                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-158-CR


LESA ROCHE HORTON                                                   APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

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      FROM COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      Appellant Lesa Roche Horton appeals her conviction for driving while

intoxicated (DWI). In two points, Appellant contends that the trial court erred

by failing to suppress evidence of field sobriety tests because the tests did not

meet the standard set in Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App.




      1
          … See Tex. R. App. P. 47.4.
2002), and that the trial court impermissibly placed the burden of proof to show

that the police wrongfully performed the tests on Appellant. We will affirm.

                    II. Factual and Procedural Background

      On March 13, 2008, at approximately 9:00 p.m., Amanda Cobb was

driving home from work on I-35 when she saw the driver of a van, which was

later identified as Appellant’s van, driving erratically, swerving, and running

other drivers off the road. Cobb called 911 to report the erratic driver. After

relaying a description of the van to the 911 dispatcher, Cobb, on the advice of

the 911 dispatcher, turned on her car’s emergency flashers and began following

Appellant’s van at a safe distance. Cobb stated that she was driving between

85–90 m.p.h. to keep up with Appellant’s van. Cobb followed Appellant for

ten to twelve miles until a police officer arrived and stopped Appellant’s van.

Cobb did not stop to talk with police that night.

      Laura Nicole Stephenson, a Denton police officer, received a dispatch call

of a reckless driver in a Honda Odyssey van. When Officer Stephenson saw the

van, she noticed that it was not maintaining a single lane of traffic and that the

van would speed up and then slow down. Officer Stephenson then activated

her patrol car’s overhead lights and stopped Appellant’s van.

      When Officer Stephenson approached the van, she noticed that Appellant

smelled of alcohol, that she had red and heavy eyes, and that she was fumbling

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with her bag. Appellant stated that she was a banker and that she was coming

home from work, but later stated that she was on her way home from dinner

in Southlake. 2 Appellant told Officer Stephenson that she had three glasses of

wine with dinner and that it takes two to three drinks for her to feel the effects

of alcohol. Appellant stated that she was not on any medication, that she did

not feel drowsy, and that she was not sick.

      Officer Stephenson then had Appellant get out of her van to perform the

standardized field sobriety tests. During the Horizontal Gaze Nystagmus (HGN)

test, Appellant exhibited six out of six possible clues and was not able to follow

directions. During the walk-and-turn test, Appellant exhibited five out of eight

possible clues. Officer Stephenson stated that two clues means that a person

is intoxicated. Finally, during the one-leg-stand, Appellant exhibited three out

of four possible clues. Officer Stephenson stated that two clues indicates that

a person is intoxicated during this test.

      After administering the field sobriety tests, Officer Stephenson then

arrested Appellant. Officer Stephenson asked Appellant for a blood or breath

test, but Appellant refused both tests. Appellant asked Officer Stephenson if

she could take the field sobriety tests again, but Officer Stephenson refused.



      2
      … At trial, Appellant testified that she stopped in Lake Dallas, not
Southlake, and had dinner with her sister on her way home from work.

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      Appellant was charged by information with the offense of DWI. Appellant

pleaded not guilty to the charged offense. A jury found Appellant guilty and

assessed her punishment at 150 days in jail, probated for eighteen months, and

a $700 fine. This appeal followed.

                                  III. Discussion

      In two points, Appellant contends that the trial court abused its discretion

by failing to suppress evidence of the field sobriety test results because Officer

Stephenson did not administer the tests in accordance with the National

Highway    and   Transportation    Safety   Administration    (NHTSA)     manual.

Specifically, Appellant argues that because she was fifty pounds or more

overweight, the tests should not have been administered.             Additionally,

Appellant asserts that the trial court wrongfully placed the burden of proof on

her to show that the police wrongfully performed the tests because she was

fifty pounds or more overweight. Because both of Appellant’s points concern

whether evidence of the field sobriety test results should have been admitted

under the Kelly standard, we will address both points together.

