                                                                                               PD-1261-15
                                                                           COURT OF CRIMINAL APPEALS
                                                                                           AUSTIN, TEXAS
                                                                         Transmitted 10/26/2015 3:49:00 PM
                                                                           Accepted 10/27/2015 4:48:47 PM
                                                                                            ABEL ACOSTA
                               No. ____________________                                             CLERK

                                          In The

                                Court of Criminal Appeals

                                  Of The State of Texas

                                  Austin, Texas
                   _________________________________________

                               MARCUS LOUIS JAMES,
                                    Petitioner

                                            vs.

                             THE STATE OF TEXAS
                   _________________________________________

                               PETITION
                                  FOR
                         DISCRETIONARY REVIEW
                   _________________________________________


COMES NOW MARCUS LOUIS JAMES and petitions this Court to review the judgment

affirming his conviction for driving while intoxicated in Cause No. 09-14-00360-CR, in the

Ninth Court of Appeals, and in Cause No. 299,715 in the County Court at Law No. 3, Jefferson

County, Texas.




           October 27, 2015
                                       TABLE OF CONTENTS


TABLE OF CONTENTS..........................................................................................ii

INDEX OF AUTHORITIES....................................................................................iii

IDENTITIES OF PARTIES AND COUNSEL……………………………………iv

STATEMENT REGARDING ORAL ARGUMENT……………………………..iv

STATEMENT OF THE CASE…………………………………………….............2

STATEMENT OF PROCEDURAL HISTORY…………………………………..2

GROUNDS FOR REVIEW………………………………………………………..2

STATEMENT OF FACTS…………………………………………………………3

ARGUMENT AND AUTHORITIES……………………………………………...4

CONCLUSION.......................................................................................................10

PRAYER FOR RELIEF…………………………………………………………..10

CERTIFICATE OF COMPLIANCE…………………...........................................12

CERTIFICATE OF SERVICE................................................................................12




                                                         ii
                          INDEX OF AUTHORITIES

Cases

Arizona v. Youngblood, 488 U.S. 51, 58, (1988)…………………..…………………...……4, 5, 7

Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994)………………………………..……..5

Hays v. State, unpublished opinion, No. 09-08-00302-CR, 2009…………………………………9

Kelly v. State, 824 S.W.2d 568, 573-74 (Tex. Crim. App. 1992)………………………………5, 6

Lisenba v. California, 314 U. S. 219, 236 (1941)…………………………………….....………..4

State v. Rudd, 255 S.W.3d 293 (Tex. App.-Waco 2008, pet. ref'd)………...………………8,9, 10

Thomas v. State, 841 S.W.2d 399, 402 n. 5 (Tex.Crim.App.1992)……………..…………...……5




                                        iii
                          IDENTITY OF PARTIES AND COUNSEL

1.     Petitioner is Marcus Louis James.

2.     Trial and Appellate Counsel for Petitioner is Ryan W. Gertz, 2630 Liberty, Beaumont,
       TX 77702.

3.     Trial and Appellate counsel for the state was the Jefferson County District Attorney’s
       Office, 1001 Pearl St., Beaumont, TX 77701.

4.     The Trial Court Judge was Hon. Langston Adams, County Court at Law No. 3,
       Jefferson County, Texas.




                         STATEMENT REGARDING ORAL ARGUMENT

       James requests oral argument and respectfully submits that oral argument would aid the

Court in the disposition of the case as it presents novel questions for consideration.




                                                 iv
                            No. ____________________

                                        In The

                             Court of Criminal Appeals

                                Of The State of Texas

                               Austin, Texas
                _________________________________________

                             MARCUS LOUIS JAMES,
                                  Petitioner

                                          vs.

                          THE STATE OF TEXAS
                _________________________________________

                            PETITION
                               FOR
                      DISCRETIONARY REVIEW
                _________________________________________


COMES NOW MARCUS LOUIS JAMES and petitions this Court to review the

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

00360-CR, in the Ninth Court of Appeals, and in Cause No. 299,715 in the County Court

at Law No. 3, Jefferson County, Texas. For convenience, the parties will be referred to

as “James” 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).




                                           1
                             STATEMENT OF THE CASE

        This Petition seeks redress of the affirmance of James’ conviction for driving

while intoxicated. On September 11, 2013, James was charged with the offense of

driving while intoxicated.1 On June 17, 2014, after James pled “not guilty,” a jury trial

commenced.2 On the next day, James was found guilty of D.W.I.3 The Judge sentenced

James to 180 days in jail, suspended over 18 months, a $2000 fine, and community

service.4 The Ninth Court of Appeals affirmed the conviction on August 26, 2015. The

opinion of the Court is attached as Appendix A.



