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Click here for the full text of this decision FACTS:The appellant pleaded not guilty to the misdemeanor offense of driving while intoxicated and pleaded true to a punishment-enhancement paragraph. After a jury convicted the appellant, the trial court found the enhancement paragraph true and assessed punishment at 30 days’ confinement in jail. The appellant contends that the trial court erred by admitting appellant’s “custodial” oral statements, refusing to give a “probable cause” jury instruction, and admitting evidence of improperly administered field-sobriety test results. HOLDING:Affirmed. The appellant contends that the trial court erred by allowing the arresting officer to testify that appellant had six clues, the maximum number possible, on the Horizontal Gaze Nystagmus test because, by the officer’s own admission, he administered the test to appellant incorrectly. Although the officer testified that he administered all three parts of the HGN test to appellant, he admitted at appellant’s Administrative License Revocation hearing that he had administered only two out of the three required parts of the HGN because he did not conduct the onset-of-nystagmus portion of the test. The officer also admitted making several other misstatements concerning the HGN test. When confronted with the procedural errors made in administering the HGN test that did not comply with the National Highway Transportation Safety Administration guidelines, the officer was asked whether there was a “valid HGN test” on appellant. The officer replied that there was none. Under these circumstances, which show that the officer acknowledged that the HGN test administered to appellant was invalid, the court “cannot conclude” that the HGN technique was applied properly, as required by Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994), or that the error was merely a slight variation in the administration of the HGN test. The court concludes that the trial court abused its discretion by allowing the officer to testify that appellant had six clues on the HGN test because the technique applying the HGN was improperly administered and resulted in an invalid test. The court decides that the evidence did not influence the jury or had but a slight effect. Given the evidence in the record as a whole, the HGN evidence had little effect, if any, on the jury’s decision to convict appellant, and conviction would have been certain without that erroneously admitted evidence. Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). Because appellant’s substantial rights were thus not affected, the court concludes that error in admitting the HGN evidence was harmless and must, therefore, be disregarded, the court concludes. The testimony by the arresting officer concerning the one-leg stand, which follows, is lay-witness testimony governed by Texas Rule of Evidence 701. The court concludes that, under the circumstances demonstrated here, the words “clues,” “test,” and “divided attention” merely refer to observations by the peace officer, based on common knowledge observations of the one-leg stand, and do not convert the lay-witness testimony into expert testimony. The court holds that the officer’s testimony, as described above, concerning his observations of appellant’s performance on the one-leg-stand test were admissible under Rule 701. The court holds that any error in admitting testimony about NHTSA’s certification and guidelines for the one-leg-stand test is harmless under these. These circumstances include the officer’s acknowledging that appellant’s test was not administered according to the NHTSA guidelines and was, therefore, invalid. After excluding the testimony about NHTSA’s certification and guidelines for the one-leg-stand test, the court further holds that the jury was properly allowed to consider the remainder of the one-leg-stand evidence as lay-witness testimony of intoxication based on appellant’s dropping his foot, using his arms for balance, swaying, and failing to follow instructions. The court rejects appellant’s contention that the trial court committed reversible error by refusing to include an instruction on probable cause in the jury charge, in accordance with Texas Code of Criminal Procedure Article 38.23. The appellant contends that the trial court erred by allowing the arresting officer to testify about appellant’s oral statements because the officer did not read appellant his Miranda rights or comply with Article 38.22 of the Code of Criminal Procedure. Because appellant was not in custody when the arresting officer questioned him, the court concludes that appellant’s statements were admissible even though the officer had not read appellant his Miranda rights. OPINION:Alcala, J.; Radack, C.J., Alcala and Bland, JJ..

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