                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00267-CR


SARAH JEAN CLEMENT                                               APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

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

                                   ----------

                         DISSENTING OPINION

                                   ----------


     At first blush I agreed with the knowledgeable majority regarding the

degree to which the improper statements of Officer McCoy and the prosecutor

harmed Appellant.   But after closely examining the videos and record, the

conclusion seems, to me, inescapable that the weaknesses of other elements of

the State’s case substantially increase the impact of the improper statements.

The State’s own case impeached much of its evidence and rendered much of its
other evidence suspect. After many hours of closely examining the record, I can

only conclude that the visiting trial judge reversibly erred by abandoning her

gatekeeping role and allowing the prosecutor and Officer McCoy to make

scientific statements in front of the jury over Appellant’s objection regarding the

presence or absence of resting nystagmus in her eyes at the time of the offense

and at trial, with no evidence of their competence or the competence of their

theories, and that the trial court reversibly erred by denying Appellant’s related

motion for new trial.    The harm from these errors was exacerbated by the

magistrate’s denial of a continuance Appellant sought to address untimely

disclosed Brady1 information and the visiting trial judge’s denying Appellant any

opportunity to proffer expert testimony to contradict the surprise pseudo-scientific

expert statements of the prosecutor and Officer McCoy to the jury. Because my

colleagues do not agree with me about the extent of the error or join me in

concluding that the error is harmful, I must respectfully dissent.

Summary of Facts

      Fort Worth police officer Dale McCoy did not make the stop but arrived

soon after Appellant was pulled over, and he testified at trial. Officer McCoy

stated that Appellant smelled of alcohol and that he decided to conduct field

sobriety tests. He testified that Appellant passed the one-leg stand test but failed

the HGN test and the walk-and-turn test; she was then arrested for DWI. On


      1
       Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).


                                          2
direct examination, Officer McCoy testified that Appellant’s walk was “swayed,

staggered, and unsteady.” But on cross-examination, he agreed that Appellant

had had no problems with balance when getting out of the car or during the HGN

test. Officer McCoy acknowledged that before performing the HGN test, he did

not ask Appellant whether she had had any recent head injuries.            He also

acknowledged that at the police station after her arrest, Appellant stated that she

had recently had some head injuries.         He further testified that although he

checked the box for “yes” on his offense report in answering whether Appellant

had resting nystagmus, that was a mistake, and he meant to put “no.”

      The video of Appellant performing the field sobriety tests shows no

unsteadiness, no swaying, and no staggering. Indeed, she performed the tests

well. It was impossible, however, to see how she performed on the HGN test

because any jerking in the eye is quite subtle and difficult to see, especially when

not standing near a person being tested. The only evidence of nystagmus is

Officer McCoy’s testimony.

      He further testified that, although his team had a portable breath test

device (PDT) to test for the presence of alcohol in a suspect at the scene of the

stop, he chose not to use it. Nor did he seek a warrant for a blood test but

instead relied on the observations of Cohen. Officer McCoy testified that when

he arrived, another officer on the scene told him that Appellant’s pants had been

completely off when he first saw her. Officer McCoy testified that Appellant’s

pants were on but unzipped.


                                         3
      In the State’s redirect examination at trial, the prosecutor asked Officer

McCoy to step down and check Appellant for resting nystagmus. Appellant’s

attorney objected, “I’m not tendering [Appellant] as a witness, Your Honor,” and

pointed out that “if she had resting nystagmus in 2011, that doesn’t necessarily

mean she has it now.” 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.” The prosecutor further argued that “this is non-testimonial in nature,

and he’s able to, for demonstrative purposes, check if she has resting

nystagmus.” Appellant’s attorney countered that neither the prosecutor nor the

police officer was “qualified” to “talk about when someone has resting

nystagmus, when it goes away, what causes it, [or] how long it lasts.” The trial

court overruled the objections and allowed Officer McCoy to check Appellant for

resting nystagmus. Officer McCoy then testified that “[r]ight now she would have

resting nystagmus. I don’t see any resting nystagmus.”

      Appellant later moved for a mistrial on the basis of this in-trial resting

nystagmus test and argued that performing the test in open court was a violation

of her right to remain silent and to not present evidence against herself. She also

requested that she be granted a continuance if the mistrial were denied so that

she could get her own expert “and come back and revisit this” issue. The trial

court denied the motion for mistrial as well as the request for a continuance.

