                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-14-00267-CR


SARAH JEAN CLEMENT                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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      FROM COUNTY CRIMINAL COURT NO. 7 OF TARRANT COUNTY
                   TRIAL COURT NO. 1255151

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                                   OPINION

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                                I. INTRODUCTION

      Appellant Sarah Jean Clement appeals her conviction for driving while

intoxicated. A jury found her guilty of the offense, and the trial court sentenced

her to ninety days’ confinement and assessed a $750 fine, suspended imposition

of the sentence, and placed Clement on community supervision for eighteen

months. In four issues, Clement argues that the trial court erred by compelling
her to submit to a field-sobriety test in front of the jury, by overruling her objection

to the prosecutor’s “scientific statements” that were made in front of the jury, by

overruling her objection to the arresting officer’s testimony about his physical

ailments, and by denying her motion for new trial. For the reasons set forth

below, we will affirm the trial court’s judgment.

                             II. FACTUAL BACKGROUND

      At approximately 1:30 a.m. on September 23, 2011, a motorist named

Michael Cohen was traveling westbound on I-20 in Fort Worth when he observed

a pickup truck driving erratically.     Cohen was a member of “Code Blue,” a

volunteer citizen’s organization that reports crime to the police. After following

the pickup for a distance and determining that the erratic driving was not an

isolated instance, Cohen called 9-1-1. A recording of this call was admitted into

evidence and played for the jury. Cohen testified that he followed behind the

pickup, reported its location, and recited that the pickup was slowing down to

twenty miles per hour and then speeding up to travel fifty miles per hour; had hit

the highway embankment or guardrail, causing sparks to fly; and after exiting the

highway, was pulling U-turns on the roadway. After police officers had stopped

the pickup, Cohen was directed by dispatch to stop at the scene; he did so, and

he provided officers with his contact information.

      Fort Worth Police Officer Dale McCoy testified that on September 23,

2011, at approximately 1:30 a.m., he was on patrol when the dispatcher reported

a possible DWI near Officer McCoy’s location. When Officer McCoy arrived at


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the scene, another Fort Worth police officer had already pulled over the

suspected drunk driver for a defective tail lamp.           When Officer McCoy

approached the pickup, Clement was inside. Cohen was at the scene as well,

and the other officer was speaking to Cohen.         When Officer McCoy asked

Clement to exit the vehicle, her pants were unzipped. Officer McCoy smelled an

odor of alcohol on Clement’s breath. Officer McCoy had Clement perform field-

sobriety tests, and the results were that she exhibited six clues on the HGN test,

three clues on the walk-and-turn test, and zero clues on the one-leg-stand test.

Officer McCoy testified that under the totality of the circumstances he observed

at the scene, he determined that Clement was intoxicated.

      A VHS tape recording of Officer McCoy’s roadside administration of the

field-sobriety tests on Clement, of Clement’s transport to jail, and of Officer

Martinez’s administration of field-sobriety tests on Clement in the Intoxilyzer room

at the jail, was admitted into evidence and played for the jury. On the tape, when

Officer McCoy asks Clement whether she has been drinking, she says that she

drank two beers. On the tape of the events in the Intoxilyzer room, Clement

agrees to submit a breath specimen, but ultimately no breath specimen was

obtained.

      At trial, Officer McCoy testified that he had mistakenly checked the box on

his report that indicated Clement had resting nystagmus; persons with resting

nystagmus are not candidates for the HGN test. He agreed that he did not ask

Clement the required predicate questions prior to performing the HGN test on


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her. He also testified that despite Cohen’s report during his 9-1-1 call that the

pickup had hit an embankment or a guardrail, there was no damage to Clement’s

vehicle and agreed that this was “bizarre.” He also agreed that Officer Martinez,

the officer in the Intoxilyzer room with Clement, was not certified to administer

field-sobriety tests although he had administered them to Clement. And Officer

McCoy agreed that he did not tell Clement that she had the right to a blood test.

