Affirmed and Memorandum Opinion filed January 7, 2020.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00175-CR

                      JESSE PHILLIP OCHOA, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

           On Appeal from the County Criminal Court at Law No. 2
                           Harris County, Texas
                       Trial Court Cause No. 2165174


                          MEMORANDUM OPINION

      Appellant Jesse Phillip Ochoa contends the trial court erred in denying his
motion to suppress officer testimony regarding horizontal gaze nystagmus (HGN)
test results. A jury found Ochoa guilty of driving while intoxicated. We affirm.

      Officer Cardero observed a vehicle with an expired registration and initiated
a traffic stop. Appellant was driving and pulled over. After observing appellant,
Cardero conducted field sobriety tests. Appellant contends that the trial court erred
in denying his motion to suppress Cardero’s testimony regarding the HGN test
because Cardero admitted he made a mistake in administering the test.

      We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim.
App. 2010). We afford almost total deference to the trial court’s determination of
historical facts, provided that those determinations are supported by the record.
State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011). We review de
novo the trial court’s application of law to those facts. Valtierra, 310 S.W.3d at
447. When, as in this case, the trial court makes no findings of fact, we review the
evidence in the light most favorable to the trial court’s ruling and presume the trial
court made implicit findings that support its ruling. Id. We will uphold the trial
court’s ruling if it is reasonably supported by the record and correct on any theory
of law applicable to the case. Id. at 447-48.

      Testimony concerning HGN test results is scientific evidence subject to the
requirements of Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). Emerson
v. State, 880 S.W.2d 759, 763 (Tex. Crim. App. 1994); Plouff v. State, 192 S.W.3d
213, 218 (Tex. App.—Houston [14th Dist.] 2006, no pet.). As scientific evidence,
testimony concerning an HGN test must satisfy the admissibility standards of
Texas Rule of Evidence 702. Plouff, 192 S.W.3d at 218. Rule 702 requires
scientific testimony to be both relevant and reliable. Id. To be reliable, the
evidence must be based on (1) a valid scientific theory; (2) a valid technique
applying the theory; and (3) a validly applied technique on the occasion in
question. Id. (citing Kelly, 824 S.W.2d at 572).

      The HGN test involves passing an object such as a stylus, finger, or pen light
in front of the suspect’s eyes to test for intoxication. The purpose of the HGN test
is to check for three clues in each eye—lack of smooth pursuit, distinct nystagmus

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at maximum deviation, and onset of nystagmus prior to 45 degrees.1 McRae v.
State, 152 S.W.3d 739, 743 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). The
HGN technique is applied properly when the officer follows the standardized
procedures outlined in the DWI Detection Manual published by the National
Highway Traffic Safety Administration. Plouff, 192 S.W.3d at 219. 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. Id.

       Officer Cardero testified that he failed to comply with one requirement for
HGN testing in the DWI Detection Manual—to check for lack of smooth pursuit
by conducting two passes per eye. Despite this mistake, Cardero observed lack of
smooth pursuit in each eye based on one pass. He also testified that the purpose of
conducting multiple passes is “just to confirm what is being seen.” He conducted
the test as to the other four possible clues properly by making two passes per eye.
Cardero observed six out of six clues of intoxication.

       We need not decide whether Cardero’s failure to test properly for lack of
smooth pursuit by conducting two passes per eye was a slight variation in the
administration of the HGN test because even if the trial court erred in admitting
Cardero’s testimony regarding the test, any error was harmless. Error in the
admission of evidence constitutes nonconstitutional error, which we must disregard
when it does not affect the substantial rights of the defendant. Tex. R. App. P.
44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); Plouff,
192 S.W.3d at 222. A substantial right is affected when the error had a substantial

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         Nystagmus is an involuntary rapid oscillation of the eyes in a horizontal, vertical, or
rotary direction. Emerson, 880 S.W.2d at 765; Plouff, 192 S.W.3d at 218. Horizontal gaze
nystagmus (HGN) refers to the inability of the eyes to smoothly follow an object moving
horizontally across the field of vision, particularly when the object is held at an angle of forty-
five degrees or more to the side. Plouff, 192 S.W.3d at 218-19. Consumption of alcohol
exaggerates nystagmus to the degree it can be observed by the naked eye. Id. at 219.

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and injurious effect or influence in determining the jury’s verdict. King v. State,
953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Plouff, 192 S.W.3d at 222.

      The proper inquiry is to ask whether the trial court’s error, if any, in
allowing Cardero to testify about the HGN test results substantially swayed or
influenced the jury’s verdict. See Plouff, 192 S.W.3d at 222. In making this
determination, we consider the objectionable testimony in light of the entire record.
See id. (citing Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002)).

      Officer Cardero observed a vehicle with an expired registration and initiated
a traffic stop. Appellant was driving and pulled over. Cardero observed that
appellant had slurred speech, a strong odor of alcohol, and red, glassy eyes.
Appellant admitted that he had consumed 72 ounces of beer at a bar before driving.
Cardero then conducted three field sobriety tests—HGN, walk and turn, and one-
leg stand.

      Cardero observed six of eight clues on the walk and turn test and two of four
clues on the one-leg stand test. Cardero noted that appellant weighed 375 pounds,
and these field sobriety tests involve balancing and might be more challenging
depending on someone’s physical characteristics. Cardero admitted that someone
appellant’s size is not a good candidate for the one-leg stand test, but officers still
are allowed to perform it on someone appellant’s size. Appellant consented to a
breath test. Appellant’s breath test results showed blood alcohol concentrations of
.105 and .103, which are above the legal limit of .08.

      Considering all the evidence in context, we conclude the trial court’s error, if
any, in admitting the testimony regarding the HGN test results did not affect
appellant’s substantial rights and did not have a substantial or injurious effect on
the jury’s verdict. See id. at 223. The HGN test was one of three tests performed in
the field, all of which appellant failed. See id. Perhaps more importantly, appellant
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admitted to drinking 72 ounces of beer before driving, and his test results showed
blood alcohol concentrations well above the legal limit. We overrule appellant’s
sole issue.

      We affirm the judgment of the trial court.




                                       /s/       Frances Bourliot
                                                 Justice



Panel consists of Chief Justice Frost and Justices Jewell and Bourliot.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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