      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-04-00710-CR



                                   David Alan Price, Appellant

                                                   v.

                                   The State of Texas, Appellee




             FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY
              NO. 613305, HONORABLE DAVID F. CRAIN, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant David Price was convicted by a jury of driving while intoxicated, and

sentenced by the trial court to one hundred eighty days’ confinement and a $2,000 fine. See Tex.

Pen. Code Ann. § 49.04 (West 2003). His confinement and $1,000 of the fine were probated for two

years. In his sole issue, he argues that the trial court erred by admitting evidence that the horizontal

gaze nystagmus test was administered. We will affirm the judgment.


                                          BACKGROUND

                At approximately 12:48 a.m. on May 25, 2002, Austin Police Department officer

Michael Morgovnik observed appellant driving a red truck without its headlights on at the

intersection of Fourth and Lavaca Streets in downtown Austin. Morgovnik pulled up behind

appellant, turned on his overhead lights, and “blasted [his] air horn” and siren “a few times.”
Morgovnik testified that appellant kept driving while Morgovnik “kept blasting [his] air horn and

siren so that he would know I was behind him with my lights on.” Appellant drove approximately

“two full city blocks in downtown Austin” before he finally stopped.

                Morgovnik testified that he approached appellant to ask for his driver’s license and

insurance, but appellant “appeared kind of out of it” and “didn’t seem to understand exactly what

I was asking him for.” Morgovnik stated that he had to ask appellant for his license and insurance

three or four times before appellant complied. Morgovnik asked appellant where he had been that

night, and when appellant faced Morgovnik to respond that he was coming from a steakhouse on

Colorado Street, Morgovnik “detected a strong odor of alcohol on [appellant’s] breath.” Appellant

admitted that he had consumed two glasses of wine.

                Morgovnik called for a DWI enforcement unit, but none were available.1 In response

to further questioning, appellant told Morgovnik that he began drinking around midnight and had

consumed his last drink “just a minute ago.” Although he had previously told Morgovnik that he

had consumed two glasses of wine, a few minutes later Morgovnik asked him again, and appellant

responded that he had consumed three or four drinks. Morgovnik testified that appellant “seemed

very depressed or very—kind of sedate, dazed, I guess you’d say. He had a strong odor of alcohol

on his breath. His speech was very slurred and mumbled. And he was swaying just standing there

talking with me.” Morgovnik emphasized to the jury that appellant “didn’t appear to be functioning

as a normal person would normally function.”


        1
          The DWI enforcement units are comprised of APD officers who focus on making traffic
stops to detect individuals who are driving while intoxicated and assisting with traffic stops by
administering field sobriety tests so that other officers may respond to different types of police calls.

                                                   2
               Morgovnik then testified regarding appellant’s performance of the field sobriety tests.

Specifically, he testified that appellant “had a very difficult time understanding my instructions,

which were to follow the tip of my finger with his eyeballs and not move his head. He couldn’t

grasp that for quite some time.” As Morgovnik “checked for equal tracking on both eyes,” he saw

that appellant’s eyes “were bouncing as they moved from side to side, which is the first clue.” Then,

Morgovnik “took it to maximum deviation and held it out there. And his eyes were bouncing around

on both sides. And then I just took it a little bit from center. And his eyes just kind of bounced from

center, which is six of the six clues I was looking for.” Based on this, Morgovnik concluded that

appellant had consumed “a high level of alcohol.” Morgovnik also described appellant’s difficulty

in performing the “walk and turn” and “one leg stand” tests. Based on the results of the three tests,

the strong odor of alcohol on appellant’s breath, appellant’s disorientation, inconsistency in the

amount of alcohol appellant admitted consuming in various time periods, and his slurred speech,

Morgovnik concluded that appellant was intoxicated. Appellant was arrested but declined to give

a breath sample.

               At trial, appellant testified that the night he was stopped, he was intimidated by

Morgovnik, was “extremely nervous” about the effect of an arrest on his career, and felt that his

“whole life was going to come crashing down.” He did not believe that he was intoxicated that night

or that he had swayed while talking to Morgovnik.

               The jury found appellant guilty of driving while intoxicated, and the trial court

sentenced him to one hundred eighty days’ confinement and a $2,000 fine but probated his

confinement and $1,000 of the fine for two years. See id.



