                                PD-1586-15
                                  No. PD-________

                                        In The

                              Court of Criminal Appeals

                                Of The State of Texas

                                 Austin, Texas
                  _________________________________________

                         CHRISTOPHER JOSEPH CAMPOS,
                                  Petitioner

                                          vs.

                            THE STATE OF TEXAS
                  _________________________________________

                                  PETITION
                                    FOR
                          DISCRETIONARY REVIEW
                  _________________________________________


COMES NOW CHRISTOPHER JOSEPH CAMPOS and petitions this Court to review

the judgment affirming his conviction for driving while intoxicated in Cause No. 09-14-

00481-CR, in the Ninth Court of Appeals, and in Cause No. 299,715 in the County Court

at Law No. 2, Jefferson County, Texas. For convenience, the parties will be referred to

as “Campos” and “the State.” The reporter’s record will be referred to as RR (Volume

number) (Page number) and the clerk’s record will be referred to as CR (Page number).




    December 7, 2015



                                           1
                            STATEMENT OF THE CASE

       On September 11, 2013, Campos was charged with the offense of driving while

intoxicated. 1 On October 22, 2014, Campos filed a motion to exclude testimony

regarding HGN test results, which was denied.2 On October 22, 2014, after Campos pled

“not guilty,” a jury trial commenced.3 On October 23, 2014, Campos was found guilty of

D.W.I.4 The Judge sentenced Campos to 90 days in jail, suspended for one year, a $1000

fine and community service.5 The Ninth Court of Appeals affirmed the conviction on

November 2, 2015. The opinion of the Court is attached as Appendix A.

       Port Arthur Police detained and ultimately arrested four individuals on the night

of August 28, 2013 for driving while intoxicated. Two of the four obtained not guilty

verdicts from juries- Terry Copenhaver, in the County Court at Law No. 3 on March 18,

2014; and Patrick Griffin, in the County Court at Law No. 2 on July 10, 2015. The other

two cases, State v. Christopher Campos (present case) and State v. Marcus James resulted

in convictions from a jury. Both are on appeal to this Court. The Court should consider

these two as companion cases because they stem from the same set of facts and have a

key common constitutional and evidentiary issue: does the practice of intentionally taking

subjects off-camera to administer the Horizontal Gaze Nystagmus test deprive the citizen

of due process rights?




1
  CR 8.
2
  CR 26
3
  RR 2, 1
4
  CR 17
5
  RR 3, 198
                                            2
                     STATEMENT OF PROCEDURAL HISTORY

         The Court of Appeals rendered its opinion affirming the conviction on November

2, 2015. No motion for rehearing was filed.



                                GROUNDS FOR REVIEW

         1.     The Court of Appeals erred by failing to address Campos’ Youngblood

and Kelly arguments regarding the officer’s intentional act of performing the HGN test

off-camera in order to deprive Campos of the right to challenge the way in which the test

was administered.

         2.     The Ninth Court of Appeals’ opinion in this case conflicts with a case out

of the Waco Court of Appeals, State v. Rudd, 255 S.W.3d 293 (Tex. App. – Waco 2008,

pet. Ref’d).

                                STATEMENT OF FACTS

         Campos was pulled over for speeding while driving in Port Arthur, Texas.

During the course of the traffic stop, Officer Rogelio Meza began initiating field sobriety

testing. Ultimately, Campos was arrested for driving while intoxicated.

         Both Officer Meza and his partner, Detective Bearden, made the arrests at the

scene. They are, in essence, the DWI Task Force for the Port Arthur Police Department.

Both Meza and Bearden testified at trial.

         Meza’s testimony relied entirely on his administration of the field sobriety tests to

conclude that Campos was intoxicated.6 Meza testified that Campos exhibited six out of

six clues on the HGN test.7 He further testified that he originally wrote in his report that


6
    RR 3, 35.
7
    RR 3, 134
                                               3
Campos exhibited only one out of eight clues on the walk and turn- a passing score- but

then said after seeing the video he saw four out of eight clues.8 He testified that Campos

stepped off the line and stopped while walking, when the video clearly shows he did

neither of these. 9 Additionally, he testified that Campos did an improper turn by not

taking “a series of small steps,” but admits that he never instructed Campos to turn by

taking a series of small steps.10 Finally, he testified that Campos exhibited two out of four

clues on the one leg stand, yet the video plainly shows Meza demonstrated the test

incorrectly- with his toe pointed up instead of foot parallel to the ground- which makes

the test more difficult.11 Moreover, Meza also failed to instruct him, as he is supposed to

under the NHTSA Manual, to keep his foot parallel to the ground.12 Nonetheless, Campos

was arrested.

