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Click here for the full text of this decision FACTS:State Trooper Steven Baggett observed the truck driven by Mark Edward Compton traveling at a speed Baggett said was approximately 80 mph. Compton slowed, came to a stop at a red traffic light and then proceeded to drive through the still-red light before Baggett pulled him over to the side of the road. When Baggett approached and began questioning Compton, he noticed Compton’s speech was slurred and his breath smelled of alcohol. Compton admitted having earlier consumed two beers, and there was also an open bottle of cold beer in the truck. At this point, Baggett began conducting Standardized Field Sobriety Tests (SFSTs) to determine whether Compton was intoxicated. Based on Baggett’s observations and Compton’s poor performance of the tests, Compton was subsequently arrested for driving while intoxicated. After a Gregg County jury convicted Compton of driving while intoxicated, he was sentenced to 180 days’ confinement, probated for two years and ordered to pay an $800 fine. On appeal, Compton contends that the trial court erred in denying his motion to suppress and that the evidence presented at trial was legally and factually insufficient to support his conviction. HOLDING:Affirmed. The DWI Detection Manual’s prefatory language acknowledges that although the tests, when administered under ideal conditions “will generally serve as valid and useful indicators of impairment,” slight variations from the ideal “may have some affect [sic] on the evidentiary weight given to the results.” Preface to DWI Detection Manual, supra. The Texas Court of Criminal Appeals also notes that “[t]he accuracy of the HGN test has been estimated at various levels, depending on such factors as testing conditions and the ability and experience of those conducting the test, thus taking into account that the test will not be administered in strict conformity with an officer’s training every time it is performed. Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994). It would be unreasonable to conclude that any variation in administering the tests, no matter how slight, could automatically undermine the admissibility of an individual’s poor performance of the tests. Compton complains that Baggett administered the smooth pursuit portion of the HGN test in 11 seconds instead of the 16 seconds prescribed in the DWI Detection Manual (i.e., Baggett moved the stimulus two and a half seconds faster than recommended for each eye). The manual itself only provides approximations of the time required for properly conducting the tests; however, Compton reasons that the slightly increased speed with which Baggett administered the test amounted to an inappropriate application of the technique, invalidating the results. This conclusion is untenable and, if accepted, would effectively negate the usefulness of the tests entirely. Any variation in timing would require courts to exclude the results as unreliable. Considering the maximum deviation portion of the HGN test, the DWI Detection Manual indicates that an individual’s eye should be kept at maximum deviation, or as far to the side as possible, for a minimum of four seconds. With each eye being tested twice, Baggett should have required Compton to maintain his eye position at maximum deviation for the minimum time stated in the manual-four seconds per test, eight seconds for each eye. The total testing time for nystagmus at maximum deviation, therefore, should require at least 16 seconds plus the time necessary to correctly position the eye to be tested. Compton concedes that Baggett took 19 seconds to perform this test, but argues that the test should have taken at least 32 seconds — 16 seconds to test at maximum deviation plus 16 seconds to position the eyes. Unlike the test for smooth pursuit, the movement of the eye from side to side across the field of vision is irrelevant; instead, the test is to observe the eye for distinct nystagmus in a specific position. Any variation in the time taken to appropriately position the eyes would have no effect on the reliability of this test and cannot form the basis for excluding the results from the evidence presented at trial. Another of the tests outlined in the DWI Detection Manual is the one-legged stand test. As suggested by its name, this test allows an individual to demonstrate his or her ability to remain balanced while standing on only one leg. Failure to remain balanced during the test or to comply properly with an officer’s directions may serve as clues of intoxication. Although one of the requirements for properly administering the test includes instructing someone that his or her hands must remain to the side, Baggett’s trial testimony clearly indicated that he failed to do so. Compton subsequently used his hands to help himself balance and, partially for this reason, performed poorly on this test. Under the circumstances, even if the trial court’s admission of the one-legged stand test results did influence the jury’s verdict, the court deems that it “had but a slight effect” and that the admission was harmless. Baggett’s failure to instruct Compton to keep his arms at his side should have made the test easier to perform. Even with the use of his arms, however, Compton swayed from side to side, unable to balance himself on one leg. Baggett testified that, “even without using his arms to balance, [Compton] still had enough clues on the one-leg stand to be considered intoxicated.” Nevertheless, when viewed in light of the other evidence presented at trial, the results of the one-legged stand test are relatively insignificant. Baggett’s uncontroverted testimony at trial was that Compton ran a red traffic light; smelled of alcohol; had slurred speech; admitted drinking two beers; had a cold, open bottle of beer in his truck; and became belligerent when Baggett placed him under arrest. Compton also demonstrated five out of six clues on the HGN test, refused to perform the walk-and-turn test and refused to submit to Intoxilyzer testing. The court concludes there is sufficient evidence on which a rational trier of fact could have found the essential elements of the crime of driving while intoxicated. OPINION:Morriss, C.J.; Morriss, C.J., Ross and Carter, JJ.

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