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Click here for the full text of this decision FACTS:Victor Stovall was charged with felony DWI as a habitual offender. At his trial, the trial court allowed the arresting officer to testify about both the horizontal gaze nystagmus and the vertical gaze nystagmus testing he did on Stovall. Stovall objected to the testimony on VGN testing, arguing that though the officer testified to his certification in HGN testing, there was no similar showing made for VGN testing. Though the state offered to ask the officer if he was certified, Stovall again complained that that wasn’t enough under Texas Rule of Evidence 702, that the state had to “lay the predicate” under Rule 702 in a Daubert/Kelly hearing. The trial court agreed with the state that it had already laid the predicate and allowed the state to continue questioning the officer. During further questioning on VGN, Stovall again objected, saying that under Daubert and Kelly, the state had to prove: 1. the underlying scientific theory of VGN; 2. the technique applied and that the theory is valid; and 3. the technique was applied properly. The state countered that VGN was the same test as HGN, save for the vertical and horizontal differences, and that the Court of Criminal Appeals had accepted HGN testing in Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994). Despite Stovall’s objection, the trial court allowed the officer to testify on VGN. During his testimony, the officer stated that while conducting the HGH and VGN tests, he took notice of three clues that would indicate a blood alcohol level of at least .10. The trial court overruled Stovall’s objection that the officer was not qualified to correlate the clues of HGN or VGN to a particular blood alcohol content. Stovall was convicted and sentenced to 35 years in prison. HOLDING:Reversed and remanded. The court agrees that Emerson accepted HGN, but the court finds no mention in the opinion of VGN. Additionally, in case law going back to 1988, the court found only two cases where VGN was even mentioned. Neither of those cases, however, discussed the scientific reliability of VGN. “The Emerson court concluded that because the HGN test is based on the scientific theory that alcohol affects human eye movement, the test must satisfy the three requirements set forth in Kelly to be admissible under Rule 702. Because the VGN test is based on a similar scientific theory, we conclude that the VGN test must also satisfy the Kelly requirements to be admissible under rule 702. Consequently, the State, as the proponent of the evidence, had the burden of producing evidence of the underlying scientific theory behind the expert testimony.” The court did not hold such a hearing, and rejected Stovall’s request to hold one. This error was harmful, the court concludes, because the officer testified to a correlation between VGN and blood alcohol content. The officer also made the correlation between VGN and the crack cocaine that was also found in Stovall’s vehicle. “In sum, after reviewing the record as a whole, we are unable to say with fair assurance that the admission of the testimony regarding the VGN test did not influence the jury or had but a slight effect.” OPINION:Griffith, J.; Worthen, C. J., and Griffith, J.

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