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Click here for the full text of this decision FACTS:The appellant challenges his conviction for misdemeanor driving while intoxicated. He contends the trial court erred in admitting evidence of the horizontal gaze nystagmus (HGN), walk-and-turn, and one-leg stand tests. HOLDING:Affirmed. The appellant contends the trial court erred in denying his motion to suppress evidence of the HGN because the arresting officer allegedly did not administer the test in accordance with the National Highway Traffic Safety Administration protocol as outlined in the DWI Detection and Standardized Field Sobriety Testing. Testimony concerning the HGN test is considered novel scientific evidence and is subject to the requirements of Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). To be considered reliable, evidence based on a scientific theory must satisfy the following three criteria: 1. the underlying scientific theory must be valid; 2. the technique applying the theory must be valid; and 3. the technique must have been applied properly on the occasion in question. The appellant contends the state did not meet the third requirement of Kelly because it did not prove the test was administered properly on the occasion in question. Appellant contends that the officer did not properly administer the HGN test because he allegedly did not follow the NHTSA manual. During the suppression hearing, appellant introduced the testimony of Officer Troy Walden as an expert in HGN testing and procedure. Walden testified that the arresting officer performed the HGN test in a nonstandardized manner. Presuming, without deciding, that Walden qualified as an expert in this case, the court holds that the trial court was free to believe any or all evidence presented and to make a determination of the facts supported by the record after evaluating the credibility and demeanor of the witnesses at the hearing and that the trial court did not abuse its discretion in denying the motion to suppress this evidence. Because all three criteria of Kelly were satisfied, the arresting officer’s testimony concerning the results of the HGN test was admissible. The appellant contends the trial court erred by admitting evidence of the walk-and-turn and one-leg stand tests under Texas Rule of Evidence 702 because the officer allegedly performed these tests improperly. The appellant contends that, under United States v. Horn, 185 F. Supp. 2d 530 (D. Md. 2002), a Maryland case, testimony concerning the one-leg stand and walk-and-turn tests are admissible only if they meet the Kelly criteria for expert testimony. The court agrees with McRae v. State, 152 S.W.3d 739 (Tex. App. � Houston [1st Dist.] 2004, pet ref’d.) and concludes that the testimony by the arresting officer concerning the one-leg stand and walk-and-turn tests is lay witness testimony governed by Rule 701. The court holds that the officer’s testimony, as described above, concerning his observations of appellant’s performance on the one-leg stand test was admissible under Rule 701.The court also concludes that Mask’s testimony concerning his observations of appellant’s performance on the walk-and-turn test also was admissible under Rule 701. OPINION:Kem Thompson Frost, J.; Hedges, Fowler and Frost, JJ.

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