         Most importantly to this appeal, however, Meza and Bearden demonstrate during

this arrest their practice of intentionally taking each citizen off-camera to administer the

HGN test and bringing them back on camera to administer the other two field sobriety

tests.   No rational explanation for this practice was provided. 13 The only logical

conclusion is that it is done to prevent defendants from critiquing the manner in which

the test was administered in order to have the results excluded under the third prong of

Kelly. This case provides a unique opportunity for the Court to see the practice four

times in one stop.




8
  RR 3, 29-31, 39-40
9
   RR 3, 39, See Meza Dash Cam, State’s Exhibit 2, at 20:05.
10
    RR 3, 74, 125-26
11
   RR 3, 131-132 ; Meza Dash cam, state’s Exhibit 2, at 20:20.
12
   Id.
13
   RR 3, 49
                                               4
                                        ARGUMENT

        The trial court should have excluded the HGN test from evidence. Officer Meza

intentionally administered the HGN test off camera in an effort to avoid scrutiny at trial.

Campos respectfully requests this Court grant review and reverse the Court of Appeal’s

decision as the admission of the HGN testimony violates fundamental tenants of due

process under the circumstances in this case and the Court of Appeals glossed over these

constitutional deformities Without the use of the HGN results, the evidence presented at

trial was insufficient to support a verdict of guilt beyond a reasonable doubt. Campos

performed well on the walk and turn test and was given neither the proper instruction nor

the proper demonstration on the one-leg-stand test, the two field sobriety tests that

administered on the video tape and thus the jury necessarily placed disproportionate

weight of the HGN test results which were not subject to scrutiny.

        REASON FOR REVIEW NUMBER 1:                     The Court of Appeals erred by

failing to address Campos’ Youngblood and Kelly arguments regarding the officer’s

intentional act of performing the HGN test off-camera in order to deprive Campos of

the right to challenge the way in which the test was administered.


        The fundamental fairness requirement of the due process clause imposes upon the

police an undifferentiated and absolute duty to retain and to preserve all evidence that

might be of conceivable evidentiary significance in a particular prosecution. 14 In this

case, the Court of Appeals glossed over Campos’ constitutional due process arguments

under Youngblood by essentially stating that Detective Meza testified that he is an expert

and that he conducted the HGN test correctly, and that there was no evidence introduced
14
  See Arizona v. Youngblood, 488 U.S. 51, 58, (1988) (citing Lisenba v. California, 314 U. S.
219, 236 (1941)).
                                               5
to indicate that Meza acted intentionally or in bad faith. 15 Moreover, the Court of

Appeals conflated the due process defects with mere evidentiary complaints.

                                   A. Arizona v. Youngblood

          In Youngblood, the U.S. Supreme Court followed up the landmark decision of

Brady v. Maryland, to evaluate cases where the exculpatory value of unpreserved

evidence is not known or apparent on its face. A Youngblood claim involves a showing

that potentially exculpatory evidence was not preserved by the police and that the reason

for that suppression was the officer’s “bad faith.”16 The Supreme Court noted that the

question of bad faith turns on the State’s knowledge of the exculpatory value of the

evidence at the time it was not preserved.17 This Court has recognized the applicability

of Youngblood in Texas since 1992.18

                                      B. The HGN Test

          As this Court is aware, the HGN test is only reliable when administered properly.

In Emerson v. State, 19 this Court held that testimony concerning the HGN test is

scientific evidence and is subject to the requirements of Kelly v. State to be admissible

under Rule 702. 20 This Court held in Kelly that in order for evidence derived from

scientific theory to be considered reliable, "(a) the underlying scientific theory must be

valid; (b) the technique applying the theory must be valid; and (c) the technique must

have been properly applied on the occasion in question."21



15
     See Appendix A, at 10-11.
16
   Youngblood, 488 U.S. at 57.
17
   Youngblood, 488 U.S. at 56 fn *.
18
   Thomas v. State, 841 S.W.2d 399, 402 n. 5 (Tex.Crim.App.1992)
19
   Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994)
20
   Emerson, 880 S.W.2d at 764.
21
   Kelly v. State, 824 S.W.2d 568, 573-74 (Tex. Crim. App. 1992).
                                               6
          Even though nystagmus itself may not be seen on a vehicle mounted dash camera,

the Defense and the Court can determine whether an officer held the stimulus at the right

height and distance, performed the correct number of passes (minimum of fourteen), and

took the correct amount of time for each pass. But, only if the test is administered on

camera. If these things were not done correctly, then the test should be excluded.

