                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-12-00056-CR

JAMES DANIEL LEIGH,
                                                        Appellant
v.

THE STATE OF TEXAS,
                                                        Appellee



                          From the 18th District Court
                            Johnson County, Texas
                             Trial Court No. F42563


                         MEMORANDUM OPINION


      The jury convicted James Daniel Leigh of the felony offense of driving while

intoxicated. They jury found the enhancements paragraphs to be true and assessed

punishment at 49 years confinement. We affirm.

                                 Background Facts

      Deputy Jeremy Goff, with the Johnson County Sheriff’s Office, testified that on

January 26, 2008, he was in his personal vehicle on his way to work. Deputy Goff

noticed a green vehicle in the passing lane collide with a tractor trailer. The green
vehicle then hit a guardrail before coming to a stop. Deputy Goff called dispatch to

report the accident. While he was on the phone with dispatch, Deputy Goff saw the

driver of the green vehicle throw beer cans and a liquor bottle out of the vehicle.

Deputy Goff then approached the driver of the vehicle, and he smelled a strong odor of

an alcoholic beverage coming from the driver’s breath. Deputy Goff identified the

driver of the green vehicle as James Leigh.

        Michael O’Malia testified that as he was driving his truck, he heard a loud bang

and that a vehicle had collided with the side of his fuel tank. O’Malia slammed on his

brakes, and the vehicle slammed into his truck again. The vehicle hit his truck a third

time before hitting a guardrail and coming to a stop. O’Malia stopped his truck and

went back to check on the occupants of the vehicle. O’Malia identified Leigh as the

driver of the vehicle, and he testified there was also a child in the vehicle. When he

arrived at the vehicle, O’Malia could smell alcohol, and he believed Leigh had been

drinking.

        Deputy James Novian arrived at the scene to assist, and he testified that he

smelled a strong odor of an alcoholic beverage on Leigh’s person. Deputy Novian

further testified that there was a seven year-old child in the vehicle. Deputy Novian

identified the child and stayed with the child while his mother was being notified.

        Alvarado police officer Brad Anderson arrived at the scene to handle the

investigation because the accident occurred within the Alvarado city limits. Officer

Anderson testified that he made contact with Leigh and that he smelled an alcoholic

beverage on Leigh’s person and that Leigh had slurred speech and glassy eyes. Officer

Leigh v. State                                                                        Page 2
Anderson asked Leigh if he had been drinking, and Leigh responded that he had had

three beers.     Officer Anderson stated that Leigh had trouble walking, appeared

unsteady, and that Leigh was argumentative.

        Officer Anderson conducted the HGN test, and he observed six clues indicating

intoxication. He then asked Leigh to perform the one-leg stand field sobriety test.

Leigh did not follow instructions, and he did poorly on that test. Officer Anderson

searched the area where Deputy Goff saw Leigh throw out beer cans and a liquor bottle.

He was able to recover a Jose Cuervo tequila bottle that had a small amount of liquid

left in the bottle. Officer Anderson believed Leigh was intoxicated, and he placed Leigh

under arrest.

        Officer Anderson transported Leigh to the jail, and Leigh fell asleep en route to

the jail. Once they arrived at the jail, Leigh became very agitated, took off all of his

clothes, screamed at the jailers, and tried to fight the jailers. Leigh refused to give a

breath or blood sample and he would not answer questions or cooperate with the book-

in process.

                                    Motion to Suppress

        In his first issue, Leigh argues that the trial court erred in denying his motion to

suppress. In reviewing a trial court's ruling on a motion to suppress, appellate courts

must give great deference to the trial court's findings of historical facts as long as the

record supports the findings. Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997).

Because the trial court is the exclusive fact finder, the appellate court reviews evidence

adduced at the suppression hearing in the light most favorable to the trial court's ruling.

Leigh v. State                                                                        Page 3
Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We also give deference to

the trial court's rulings on mixed questions of law and fact when those rulings turn on

an evaluation of credibility and demeanor. Guzman v. State, supra. Where such rulings

do not turn on an evaluation of credibility and demeanor, we review the trial court's

actions de novo. Guzman v. State, supra; Davila v. State, 4 S.W.3d 844, 847-48 (Tex.App.-

Eastland 1999, no pet'n).      We review questions involving legal principles and the

application of law to established facts de novo. Kothe v. State, 152 S.W.3d 54, 63 (Tex.

Crim. App. 2004).

        Leigh argues that the trial court erred in finding that Officer Anderson had

probable cause to arrest him for driving while intoxicated. In determining that Officer

Anderson had probable cause to arrest Leigh, the trial court issued findings of fact and

conclusions of law finding that: 1) Officer Anderson smelled the strong odor of an

alcoholic beverage on Leigh; 2) Officer Anderson observed Leigh’s eyes were glassy and

his speech was slurred; 3) Officer Anderson observed that Leigh was unsteady on his

feet; 4) Officer Anderson was qualified to conduct and did conduct two field sobriety

tests; and 5) Leigh failed the field sobriety tests.