      Following a particular segment of cross-examination of Officer McCoy, the

State asked for permission to “have the witness [Officer McCoy] step down and

check for resting nystagmus on this defendant.”       Defense counsel objected,

stating that “if she [Clement] had resting nystagmus in 2011 [at the time of her

arrest], that doesn’t necessarily mean she has it now. That’s over three years

ago.” The prosecutor responded, “If she had resting nystagmus three years ago,

she absolutely would have it today. It’s not something that just goes away. It’s

something that you have or you do not.” Defense counsel then asserted a Fifth-

Amendment objection and objected that neither counsel for the prosecution nor

Officer McCoy were “qualified to talk about when someone has resting

nystagmus, when it goes away, what causes it, how long it lasts.” The trial court

overruled Clement’s objections, Officer McCoy performed an in-court HGN test

on Clement, and he commented that “[r]ight now she would have resting

nystagmus.[1] I don’t see any resting nystagmus.”


      1
       This comment by Officer McCoy, taken in context, constitutes opinion
testimony that if Clement had resting nystagmus in 2011, “[r]ight now she would

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      Officer Martinez testified that Clement had a strong odor of alcohol on her

and exhibited four of eight clues on the walk-and-turn test and three of four clues

on the one-leg-stand test that he administered to her at the jail in the Intoxilyzer

room.2 Officer Martinez said that the “decision point” for intoxication on both

tests was exhibiting two clues. Officer Martinez testified that although Clement

blew into the Intoxilyzer twice, no breath sample was obtained from her because

of her failure to blow with sufficient pressure. Officer Martinez testified that he

had no doubt that Clement was intoxicated on the night in question.

                   III. ISSUE 1: THE IN-COURT NYSTAGMUS TEST

      In her first issue, Clement argues that the trial court erred by compelling

her to submit to an in-court nystagmus test in violation of her rights under the

Fifth Amendment to the United States Constitution and article 1, section 10 of the

Texas constitution and that the trial court’s error was compounded by Officer

McCoy’s comment about her performance on the test. “The privilege against

self-incrimination as contained in both the Fifth Amendment to the United States

Constitution and Article I, § 10 of the Texas [c]onstitution protects only

testimonial communications.”     Adams v. State, 969 S.W.2d 106, 113 (Tex.

have resting nystagmus”; this is the comment by Officer McCoy that Clement
complains of in her second issue. Clement characterizes Officer McCoy’s “[r]ight
now she would have resting nystagmus” testimony as a “comment,” presumably
because it was not made in response to a question by the State.
      2
      Officer Martinez testified that he did not perform the HGN test on Clement
because it was standard procedure not to perform the HGN test at the jail and
because he was not qualified to perform it.


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App.—Dallas 1998, no pet.); see also Williams v. State, 116 S.W.3d 788, 791

(Tex. Crim. App. 2003) (explaining that Fifth Amendment applies only to

“testimonial communications that are incriminating”). Consequently, requiring a

defendant in a criminal case to provide a voice exemplar “does not, without more,

compel him to provide a testimonial response.” Williams, 116 S.W.3d at 792.

Requiring a DWI defendant to recite the alphabet or count backwards does not

violate the Fifth Amendment. See Gassaway v. State, 957 S.W.2d 48, 51 (Tex.

Crim. App. 1997).     Likewise, a video recording of a DWI suspect performing

sobriety tests is not testimonial evidence under the Fifth Amendment. Miffleton v.

State, 777 S.W.2d 76, 80 (Tex. Crim. App. 1989).             And HGN test results

constitute nontestimonial evidence. See Campbell v. State, 325 S.W.3d 223,

233 (Tex. App.––Fort Worth 2010, no pet.).           Accordingly, because Officer

McCoy’s in-court nystagmus testing of Clement did not elicit testimonial

communications, the testing did not implicate Clement’s rights under the Fifth

Amendment to the United States Constitution or article 1, section 10 of the Texas

constitution. See Gassaway, 957 S.W.2d at 51; Miffleton, 777 S.W.2d at 80.