      C. Video Compilation Shows Consistent Practice of Performing HGN Off-Camera

          The Court of Appeals also ignored overwhelming evidence in this case showing

that the practice of performing the HGN test of camera is both intentional and done in

bad faith. Upon detaining Campos, Meza escorted Campos from in front of Bearden’s

patrol vehicle (clearly in the view of the camera) all the way around to the driver’s side of

his (Meza’s) patrol vehicle- so as to be outside of the view of both dash cams- and began

to administer the Horizontal Gaze Nystagmus test to him. 22 The video indicates that

Bearden’s light bar was switched off at 1 minute and 43 seconds of the video, and that

neither Meza’s nor the other officer’s light bars were ever turned on, thus concerns about

the light bar would not provide a rationale for administering the test outside of the

camera’s view. Additionally, all of the testing occurred in the parking lot of the Waffle

House, with multiple clearly marked patrol cars blocking the scene, and thus officer and

citizen safety were not reasons to administer the HGN off-camera.

          Additionally, though, on a video compilation, created by Campos’ counsel and

submitted to the Court during the Motion to Suppress Hearing, Bearden and Mesa are

shown intentionally administering the HGN off camera in several other cases where these

two officers have done exactly the same thing. The video likewise showed a State



22
     See States Exhibit 1, Bearden Dash cam, at 16:45

                                                 7
Trooper performing the HGN test at the wrong speed, the wrong angle, and the wrong

number of passes – thus demonstrating that video evidence subjects an officers

administration to appropriate scrutiny under the third prong of Kelly.23 The Court refused

to consider this evidence as it relates to their intentional and bad faith efforts to deprive

defendants of the ability to scrutinize how they administer the one test this Court

considers scientific.

          Meza’s trial testimony is also enlightening as to bad faith.        He offers no

explanation for taking Campos off camera to perform the HGN test.                      Meza

acknowledges, though, and this is crucial for Youngblood analysis, that if he does the

HGN on camera, that defense counsel can go through the test with him and determine

whether or not he administered it in accordance with the manual.24 And he admits that

Campos was actually standing almost in front of his patrol vehicle and Mesa led him all

the way around the back of the vehicle to do the test instead of walking in front of the

video camera and doing the test on camera. 25 As the U.S. Supreme Court noted in

Youngblood, the key to bad faith is whether the State is aware of the exculpatory nature

of the evidence at the time of suppression.26 Meza’s responses indicate that he is clearly

aware of the potential exculpatory value of seeing the HGN administration, yet over and

over again he and his partner choose to administer it off camera.

          Without the testimony regarding the HGN test results, the evidence presented at

trial was insufficient to support a verdict of guilt beyond a reasonable doubt. The entirety

of the Court of Appeals analysis regarding Meza’s testimony regarding field sobriety


23
   See Defendant’s Bill of Review Exhibit 2.
24
   RR 3, 134-36.
25
   RR 3, 67
26
     Youngblood, 488 U.S. at 56 fn *.
                                               8
tests – outside of the HGN test - is that Campos exhibited clues on both the walk and turn

test and the one-leg-stand test.27 The Court does not address the numerous problems with

Meza’s testimony regarding the administration of the walk-and-turn or the one-leg-stand

test as outlined in Campos’ brief to the Court of Appeals. Meza intentionally

administered the test off-camera, then concluded that Campos had demonstrated six out

of six clues on the test.        It was the only test where Meza was able to describe a

conclusive “failure” by Campos and was also the only test whose administration cannot

be scrutinized by Campos’ counsel. The trial court’s decision to admit the HGN test in

this case becomes exceptionally more important and harmful given the weakness of the

other evidence presented.


       REASON FOR REVIEW NUMBER 2: The Ninth Court of Appeals’
opinion in this case conflicts with an opinion of the Waco Court of Appeals, State v.
Rudd, 255 S.W.3d 293 (Tex. App. – Waco 2008, pet. Ref’d).


