Hartman v. State

2 S.W.3d 490, 1999 Tex. App. LEXIS 5729, 1999 WL 591346
CourtCourt of Appeals of Texas
DecidedAugust 4, 1999
Docket04-94-00180-CR
StatusPublished
Cited by17 cases

This text of 2 S.W.3d 490 (Hartman v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hartman v. State, 2 S.W.3d 490, 1999 Tex. App. LEXIS 5729, 1999 WL 591346 (Tex. Ct. App. 1999).

Opinions

OPINION

Opinion by:

TOM RICKHOFF, Justice.

Does a trial court abuse its discretion by admitting an expert’s testimony, relating the results of a blood-alcohol test back [491]*491from the time it was taken to the time a defendant was driving, when the expert acknowledges he does not know the defendant’s weight or his eating or drinking history on the occasion in question? We answer in the negative.

Allen Spock Hartman was convicted by a jury of being intoxicated while driving or operating a motor vehicle in a public place. See Tex. PeN.Code Ann. § 49.04 (Vernon 1994). Punishment was assessed at ninety days in jail, probated for two years, and a fine of $800 plus court costs. On original submission, we held that reverse extrapolation testimony offered by the state to relate Hartman’s breath test result to the point in time when he was driving was not subject to the analysis announced in Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992). Hartman v. State, 917 S.W.2d 115, 120 (Tex.App.—San Antonio 1996). The Court of Criminal Appeals reversed and remanded to this court for analysis of this testimony under Kelly. Hartman v. State, 946 S.W.2d 60, 68 (Tex.Crim.App.1997). We find that the proffered testimony is sufficiently relevant and reliable that the trial court did not abuse its discretion in admitting it. We therefore affirm the judgment of the trial court.

Facts and Procedural History

Officer John Muzny testified he was patrolling in north San Antonio on the night of July 8, 1992 when he noticed a VW Rabbit in front of him. The car had no taillights and was weaving within its lane. As Officer Muzny moved closer, he noticed that there were also no head lights shining on the pavement in front of the car. He turned on his emergency lights and pulled the car over. The driver, whom Officer Muzny later identified as Hartman, got out of the car and walked over towards him. Officer Muzny testified that Hartman’s eyes were bloodshot and glassy, and his breath smelled strongly of alcohol. Officer Muzny explained to Hartman why he was being pulled over. Hartman explained that he had only had the car a little while, and he was not used to it; that was why he was weaving in the roadway and why he did not have his lights on.

Officer Muzny then conducted field sobriety tests on Hartman. On the Horizontal Gaze Nystagmus test, a test used to detect for an involuntary jerking of the eye brought on by alcohol, Officer Muzny noticed that Hartman’s eyes “had a very distinct jerk,” and that Hartman started to giggle uncontrollably when the test was administered. Out of the six possible indi-cia of intoxication, Hartman demonstrated all six. Officer Muzny then asked Hartman to perform the Rhomberg test — that is, to stand with his heels together, hands at his side, tilt his head back slightly, and keep his eyes closed for thirty seconds. Officer Muzny instructed Hartman that, when he thought thirty seconds was over, he was to bring his head forward and open his eyes. Hartman lowered his head after four seconds. Officer Muzny then asked Hartman to perform the One Leg Stand Test, to test his balance and ability to judge time. Hartman put his foot down four times in thirty seconds. The last test Officer Muzny asked Hartman to perform was the Walk and Turn test. Hartman was unable to keep his balance during the instruction phase and frequently mis-stepped.

Hartman failed all four tests. Officer Muzny arrested Hartman for driving without a valid driver’s license or effective liability insurance and took him to the station at 11:55 p.m. At 12:36 and 12:39 a.m., Hartman was given intoxilyzer tests by Officer Muzny. Both tests measured Hartman’s blood alcohol content (BAC) at 0.138.

Prior to trial, Hartman filed a motion to suppress, inter alia, testimony regarding the breath test given by George McDou-gall, Bexar County’s Breath Test Technical Supervisor. At the time of his testimony, McDougall was co-author of the Breath Test Operators Manual, which is used to train breath test operators throughout the state, and was an instructor for breath test [492]*492operators throughout South Texas. He had been certified by the Texas Department of Public Safety as an operator and technical supervisor for the Intoxilyzer 5000 breath test machine for more than 15 years.

At the motion to suppress hearing, McDougall testified that at the time of the test Hartman’s blood alcohol concentration was 0.138. From this, McDougall extrapolated that his blood alcohol concentration was between 0.110 and 0.15 or 0.16 at the time of the stop. When asked whether he knew what Hartman had eaten prior to the stop, his age, his drinking history, or his weight, McDougall testified that he knew only Hartman’s age. However, McDougall explained that he was able to testify regarding Hartman’s blood alcohol concentration range at the time of the stop because of his training in studying the effects of alcohol upon a person’s ability to safely drive a car; his study of how much alcohol it takes to reach a given alcohol concentration based on body weight; and his observations of over 2,000 students going through a complete drinking cycle at classes he taught at San Antonio College over the last seventeen years. McDougall also explained that the Intoxilyzer machine used for the breath test “already accounts for the subject’s body weight....” In short, McDougall repeatedly testified that, although he could not testify to a precise blood alcohol concentration level at the time of the stop, he could testify to a blood alcohol concentration range.

On cross-examination, counsel for Hartman and McDougall agreed that the standard elimination rate of alcohol is .02 per cent per hour. McDougall also testified that, while it would take one to two minutes for alcohol to begin to register in the body if a person drank a shot of alcohol on an empty stomach, it might take ten to fifteen minutes if the person had just finished a meal of meat and potatoes. Accordingly, if Hartman had just finished a full meal at the time of the stop — forty minutes before registering 0.138 on the Intoxilyzer — his blood alcohol concentration level at the time of the stop would most likely have been between 0.12 to 0.15. McDougall also testified, however, that it would not be remarkable for a person to maintain the same blood alcohol concentration level for forty minutes or longer, and that while a blood-alcohol concentration was more likely to “peak,” or climb and fall rapidly, when drinking on an empty stomach, a person drinking on a full stomach would be more likely to “plateau,” or maintain a more gradual blood-alcohol curve.

The trial judge denied Hartman’s motion to suppress, and the case was tried to a jury. At trial, Officer Muzny and McDougall testified and were vigorously cross-examined by Hartman’s counsel substantially as set forth above but in considerably more detail.

After the State rested, Hartman called his friend of twenty-eight years, Timothy J. McHugh. McHugh was the bartender who served Hartman the night of his arrest. According to McHugh, Hartman arrived about 8:30, had two gin and tonics in thirty to thirty-five minutes, and left for thirty to forty-five minutes. When Hartman returned, he ate dinner and had another drink and most of a fourth. Hartman was giving McHugh a ride home when he was stopped.

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Bluebook (online)
2 S.W.3d 490, 1999 Tex. App. LEXIS 5729, 1999 WL 591346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hartman-v-state-texapp-1999.