        Probable cause exists when the facts and circumstances within an officer's

personal knowledge and of which he has reasonably trustworthy information are

sufficient to warrant a person of reasonable caution in the belief that, more likely than

not, a particular suspect has committed an offense. Hughes v. State, 878 S.W.2d 142, 154

(Tex. Crim. App. 1992); State v. Garrett, 22 S.W.3d 650, 654 (Tex.App. – Austin 2000, no

pet.). Probable cause must be examined in light of the totality of the circumstances

Leigh v. State                                                                     Page 4
established by the evidence. See Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App.

1991); State v. Garrett, 22 S.W.3d at 654.

        The odor of alcohol, watery eyes, and unsteadiness are all classic signs that

suggest a suspect's mental and physical faculties might be impaired. State v. Garrett, 22

S.W.3d at 654. The evidence supports the trial court’s findings that Leigh had a strong

odor of alcohol, that he had glassy eyes, and that he was unsteady. The record also

shows that the field sobriety tests conducted on Leigh indicated that he was intoxicated.

We conclude that under the totality of circumstances, the officers had probable cause to

justify a warrantless arrest of Leigh. We overrule the first issue.

                                      Expert Testimony

        Leigh argues in his second issue that the trial court erred in allowing Officer

Anderson to testify as an expert with respect to the HGN test in the presence of the jury.

The question of whether a witness offered as an expert possesses the required

qualifications rests largely in the trial court's discretion. TEX. R. EVID. 702; Wyatt v. State,

23 S.W.3d 18, 27 (Tex. Crim. App. 2000). Absent an abuse of discretion, the trial court's

decision to admit or exclude testimony will not be disturbed. Wyatt v. State, 23 S.W.3d

at 27. For testimony concerning a defendant's performance on the HGN test to be

admissible, it must be shown that the witness testifying is qualified as an expert on the

HGN test, specifically concerning its administration and technique. Emerson v. State,

880 S.W.2d 759, 769 (Tex. Crim. App. 1994). In the case of a police officer or other law

enforcement official, this requirement will be satisfied by proof that the officer has

received practitioner certification by the State of Texas to administer the HGN. Id.

Leigh v. State                                                                           Page 5
        Officer Anderson testified that he was certified to conduct the HGN test at the

time he administered the test to Leigh. Officer Anderson testified that he was not sure

if his certification was still valid at the time of trial because he was no longer a patrol

officer, and he let some certifications lapse. Officer Anderson was certified at the time

he administered the HGN test, and he further testified that he has extensive training in

administering the test. The trial court did not abuse its discretion in allowing Officer

Anderson to testify as an expert on the HGN test. See Kerr v. State, 921 S.W.2d 498, 502

(Tex.App.-Fort Worth 1996, no pet.).

        Leigh also argues that Officer Anderson did not perform the test in accordance

with National Highway Traffic Safety Administration (NHTSA) standards.             Officer

Anderson testified that he “left out a couple of passes” when performing the HGN test.

Leigh also argues that Officer Anderson did not test for the onset of nystagmus prior to

45 degrees. Officer Anderson agreed with defense counsel that he did not perform the

test in accordance with the NHTSA guidelines. However, Officer Anderson testified

that not performing the required number of passes or holding the stimulus for the

required amount of time would not cause a nystagmus; it would not create a false

positive.    Officer Anderson further testified that he observed six clues indicating

intoxication including the onset of nystagmus prior to 45 degrees.

        Slight variations in the administration of the HGN test do not render the

evidence inadmissible or unreliable, but may affect the weight to be given the

testimony. Compton v. State, 120 S.W.3d 375, 378 (Tex.App.-Texarkana 2003, pet. ref'd).

It would be unreasonable to conclude that any variation in administering the tests, no

Leigh v. State                                                                       Page 6
matter how slight, could automatically undermine the admissibility of an individual's

poor performance of the tests. Id. There is nothing to suggest that Officer Anderson’s

variations from NHTSA standards undermined the reliability of the results. The trial

court did not abuse its discretion in admitting Officer Anderson’s testimony on the

HGN test.

        Moreover, any harm in allowing Officer Anderson to testify about the results of

the HGN test did not affect Leigh’s substantial rights. TEX. R. APP. P. 44.2 (b). There

was other evidence indicating Leigh was driving while intoxicated: Leigh had a strong

odor of alcohol; that he had glassy eyes; was unsteady on his feet; he was uncooperative

with police officers and did not follow instructions on the field sobriety tests; he was

observed throwing beer cans and a liquor bottle out of his vehicle; and he fell asleep

while being transported to the jail. The jury viewed the video of his performance on the

field sobriety tests. We overrule the second issue.

                                       Conclusion

        We affirm the trial court’s judgment.




                                          AL SCOGGINS
                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 24, 2013
Do not publish
[CR PM]

Leigh v. State                                                                    Page 7
