                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-09-305-CR


DEBRA HARTSOCK                                                      APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

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          FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

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                                   OPINION

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                                 I. Introduction

       Appellant Debra Hartsock appeals from her conviction for driving while

intoxicated.   In her sole point, Appellant contends that the admission of a

DVD—showing a person’s eyes with and without nystagmus—as demonstrative

evidence was reversible error because the State failed to establish the scientific

reliability of the Horizontal Gaze Nystagmus (HGN) test performed on the DVD. W e

will affirm.
                                  II. Background

      Shortly before 2 p.m. on November 19, 2008, while driving northbound on

Locust Street in Denton, Texas, Lawrence Gregg observed a Jeep approximately

100 yards in front of him lose control, roll a couple of times, and come to rest on the

driver’s side with the undercarriage facing northeast. Gregg testified that the road

was dry and that he did not observe any cars or obstacles that would have forced the

Jeep off the road. Gregg’s passenger called 9-1-1 while Gregg checked on the Jeep

driver. As Gregg approached, he smelled alcohol coming from the Jeep and saw

Hartsock crawl out of the passenger window.

      Gregg testified that Hartsock appeared to be in shock, that she profusely

cursed about wrecking her Jeep, but that she did not appear to be injured except for

a cut on her face. Gregg also testified that Hartsock slurred her speech and

appeared drunk.

      Responding to a dispatch call, Denton Police Officers Kevin Vice and Alfonso

O’Rozco arrived at the accident scene and observed Hartsock standing near her

vehicle, crying hysterically, squatting up and down, and alternately screaming and

cursing. Officer Vice noticed a couple of small cuts on Hartsock’s fingers but did not

observe any signs of a head injury or bruising. Hartsock denied being injured.

W hen Officer Vice inquired as to the cause of the accident, Hartsock replied that she

was talking on her cell phone and “the next thing she knows, she wrecks.” Officer

Vice testified he detected the smell of alcohol on Hartsock’s breath.


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      The paramedics found no other injuries, and Hartsock refused transport to the

hospital. Officer Vice observed Appellant had red and glassy eyes, slurred speech,

and staggered as she walked toward his patrol car. Hartsock denied drinking

alcohol, but told Officer Vice she had taken some nonprescription medication three

days earlier. Officer Vice administered the HGN test to Hartsock. He testified that

Hartsock exhibited all six clues of intoxication, could not correctly follow his

instructions, and swayed while he administered the test.

      While Officer O’Rozco investigated the accident, during which he removed two

rum bottles—one empty and one half-empty—from Hartsock’s vehicle, Officer Vice

asked Hartsock to perform additional field sobriety tests.        Hartsock could not

correctly recite the alphabet. Hartsock also failed the walk-and-turn test in that she

was neither able to follow Officer Vice’s instructions nor maintain her balance during

the test, eventually refusing to complete the test. Officer Vice testified that based on

his observations and the totality of circumstances, he concluded that Hartsock had

lost the normal use of her mental and physical faculties, and he arrested her for the

offense of driving while intoxicated. He also testified that Hartsock refused to

provide a blood sample to be tested for her blood alcohol concentration.

      On February 12, 2009, the grand jury indicted Hartsock for the third-degree

felony offense of driving while intoxicated with two prior convictions. The indictment

contained an enhancement paragraph raising the punishment range to that of a

second-degree felony. At the jury trial on August 19, 2009, Hartsock pleaded not


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guilty to the primary charge of driving while intoxicated and pleaded true to the

enhancement paragraphs regarding two prior driving while intoxicated convictions.

       During the trial, the State offered—for demonstrative purposes only—a DVD

featuring videos of an individual’s eyes with and without nystagmus.                 Upon

Hartsock’s objection, the trial court held a hearing outside the presence of the jury

to determine the admissibility of the DVD. Officer Vice testified that the DVD is a

training tool used by the district attorney’s office to show police officers how a

person’s eyes look with and without horizontal gaze nystagmus, that he had viewed

the videos at the district attorney’s office during a training session, and that the

videos would assist him with his testimony. He further testified that he did not know

who created the videos. Hartsock objected because Officer Vice could not vouch

for the authorship, authenticity, or scientific principles applied in the videos. The trial

court overruled Hartsock’s objection.

       Officer Vice testified that Hartsock’s eyes are not on the DVD, but that the

videos would help the jury understand “what someone’s eyes looked like when they

have HGN and when they don’t.” The trial court instructed the jury that the videos

did not show Hartsock’s eyes, and did not indicate the level of alcohol consumption

the individual in the video consumed in order to demonstrate HGN, but was being

shown “just to aid you in the officer’s testimony what he observed, or at least to show

you what he believed he observed.” After the DVD was played for the jury, Officer




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Vice testified that he saw all six clues of intoxication in the DVD’s second video and

that they were the same six he observed in Hartsock’s eyes.

       The jury found Hartsock guilty and assessed her punishment at fourteen

years’ confinement. The trial court sentenced her accordingly.

                                        III. Analysis

       In her sole point on appeal, Hartsock contends that the trial court erred by

admitting the DVD as demonstrative evidence. Specifically, Hartsock argues that

the DVD was inadmissible because the State failed to establish the scientific

reliability of the test it portrayed.