                    STATEMENT OF PROCEDURAL HISTORY

        The Court of Appeals rendered its opinion affirming the conviction on August 26,

2015. No motion for rehearing was filed.



                               GROUNDS FOR REVIEW

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

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

camera in order to deprive James 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).


1
  CR 8.
2
  CR 177
3
  CR 26
4
  RR 3, 30

                                            2
                            STATEMENT OF FACTS

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

During the course of the traffic stop, Detective Jeremy Bearden began initiating

field sobriety testing.     Ultimately, James was arrested for driving while

intoxicated.

        Both Bearden and his partner, Officer Mesa, made the arrests at the scene.

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

Bearden testified at trial, but did not testify that James had the smell of alcohol on

his breath or person, that he had red, blood-shot, and glassy eyes, or that he was

unsteady on his feet. The video clearly reveals that James was not unsteady on his

feet.

        Instead, Bearden’s testimony relied entirely on his administration of the

field sobriety tests to conclude that James was intoxicated.5 Bearden testified that

James exhibited six out of six clues on the HGN test. 6 He further testified that

James exhibited five out of eight clues on the walk and turn, but he employed

improper definitions under the Manual for arriving at that conclusion.7 Finally, he

testified that James exhibited one out of four clues on the one leg stand – a passing

score – yet the video plainly shows the one clue noted was not accurate. 8

Nonetheless, James was arrested.



5
  RR 2, 93.
6
  RR 2, 81.
7
  RR 2, 130, 139.
8
  RR 2, 130.
                                          3
        Most importantly to this appeal, however, Bearden and his partner, Officer

Mesa, intentionally take 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.



                                        ARGUMENT

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

Bearden intentionally administered the HGN test off camera in an effort to avoid scrutiny

at trial. James 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.

James performed well on 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 James’ Youngblood and Kelly arguments regarding the officer’s
intentional act of performing the HGN test off-camera in order to deprive James 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. 9 In this


9
 See Arizona v. Youngblood, 488 U.S. 51, 58, (1988) (citing Lisenba v. California, 314 U. S.
219, 236 (1941)).
                                               4
case, the Court of Appeals glossed over James’ constitutional due process arguments

under Youngblood by essentially stating that Detective Bearden testified that he is an

expert and that he conducted the HGN test correctly, and that there was no evidence

introduced to indicate that Bearden acted intentionally or in bad faith. 10 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.”11 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.12 This Court has recognized the applicability

of Youngblood in Texas since 1992.13

                                       B. The HGN Test

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

In Emerson v. State, 14 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. 15 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


10
     See Appendix A, at 8.
11
   Youngblood, 488 U.S. at 57.
12
   Youngblood, 488 U.S. at 56 fn *.
13
   Thomas v. State, 841 S.W.2d 399, 402 n. 5 (Tex.Crim.App.1992)
14
     Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994)
15
     Emerson, 880 S.W.2d at 764.
                                                5
valid; (b) the technique applying the theory must be valid; and (c) the technique must

have been properly applied on the occasion in question."16

        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. The video shows Bearden performing the HGN test on James by his driver

side door; and has a second Citizen Accused walk with him from the front of his vehicle,

where the camera is aimed, all the way around to his driver side door to administer the

HGN test.17 We can also see his partner do the same thing on two different occasions.18

Bearden testified at trial that the reason he did not perform the HGN test on camera was

due to the fact that there were people standing where he “would normally go to do the

HGN.”19 However, the video shows that the other officer and citizens naturally move out

of his way when he walks James to the front of his patrol car to perform the walk and

turn on camera.20 He also admits, though, that he knows the video does not record it

when he administers the test some where other than the front of his vehicle.21


16
   Kelly v. State, 824 S.W.2d 568, 573-74 (Tex. Crim. App. 1992).
17
   See Dash-Cam Video, State’s Exhibit 1, at 3:38; 15:50.
18
   See Dash-Cam Video, State’s Exhibit 1, at 03:05; 16:50
19
   RR 2, 95
20
   See Dash-Cam Video, State’s Exhibit 1, at 5:30.
21
   See e.g. RR 2, 108 (admission by Bearden that we could see the administration if he
                                               6
          Additionally, though, on a video compilation, created by James’ counsel and

submitted to the Court during the Motion for New Trial 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

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.22 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.

