                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-11-00377-CR


JOHN JORDY                                                          APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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         FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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                                   OPINION

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                                  Introduction

      Appellant John Jordy appeals his conviction for felony driving while

intoxicated (DWI). In a single point, he contends that the trial court abused its

discretion by admitting testimony describing a correlation between the horizontal-

gaze-nystagmus test (HGN) and breath-test results. The State concedes that

this testimony ordinarily would have been inadmissible but argues that Appellant

opened the door to it and was not harmed by it. We affirm.
                                       Facts

Outside the “normal realm of stupidity”

      As Christopher Parker drove his family northbound on the interstate

around eleven o’clock one evening, he noticed a maroon car, at first beside and

then behind him, driving erratically: aggressively speeding up, slowing down,

and dangerously weaving in and out traffic. Christopher positioned his car in

front so he could avoid an accident in case the other car caused one. In his rear-

view mirror, he saw the car continue its pattern of aggressive driving.

      Christopher was a veteran traveler of the interstate and had frequently

observed erratic driving on it, but the maroon car’s maneuvering seemed outside

the “normal realm of stupidity.” He thought the driver might be drunk. When the

car approached within inches of Christopher’s rear bumper, he yielded and called

911 as it passed.

      Denton Police Officer Sean Aja was about twenty seconds from the

interstate when he responded to the 911 report of a reckless driver. He asked

the dispatcher to have the caller turn on his emergency flashers so the officer

could quickly spot the suspect’s car. Christopher did so and even passed the

exit he normally would have taken home so he could remain on the phone with

dispatch to assist the responding officer.

      Officer Aja saw Christopher’s flashers as soon as he entered the freeway.

He passed Christopher’s car, and as he gained on the maroon car in front, he

activated his patrol car’s digital video recorder. The maroon car, running slightly


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over the posted speed limit, weaved within its lane a number of times and then,

without signaling, left its lane to pass an eighteen-wheeler. Officer Aja followed,

activated his emergency lights, and pulled the car over.

      The officer approached the passenger side and tapped on the window to

get the driver’s attention. Appellant was the only one in the car. When Appellant

rolled the window down, Officer Aja smelled a very strong odor of an alcoholic

beverage wafting from inside the car.

      Appellant explained that he was on his way from Huntsville to Kingston,

Oklahoma. After Appellant exited the car, Officer Aja determined that the strong

alcoholic odor he had smelled earlier emanated from Appellant’s person. It was

the distinct odor of “metabolized alcohol,” that is, alcohol that has been

consumed and that a person is in the process of metabolizing.

      Appellant’s clothing appeared slightly disheveled, he swayed a bit, and his

eyes were red and glassy. He admitted that he had consumed four to five beers

between three o’clock that afternoon and six-thirty or seven that evening. When

Officer Aja asked him to rate himself on a scale of one to ten––one: stone cold

sober, ten: falling down drunk––Appellant said he was “probably a four or five.”

He denied, however, feeling any effects.

      Officer Aja administered the HGN, and Appellant’s eyes displayed six out

of six possible clues of intoxication. Because he was concerned that Appellant

might lose his balance and fall into traffic, Officer Aja did not have him perform

the other two standard filed sobriety tests––the one-leg stand and the walk-and-


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turn––but, instead, had him recite a part of the alphabet (without singing) and

count backward from sixty-three to thirty-three.          Appellant performed these

nonstandard tests with only minor hitches.              But Officer Aja had already

determined that Appellant had lost the normal use of his faculties, so he placed

him under arrest.

      The officer performed an inventory search of Appellant’s car, finding an

empty whiskey bottle and some unopened containers of beer. On the way to the

police station, Appellant insisted that he was sober. At the station, he agreed to

take a breath test. The test produced results showing alcohol concentrations of

0.112 and 0.114, both greater than the legal limit of 0.08.