      I agree with the majority that the purported resting nystagmus testing was

not testimonial. The Texas Court of Criminal Appeals has held that Article I,


                                         4
Section 10 of the Texas Constitution is somehow limited to the scope of the Fifth

Amendment to the Constitution of the United States, despite the clearly distinct

language of the Texas Constitution guaranteeing that a person accused of a

criminal offense may not be compelled to provide evidence against himself or

herself.2 Further, this court has held that HGN evidence is nontestimonial in a

suppression case.3

Error

         Respectfully, this court’s determination that being compelled to perform an

in-court nystagmus test does not violate the Fifth Amendment because it is not

testimonial does not vest the testifying officer with expertise either to perform the

test or to interpret the results without the State’s laying sufficient predicate to

show the officer’s expertise so that the trial court may perform its gatekeeping

mandate, nor does it authorize the attorney eliciting the officer’s testimony to

offer scientific opinion before the jury as an expert. The record does not reflect

that either the prosecutor or Officer McCoy had been designated as an expert

regarding resting nystagmus.4 I therefore disagree with the majority that the


         2
         Miffleton v. State, 777 S.W.2d 76, 80 (Tex. Crim. App. 1989).
         3
         Campbell v. State, 325 S.W.3d 223, 233 (Tex. App.—Fort Worth 2010, no
pet.).
         4
          See Quinney v. State, 99 S.W.3d 853, 859 (Tex. App.—Houston
[14th Dist.] 2003, no pet.) (stating that for vertical nystagmus “and resting
nystagmus evidence to be admissible, the proponent must present evidence
of . . . research of the scientific theory underlying those tests,” similar to that of
HGN).


                                          5
officer’s testimony regarding the results of the in-trial resting nystagmus test was

admissible. Nor do I understand the reluctance of the conscientious majority to

provide necessary guidance to the bench and bar by explaining why all the

statements were inadmissible rather than merely assuming error, and that in part.

      In her second issue, Appellant argues that the trial court reversibly erred

by overruling her objection to the prosecutor’s “making scientific statements in

front of the jury” and by “overruling defense counsel’s objection to the relevance

of improperly admitted scientific testimony.” Within this issue, she specifically

complains about the admission of Officer McCoy’s resting nystagmus testimony,

“Right now she would have resting nystagmus.             I don’t see any resting

nystagmus.”

      As our sister court in Houston has explained,

      Application of the Kelly factors is germane to evaluating whether an
      expert’s opinion will withstand scrutiny outside of the courtroom.
      Expert testimony that is not grounded in methods and procedures
      acknowledged by scientists in the particular field of study amount to
      no more than subjective belief or unsupported speculation.
      Unreliable evidence is of no assistance to the trier of fact and is
      therefore inadmissible under Texas Rule of Evidence 702.

            The proponent of expert testimony based on a scientific theory
      must show by clear and convincing evidence that it is: (1) reliable;
      and (2) relevant to assist the trier of fact in its fact-finding duty.
      Consequently, the State, as the proponent of the evidence, had the
      burden of producing evidence of the underlying scientific theory
      behind the expert testimony. . . . For VGN [vertical gaze nystagmus]
      and resting nystagmus evidence to be admissible, the proponent
      must present evidence of similar research of the scientific theory




                                         6
      underlying those tests. . . . Without scientific proof behind this
      theory, we cannot find the evidence admissible.5

Thus, the proponent of scientific evidence bears the burden of proving reliability

by satisfying the criteria set forth in Kelly.6 The trial court must conduct a hearing

to determine whether the proponent has established those criteria.7 Neither the

prosecutor nor Officer McCoy was qualified as an expert in testing and evaluation

of resting nystagmus. Nor was the scientific theory they propounded proved

under the Kelly standard.8

      Officer McCoy’s testimony that he had mistakenly indicated in his report

that Appellant had resting nystagmus is significant because, according to him, a

person with resting nystagmus cannot be tested accurately for HGN. Indeed,

Officer McCoy testified that had Appellant had resting nystagmus at the time of

the DWI arrest, he would not have performed the field sobriety tests. Yet, he

testified that he did perform the HGN test before the DWI arrest and that

Appellant failed the test, showing signs of HGN that indicated intoxication.