       A. Standard of Review

       A trial court’s ruling on the admissibility of evidence is reviewed under an

abuse of discretion standard. Moses v. State, 105 S.W .3d 622, 627 (Tex. Crim.

App. 2003).       If the trial court’s ruling was within the zone of reasonable

disagreement, there is no abuse of discretion. Id.

       B. Trial Court’s Admission of DVD Not An Abuse of Discretion

       1. Demonstrative Evidence Is Admissible To Explain Testimony

       Demonstrative evidence is evidence admitted to serve as a visual aid or

illustration that meets the tests of relevancy and materiality, as well as the limitations

imposed by Texas Rule of Evidence 403. Baker v. State, 177 S.W .3d 113, 123 (Tex.

App.—Houston [1st Dist.] 2005, no pet.). The trial court’s discretion to permit the

use of visual aids, charts, and video recordings during trial is well established.

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Marras v. State, 741 S.W .2d 395, 404–05 (Tex. Crim. App. 1987), overruled on other

grounds, 851 S.W .2d 853, 860 (1993) (holding that a videotaped re-enactment of the

defendant’s flight from the crime scene was admissible); Baker, 177 S.W .3d at 123.

      Demonstrative evidence has no independent relevance to the case but is

offered to help explain or summarize the witness's testimony or to put events and

conditions into a better perspective. Torres v. State, 116 S.W .3d 208, 213 (Tex.

App.—El Paso 2003, no pet.).         To establish the relevancy of demonstrative

evidence, the proponent must first authenticate it.       Id. The proponent is then

required to establish that the evidence is fair and accurate and that it helps the

witness to demonstrate or illustrate his testimony. Id.; see Simmons v. State, 622

S.W .2d 111, 113 (Tex. Crim. App. [Panel Op.] 1981) (holding that demonstrative

evidence is admissible if it tends to solve some issue in the case and is relevant, that

is, if it sheds light on the subject at hand). Demonstrative evidence must be properly

identified by showing that the item in question is what its proponent claims as

opposed to any idea of speculation, conjecture, or presumption of what the exhibit

represents. Torres, 116 S.W .3d at 213 (citing Vollbaum v. State, 833 S.W .2d 652,

657 (Tex. App.—W aco 1992, pet. ref’d)). Demonstrative evidence has no probative

force beyond that which is lent to it by the credibility of the witness whose testimony

it is used to explain. Id.

      2. As Demonstrative Evidence, State Did Not Need to Prove Scientific
Reliability of HGN Test on DVD



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      Hartsock argues that because Officer Vice neither knew who made the videos

nor the qualifications of the HGN test administrator on the DVD, the State submitted

no proof that the scientific technique judicially noticed to be reliable in Emerson v.

State was properly followed in making the videos. See 880 S.W .2d 759, 768–69

(Tex. Crim. App. 1994).

      To establish the reliability of scientific evidence, the proponent must show: (1)

the underlying scientific evidence is valid; (2) the technique applying the principle

must be valid; and (3) the technique must have been properly applied on the

occasion in question. Kelly v. State, 824 S.W .2d 568, 572 (Tex. Crim. App. 1992).

In Emerson, the court took judicial notice that the HGN test, as designed and

promoted by the National Highway Traffic Safety Administration (NHTSA), meets the

first two of the three Kelly requirements for determining the admissibility of scientific

evidence. Emerson, 880 S.W .2d at 768. However, evidence must show that the

third requirement was met—that the HGN technique was applied properly—on the

occasion in question. Id. at 768–69.

      Here, a review of the record indicates that the DVD was not used as a

scientific method of proof that Hartsock was intoxicated, but to aid the jury in

understanding HGN. Officer Vice authenticated and identified the DVD as one he

viewed in the district attorney’s office and that it is used to help officers identify an

individual with horizontal gaze nystagmus. Officer Vice explained to the jury that

Hartsock’s eyes were not on the videos and that the DVD would help him with his


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testimony because the DVD would help the jury understand the signs he looks for

when conducting the HGN test. In addition, the trial court instructed the jury that the

DVD did not show Hartsock’s eyes and that it was admitted only to aid the jury in

understanding what Officer Vice believed he observed as he conducted the HGN

test on Hartsock. Finally, the record does not indicate that the DVD was used as

direct or substantive evidence to support Hartsock’s intoxication. 1 The DVD was

admissible as demonstrative evidence. See Thrasher v. State, No. 12-09-00334-

CR, 2010 WL 2638070, at *2 (Tex. App.—Tyler June 30, 2010, no pet.) (mem. op.,

not designated for publication).

      Having determined that the trial court did not abuse its discretion in admitting

the DVD as demonstrative evidence, we overrule Hartsock’s sole point.

                                   IV. Conclusion

      Having overruled Hartsock’s sole point, we affirm the trial court’s judgment.



                                               ANNE GARDNER
                                               JUSTICE

PANEL: GARDNER, MCCOY, and MEIER, JJ.

PUBLISH

DELIVERED: August 19, 2010




      1
      The record does not reveal that the State mentioned the videos on the
DVD during closing argument or at any other point in the trial.

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