A. Rule 702 and Kelly v. State

      Rule 702 of the Texas Rules of Evidence provides as follows: “If

scientific, technical, or other specialized knowledge will assist the trier of fact

to understand the evidence or to determine a fact in issue, a witness qualified

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as an expert by knowledge, skill, experience, training, or education may testify

thereto in the form of an opinion or otherwise.” Tex. R. Evid. 702. It is a trial

court’s responsibility under rule 702 to determine whether proffered scientific

evidence is sufficiently reliable and relevant to assist the jury.     Jackson v.

State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000). A trial court’s ruling on

the admissibility of scientific expert testimony is reviewed under an abuse of

discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim.

App. 2000).

      The proponent of the scientific evidence must demonstrate through clear

and convincing evidence that the evidence is in fact reliable. Id. The proponent

of the evidence must satisfy three criteria to demonstrate reliability: (1) the

underlying scientific theory is valid; (2) the technique applying the theory is

valid; and (3) the technique was properly applied on the occasion in question.

Kelly, 824 S.W.2d at 573. Other nonexclusive factors that could affect a trial

court’s determination of reliability include (1) the extent to which the underlying

scientific theory and technique are accepted as valid by the relevant scientific

community, if such a community can be ascertained, (2) the qualifications of

the expert testifying, (3) the existence of literature supporting or rejecting the

underlying scientific theory and technique, (4) the potential rate of error of the

technique, (5) the availability of other experts to test and evaluate the

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technique, (6) the clarity with which the underlying scientific theory and

technique can be explained to the court, and (7) the experience and skill of the

person who applied the technique on the occasion in question. Id.

B. HGN Test 3

      The Texas Court of Criminal Appeals has held that the HGN test is a

scientific test.   Emerson v. State, 880 S.W.2d 759, 764 (Tex. Crim. App.

1994).    The HGN test is based on scientific theory, and the results are

admissible under rule 702 when the test is properly administered by a qualified

officer. Id. at 768–69; see Tex. R. Evid. 702; Osbourn v. State, 92 S.W.3d

531, 537 (Tex. Crim. App. 2002); Kelly, 824 S.W.2d at 573.             Testimony

concerning the HGN test is scientific evidence and subject to the criteria of

Kelly. See Emerson, 880 S.W.2d at 763.

      Nystagmus is an involuntary rapid oscillation of the eyes in a horizontal,

vertical, or rotary direction. Id. at 765. Horizontal gaze nystagmus 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. See Webster v. State, 26 S.W.3d 717, 719 n.1




      3
       … In her brief, Appellant does not state which field sobriety test result
evidence the trial court improperly admitted. Therefore, we will address each
of the three field sobriety tests.

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(Tex. App.—Waco 2000, pet. ref’d).          Consumption of alcohol exaggerates

nystagmus to the degree that it can be observed by the naked eye. Emerson,

880 S.W.2d at 766. In determining whether a person's performance of the

HGN test suggests intoxication, an officer must look for the following clues in

each eye: (1) the lack of smooth pursuit, (2) distinct nystagmus at maximum

deviation, and (3) the onset of nystagmus prior to 45 degrees. McRae v. State,

152 S.W.3d 739, 743 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (op.

on reh’g). The Emerson court also determined that the HGN testing technique

in the NHTSA manual is valid. See Emerson, 880 S.W.2d at 768–69. The

HGN technique is applied properly when the officer follows the standardized

procedures outlined in the DWI Detection Manual published by NHTSA. See id.

      Appellant’s complaint on appeal is that the trial court abused its discretion

by allowing the field sobriety test results to be admitted because the State did

not show that they were properly administered under Kelly.            Specifically,

Appellant complains that Officer Stephenson did not question Appellant

regarding her weight. However, as stated above, the HGN test focuses on the

movement of a person’s eyes, rather than a person’s ability to balance or

coordinate. See Webster, 26 S.W.3d at 719 n.1. As such, Appellant’s weight

had no effect on the outcome of the HGN test. Emerson, 880 S.W.2d at 766.