      5
       Id. at 858–59.
      6
       Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992).
      7
       Id. at 572–73 & n.10 (“Rule 104(a) requires that the admissibility of expert
testimony be determined by the trial court,” and “[u]nder Rule 104(a) and (c) and
Rule 702, all three [Kelly] criteria must be proven to the trial court, outside the
presence of the jury, before the evidence may be admitted.”).
      8
       See id.


                                          7
          In her objection, Appellant also challenged the relevance of the in-court

test, stating that whether she showed signs of resting nystagmus at trial was no

indication of whether she had shown resting nystagmus three years before when

she was arrested.          The trial court overruled the objection.   Officer McCoy

checked Appellant for resting nystagmus and spontaneously testified, apparently

in response to the attorneys’ discussion, “Right now she would have resting

nystagmus. I don’t see any resting nystagmus.”

          Even if we assume that requiring Appellant to submit to a resting

nystagmus field sobriety test in front of the jury was not in itself error, the record

does not reflect that the jury was in any position to see the subtle movements of

Appellant’s eyes or the absence of such movement.            The trial court allowed

Officer McCoy to tell the jury what Appellant’s physiological response allegedly

was and further allowed him to explain to the jury the meaning of the response.

It is well established that “[f]or 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.”9           The same is true for a witness

testifying about a defendant’s performance on a resting nystagmus test.10

          The State made no effort to lay the necessary Kelly predicate either for

Officer McCoy’s testimony regarding the transience or permanence of resting

          9
          Salazar v. State, 298 S.W.3d 273, 279 (Tex. App.—Fort Worth 2009, pet.
ref’d).
          10
              See id.; see also Quinney, 99 S.W.3d at 859.


                                             8
nystagmus or for the prosecutor’s opinion. The visiting trial judge abused her

discretion by abandoning her gatekeeping obligations and admitting the

purported scientific evidence sponsored by the State with no showing of its

validity or reliability, in contravention of Kelly.11 Likewise, the trial court abused

its discretion by denying Appellant’s motion for new trial based on the admission

of the same purported scientific evidence.

Harm

       After Officer McCoy’s examination ended and the visiting trial judge called

a short recess, Appellant requested a hearing outside the presence of the jury,

where she again complained about the test:

              I objected to my client being tendered at the request of
       counsel for the prosecution to have the test for resting nystagmus
       performed on her in open court. [The] Court of Criminal Appeals has
       said in Emerson that it is, in fact, a scientific test. This is how this
       officer can even talk about it in the first place. It has to be done
       correctly. . . . Additionally, since it is a scientific test—Well, I would
       ask for a mistrial based on those grounds.

              Secondly, since it is a scientific test, if the Court denies a
       mistrial, then I would like a continuance to get my own expert and
       come back and revisit this. I don’t think it’s—for rebuttal testimony.

              Counsel for the prosecution said something that, well, once
       there’s resting nystagmus, there’s always resting nystagmus. She
       said that in the presence of the jury. Well, that’s just not true. I
       mean, if you have a concussion, you’re gonna have resting
       nystagmus. Three years later, if you don’t still have a concussion,
       you may not still have resting nystagmus. I would ask that the Court
       grant the mistrial on those grounds or give me time to get my expert
       to rebut.

       11
        See 824 S.W.2d at 572–73 & n.10.


                                           9
After the State responded, Appellant continued,

      Judge, my argument is that because of Emerson, it is a scientifically
      valid test, and it can come in through the officer. My argument is
      that I want my own expert to testify. I wanna know if he did the test
      for resting nystagmus correctly. I wanna have it videotaped, if I need
      to, and then submit it to my expert, or at least have time to present
      an expert for rebuttal testimony.

      After the State again responded, Appellant noted that “there [was] no way

[she] could have known that the officer was going to say that the resting

nystagmus he put in his own report was a mistake until he took the stand and

testified as such.” The trial court denied both Appellant’s motion for mistrial and

her motion for continuance for time to secure an expert to meet and rebut the

surprise nystagmus testimony and statements.12

      The ability to present expert testimony has long been considered an

important element of presenting a defense in a criminal case, but it has also been

recognized as an important element of assisting the jury to interpret and judge

the validity of the prosecution’s evidence. As the Supreme Court of the United

States has explained in considering whether there is an obligation to provide an

indigent defendant with funds to pay an expert when the defendant’s mental

condition at the time of the offense is at issue,

            The private interest in the accuracy of a criminal proceeding
      that places an individual’s life or liberty at risk is almost uniquely

      12
       See Ake v. Oklahoma, 470 U.S. 68, 74–77, 105 S. Ct. 1087, 1091–93
(1985) (recognizing that indigent defendant has constitutional right to court-
appointed expert in some cases).