          In State v. Rudd,28 the Waco Court of Appeals upheld the exclusion of HGN

evidence because the trooper intentionally administered the HGN test out of the view of

the camera and yet made sure the walk and turn and one leg stand were videoed. That is

precisely the scenario in the present case. In fact, Campos would point out that Rudd and

this case are factually indistinguishable. As Meza did here, the Trooper in Rudd testified

that he administered the HGN correctly in accordance with the manual. Additionally,

Rudd, like Campos, performed well – though not perfectly – on the two FST’s performed

on camera. There, the trial court found that the officer’s decision to administer the HGN

test off-camera and the other tests on-camera called into question whether he


27
     See Appendix A, at 12.
28
     State v. Rudd, 255 S.W.3d 293 (Tex. App.-Waco 2008, pet. ref'd).
                                                 9
administered the test properly under the third prong of Kelly. The Waco appellate court

endorsed that decision, and this Court declined to review it.

         In the past the Ninth Court had distinguished Rudd in a case called Hays v. State,

where a TABC agent was permitted to testify about HGN performed without a video

because he did not have a video system in his vehicle.29 This case, on the other hand, is

much more akin to Rudd. The officer had video, could have administered on camera

safely, and the context clues of the video indicate that taking the citizen off camera was

intentional.    While the procedural posture is different, this represents a serious

constitutional issue and given the conduct, Campos, like Rudd, was deprived of due

process by the officer hiding the ball on the only scientific test he can administer in the

field.

         In the present case the Beaumont Court of Appeals correctly points out that Rudd

involved a trial court granting the defendant’s motion to suppress the HGN test. 30

However, the Beaumont Court states that the trial court in Rudd simply determined that

the officer lacked credibility to and failed to properly perform the test. But the Rudd

opinion clearly states that the trial court “found his credibility to be lacking on this issue

because of his failure to have Rudd perform the HGN test on video”31 and that the “State

failed to prove that Trooper Nolley properly administered the HGN test to Rudd.” 32

These distinctions are significant. The trial court in Rudd did not simply think that the

trooper was lying or that he did the test wrong. The Beaumont Court brushes off the

Rudd decision as a mere credibility and abuse-of-discretion case while ignoring its


29
   Hays v. State, unpublished opinion, No. 09-08-00302-CR, 2009.
30
   See Appendix A, at 11.
31
   Rudd, 255 S.W. 3d at 301.
32
   Id.
                                             10
underlying rationale based on Kelly. And while it is true that the present case and the

Rudd case are procedurally distinguishable, they are factually indistinguishable. The

conflicting opinions of these courts of appeals provide this Court with an opportunity to

address the serious constitutional and evidentiary issues raised by officers performing

certain tests on citizens “off-camera” to avoid scrutiny at trial of the accused.

                                      CONCLUSION

       This Court should grant Campos a new trial based on the fundamental flaws in

this case. The police officers making the arrest intentionally administered a key field

sobriety test off-camera to avoid scrutiny at trial. The trial court erred by admitting the

results of that test despite the concealment and allowed the jurors to hear testimony

regarding the only test that Campos allegedly failed outright. Additionally, this Court

should remand for a new trial because, absent the HGN testimony, there would have been

little if any evidence sufficient to warrant a conviction.

                                 PRAYER FOR RELIEF

       Campos asks the Court to grant review of this matter to address and correct the

errors of the Trial Court and the Court of Appeals. Campos specifically requests the

Court, upon review, to reverse this cause and render, as to the issue of insufficient

evidence, or remand the case to the trial court for a new trial.



                                                               Respectfully submitted,

                                                               /s/ Ryan W. Gertz
                                                               _____________________
                                                               Ryan W. Gertz
                                                               The Gertz Law Firm
                                                               2630 Liberty
                                                               Beaumont, TX 77702

                                              11
     Tel: (409) 833-6400
     Fax: (409) 833-6401
     Texas Bar. No. 24048489




12
                        CERTIFICATE OF COMPLIANCE

In accordance with Rule 9.4(i)1, there are 2,893 words including endnotes and footnotes.


         /s/ Ryan W. Gertz
       _________________________________
       Ryan W. Gertz




                            CERTIFICATE OF SERVICE

       This is to certify that on December 7, 2015, a true and correct copy of the above

and foregoing document was served on the Jefferson County District Attorney's Office,

1001 Pearl Street, 3rd Floor, Beaumont, Texas.

       /s/ Ryan W. Gertz
       _________________________________
       Ryan W. Gertz




                                           13