Accordingly, we hold that the trial court did not abuse its discretion by failing

                                        7
to suppress the HGN test evidence nor did the trial court improperly place the

burden of proof on Appellant as to that test.

C. Walk-and-Turn and One-Leg-Stand Tests

      Unlike the HGN test, the one-leg-stand and walk-and-turn tests are not

grounded in science.    Texas courts have held that, because an officer’s

testimony about a suspect’s coordination, balance, and any mental agility

problems exhibited during the one-leg-stand and walk-and-turn tests are

observations grounded in common knowledge, the officer’s testimony based on

these observations is considered lay witness opinion testimony under rule 701

and not expert testimony under rule 702. Plouff v. State, 192 S.W.3d 213,

223 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (op. on reh’g); see

Emerson, 880 S.W.2d at 763 (explaining that peace officer need not qualify as

expert to express opinion about whether person he observed was intoxicated).

      An officer’s testimony regarding a suspect’s performance in the walk-and-

turn and one-leg-stand tests can cross the line from permissible lay opinion to

impermissible expert opinion testimony. See Smith v. State, 65 S.W.3d 332,

346 (Tex. App.—Waco 2001, no pet.). However, Texas courts have held that

an officer who uses terms such as “test,” “standardized clues,” or “divided

attention” when describing the walk-and-turn and one-leg-stand tests is not




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testifying as an expert. See Plouff, 192 S.W.3d at 224; McRae, 152 S.W.3d

at 746.

      Appellant argues that the trial court abused its discretion by failing to

suppress the field sobriety test results because Officer Stephenson did not

inquire into Appellant’s weight, and therefore, did not properly administer the

tests. Appellant argues that the failure to ask how much she weighed at the

time of the tests should result in the exclusion of the evidence. Additionally,

Appellant argues that the trial court improperly placed the burden of proof on

her to show that she was fifty pounds or more overweight and, therefore, that

the field sobriety tests were not properly applied.

      In her brief, Appellant states that the field sobriety tests are subject to

Kelly. However, as stated above, the walk-and-turn and one-leg-stand tests are

not scientific evidence and therefore not subject to Kelly except when an

officer’s testimony crosses the line from lay testimony to expert testimony.

Smith, 65 S.W.3d at 346.        Here, Appellant does not assert that Officer

Stephenson’s testimony was impermissible expert opinion testimony, nor does

she point to the record as evidence that Officer Stephenson’s testimony

crossed the line to expert testimony.

      Regardless, after reviewing the record, we hold that Officer Stephenson’s

testimony regarding the walk-and-turn and one-leg-stand tests is lay witness

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testimony governed by rule 701. See Plouff, 192 S.W.3d at 224. Officer

Stephenson stated that, during the walk-and-turn test, suspects are to “stand

with their left foot down and their right foot, heel to toe, in front of the left

one” and to “place their hands at their side and to hold that position while the

instructions are being given.” She testified that there are eight clues for the

walk-and-turn test. Officer Stephenson further stated that, when conducting

the tests, she looks to “make sure they maintain their balance while listening

to the instructions, that they don’t start the test before the instructions are

finished being given, [and] that they touch their steps heel to toe.” Officer

Stephenson continued that she is “looking to see if they step off the line, if

they stop while walking to steady themselves, if they raise their hands over six

inches for balance, if they turn incorrectly, or if they take an incorrect number

of steps.” Officer Stephenson testified that Appellant exhibited five out of the

eight clues during the test. She further stated that two clues means that the

subject is intoxicated.

      Additionally, Officer Stephenson stated that the one-leg-stand test is a

“divided attention” test. She stated that she has the subject “stand with [his

or her] feet together and [his or her] hands at their side.” Officer Stephenson

said that she has the subject hold that position while she gives them the

instructions for the test.   She elaborated that the instructions are “to raise

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either the right or left foot approximately six inches off the ground, point the

toe towards the ground, look at your elevated foot, and count aloud: One

thousand one, one thousand two, one thousand three, one thousand four, so

on until I tell [the person] to stop.” She stated that the test lasts approximately

thirty seconds.     Officer Stephenson testified that she gave Appellant the

instructions verbally and also demonstrated how the test was to be performed.