And because Clement’s performance during the nystagmus testing was not

testimonial in nature, neither was Officer McCoy’s comment regarding her

performance. See Youens v. State, 988 S.W.2d 404, 407 (Tex. App.—Houston

[1st Dist.] 1999, no pet.) (holding that because appellant’s performance during

sobriety tests was not testimonial in nature, trial court did not abuse its discretion

by admitting trooper’s testimony concerning manner in which appellant


                                          6
performed sobriety tests); see also Campbell, 325 S.W.3d at 233. We overrule

Clement’s first issue.

   IV. ISSUE 2: THE PROSECUTOR’S STATEMENT AND THE OFFICER’S COMMENT

      In her second issue, Clement complains that the trial court “erred in

overruling defense counsel’s objection to the relevance of improperly admitted

scientific testimony[,]” specifically, by overruling her objections to the prosecutor’s

statement in front of the jury that “if she [Clement] had resting nystagmus three

years ago, she absolutely would have it today. It’s not something that just goes

away” and to Officer McCoy’s comment that if Clement had resting nystagmus in

2011, then “[r]ight now she would have resting nystagmus.” Because we are not

prepared to hold that the trial court did not err, we address whether such error is

harmless.3    See Tex. R. App. P. 44.2(b).         Under rule 44.2(b), we review

nonconstitutional error to determine whether the error affected the substantial

      3
         An error analysis is not required when a harm analysis is dispositive. See
State v. Ambrose, No. PD-0143-15, 2016 WL 1696455, at *1 (Tex. Crim. App.
Apr. 27, 2016) (affirming court of appeals’s decision that assumed without
deciding that jury instructions were erroneous and that then performed harm
analysis); Herring v. State, 147 S.W.3d 390, 394 (Tex. Crim. App. 2004)
(affirming court of appeals’s decision that assumed arguendo that trial court erred
by refusing to exclude evidence of exact description of appellant’s prior crime
during guilt-innocence and that then performed harm analysis); see also Wooten
v. State, 400 S.W.3d 601, 607 (Tex. Crim. App. 2013) (“Finding our harm
analysis thus dispositive, we need not address whether the trial court did, in fact,
err not to include the instruction.”). And, contrary to the dissent’s assertion,
Clement did not challenge the reliability of the scientific theory underlying resting
nystagmus testing in the trial court. See, e.g., Shaw v. State, 329 S.W.3d 645,
655 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (recognizing qualification,
reliability, and relevance are separate requirements of expert testimony and
objection as to one requirement does not preserve error as to another).


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rights of Clement. See Tex. R. App. P. 44.2(b). A substantial right is affected

when the error had a substantial and injurious effect or influence in determining

the jury’s verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.

1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253

(1946)). Conversely, an error does not affect a substantial right if we have “fair

assurance that the error did not influence the jury, or had but a slight effect.”

Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). In making this

determination, we review the record as a whole, including any testimony or

physical evidence, the nature of the evidence supporting the verdict, the

character of the alleged error and how it might be considered in connection with

the other evidence, the jury instructions, the State’s theory and any defensive

theories, whether the State emphasized the error, closing arguments, and even

voir dire if applicable. See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.

2002).

      Examining the record as a whole, it reflects that at the close of trial, the

trial court admonished the jury orally (when it read the court’s charge to the jury)

and in writing (in the court’s charge) to not refer to or discuss anything they had

heard about Clement or the case “other than from what you have heard from the

witness stand during the trial.” These instructions reduced the likelihood that any

error stemming from the prosecutor’s comment influenced the jury. See, e.g.,

Casanova v. State, 383 S.W.3d 530, 543 (Tex. Crim. App. 2012) (recognizing

presumption on appeal that jurors follow trial court’s instructions). And Officer


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McCoy’s “[r]ight now she would have resting nystagmus” comment, taken in

context, was fairly cryptic; the State did not ask for elaboration or further mention

the in-court nystagmus test during trial.    The State did not mention HGN or

resting nystagmus during closing argument, and defense counsel mentioned it

only briefly––pointing out that three years after Officer McCoy stated in his report

that Clement had resting nystagmus, he claimed at trial that “it was a mistake.”

