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Click here for the full text of this decision FACTS:Police officer Byron Mitchell observed a truck driven by Kent Lance McClain weave into another lane without signaling. Thinking this was just a mistake, the officer decided not to stop the driver but to follow him. Mitchell turned on the video camera in his car. McClain’s truck continued to weave about until he eventually made a wide left turn. Mitchell pulled McClain over. Mitchell noticed a strong smell of alcohol and that McClain’s speech was slurred. Mitchell conducted to field sobriety tests (FSTs): the one-leg stand, and the walk-and-turn/heel-to-toe. Based on McClain’s performance, Mitchell arrested him for DWI. McClain filed a motion to suppress evidence, arguing Mitchell didn’t have probable cause to stop him. McClain also filed a motion in limine to exclude evidence of the FSTs, because they were unreliable. At the hearing on both motions, Mitchell testified that he stopped McClain for failing to stay in a single lane and to see if McClain was intoxicated. McClain had an expert testify about the reliability of FSTs and their purpose. The trial court denied both of McClain’s motions, though the trial court also found that Mitchell was not qualified as an expert and could testify only as a lay witness. The videotape taken from Mitchell’s car was entered into evidence as McClain’s trial. Mitchell testified that he had taken an eight-hour class on detecting signs of intoxication and had six months of field training. He said that, even though he was not a certified field sobriety officer, he could still administer FSTs and had administered them about 15 times prior to McClain’s arrest. It was his opinion that McClain had performed poorly and “failed” both tests. On cross-examination, Mitchell admitted that a certified field sobriety officer would be more qualified than he to administer FSTs. He also admitted that the boots McClain was wearing could have affected his performance, and that Mitchell seemed steady on his feet at the police station. McClain’s expert again testified for him about the unreliability of FSTs and how certified field sobriety officers would know that a half-inch “grace” was given in the heel-to-toe test. A jury nonetheless convicted McClain. HOLDING:Affirmed. The court rejects McClain’s contention that the trial court should have established whether Mitchell’s testimony rested on a reliable foundation, as FSTs are “technical” tests that require expert testimony. Because the one-leg-stand and walk-and-turn FSTs are grounded in the common knowledge that excessive alcohol consumption can cause problems with coordination, balance and mental agility, the court concludes that a law enforcement officer’s testimony about a defendant’s coordination, balance and mental agility problems during these FSTs is considered lay witness opinion testimony under Texas Rule of Evidence 701. Though use of the words “pass” and “fail” may give an officer’s testimony an aura of scientific validity, the court nonetheless confirms that a lay witness may testify as an expert, provided the trial court acts as a gatekeeper to insure the qualifications and reliability of the witness. “In determining the reliability of the expert’s testimony, the trial judge should consider such factors as (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community; (2) the existence of literature supporting or rejecting the underlying scientific theory and technique; (3) the potential rate of error of the technique; (4) the availability of other experts to test and evaluate the technique; (5) the qualifications of the testifying expert; and (6) the experience and skill of the person who applied the technique.” Applying those factors here, the court finds the trial court did not abuse its discretion by allowing Mitchell to testify about McClain’s performance on the FSTs. While Mitchell’s use of the terms “clues” and “fail” may have given his lay testimony unearned credibility, any error in allowing this portion of Mitchell’s testimony was harmless. McClain presented testimony from his own expert concerning the reliability of FSTs. Mitchell admitted he was not certified to administer the tests, that a certified officer would be more credible, that McClain’s wearing boots could have affected his performance, and that the tests could result in false positives. Moreover, the videotape of the arrest showed Mitchell administering the tests and McClain’s performance. The court finds that the trial court properly denied McClain’s pretrial motion to suppress, noting that the issue was not whether Mitchell had probable cause to stop McClain but whether he had a reasonable suspicion. Mitchell’s observation of McClain’s weaving provided that reasonable suspicion, and Mitchell had the right to stop McClain to further investigate him. OPINION:Martin Richter, J.; Wright, Richter and Mazzant, JJ.

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