          During his testimony Bearden acknowledged, and this is crucial for Youngblood

analysis, that if he does the HGN on camera, that defense counsel can scrutinize his

administration of the test and determine whether or not it conforms with the manual.23

He further admitted that he has seen officers administer the test incorrectly and

acknowledged that, if the test were on camera, another expert could view and critique it.24

The Court of Appeals completely fails to acknowledge these troubling admissions by

Bearden as they relate to bad faith. 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.25 Bearden’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.

performed in front of the vehicle where his camera points).
22
     See video offered at hearing on motion for new trial.
23
   RR 2, 113
24
   RR 2, 114.
25
     Youngblood, 488 U.S. at 56 fn *.
                                                7
          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 Bearden’s testimony regarding field sobriety

tests – outside of the HGN test - is that James “exhibited clues on both the walk and turn

test and the one-leg-stand test.”26 The Court does not address the numerous problems

with Bearden’s testimony regarding the administration of the walk-and-turn or the one-

leg-stand test as outlined in James’ brief to the Court of Appeals. There was no evidence

presented that James had the smell of alcohol on his breath or person, no evidence that

his eyes were red and blood-shot, nor any evidence he was unsteady on his feet. Bearden

intentionally administered the test off-camera, then concluded that James had

demonstrated six out of six clues on the test.        It was the only test where Bearden was

able to describe a conclusive “failure” by James and was also the only test whose

administration cannot be scrutinized by James’s 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,27 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, James would point out that Rudd and


26
     See Appendix A, at 9.
27
     State v. Rudd, 255 S.W.3d 293 (Tex. App.-Waco 2008, pet. ref'd).
                                                 8
this case are factually indistinguishable. In Rudd, there was no evidence of slurred

speech or the smell of alcohol testified to by the officer. As Bearden did here, the

Trooper in Rudd testified that he administered the HGN correctly in accordance with the

manual. Additionally, Rudd, like James, 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 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.28 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, James, 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. 29

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




28
     Hays v. State, unpublished opinion, No. 09-08-00302-CR, 2009.
29
     See Appendix A, at 8.
                                                9
because of his failure to have Rudd perform the HGN test on video”30 and that the “State

failed to prove that Trooper Nolley properly administered the HGN test to Rudd.” 31

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

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 James 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 James 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

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

errors of the Trial Court and the Court of Appeals. James specifically requests the Court,




30
     Rudd, 255 S.W. 3d at 301.
31
     Id.
                                               10
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
                                                            Tel: (409) 833-6400
                                                            Fax: (409) 833-6401
                                                            Texas Bar. No. 24048489




                                              11
                        CERTIFICATE OF COMPLIANCE

In accordance with Rule 9.4(i)1, there are 2,590 words including endnotes and footnotes.


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




                            CERTIFICATE OF SERVICE

       This is to certify that on October 26, 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




                                           12
                                       APPENDIX

Item No.    Description                           No. Pages

       9th Court of Appeals Opinion.
 1                                                     10
                                    In The

                             Court of Appeals
                  Ninth District of Texas at Beaumont
                             ________________

                            NO. 09-14-00360-CR
                             ________________

                    MARCUS LOUIS JAMES, Appellant

                                      V.

                  THE STATE OF TEXAS, Appellee
___________________________________________________________________

             On Appeal from the County Court at Law No. 3
                        Jefferson County, Texas
                        Trial Cause No. 299715
___________________________________________________________________

                        MEMORANDUM OPINION

     A jury convicted appellant Marcus Louis James of driving while intoxicated,

and the trial judge assessed punishment at a $2000 fine and one hundred eighty

days of confinement in the Jefferson County Jail, but suspended imposition of

sentence and placed James on probation for eighteen months. In two appellate

issues, James challenges the admission into evidence of the police officer’s

testimony concerning horizontal gaze nystagmus (HGN) testing of James and the



                                      1
legal sufficiency of the evidence without that testimony. We affirm the trial court’s

judgment.

                                  THE EVIDENCE

      Detective Jeremy Bearden of the Port Arthur Police Department testified

that he is assigned to the traffic unit, which primarily involves dealing with

intoxicated drivers, and he is certified in standardized field sobriety tests. On

August 28, 2013, Bearden stopped a white Ford pickup truck driven by James.

Bearden explained that he was in the parking lot of a gas station when he saw the

white truck and three other vehicles pull up to a flashing red traffic light and heard

their engines revving. According to Bearden, the two vehicles in front stopped at

the flashing red light and then “took off, . . . kind of like they were racing each

other, keeping up with each other. The two vehicles in back went straight through

the red light. They didn’t stop and wait. They were obviously trying to keep up

with the two in the front.” Bearden got into his patrol car and began chasing the

vehicles, and he eventually caught up with them as they were pulling into a parking

lot and detained all four suspects.