Officer Stephenson stated that although Appellant appeared to be a good

candidate for the test, Appellant told Officer Stephenson that “her legs were

fat.”

        Officer Stephenson testified that Appellant raised her arms, swayed while

balancing, put her foot down during the test, and was unable to count the way

Officer Stephenson had instructed. Officer Stephenson stated that Appellant

exhibited three out of the four possible clues for the test. She stated that the

“decision point” on this test was two clues, so the test indicated that Appellant

was intoxicated.

        After reviewing the record, we cannot say that Officer Stephenson’s

testimony crossed the line from lay testimony to expert testimony. See Plouff,

192 S.W.3d at 224; McRae, 152 S.W.3d at 746. Accordingly, we hold that

the trial court did not abuse its discretion by allowing the admission of the field

sobriety test results at trial.

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      Additionally, because we hold that Officer Stephenson’s testimony was

lay witness testimony, and therefore the Kelly standard does not apply, we hold

that the trial court did not wrongfully place the burden of proof on Appellant to

show her weight at the time of her arrest. See Kelly, 824 S.W.2d at 573

(stating that the proponent of the scientific evidence must show that the

technique was properly applied on the occasion in question).

D. Harm Analysis

      Even assuming the trial court erred by admitting the results of the field

sobriety tests, we conclude that Appellant was not harmed by the admission

of the evidence.

      The erroneous admission of evidence is nonconstitutional error. See King

v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A substantial right is

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

determining the jury’s verdict. Id. (citing Kotteakos v. United States, 328 U.S.

750, 776, 66 S. Ct. 1239, 1253 (1946)); Coggeshall v. State, 961 S.W.2d

639, 643 (Tex. App.—Fort Worth 1998, pet. ref’d). 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); Johnson v. State, 967 S.W.2d 410, 417

(Tex. Crim. App. 1998). In making this determination, we review the record as

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a whole, including any testimony or physical evidence admitted for the jury’s

consideration, the nature of the evidence supporting the verdict, and the

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

other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.

App. 2002).

      Here, Cobb testified that she was driving home when she saw Appellant’s

van swerving and moving erratically. She stated that other drivers were having

to run off the road to avoid being hit by Appellant’s van. She stated that after

she called 911, she continued following Appellant until an officer pulled

Appellant’s van over.

      Officer Stephenson testified that she received a dispatch of a reckless

driver driving a Honda Odyssey van.        When she located the van, Officer

Stephenson stated that she noticed that the van was not maintaining a single

lane of traffic and that the van would speed up and then slow down. Officer

Stephenson then turned on her overhead lights to stop Appellant’s van, but

Appellant missed the exit and then stopped on the shoulder of the highway.

Officer Stephenson stated that when she approached Appellant’s van, Appellant

smelled of alcohol, her eyes were red and heavy, and Appellant was fumbling

with her bag. When Officer Stephenson first questioned Appellant about where

she was coming from, Appellant stated that she was on her way home from

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work. However, Appellant later changed her story and stated that she was

coming home from dinner. After getting out of the van, Appellant stated that

she had consumed three glasses of wine with dinner and that it takes two to

three drinks for her to feel the effects of alcohol. Appellant stated that she was

not on any medication, nor was she sick or feeling drowsy.

      We conclude that, in the context of the entire case against Appellant, any

possible error in admitting the results of the field sobriety tests would not have

had a substantial or injurious effect on the jury’s verdict and would not have

affected Appellant’s substantial rights. See King, 953 S.W.2d at 271. Thus,

we disregard any alleged error. See Tex. R. App. P. 44.2(b).

                                IV. Conclusion

      Having overruled Appellant’s two points, we affirm the trial court’s

judgment.




                                     ANNE GARDNER
                                     JUSTICE

PANEL: GARDNER and MCCOY, JJ.; and DIXON W. HOLMAN (Senior Justice,
Retired, Sitting by Assignment)

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 31, 2010



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