Defense counsel also mentioned in closing that Officer McCoy had conceded

that he had not asked Clement the proper predicate questions before performing

the HGN test on her, including whether Clement wore contacts or had head

trauma. Thus, defense counsel successfully undermined the reliability of the

results of the HGN test performed on Clement on the night of her arrest––

regardless of whether the results were also invalid because Clement had resting

nystagmus. Because admitted evidence undermined the results of the HGN test

performed on Clement on the night of her arrest, the error alleged by Clement

concerning the resting nystagmus comments was unlikely to have significantly

influenced the jury. See Robison v. State, 461 S.W.3d 194, 201–02 (Tex. App.—

Houston [14th Dist.] 2015, pet. ref’d) (assuming error in exclusion of evidence

and holding it harmless because other evidence that was admitted served the

same purpose).

      Looking to Clement’s defensive theories, she asserted that she was not

intoxicated. She pointed out that she was pulled over because her tail lamp was

not working, and she emphasized her perfect performance of the one-leg-stand


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test and her good performance on the walk-and-turn test as reflected in the

State’s video of the road-side field-sobriety tests. In light of Clement’s other

stronger defensive theories––i.e., that she was not intoxicated––the alleged error

impacting Clement’s defensive theory that she had resting nystagmus on the

evening of her arrest likely had but a slight effect on the jury. Accord Villarreal v.

State, 453 S.W.3d 429, 440–41 (Tex. Crim. App. 2015) (holding, in charge-error

harm analysis, that erroneous omission of defensive instruction was not

egregious when instruction went to only alternative defense raised by defendant).

      And considering the character of the alleged error and the nature of the

evidence supporting the verdict, we note that eyewitness testimony from Cohen

supports the jury’s verdict. The audio recording of Cohen’s 9-1-1 call was played

for the jury, and Cohen testified in person at trial, providing the jury with the

opportunity to gauge his credibility. See Garcia v. State, 367 S.W.3d 683, 687

(Tex. Crim. App. 2012) (recognizing that jury, as factfinder, is sole judge of

witnesses’ credibility and weight to be given to witnesses’ testimony); Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (recognizing appellate court

must defer to jury’s resolution of conflicts in testimony, weight of evidence, and

inferences drawn from evidence).4 Given the eyewitness testimony, which, if

believed by the jury, established Clement’s erratic driving for an extended period


      4
        The dissent includes a helpful chart summarizing the conflicting evidence
but fails to defer to the jury’s resolution of the charted conflicts and fails to
conduct a harm analysis using the Motilla factors. See 78 S.W.3d at 355.


                                         10
of time—including failing to maintain her lane, slowing down and speeding up,

hitting an embankment or guardrail, and making multiple U-turns at 1:30 a.m.—

and Clement’s own videotaped statement that she had consumed two beers, the

character of the alleged error juxtaposed with the evidence of guilt that the jury

could have believed provides us with assurance that the alleged error did not

influence the jury or had but a slight effect.     See Motilla, 78 S.W.3d at 355

(explaining strong evidence of guilt may provide assurance that error had but

slight effect). Because, after reviewing the entire record, we have fair assurance

that the alleged error did not influence the jury or had but a slight effect, we

overrule Clement’s second issue. See Tex. R. App. P. 44.2(b); Solomon, 49

S.W.3d at 365.

          V. ISSUE 3: OFFICER MCCOY’S PHYSICAL AILMENTS TESTIMONY

      In her third issue, Clement asserts that the trial court abused its discretion

by permitting Officer McCoy to testify about his own physical ailments over her

relevancy objection. On cross-examination, defense counsel elicited testimony

from Officer McCoy that performance on the field-sobriety tests could be

impacted by a performer’s physical ailments and established that Officer McCoy

had not asked Clement whether she suffered from any physical limitations. On

redirect of Officer McCoy, the State pointed out that Officer McCoy had physically

demonstrated for Clement how she was to perform the field-sobriety tests and

then questioned Officer McCoy about his own physical ailments. Officer McCoy

testified that he had lupus, a herniated disc, and sciatica.