HGN Testimony

      At trial, Officer Aja testified that law enforcement officers are trained to

administer field sobriety tests, including the HGN, using the standardized field

sobriety test manual produced by the National Highway Transportation and

Safety Association (“NHTSA”). On cross-examination, Appellant’s counsel asked

whether the NHTSA manual stated that a certain number of clues on the HGN

equates to a loss of normal use of a person’s mental or physical faculties.

Specifically, his line of questioning went like this:

      Q.     Okay. It doesn’t say in the NHTSA manual that two or four or
      six clues on the HGN equals a loss of normal use, does it?

      A.     No, sir.

      Q.     Normal use of mental faculties or normal use of physical
      faculties?


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      A.    It doesn’t mention either one in the manual.

      Q.    Right. Just talks about intoxication?

      A.    That’s correct.

      Later in the trial, the State called Lewisville Police Officer Christopher

Clements, who testified as an expert in DWI detection and standardized field

sobriety tests, specifically, the HGN. He agreed with Appellant’s evidence, which

had been elicited earlier during Officer Aja’s cross-examination, that the NHTSA

manual does not discuss the loss of normal use of mental or physical faculties.

The prosecutor then asked him what the NHTSA manual does state regarding

the HGN: “So what does the NHTSA manual do with respect to horizontal gaze

nystagmus?” The record reflects that as Officer Clements began his answer,

Appellant objected as follows:

      A.    The initial validation study was based on .1 because of the––

      MR. BROOKS [for Appellant]: Objection, Your Honor, this is
      qualitative––this is quantitative evidence that the HGN is not
      designed to produce. I’ll object to it on that basis.

      The trial court’s next question suggests that the legal basis for Appellant’s

objection may not have been immediately apparent:

      THE COURT: It’s not designed to?

      MR. BROOKS: The HGN test is not designed to be quantitative. It’s
      not designed to give a breath test number.

      THE COURT: Okay.




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      MR. BROOKS: That what he’s . . . . So I object to his testimony. It’s
      inaccurate.

      The prosecutor responded to the objection by arguing that Appellant had

opened the door:

      MR. CALVERT [for the State]: Briefly Judge. In cross-examination
      of Officer Aja, Mr. Brooks specifically asked Officer Aja, isn’t it true
      that the NHTSA manual does not talk about normal use of mental or
      physical faculties. Officer Aja answered in the affirmative, yes, that’s
      true, it does not. Mr. Brooks’[s] next question was, it only talks about
      intoxication. Officer Aja said, that’s true. And we’re going into, I
      think, that question, that series of questions, opened the door to
      what the NHTSA manual specifically says. And that’s exactly where
      we are going, especially in light of the fact that throughout this trial
      the defense is raising the defense of “we can’t prove necessarily that
      he was intoxicated at the time of driving.” That’s where the
      testimony goes to and in light of the questions asked of Officer Aja,
      Mr. Brooks opened the door.

      The trial court overruled Appellant’s objection, and Officer Clements then

testified that the NHSTA manual “says that four out of six clues on the HGN test

indicates a BAC of .1 or higher.” It is this testimony of which Appellant complains

in this appeal from his conviction.

                                      Discussion

      If the legal basis for Appellant’s objection was not lost on the trial court, we

cannot with any confidence say the same for us.          We question whether the

specific objection Appellant presented to the trial court articulated a valid basis

upon which to exclude the officer’s testimony. 1       Nevertheless, we need not



      1
       Appellant’s specific objection appeared to have been based on some
deviation from the design of the HGN and inaccuracy. He first objected, “[T]his is

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address that issue because regardless of the legal basis for Appellant’s

objection, we find merit in the State’s contention that the trial court did not abuse

its discretion by allowing the testimony because Appellant opened the door to it.

Standard of Review

      A trial court’s ruling admitting evidence will not be reversed on appeal

absent a clear abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex.

Crim. App. 2011); Russeau v. State, 291 S.W.3d 426, 438 (Tex. Crim. App.