                                          10
      compelling. Indeed, the host of safeguards fashioned by this Court
      over the years to diminish the risk of erroneous conviction stands as
      a testament to that concern. The interest of the individual in the
      outcome of the State’s effort to overcome the presumption of
      innocence is obvious and weighs heavily in our analysis.

             We consider, next, the interest of the State. . . . The State’s
      interest in prevailing at trial—unlike that of a private litigant—is
      necessarily tempered by its interest in the fair and accurate
      adjudication of criminal cases. Thus, also unlike a private litigant, a
      State may not legitimately assert an interest in maintenance of a
      strategic advantage over the defense, if the result of that advantage
      is to cast a pall on the accuracy of the verdict obtained. We
      therefore conclude that the governmental interest in denying Ake the
      assistance of a psychiatrist is not substantial, in light of the
      compelling interest of both the State and the individual in accurate
      dispositions.

            Last, we inquire into the probable value of the psychiatric
      assistance sought, and the risk of error in the proceeding if such
      assistance is not offered. . . . [I]n subsection (e) of the Criminal
      Justice Act, Congress has provided that indigent defendants shall
      receive the assistance of all experts “necessary for an adequate
      defense.” Numerous state statutes guarantee reimbursement for
      expert services under a like standard.13

      The right to assistance of an expert is not exclusive to the indigent

defendant; even a defendant in a criminal case who has not claimed indigent

status, like Appellant, is entitled to expert assistance in an appropriate case.14




      13
       Id. at 78–80, 105 S. Ct. at 1093–94 (citations and most internal quotation
marks omitted).
      14
        See Ex parte Overton, 444 S.W.3d 632, 640 (Tex. Crim. App. 2014)
(without regard to Overton’s financial status, holding counsel ineffective for not
presenting specific expert’s testimony or requesting continuance to allow said
expert to attend trial).


                                         11
      The State argues that Appellant invited the prosecutor’s improper scientific

conclusion by lodging her objection to Officer McCoy’s testimony.          I cannot

understand how Appellant’s objection provided the prosecutor with the

experience and expertise to qualify as an expert.       In addition to erroneously

admitting the purported scientific evidence of Officer McCoy and allowing the

prosecutor’s unsworn testimony regarding the permanence and transience of

resting nystagmus, the visiting trial judge gave Appellant no opportunity for cross-

examination of the prosecutor’s unsworn testimony and no opportunity to secure

the assistance of a defense expert to meet and rebut either that unsworn

testimony or Officer McCoy’s purported scientific evidence.

      Further, the evidence at trial conflicted on the issue of intoxication, as

shown by this chart:




                                               Officer McCoy saw no evidence of
                                               any damage to Appellant’s pickup
                                               caused by hitting the guardrail or
                                               embankment, and there was no
                                               suggestion that any other officer
                                               saw or reported any damage. No
 Cohen called 9-1-1 and described
                                               officer completed an accident
 the pickup later connected to
                                               report that would have been
 Appellant as hitting the highway
                                               required if the pickup was
 embankment or guardrail, causing
                                               damaged. Officer Bolling was the
 sparks to fly.
                                               officer who spoke with Cohen at
                                               the scene and who inspected the
                                               vehicle for damage. The jury did
                                               not hear the evidence that he
                                               found no damage.




                                        12
Because the police did not see           Cohen, who followed Appellant
Appellant commit any offense             for several miles and reported his
and did not secure a warrant,            observations of her driving, saw
they justified her detention by          no defective lights.
claiming her pickup had a
defective taillight.
                                          Officer McCoy testified
                                          that, although his team
                                          had a PDT at the scene,
Officer McCoy testified that              he chose not to use it.
Appellant smelled of alcohol              Nor did he seek a warrant
at the scene.                             for a blood test but instead
                                          relied on the observations
                                          of Cohen.



Officer McCoy testified that           On     cross-examination,     Officer
Appellant had passed the one-          McCoy agreed that Appellant had
leg stand test but failed the          had no problems with balance when
HGN test and the walk-and-             getting out of the car or during the
turn   test.      On     direct        HGN test.
examination, he testified that
Appellant’s walk had been
“swayed,     staggered,    and         The video of Appellant on the scene
unsteady.”                             of her arrest and during the field
                                       sobriety    tests     shows      no
                                       unsteadiness,      swaying,      or
                                       staggering.