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       Evidence that is otherwise inadmissible may become admissible when a

party opens the door to such evidence. Williams v. State, 301 S.W.3d 675, 687

(Tex. Crim. App. 2009), cert. denied, 560 U.S. 966 (2010). A party opens the

door by leaving a false impression with the jury that invites the other side to

respond. Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009); Daggett

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

       Defense counsel’s questioning of Officer McCoy left the jury with the

impression that, due to the degree of physical agility and coordination required to

perform the field-sobriety tests, anyone with a physical ailment or injury would not

be able to properly perform the tests. Because of this false impression created

concerning the physicality required to properly perform the field-sobriety tests, we

hold that the trial court did not abuse its discretion by overruling Clement’s

relevancy objection to Officer McCoy’s testimony about his own physicial

limitations.   The State cleared up the false impression by eliciting Officer

McCoy’s testimony regarding his physical ailments, which did not hinder his

performance of abbreviated versions of the field-sobriety tests and his

performance was captured on video at the scene. See Williams, 301 S.W.3d at

687 (assuming evidence of extraneous murders was inadmissible under rule

404(b), and holding no abuse of discretion because appellant opened the door by

deliberately choosing to question prosecutor about them); Jordy v. State, 413

S.W.3d 227, 231–32 (Tex. App.—Fort Worth 2013, no pet.) (holding trial court

did not abuse its discretion by allowing State to clear up false impression


                                        12
regarding the correlation between the HGN and alcohol concentration).             We

overrule Clement’s third issue.

                  VI. ISSUE 4: DENIAL OF MOTION FOR NEW TRIAL

      In her fourth issue, Clement argues that the trial court abused its discretion

by denying her motion for new trial following a hearing because her right to a fair

trial was substantially affected by the admission of the in-court nystagmus test

and by Officer McCoy’s comment regarding her performance on that test. We

analyzed these arguments above and held that neither the in-court nystagmus

test nor the results of that test were testimonial in nature, that they did not

implicate Clement’s privilege against self-incrimination, and that the trial court did

not abuse its discretion by permitting the in-court test over Clement’s Fifth

Amendment objection.       Concerning Officer McCoy’s comment that Clement

would have resting nystagmus “[r]ight now” if she had it in 2011, we held that any

error stemming from the comment was harmless. Thus, Clement’s right to a fair

trial was not substantially affected by the admission of the nontestimonial in-court

resting nystagmus test, by comments concerning Clement’s performance on that

test, or by Officer McCoy’s comment concerning resting nystagmus.                See

Gassaway, 957 S.W.2d at 51. Accordingly, we hold that the trial court did not

abuse its discretion by denying Clement’s motion for new trial. See Tex. R. App.

P. 21.3 (setting forth nonexhaustive list of grounds that require granting a new

trial); Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014) (stating that

abuse-of-discretion standard is used for denial of a motion for new trial); Wyatt v.


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State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000) (rejecting appellant’s argument

that cumulative effect of errors at trial denied him right to a fair trial when the

court had previously rejected each of appellant’s individual arguments); see also

Wright v. State, 178 S.W.3d 905, 929 (Tex. App.—Houston [14th Dist.] 2005, pet.

ref’d) (holding that trial court did not abuse its discretion by denying hearing on

motion for hearing and new trial regarding whether in-court demonstration was

based on speculation). We overrule Clement’s fourth issue.

                                VII. CONCLUSION

      Having overruled each of Clement’s four issues, we affirm the trial court’s

judgment.

                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DAUPHINOT, J., filed a dissenting opinion.

PUBLISH

DELIVERED: July 14, 2016




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