2009); Ramos v. State, 245 S.W.3d 410, 417–18 (Tex. Crim. App. 2008); Lozano

v. State, 359 S.W.3d 790, 817 (Tex. App.––Fort Worth 2012, pet. ref’d). The trial

court does not abuse its discretion by admitting evidence unless its determination

lies outside the zone of reasonable disagreement. Lozano, 359 S.W.3d at 817.

The trial court’s ruling will be upheld if it is reasonably supported by the record

and is correct under any theory of law applicable to the case. Ramos, 245

S.W.3d at 418; State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).

      It is generally impermissible for a witness in a DWI case to correlate a

defendant’s performance on the HGN test to a conclusion that his blood-alcohol

concentration exceeds the legal limit. See Emerson v. State, 880 S.W.2d 759,

769 (Tex. Crim. App.), cert. deinied, 513 U.S. 931 (1994); Lorenz v. State, 176

S.W.3d 492, 496–97 (Tex. App.––Houston [1st Dist.] 2004, pet. ref’d); Youens v.

State, 988 S.W.2d 404, 405–06 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

quantitative evidence that the HGN is not designed to produce.” He then added,
“It’s inaccurate.”


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However, evidence that would normally be inadmissible may become admissible

if a party “opens the door” to it. See, e.g., Williams v. State, 301 S.W.3d 675,

687 (Tex. Crim. App. 2009) (assuming evidence inadmissible under rule 404(b),

and holding no abuse of discretion because appellant opened the door), cert.

denied, 130 S. Ct. 3411 (2010); Hayden v. State, 296 S.W.3d 549, 554 (Tex.

Crim. App. 2009) (holding that even though State opened the door, trial court

acted within its discretion to exclude rebuttal evidence under rule 403); Carroll v.

State, 02-11-00265-CR, 2013 WL 2435560, at *3 (Tex. App.––Fort Worth June 6,

2013, no pet.) (mem. op., not designated for publication).

      A party opens the door to otherwise inadmissible evidence by leaving a

false impression with the jury that invites the other side to respond. Hayden, 296

S.W.3d at 554; Daggett v. State, 187 S.W.3d 444, 452 (Tex. Crim. App. 2005).

See also Tex. R. Evid. 106, 107. 2

It was within the trial court’s discretion to find that Appellant opened the
door.

      One could reasonably conclude from Appellant’s cross-examination of

Officer Aja, which elicited evidence that the NHTSA manual showed no

correlation between a certain number of clues observed on the HGN and one of

      2
        Rule 106 of the Texas Rules of Evidence, states in pertinent part, “When
a writing . . . or part thereof is introduced by a party, an adverse party may at that
time introduce any other part or any other writing . . . which ought in fairness to
be considered contemporaneously with it.” Tex. R. Evid. 106. Rule 107 provides
in pertinent part, “When part of a[ ] . . . writing . . . is given in evidence by one
party, the whole on the same subject may be inquired into by the other. . . .” Tex.
R. Evid. 107.


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the penal code definitions of intoxication––loss of one’s normal use of mental and

physical faculties––but merely addresses intoxication, that the NHTSA manual

says nothing at all of a correlation between intoxication and the HGN. Given that

such a conclusion, albeit reasonable, is, however, false, it was within the trial

court’s discretion to allow the State to present evidence to clear up the erroneous

impression by admitting evidence that the manual did have something to say

about the other definition of intoxication––an alcohol concentration greater than

0.08––specifically, that four clues correlates to a BAC of 0.10 or higher. We

hold, therefore, that the trial court’s ruling admitting Officer Clements’s testimony

regarding the correlation between the HGN and alcohol concentration was within

the zone of reasonable disagreement and should therefore be upheld.             See

Williams, 301 S.W.3d at 687; Daggett, 187 S.W.3d at 452.           Accordingly, we

overrule Appellant’s sole point.

                                    Conclusion

      Having overruled Appellant’s sole point, we affirm the trial court’s

judgment.




                                                    ANNE GARDNER
                                                    JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

PUBLISH

DELIVERED: October 3, 2013


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