      Bearden testified that he began speaking with the four subjects, and two

other officers, Officers Meza and Dinger, arrived. Meza performed field sobriety

testing on two of the subjects, and Bearden performed standardized field sobriety

                                          2
testing on the other two subjects. Bearden began his testing of James by

administering the HGN test, and he testified that James exhibited six out of six

possible clues. Bearden explained the three portions of the standardized HGN test:

(1) checking for smooth pursuit, which involves asking subjects to follow a light at

the end of a stylus with their eyes while keeping their heads still, and watching for

twitching of the eyes; (2) the maximum duration test, which involves bringing the

light all the way out, holding it for four to eight seconds, and having subjects focus

on it the entire time that the light is extended, again checking for twitching of the

eyes; and (3) “onset prior to 45 degrees[,]” which involves staying twelve inches

from subjects’ faces at a forty-five-degree angle, and watching for twitching of the

eyes. Bearden testified that each eye is checked twice on each individual test, so

there is one potential clue for each eye on each of the three HGN tests. According

to Bearden, James exhibited six clues.

      Bearden then administered the walk and turn test to James. Bearden

explained that the walk and turn test involves having a subject walk along a

straight line, heel to toe, for nine steps, turn, and take nine steps back. Bearden

testified that he gave James the instructions for the test three times and

demonstrated the test twice. Bearden next administered the one-leg stand after

giving James instructions. Bearden explained that the one-leg stand involves

                                          3
having a subject raise his foot about six inches off the ground with his hands by his

side, keeping both legs straight, and looking down at the foot and counting for

thirty seconds. Bearden testified that, “[o]n a one-leg stand you look for if they put

their foot down, sway, use their arms for balance, or if they hop trying to stand

up[,]” and he explained that these things are clues as to whether the person is

intoxicated. According to Bearden, each of the field sobriety tests led him to

conclude that James was intoxicated. The State then played a video recording of

Bearden’s encounter with James for the jury.

      Bearden explained that the HGN test was not performed on camera because

Bearden had stopped four subjects, and another officer had two of the subjects

standing where he would normally have performed the HGN test on James, so

Bearden elected to simply perform HGN testing of James beside the truck where

James was already standing. Bearden testified that his training enables him to

identify whether a subject is intoxicated. According to Bearden, James refused to

submit to a breath test, and James admitted that he had consumed several shots and

two beers that night.

      Bearden explained that there is no policy or practice about placing a subject

in front of the police vehicle to perform the HGN test. Bearden testified that he

does not pay attention to where he administers HGN testing, and HGN clues

                                          4
cannot be seen with a camera, but he does insure that the walk and turn test and the

one-leg stand are on video because the clues are visible on video. According to

Bearden, James started the walk and turn test too early and failed to maintain his

position, both of which are clues. James also turned in the wrong direction, stopped

while he was walking, and used his arms for balance. With respect to the one-leg

stand test, Bearden explained that James swayed during the test, which is one of

the four possible clues. After concluding the field sobriety testing, Bearden

arrested James for driving while intoxicated. The State rested at the conclusion of

Bearden’s testimony. The jury found Bearden guilty, and the trial judge assessed

punishment.

                             ISSUES ONE AND TWO

      In issue one, James challenges the admission into evidence 1 of the police

officer’s testimony concerning the HGN testing of James. In issue two, James

challenges the legal sufficiency of the evidence without the testimony regarding

the HGN testing. Specifically, James contends Bearden deliberately and in bad

faith conducted the HGN test in a location where it could not be captured on video,

      1
       James filed a pretrial motion requesting exclusion of testimony regarding
the HGN test administration and results, alleging that (1) Bearden intentionally
administered the test off camera to prevent counsel from determining whether the
examination was properly administered; (2) without reliability evidence, the test
cannot meet the requirements for admission of expert testimony; and (3) the
testimony “is extremely prejudicial and yet has little probative value.”
                                         5
and that the evidence is therefore unreliable because James’s counsel could not

review the manner in which Bearden administered the test. We address issues one

and two together.

      In reviewing the legal sufficiency of the evidence, we review all the

evidence in the light most favorable to the verdict to determine whether any

rational fact finder could have found the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The fact finder is the ultimate authority

on the credibility of witnesses and the weight to be given their testimony.

Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). We give full

deference to the fact finder’s responsibility to fairly resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts. Hooper, 214 S.W.3d at 13. If the record contains conflicting

inferences, we must presume that the fact finder resolved such facts in favor of the

verdict and defer to that resolution. Brooks v. State, 323 S.W.3d 893, 900 n.13

(Tex. Crim. App. 2010); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). We also determine whether the necessary inferences are reasonable based

upon the combined and cumulative force of all the evidence when viewed in the

light most favorable to the verdict. Clayton, 235 S.W.3d at 778.

                                         6
      We review a trial court’s ruling admitting evidence for abuse of discretion,

and we must uphold the trial court’s ruling if it falls “within the zone of reasonable

disagreement.” Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); see

also Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). The trial

court errs when its ruling admitting the evidence “is so clearly wrong as to lie

outside that zone within which reasonable persons might disagree.” McDonald v.

State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).

      Rule 702 of the Texas Rules of Evidence states that a witness “who is

qualified as an expert by knowledge, skill, experience, training, or education may

testify in the form of an opinion or otherwise if the expert’s scientific, technical, or

other specialized knowledge will help the trier of fact to understand the evidence or

to determine a fact in issue.” Tex. R. Evid. 702. The Texas Court of Criminal

Appeals has held that testimony concerning the HGN test is scientific evidence and

is therefore admissible under Rule 702 if it meets the requirements set forth in

Kelly v. State, 824 S.W.2d 568, 573-74 (Tex. Crim. App. 1992). Emerson v. State,

880 S.W.2d 759, 764 (Tex. Crim. App. 1994). As discussed above, James contends

the HGN testing evidence was inadmissible because the HGN test was conducted,

intentionally and in bad faith, in a location where it could not be captured on video,

thereby violating his due process rights.

                                            7
      The jury heard evidence that Bearden testify that he is assigned to the traffic

unit and is certified in conducting standardized field sobriety tests. Bearden

explained in detail the procedure for conducting the HGN, as well as the types of

clues a subject may exhibit during HGN testing, and he testified that he followed

the standardized procedures in his HGN testing of James. The jury also heard

Bearden explain why he did not perform the HGN testing on camera, and that there

is no policy or practice about placing a subject in front of the police vehicle to

perform the HGN testing. Bearden testified that HGN clues cannot be seen with a

camera. No evidence was introduced to indicate that Bearden acted intentionally or

in bad faith when deciding to administer the HGN test out of the camera’s view.

      In support of his argument, James cites State v. Rudd, 255 S.W.3d 293 (Tex.

App.—Waco 2008, pet. ref’d). However, Rudd did not hold that the failure to

videotape the HGN test bars its admission into evidence. Id. at 301-02. Rather, the

Rudd court merely upheld the trial court’s order granting a motion to suppress

HGN testimony because the trial court had determined that the officer who

administered the HGN test lacked credibility and failed to properly perform the

test. Id. at 301. James cites no authorities holding that the lack of a video recording

renders evidence of HGN testing inadmissible, or that lack of a video recording

violates his right to due process, and we are aware of none. For all of these reasons,

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the trial court did not abuse its discretion by admitting Bearden’s testimony

regarding the HGN testing into evidence. We overrule issue one.

      We turn now to the legal sufficiency of the evidence. The State had the

burden to prove that Bearden was intoxicated while operating a motor vehicle in a

public place. See Tex. Penal Code Ann. § 49.04(a) (West Supp. 2014). The jury

heard evidence that Bearden stopped James and three other subjects who appeared

to be racing. Bearden testified that James exhibited six out of a possible six clues

on the HGN test , and he also exhibited clues on both the walk and turn test and the

one-leg stand. In addition, the jury heard testimony that James told Bearden he had

consumed several shots and two beers that evening, and that James refused to

submit to a breath test. The jury also viewed a video of James’s performance of the

walk and turn and one-leg stand tests. As we have previously explained, the trial

court did not err by admitting evidence of the HGN testing. Regardless of whether

or not the HGN evidence is considered, we conclude that a rational fact finder

could have found the essential elements of the offense beyond a reasonable doubt.

See Jackson, 443 U.S. at 319; Hooper, 214 S.W.3d at 13; Penagraph, 623 S.W.2d

at 343. We overrule issue two and affirm the trial court’s judgment.




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      AFFIRMED.

                                     ________________________________
                                            STEVE McKEITHEN
                                                Chief Justice

Submitted on July 27, 2015
Opinion Delivered August 26, 2015
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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