Officer     McCoy     testified        The only evidence of Appellant’s
Appellant showed “clues” of            performance on the HGN test was
intoxication     when        he        Officer McCoy’s interpretation and
performed the HGN test at the          opinion.
scene of the arrest.

                                       At the scene, Officer McCoy forgot
                                       to ask Appellant whether she had
                                       had any head injuries. At the police
                                       station, Appellant stated that she
                                       had recently had some head
                                       injuries.

                                  13
                                                Officer McCoy admitted at trial
                                                that HGN testing for a person with
Officer McCoy noted on his report               resting nystagmus was invalid.
that Appellant exhibited resting
nystagmus at the scene of the
                                                Officer McCoy was permitted to
arrest.
                                                testify as an expert to impeach his
                                                own expert opinion at the arrest
                                                scene and also testified that he
                                                did not lay the proper predicate
                                                before conducting nystagmus
                                                testing.

Officer Martinez, the intoxilizer
operator, testified that Appellant                   The video does not reveal
refused to provide a sufficient breath               obvious intoxication.
sample for the intoxilizer test and
that she was obviously intoxicated
because she raised her arms more
than six inches from her waist for a
good two or three seconds and put
her foot down.


      Appellant filed a pretrial request for a witness list and a list of experts the

 State intended to rely on. After trial but before Appellant filed her motion for new

 trial, Officer Bolling was indicted for manslaughter. In the hearing on her motion

 for new trial, Appellant argued that because Officer Bolling was the first officer on

 the scene, she had expected him to testify to explain that he had not completed

 an accident report because there was no damage to her vehicle. Evidence of the

 absence of damage from the person who actually examined the vehicle at the

 scene could have impacted not only the intoxication evidence but also the

 evidence of the justification for the stop—the alleged defective taillight. Defense

 counsel stated to the judge in the hearing on the motion for new trial,


                                          14
             Well, since he’s been indicted for manslaughter, I highly doubt
      that they [the State] would sponsor him now. But I would have
      subpoenaed him not to discuss his potential criminal case but to
      testify about the fact that he didn’t complete an accident report
      because there was no damage to the vehicle.

      Like this court, the Overton court was also presented with scientific

evidence15 and Brady issues16 that substantially impacted the issue of guilt. As

Judge Cochran explained in her concurring opinion, defense counsel may be

constitutionally ineffective for not permitting the jury to hear expert testimony

contradicting the State’s experts’ theories of criminal liability “and [to] make its

own assessment of credibility and scientific reliability.”17 Further, as the Texas

Court of Criminal Appeals has noted in the double jeopardy/mistrial context,

             If the jury’s guilty verdict is significantly influenced by a
      prosecutor asking legally improper and prejudicial questions, offering
      inadmissible evidence, or making improper remarks to the jury, that
      verdict will be reversed on appeal regardless of whether the
      prosecutor intentionally or recklessly struck a foul blow. As one
      court put it, “it hurts the defendant just as much to have prejudicial
      blasts come from the trumpet of the angel Gabriel.”18

      Under the specific facts of this case, I believe we are compelled to hold

that the trial court’s error in admitting Officer McCoy’s testimony was harmful and


      15
        Id.
      16
        Id. at 652 (Cochran, J., concurring).
      17
        Id.
      18
        Ex parte Peterson, 117 S.W.3d 804, 817 n.57 (Tex. Crim. App. 2003)
(most internal quotation marks and citation omitted), overruled on other grounds
by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007).


                                        15
therefore requires reversal under rule 44.2(b).19         Because the erroneous

admission of Officer McCoy’s testimony about the permanence and transience of

resting nystagmus was harmful, I believe we should likewise sustain Appellant’s

fourth issue, which complains of the denial of her motion for new trial.

Conclusion

      Because the majority does not sustain Appellant’s second or fourth issue,

reverse the trial court’s judgment, and remand this case for a new trial, I must

respectfully dissent.



                                                    /s/ Lee Ann Dauphinot
                                                    LEE ANN DAUPHINOT
                                                    JUSTICE


PUBLISH

DELIVERED: July 14, 2016




      19
        See Tex. R. App. P. 44.2(b).


                                        16
