Indeed, experience teaches that in the heat of battle litigants often push

the envelope of propriety until they are told to stop. As the old cliche goes, “give ‘em an

inch and they’ll take a mile.” So, care should be taken to dissuade litigants from attempting

to take the mile when given the inch inherent in the harmless error rule. This seems

especially so in those situations were there exists a quantum of admissible evidence

indicative of guilt. The presence of legitimate evidence of guilt should not be seen by the

State as a way to slip into the record evidence of dubious legitimacy.

         In sum, we cannot know with absolute certainty what effect, if any, the admission

of the report had upon the jurors’ mental processes here. Much is left to reasonable

deductions and probabilities arising from the particular circumstances captured of record.

And, if those circumstances prevent us from concluding, beyond reasonable doubt, that

the error had no impact on the outcome, then the right course of action is to reverse the

judgment and grant the State opportunity to retry the accused via a proceeding free of

taint. So, because the circumstances at bar do not allow us to hold, beyond reasonable

doubt, that the report had no affect on the decision to convict appellant, we reverse the

judgment and remand the cause for further proceedings.2



                                                              Brian Quinn
                                                              Chief Justice

Publish.


        2
           Our decision is not affected by the State’s argum ent that the trial court was free to judicially note the
validity of the HGN test. Even if it was so free to act, that does not m ean it was entitled to com m ent on the
weight of the evidence by inform ing the jury of what it could do. See Brown v. State, 122 S.W .3d 794, 797-98
(Tex. Crim . App. 2003). Nor does that som ehow placate the lost opportunity to test the conclusion via cross-
exam ination.

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