                                                  3
                                          DISCUSSION

               In his sole issue, appellant complains that the court erred in admitting Morgovnik’s

testimony because there was insufficient evidence that he was qualified to give expert testimony

regarding the horizontal gaze nystagmus test. A trial court has broad discretion in deciding whether

a witness qualifies as an expert, Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990), and

its ruling on the admissibility of scientific expert testimony is reviewed for an abuse of discretion.

Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005).

               Field sobriety tests do not measure alcohol concentration but instead reflect the degree

to which the subject’s normal mental or physical faculties are impaired by an intoxicant. Douthitt

v. State, 127 S.W.3d 327, 337 (Tex. App.—Austin 2004, no pet.) (citing Emerson v. State, 880

S.W.2d 759, 769 (Tex. Crim. App. 1994)). Nystagmus is defined as an “involuntary rapid oscillation

of the eyeballs in a horizontal, vertical, or rotary direction.” Emerson, 880 S.W.2d at 765 (citing

R. Berkow, ed., The Merck Manual of Diagnosis and Therapy 1429 (1992)). Horizontal gaze

nystagmus (HGN) is a variety of nystagmus that occurs when an individual’s eyes are deviated to

the lateral extreme. Id. Smooth pursuit eye movements are “slow, conjugate movements that enable

the eyes to maintain a clear view of an object moving across the visual field.” Id. The effect of

alcohol on nystagmus, specifically HGN, is well-documented. Id. at 766. Consumption of alcohol

has also been found to effect smooth pursuit. Id. However, nystagmus may also be caused by factors

other than alcohol, such as other drugs, neurological disorders, or brain damage. Id.

               HGN test evidence is sufficiently reliable to be admitted as an indicator of

intoxication. Emerson, 880 S.W.2d at 768-69. A witness qualified by knowledge, skill, experience,

                                                  4
training, or education may give an opinion or otherwise testify to scientific, technical, or other

specialized knowledge if it will assist the trier of fact to understand the evidence or determine a fact

issue. Tex. R. Evid. 702. Although a police officer seeking to testify about a defendant’s

performance on an HGN test must be qualified as an expert in the test’s administration and

technique, Emerson, 880 S.W.2d at 769, it is not necessary that he be certified by the State of Texas

if he is qualified by other training or experience. See Smith v. State, 65 S.W.3d 332, 344 (Tex.

App.—Waco 2001, no pet.); Kerr v. State, 921 S.W.2d 498, 502 (Tex. App.—Fort Worth 1996, no

pet.).

                Morgovnik testified that he was not certified as a practitioner for purposes of

administration of the HGN test but that he had been an APD officer for six years and was “certified”

in HGN testing and as an intoxilyzer operator.2 At the police academy, he was “trained in

standardized field sobriety tests as it relates to DWI enforcement, specifically horizontal gaze

nystagmus,” as well as the “walk-and-turn test and the one-leg-stand test.” He stated that he believed

he had “a couple of certificates” as a result of his training and that he administered field sobriety tests

as part of his normal DWI enforcement procedures. The record reflects that, in his six years as an

officer, Morgovnik has investigated “a couple thousand” of individuals for DWI, and has personally

arrested approximately three or four hundred people for DWI. Within the last year before his




         2
          Morgovnik explained that “[t]here’s a basic level of certification. And you can do thirty
tests and record them all and send it in for an additional level. And I never got around to doing that
within the six-month window.” Thus, he completed the basic certification process to administer the
HGN test, but did not complete additional procedures in order to be certified as a practitioner.

                                                    5
testimony, Morgovnik had taken “a refresher course on the field sobriety tests, especially the

horizontal gaze nystagmus,” in order to make sure he remained current on his training.

               Based on this record, we hold that the trial court did not abuse its discretion by

allowing Morgovnik to testify about the HGN test. See Tex. R. Evid. 702; see also Smith, 65 S.W.3d

at 344; Kerr, 921 S.W.2d at 502. We overrule appellant’s sole issue.


                                        CONCLUSION

               Having overruled appellant’s issue, we affirm the judgment.



                                             __________________________________________

                                             W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: June 23, 2006

Do Not Publish




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